Constitutional Validity of Citizenship Amendment Act (CAA)
As to get to know about the constitutionality of the Act it is important to know that what the amendment comprises off and how does it operate as the amendment under the Indian constitution held under Article 368 of the Indian Constitution under which it has been held that Parliament has the power that they can amend any act of the country without changing the basic structure of the constitution. So to understand that whether the act is constitutional or unconstitutional we have to know about the following amendment i.e. whether the amendment does any kind of problem towards the citizen of the country and how the act works whether it is taking the citizenship from the people of the country or they are discriminating based on the religion. As the whole matter will be looked into the following
Introduction
So, for understanding the constitutionality of CAA there has to be proper understanding that What is CAA? As the citizen (Amendment) Act, 2019 (CAA) is an act that was passed in the parliament in December 2019. The 2019 CAA amended the citizenship act of 1955 allowing Indian citizenship for Hindu, Sikh, Buddhist, Jain, Parsi, and Christian religious minorities who came from the Muslim Minority countries of Pakistan, Bangladesh, and Afghanistan before December 2014. as these communities came from these sought of countries where there was not much freedom of religion ad they were being pressurized to follow the particular religion or there is a certain fear of religious persecution. Like the word,” illegal immigrants” given in section 2(1)(b) of the citizenship Act. It has also reduced the period of acquisition required for getting citizenship through naturalization from 11 yrs to 5 yrs for these communities. As now we need to get the concept of illegal immigrants under the Citizenship Act 1955 As according to section 2(1)(b) of the act mans foreigners who enter India through certain means
1. Without valid passport or other travels documents and such other document or authority as may be prescribed by or under any law in that behalf; or
2. With valid documents but stays in India beyond the permitted time.
Ascertain laws are governing the concept of illegal immigrants where illegal immigrants can be deported or imprisoned according to the passport (entry into India) Act, 1920, and the foreigner’s Act, 1946. these Acts provide for regulation regarding entry and exit of the foreigners by the Central Government. As under both these acts, I.e. passport and foreigners act certain provisions are related to the illegal immigrants as under section 3(2) of the Foreigners Act, the central government has the power to order the deportation of a foreign national. This power to deport or identify foreign nationals has also been given to state government, Union territories, and the Bureau of Immigration.
As about the passport (Entry into India) Act, 1920 Section 5 of this act says that the central government has the power to directly remove any person who has entered into India illegally. It covers such a person who has entered without a passport or has not complied with the conditions of the passport. As according to certain articles there were no such provisions related to canceling the registration of an Overseas Citizen of India(OCI) where such person has violated the provisions of the Act or any other law for time being in force, and the opportunity of being heard was also not available to them. So, there were certain sites on the internet that was in support of the Act as they have there though that the acts needed to reform. Bout the into regarding the citizenship Amendment Act is Not enough there were also certain provisions related to the registration of those documents as the whole violence is towards the showing of the document in the country.
l Citizenship by birth- Section 3
Every person who is born in India by birth will be regarded as the citizens of India
l Citizenship by descent- Section 4
This concept lays down that if the father or grandfather I.e. if any person born outside India but either of his parent is an Indian citizen at the time of his birth.
l Citizenship by registration- Section 5
Any person may be registered by the central government as a citizen of India, on his application, if such person is not an illegal immigrant
l Citizenship by Naturalization- Section 6
A foreigner who is not an illegal immigrant and is ordinarily resident in India for twelve years( throughout twelve months immediately preceding the date of application and for eleven years in aggregate in the fourteen years immediately proceeding twelve months) can get citizenship in India by Naturalization subject to other qualifications as specified in the Third Schedule to the Act.
l Citizenship by incorporation of territory- Section 7
Where a territory becomes the part of India, the central government may by its order specify the persons who shall become citizens of India because of their connection with that territory.
The Citizenship (Amendment) Act,2019 seeks to amend the Citizenship Act, 1955 by giving Citizenship rights to illegal immigrants belonging to certain religious minorities who have entered into India on or before 31st December 2014 after persecution in the countries of Pakistan, Afghanistan, and Bangladesh. It has also relaxed the time limit for getting citizenship By Naturalization from 11 yrs to 5 yrs for these communities. The amendment has also made new provisions regarding an overseas citizen of India (OCI) cardholders. As under the act of these communities that were discussed above as in 2015 changes were also there in foreigners and passport act to allow non-Muslims, refugees, from these countries to stay back in India even they have entered without valid documents. The government has favored these communities on the basis that these are persecuted minorities in three countries. As under this amendment, they have left out illegal immigrants belonging to the Muslim community of Afghanistan, Pakistan, and Bangladesh. Although Muslims are considered to be the largest minority religion of India. So under this amendment, they have not been included as they are not included for the citizenship rights and there have not been the Sri Lankan Tamils and Rohingyas Muslims in Myanmar who face certain religious fear or persecution from their respective countries that have been included under the amendment.
Whether the Act is Constitutional or Unconstitutional?
So, there has been a backlash that has been faced by the central government regarding the amendment of this act as a certain section of the society was putting allegations on the central government that there was religious discrimination by the central government as said by different activists and certain politicians. So if we looked at the constitution of India under Article 14 which says theta the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India based on religion, caste, race, sex, or the place of birth. The basic concept of Article 14 is that every person is equal in the eyes of law of any religion and the word that has been inserted under the article 14 is “within the territory of India” which means that no person can do any kind of religious discrimination within the territory of India whether he comes from the different country there can’t be any kind religious discrimination. The concept of Article 14 has also inserted the doctrine of Basic structure which means that the parliament has the power of amending the laws but without changing the basic structure of the constitution. As the constitution empowers the parliament and the state legislature to make laws within their respective jurisdiction. As the parliament has the power but that power is not absolute in case if the supreme court finds any bill to violate the basic structure they have the power to declare the law invalid. According to the doctrine, the parliament cannot destroy or alter the basic structure of the doctrine. There are certain cases related to the basic structure :
1. Shankari Prasad v. Union of India
The parliament under Article 368 has the power to amend any part of the constitution
2. Sajjan Singh v. the State of Rajasthan
The parliament has the power to amend any part of the constitution
3. Golaknath v. State of Punjab (1967 AIR 1643, 1967 SCR (2) 762)
The parliament is not powered to amend Part 3 (Fundamental Rights) of the constitution
4. Keshvananda Bharti v. State of Punjab (1973 4 SCC)
The parliament can amend any provision but can’t dilute the basic structure of the constitution
5. Indira Gandhi v. Raj Narain (1976 (2) SCR 347)
Under this case, the Supreme Court reaffirmed its concept of Basic Structure. The court also recognized the Right to equality as one of the basic features of the constitution. This rule is not absolute and permits classification between groups of people if there exists some rationale that serves a reasonable purpose, as was held in the case of State of West Bengal v. Anwar Ali Sarkar.
As the main concept that is the concept of secularism has been laid down under the case of SR Bommai v. Union of India (1994 AIR 1918, 1994 SCC (3) 1) it was held that secularism is a part of the basic structure. Therefore, any Act passed by the parliament must not be against secularism. So, the concept of secularism has been stated under this case mentioned above. As they have not included the Muslims from the respective countries that have been mentioned in the bill as it is not that these Muslim s whether Rohingyas or the Muslims from Pakistan does not face any kind religious persecution there areas certain cases were these Islamic countries also create for these people like Shias under Pakistan there Sri Lankan Tamils are also not being included they are certain case which shows that these people are facing religious persecution. So, these arguments are facing by the central government regarding the violation of Article 14 and the violation of secularism as under the 42nd amendment of the Indian constitution there has been inserted the concept of secularism. As it has been said that secularism is the main part of the Indian Constitution. As if we looked at these arguments there is a possibility that the act can be regarded as unconstitutional.
What was the need for amending the Citizenship Amendment Act, 1955?
According to the central government, there is a need for amending the following act as they think that there is a need to give an identity for those who are facing religious persecution in the countries of Afghanistan, Pakistan, and Bangladesh. Before this Act, there were certain cases were their immigrants who were entering illegally. So, the amended Act seeks to give these people Indian Citizenship who have come under India after persecution in the three Countries.
As the central government has taken these measures following certain religion under which they have not included certain religions such as Muslims and Sri Lankan Tamils.
Conclusion
So, after reading the act certain things needed to be included under the following amendment by the central government as the concept of secularism has been neglected by the central government and there has been a violation of the Article 14 if we look at the constitution of India there were certain cases related to the basic structure of the constitution and the reasonable classification has been neglected by the central government. So, with the certain precedents and doctrines of the constitution, it can be clearly said that the particular Amendment is said to be of Unconstitutional in nature by looking at the articles and certain and the as described that the concept of secularism has been inserted under the 42nd amendment
BY-Deepankar chugh
