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Implementation of CAA rules in accordance with the 2019 manifesto: Inclusion of Non-Muslims v/s Exclusion of Muslims – Preference or Discrimination

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Introduction

The Union government on March 11th issued the rules for the Citizenship (Amendment) Act, or CAA, four years after the passing of the controversial law. The amendment seeks to fast-track the citizenship to Hindus, Sikhs, Buddhists, Jains, Farsis and Christians who entered India from three neighbouring countries Afghanistan, Pakistan and Bangladesh on or before December 31, 2014. These rules enable the minorities persecuted on religious grounds in Pakistan, Bangladesh and Afghanistan to acquire citizenship in our nation.

Background of the issue

The rationale to amend the Citizenship Act of 1955 is deeply related to the history of India. Before the Lok Sabha elections in 2014, BJP vowed to grant citizenship to Hindus prosecuted in the neighbouring nations. The Government, with respect to that, framed a few policies for the benefit of the Hindu communities from neighbouring nations who took shelter in India. One among them was the Citizenship Amendment Act, 2019 which provided concessions to minorities from Bangladesh, Pakistan and Afghanistan to obtain citizenship in India.

The Citizenship Amendment Bill was passed in the Lok Sabha on January 8, 2019, despite the intense objection and protest from the opposition party. Later, on December 11, 2019, the bill was approved in the Rajya Sabha altering the Citizenship Act of 1955 and received the President assent on 12 December 2019,

The law paved a path towards Indian Citizenship for the persecuted minorities (Hindus, Sikhs, Buddhists, Jains, Parsis, or Christians) from Afghanistan, Bangladesh, and Pakistan who arrived in India at the end of December 2014.   The act also eliminates the requisite for neutralization from less than eleven years to less than five years. The amendment also eased the residence requirement of these migrants for naturalization from 12 years to 6 years. The Amendment was fundamentally criticized for not providing this kind of Citizenship to Muslims in these Muslim-majority nations. This marked the first occasion religion was utilized as a criterion to be a citizen under Indian law and drew international criticism. The Office of the United Nations High Commissioner for Human Rights (OHCHR) declared it “fundamentally discriminatory”. The Indian government’s “goal of protecting groups that are being targeted is a good thing” must be achieved through an equal and non-discriminatory “robust National asylum system”. criticised as discriminating based on religion, specifically by excluding Muslims.

CAA rules, 2019

The 39-page Rules notified in the e-gazette on Monday prescribe the modalities and procedure for eligible individuals to apply for Indian citizenship. The Rules specify what documents and paperwork are required for putting forward and considering a claim of citizenship.

The government exercised its power conferred under Section 18 of the Citizenship Act, 1955 to further amend the Citizenship Rules, 2009.

Rule 10A – Eligibility criteria and requisites for the grant of citizenship by registration or naturalisation under Section 6B.

  • The person must be national of any one of the following countries Pakistan, Afghanistan,
  • The person belongs to any one of the following minority communities in the respective country Hindu, Sikh, Jain, Buddhist, Parsi,
  • The person must have been entered in India on or before 31st December, 2014.
  • The rule states that a person of Indian origin, person married to a citizen of India, minor child of a citizen of India, person whose parents are registered as citizens of India, person who is registered as an Overseas Citizen of India Cardholder shall be eligible to make an application for the grant of citizenship. The applicants must comply with the provisions of Section 5 and submit the applications in prescribed forms.
  • Any individual who has resided in India throughout the period of 12 months immediately before making an application for registration or been in the country during the 8 years immediately preceding the said period of 12 months for a period of not less than 6 years. Thus, the rule relaxed the residence requirement for naturalization of the migrants from twelve years to just six years.

Further, the person opting for citizenship by naturalization shall fulfill the qualifications under the third schedule by providing the following documents –

  1. An affidavit verifying the correctness of the statements made in the application, along with an affidavit from an Indian citizen testifying the character of the applicant.
  2. A declaration from the applicant that he has adequate knowledge of one of the languages as specified in the Eighth Schedule to the Constitution.

Every application made under this rule must include the following documents –

  1. a copy of any one of the documents specified in Schedule IA;
  2. a copy of any one of the documents specified in Schedule IB; and
  3. an affidavit in format specified in Schedule IC.

Procedure to apply for Citizenship – Rule 11A and 13A

  • Submission of Application – The applicant shall submit an application for registration or naturalization under section 6B in electronic form to the Empowered Committee through the District Level Committee as may be notified by the Central Government.
  • Acknowledgement – On submission of the application, an acknowledgement in Form IX shall be generated electronically.
  • Document Verification – The District Level Committee led by the Designated Officer, verifies the documents submitted along with the application.
  • Oath of Allegiance –The Designated Officer administers the oath of allegiance specified in the Second Schedule to the Citizenship Act, 1955, to the applicant. The signed oath, along with confirmation of document verification, is forwarded electronically to the Empowered Committee.
  • Refusal Consideration –The Committee has the power to reject the application if an applicant fails to appear in person despite reasonable opportunities.
  • Scrutiny of Applications – The Empowered Committee referred to in rule 11A scrutinizes the application for grant of citizenship under section 6B to ensure that the application is complete in all respects.
  • Grant of Citizenship – The Empowered Committee may grant the applicant the citizenship of India if, it is satisfied that the applicant is fit and proper person to be registered/naturalized.

List of documents to be attached with the prescribed forms –

  • A copy of any one of the document in Schedule 1A ( Annexure – 1)
  • A copy of any one of the document in Schedule 1B ( Annexure – 2)
  • An Affidavit in format as in Schedule 1C ( Annexure – 3)
  • A copy of the valid or expired Foreign Passport, If available
  • A copy of the valid or expired Residential Permit, If available
  • Evidence of the date of birth of the parents or Evidence of his/her husband’s /wife’s Indian Nationality a copy of the passport or birth certificate as the case may be.

Schedule 1A provides for a list of documents that the applicant must submit in order to prove that he/she is a national of any of the three countries (Afghanistan/Bangladesh/Pakistan)

Schedule 1B provides for a list of documents that the applicants must submit in order to prove that he/she has entered into India on or before 31st December, 2014

Assam and CAA

The National Register of Citizens is a registry of all lawful citizens. Its creation and maintenance were made mandatory by the amendment in 2003 to the Citizenship Amendment Act. In January 2020, the NRC was only implemented in states like Assam. However, the BJP has promised to implement it across the entire country of India in its election manifesto. The NRC records all legally-qualified citizens to ensure that those who are not documented could be deemed illegal immigrants (often known as “foreigners”). The NRC’s experience with Assam NRC shows that many individuals were classified as “foreigners” because their documents were considered insufficient.

It is criticized that the current amendment to the Citizenship Act provides a “shield” for non-Muslims who can claim that they were refugees fleeing from the persecution of Afghanistan, Pakistan or Bangladesh. Further, it also protested for excluding Muslims from the same benefits.

The Legal Challenge

The amendment was challenged before the Supreme Court in 2020 by the Indian Union Muslim League (IUML). Since then, the validity of CAA is challenged before the SC through more than 200 petitions. The petitions include the Cong leader Jairam Ramesh, the Indian Union Muslim League, and it’s MPs, Lok Sabha MP and AIMIM president Asaduddin Owaisi, Ramesh Chennithala, RJD leader Manoj Sha and TMC leader Mahua Moitra, and political organisations such as the Assam Pradesh Congress Committee, Asom Gana Parishad (AGP), National People’s Party (Assam), Muslim Students’ Federation (Assam), and Dravida Munnetra Kazhagam (DMK).

The law has been questioned on the grounds of religious discrimination against Muslims and arbitrariness. The Centre filed affidavit stating that the issue was not amenable to judicial review since matters of citizenship, immigration and foreign policy fall squarely within the domain of Parliament.

In October 2022, a Bench comprising then Chief Justice of India U U Lalit and Justices Ravindra Bhat and Hima Kohli passed an order stating that final hearings would begin in December 2022 after CJI Lalit’s retirement. However, the cases on arbitrariness of CAA and pleas against the validity of Section 6B have not been heard since. According to the Supreme Court website, the case is currently listed before a Bench headed by Justice Pankaj Mithal.

The Right to Equality

The challenge to the CAA rests on the ground that it violates Article 14 of the Constitution, which says that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. The petitioners’ argue that using religion as a qualifier or a filter violates the fundamental right to equality.

The petitioners have argued that the National Register of Citizens (NRC) in Assam to identify illegal immigrants, along with the CAA, will result in the targeting of Muslims.

The court will have to look into whether the special treatment given to the so called “persecuted minorities” from the three Muslim-majority neighbouring countries only is a reasonable classification under Article 14 for granting citizenship, and whether the state is discriminating against Muslims by excluding them.

The Supreme Court has to satisfy the equality test under Article 14 laid down in its previous decisions. Firstly, the differentiation between groups of persons must be founded on an “intelligible differentia”, and second, “that differentia must have a rational nexus to the object sought to be achieved by the Act”.

The government has said that Muslims have been excluded from the group of “persecuted” minorities because Pakistan, Afghanistan, and Bangladesh are Islamic countries where Muslims are in majority. However, it will be tested whether these three countries were picked to provide preference to the non-muslims in these three countries or essentially to keep Muslims out of its framework. This question is important because the groups like Tamil Hindus in Sri Lanka, the Rohingya in Myanmar, or minority Muslim sects like Ahmadiyyas and Hazaras have not been provided with the same concession though being persecuted minorities in these countries.

Hence, this is a larger issue of making religion a ground for eligibility for citizenship that needs to be adjudicated by a Constitutional Bench and inquire if it violates secularism, which is a basic feature of the Constitution.

Conclusion

The Citizenship Amendment Act, 2019 is indeed a humanitarian step taken by the Government. In a world where fear and oppression, the CAA provides a ray of hope, to the refugees facing discrimination and persecution in neighboring countries like Pakistan, Afghanistan, and Bangladesh. The Government while taking such bold steps should also realize the implications of it on the society. The concerns of the Muslims must be taken into consideration and clarity must be provided on the same. It is thus, pertinent for the government to address both diversity and inclusivity.

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