Is the Indian Citizenship Amendment Act (CAA) unconstitutional?

Written by Jana Awez

The law, which comes into force on the eve of elections, creates India’s first religion-based citizenship test, discriminating against Muslims and some other refugees.

This decision on the CAA – whose passage in parliament had set off protests across the country five years ago over allegations of an anti-Muslim bias – comes weeks before Prime Minister Narendra Modi seeks a third term in office through national elections.

Is the Indian Citizenship Amendment Act (CAA) unconstitutional? Let’s dive into the legal aspects and understand the controversy surrounding it.

The CAA, passed in December 2019, grants #citizenship to non-Muslim illegal immigrants belonging to Hindu, Sikh, Buddhist, Jain, Parsi, and Christian communities who escaped to India from religious persecution in Muslim-majority Pakistan, Afghanistan, and Bangladesh and arrived in India before 2015.

The people belonging to six religions from Afghanistan, Bangladesh, or Pakistan will be granted Indian #citizenship if they enter India on or before December 31’ 2014, even if they do not possess the required documents.

Critics argue that The Act is prima facie unconstitutional and it is highly unlikely that it will pass the litmus twin tests of Articles 14, 15, and 21 of the Constitution of India. it violates the principles of secularism enshrined in the Indian Constitution.

Article14 of the Indian Constitution guarantees equality before the law. Opponents of the CAA argue that by providing preferential treatment based on religion, it discriminates against Muslims and violates this fundamental right.

Before the CAA, India’s citizenship law did not make religion a determinant of a person’s eligibility for an Indian passport. All those seeking naturalization had to show that they were in India legally, and needed to wait for the same period – 11 years – to become eligible for citizenship.

This many legal experts have argued that the act violates this provision by excluding Muslims from its scope, it violates Article14 of the Indian Constitution, which says: “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 #CAA is also seen as conflicting with #Article15, which prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth. That’s what the #CAA changes – introducing for the first time in independent India’s history – a religious test for citizenship.

Another point of contention is Article21, which guarantees the right to life and personal liberty. Critics argue that the CAA infringes upon this right by potentially rendering millions of people stateless and vulnerable to deportation.

In National Human Rights Commission vs State of Arunachal Pradesh (1996) 1 SCC 742, the Hon’ble Supreme Court of India had held that the fundamental right to life and liberty guaranteed by #Article21 of the constitution is also available to non-Indian citizens. This proposition of law still holds the field.

“The Citizenship Amendment Act is a bigoted law that legitimises discrimination on the basis of religion and should never have been enacted in the first place. Its operationalization is a poor reflection on the Indian authorities as they fail to listen to a multitude of voices critical of the CAA – from people across the country, civil society, international human rights organizations and the United Nations,” said Aakar Patel, chair of board at Amnesty International India.

The operationalization of the Citizenship Amendment Act (CAA) 2019 is a blow to the Indian constitutional values of equality and religious non-discrimination and is inconsistent and incompatible with India’s international human rights obligations, said Amnesty International.

There are more than 200 petitions against the law still pending before Indian courts even as the CAA has come into effect. Modi’s Bharatiya Janata Party government has denied that the law is discriminatory towards Muslims, arguing that it only seeks to protect those escaping religious persecution.