Table of Contents
THE CONTEXT: The Citizenship (Amendment) Act (CAA) of 2019 and its subsequent rules notified by the Indian Ministry of Home Affairs have sparked significant controversy and legal challenges due to their selective criteria for granting citizenship. The Act amends the Citizenship Act of 1955 to provide a pathway to Indian citizenship for illegal migrants from Afghanistan, Bangladesh, and Pakistan, but only if they belong to Hindu, Sikh, Buddhist, Jain, Parsi, or Christian communities and entered India on or before December 31, 2014. This exclusion of Muslims, atheists, and agnostics from the Act’s provisions has led to accusations that the CAA undermines the secular ethos of the Indian Constitution and discriminates based on religion.
ISSUES:
- Selective Humanitarianism: The CAA’s focus solely on religious persecution as a criterion for granting citizenship while excluding other forms of persecution, such as linguistic or ethnic discrimination, suggests a narrow understanding of humanitarian needs. The exclusion of Muslims, including those facing persecution in neighboring countries and other groups, indicates that other motives may overshadow the Act’s humanitarian pretext.
- Violation of Constitutional Ethos: By discriminating based on religion, the CAA is argued to go against the principle of secularism, a core value enshrined in the Indian Constitution. Petitioners against the CAA argue that it is prima facie unconstitutional as it introduces a religion-based criterion for citizenship, which could undermine the country’s secular character.
- Potential for Dual Citizenship: The procedural critique that the CAA does not require applicants to renounce their original citizenship, potentially allowing for dual citizenship, raises concerns about its compatibility with the existing legal framework of the Citizenship Act of 1955. This aspect has been highlighted as a procedural flaw that could have broader implications for citizenship laws in India.
- International Obligations and Standards: Although India is not a signatory to the 1951 UN Refugee Convention or its 1967 Protocol, the principles outlined in these documents emphasize the need for a non-discriminatory approach to providing refuge and citizenship. The CAA’s selective criteria based on religion and country of origin would likely be at odds with these international standards, highlighting a departure from globally accepted principles of refugee protection.
- Exclusion of Other Persecuted Groups: The Act’s narrow focus on religious persecution excludes other persecuted groups, such as the Rohingya Muslims from Myanmar, who have faced severe discrimination and violence, or the Ahmadiyyas in Pakistan, who are also subject to persecution. This exclusion raises questions about the comprehensiveness and fairness of the Act’s approach to providing asylum and citizenship.
THE WAY FORWARD:
- Supreme Court Scrutiny: The Supreme Court of India, which is currently examining the constitutionality of the CAA, plays a crucial role. A thorough judicial review that assesses the Act’s compliance with the Constitution, especially concerning Article 14 (Right to Equality) and the principle of secularism, is essential.
- Amendments to the Act: Depending on the outcome of the judicial review, amendments may be necessary to ensure that the CAA aligns with constitutional principles. This could involve expanding the eligibility criteria to include persecuted individuals from all religions and nationalities, thereby addressing concerns of discrimination and exclusion.
- Inclusive Criteria for Asylum: The government could consider broadening the criteria for asylum and citizenship to include individuals facing persecution for reasons beyond religion, such as ethnicity, gender, political beliefs, or sexual orientation. This would align India’s approach with international standards on refugee protection.
- Comprehensive Refugee Policy: India lacks a comprehensive legal framework for refugees. Developing a national refugee policy that outlines clear criteria for asylum, the rights and obligations of refugees, and a pathway to citizenship in line with international standards could provide a structured approach to handling refugee issues.
- Protection of Rights: It is crucial to ensure the protection of the rights of all migrants and refugees, regardless of their citizenship status. This involves safeguarding them from discrimination, violence, and exploitation and ensuring access to basic services.
- Inclusive Public Discourse: Encouraging a more inclusive and informed public discourse around the issues of refugees, migration, and citizenship can help reduce societal tensions and misconceptions. Engaging civil society, media, and educational institutions in spreading awareness and fostering empathy towards refugees and migrants is vital.
THE CONCLUSION:
The Citizenship (Amendment) Act 2019 raises significant constitutional, humanitarian, and legal concerns about its selective and exclusionary approach. Its focus on religious persecution to the exclusion of other forms of persecution and its discriminatory treatment of certain groups, particularly Muslims, is at odds with the principles of equality, secularism, and non-discrimination enshrined in the Indian Constitution and recognized in international human rights norms. Addressing these concerns requires reevaluating the Act’s provisions to ensure they align with India’s constitutional values and obligations under international law.
UPSC PAST YEAR QUESTION:
Q.1 The Constitution of India is a living instrument with enormous dynamism capabilities. It is a constitution made for a progressive society. Illustrate with reference to the expanding horizons of the right to life and personal liberty. 2023
MAINS PRACTICE QUESTION:
Q.1 Critically analyse the Citizenship (Amendment) Act, 2019, considering the principles of the Indian Constitution and international norms on refugee protection.
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