Date: 14/09/2022

Relevance: GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

Key Phrases: Citizenship Amendment Act 2019, Citizenship Act of 1955, illegal migrants, Discrimination based on religion, the plight of the minorities affected by Partition, religious persecution, Citizenship’s constitutional value and status, 1951 Refugee Convention.

Why in News?

• The Supreme Court is scheduled to hear the arguments on the constitutional validity of the Citizenship Amendment Act 2019.

Questions Before Supreme Court:

• Discrimination based on religion:
  • The first question for the Supreme Court is whether this “religious test” for Indian citizenship is arbitrary and discriminatory.
  • In its counter affidavit filed in the court, the government has argued that the CAA does not discriminate based on religion but provides relief to persecuted minorities in the region.
  • The government will still need to justify limiting CAA’s benefits based on religion and countries of origin.
  • This is because Indian constitutional law requires that the government must show a “rational connection” between the law’s purpose and the distinctions the law makes among groups.
  • Muslim groups like Ahmadiyyas, Shias, Rohingyas, and Uyghurs, and non-Muslims like Sri Lankan Tamils, Tibetan Buddhists, and the Lhotshampa continue to be persecuted in India’s neighbourhood.
  • The burden for the government will be to show why choosing only non-Muslim minorities from three countries satisfies the CAA’s proclaimed purpose of addressing persecution.
• The plight of the minorities affected by Partition:
  • The most accessible argument for the government is that the CAA addresses the plight of the minorities affected by Partition.
  • In its affidavit, the government has argued that under the 1950 Nehru-Liaquat Pact, India and Pakistan had promised “complete equality of citizenship” and “a full sense of security” to their religious minorities.
  • The failure of Pakistan and by extension today’s Bangladesh to honour this promise, according to the government, justifies targeting relief to non-Muslim refugees from these two countries.
  • The Act’s exclusion of immigrants after 2015 also appears inconsistent with the law’s apparent purpose of addressing persecution, which is ongoing by all accounts.
  • According to some critics, these anomalies show that the real aim and effect of the CAA is to selectively give citizenship to the alleged Hindu undocumented immigrants living in regions like Assam.
  • The Supreme Court will have to consider whether under the law it should take the government’s claims at face value or inquire deeper into its motives.
• CAA’s ambiguities:
  • It does not define “persecution” or provide meaningful guidance about what beneficiaries will need to prove beyond their religious identity.
  • It is also unclear if Muslim immigrants would qualify under the CAA if they convert to Hinduism.
  • This scenario raises the alarming possibility of religious coercion and violation of religious liberty.
  • The Court will need to decide if these issues with serious implications for individual rights can be left for the government to formulate later under the rules.
• International laws:
  • While India is not strictly bound to respect asylum and other refugee rights as a non-signatory to the 1951 Refugee Convention, religion-specific grant of citizenship and disqualification of Indian-born children based on their parent’s religion under the CAA violates international human rights law.
  • Indian courts ordinarily do not directly enforce international law but have historically interpreted India’s internal laws in its light.
• The legality of parliament’s power:
  • The government has argued that Parliament as the “sovereign” has unrestricted powers to decide qualifications for Indian citizenship.
  • There are good reasons to be sceptical of this expansive position, not least because such unlimited powers would permit Parliament to even deprive Indians of their citizenship.
  • The Supreme Court is more likely to establish a medium ground that acknowledges the expansive powers of Parliament while also defining its boundaries since it is more constitutionally tenable.
• Citizenship’s constitutional value and status:
  • What these limits are will be the most significant legal contribution of the case and will depend on what the Court determines to be citizenship’s constitutional value and status.
  • Though citizenship status is not a fundamental right, it still has a profound bearing on individual liberty, freedom, and dignity.
  • The Court will have to carefully consider if excluding long-term refugees and their Indian-born children from Indian citizenship, who do not have meaningful recourse to any other country’s citizenship, violates the rights they enjoy as persons under the Constitution.
  • It will also have to consider if selectively granting citizenship to such refugees based on ethnicity or religion aggravates this violation.

Conclusion:

• The onus is now on the Supreme Court, being the Guardian of the Constitution, to interpret the provisions of the Act and test its Constitutionality that whether the “classification” done in the Act is “reasonable” or not if tested against Article 14.
• It will be seen if the Court is willing to recognize that citizenship, even if not explicitly a right under the Constitution, constitutes the very foundation of our constitutional republic.
• By this measure, the “religious test” of citizenship under CAA will also have to be assessed on how it alters our constitutional identity as a secular and inclusive polity that belongs to all its citizens irrespective of their religious faith.

Source: Indian Express

Mains Question:

Q. Critically examine the concerns raised over the legality of the "Citizenship Amendment Act (CAA) 2019"? Also, discuss its impact on the secular and inclusive constitutional identity of India.