Part III is perhaps the most important part of the Constitution conferring fundamental rights on persons and citizens. These rights are considered inalienable and are in consonance with human rights enshrined in several documents of the United Nations such as the Universal Declaration of Human Rights (“UDHR”) and the International Covenant on Civil and Political Rights (“ICCPR”). Article 13 of the Constitution mandates that the State shall not make any law which takes away or abridges the fundamental rights conferred under Part III and any law made in contravention of this clause shall, to the extent of the contravention, be void. Article 14 guarantees to every “person” equality before the law or the equal protection of the laws within the territory of India. Article 21 guarantees that no “person” shall be deprived of his life or personal liberty except according to procedure established by law.
Part II of the Constitution deals with provisions relating to citizenship. Articles 5 to 10 deal with conferment of citizenship on persons at the time of commencement of the Constitution. Article 11 empowers Parliament to make laws with respect to citizenship. Interestingly, Article 6 which deals with migrants from Pakistan to India at the time of commencement of the Constitution does not specify that the migrants have to be of a certain religion.
In exercise of the power conferred under Article 11 of the Constitution, Parliament enacted the Citizenship Act. Section 2(1)(b) of the Citizenship Act defines “illegal migrant” as a foreigner who has entered into India without a valid passport or other travel documents or with a valid passport or other travel documents but remains in India beyond the permitted period of time.
Section 2(1)(h) defines “undivided India” to have the same meaning as assigned to “India” under the Government of India Act, 1935, as originally enacted. Section 311 of the Government of India Act, 1935 defined “India” to be British India along with the princely states. British India included modern day Pakistan and Bangladesh but not Afghanistan.
Sections 3 to 7 of the Citizenship Act deals with various modes of acquiring citizenship of India which include citizenship by birth, descent, registration, naturalisation and by incorporation of territory. It is pertinent to note that the modes of acquiring citizenship by registration and naturalisation are available to foreigners who fulfil certain specified requirements but not to “illegal migrants” (Sections 5 and 6). Interestingly, it should also be noted that one of the criterion on the basis of which a person can become an Indian citizen by registration under Section 5(1)(a) of the Citizenship Act is if he/she is a person of Indian origin who is ordinarily resident in India for a period of seven (7) years before making an application for registration. Explanation 2 to Section 5 clarifies that a person shall be deemed to be of Indian origin if he/she or either of his/her parents was born in “undivided India” or in such other territory which became part of India after 15 August 1947. Again, this definition does not make a distinction on the basis of religion and considers persons of all religions born in “undivided India” which included modern day India, Pakistan and Bangladesh as persons of Indian origin.
The CAA now seeks to carve out persons of certain specified religions (Hindus, Sikhs, Buddhists, Jains, Parsis and Christians together referred to as “Non-Muslims” hereafter for sake of convenience) from certain specified countries (i.e. Afghanistan, Bangladesh and Pakistan hereafter referred to as “Specified Countries”) from the definition of “illegal migrant” even though they may have entered into India without valid travel documentation and confer upon them the opportunity of applying for citizenship. It does this through the following amendments.
A proviso has been introduced to Section 2(1)(b) of the Citizenship Act whereby Non-Muslims from the Specified Countries who entered into India on or before 31 December 2014 shall not be treated as “illegal migrants” for the purposes of the Citizenship Act. By this proviso, the CAA carves out Non-Muslims from the Specified Countries from the broad class of “illegal migrants”. Then, the CAA inserts a new Section 6B into the Citizenship Act which explicitly confers the benefit of allowing applications for citizenship by registration or naturalisation on the Non-Muslims from the Specified Countries and confers consequent benefits of citizenship on them. The CAA also amends the Third Schedule of the Citizenship Act which prescribes the conditions for naturalisation and relaxes the duration of residence in India requirement to 5 years from 11 years for the Non-Muslims from the Specified Countries. A person can acquire citizenship by naturalisation if he/she is ordinarily resident of India for 5 years (throughout 12 months preceding the date of application and 4 years in the aggregate) and fulfils all qualifications in the third schedule of the Citizenship Act.
Source with edits, revisions, and with additions: Testing CAA On The Principles Of Constitutional Law by Avinash Amarnath
https://www.livelaw.in/columns/testing-caa-on-the-principles-of-constitutional-law-152194
Questions
1. Ahmadis are considered non-Muslims by many mainstream Muslims and face significant persecution and oppression In Pakistan. One such community of Ahmedis came to India on valid passports and visas in 2013. They now want to register themselves as citizens of India under the Citizenship Amendment Act. Decide on the basis of Citizenship Amendment Act,2019.
a. They will get the citizenship as they came to India before 2014
b. They will get the citizenship as they have stayed in India validly for more than five years.
c. They won’t get citizenship as they do not belong to the specified religion categorized under CAA.
d. They won’t get the citizenship because they belong to an enemy state.
2. Shoharban, was born in Lahore in 1943, but came to live in Delhi soon after partition. He applied for registration as citizen under S. 5 of the Citizenship Act in 1962. During his stay in India he visited his hometown twice for a period of 5 years each time. Will he succeed under the Citizenship Act?
a. Yes he will succeed as he started living in Delhi in 1947
b. No he won’t succeed as he completed the requirement of being a resident of India on continual basis for 5 years.
c. Yes he will succeed because he completed more than 5 years of stay in India
d. No he won’t succeed as he hasn’t completed the requirement of being a resident of India for 7 years before filing for registration.
3. Taslina Sherwani was born in Pakistan. She wrote a book in 1987 which caused a major uproar in Pakistan and all the state machinery as well as the public wanted to prosecute her, in fear of her life, she left Pakistan in 1989 and was granted asylum in India. She has been living in India ever since. Recently the central Government, creating an exception, accepted her request to grant Citizenship to her . She is a proud Muslim and is very happy about her new acquired citizenship. However her citizenship was challenged, under CAA, in the court, by a renowned lawyer Ashant Bhushan. Decide
a. The court will invalidate the citizenship as she is Muslim from Pakistan, and is not exempted under CAA.
b. The court will uphold the decision of central government to grant her citizenship, as the central government has the power to do so under Article 11 of Constitution.
c. The court will invalidate the citizenship status and will ask her to seek asylum again.
d. The court will order the government to accept the request of all Muslims who have asked for citizenship status.
4. Mili Irani is a Pakistani. She is a member of little Parsi community in Islamabad. She realized early in her life that there is acute discrimination against her community in Pakistan, and very little chance for her to succeed in any way. She always wanted to settle in India. After completing her graduation she applied for a visa in India and finally visited her dreamland in January 2014. Her visa expired after three months, but she didn’t want to go back so she went to Mumbai instead and started working at a film set. She is still in India and has applied for citizenship status. Decide
a. Her application will be rejected as she is an illegal migrant;
b. Her application will be accepted because she is working in India peacefully and not causing any harm to the security of India.
c. Her application will be rejected as she was never prosecuted in Pakistan and came to India only to reap greater benefits.
d. Her application will be accepted as she belongs to Non-muslim category and from one of the specified country.
5. Soniya Baghdadi is one of the Rohingya, who have managed to survive and also save her two sisters from prosecution by mob in her native country, somehow manages to cross Indian Boundary in January 2014. They belong to Muslim community. All three of them started working as labor in various places and was barely earning eat a meal each day. Then one day a Hindu fringe group became aware of them and started harassing them. They went to the police station to complain about it, but were taken straight to Detention Camps by the police, upon realizing that they were illegal infiltrators. Soniya requested to the government to grant her citizenship so that she can come into the manifold of society, will she succeed under the CAA.
a. Yes she will, as she has suffered a lot and the government can’t let her suffer anymore.
b. No, she won’t as she was snatching the employment of citizens of India and so the fringe group also targeted her.
c. No, she won’t succeed because she doesn’t fall into the non-Muslim category
d. Yes she will, as the courts are there to see and prevent her fundamental right and won’t let her encaged in the detention center just for being a Muslim.
Answers
1. C certain specified religions (Hindus, Sikhs, Buddhists, Jains, Parsis and Christians together referred to as “Non-Muslims” only are allowed to acquire citizenship under the new law.
2. D, The question asked according to the old Citizenship Act, and Section 5 of the same clearly states that the stay in India must be of 7 years before filing registration for citizenship.
3. B, article 11 empowers state to make laws and regulate citizenship; that includes the power to create exceptions. Adnan Sami is the live example.
4. D, self explanatory
5. C, Self explanatory
