70yrs of Indian Constitution: Revising the concept of citizenship in wake of the Amendment Act
Author: Miss Arya Abhijit Asolkar
Designation: 2nd yr law student, Maharashtra National Law University
The concept of ‘Citizenship’ stems from political philosophy. It is a framework for political democracy and individual autonomy as well as an intellectual and political tradition that connects the modern era with antiquity. Citizenship includes the legal and political recognition of a person as a member of a community; which carries within it the recognition of his/her civil, political, and social rights. Every nation-state has the authority to determine the conditions which will recognize persons as citizens of the state and the conditions under which this status will be withdrawn. As far as the Indian context is concerned, all aspects surrounding citizenship have been incorporated in Part II: (Articles 5-11) of the Indian Constitution. The President is termed as the first citizen of the country and the constitution recognises Single Citizenship.
The newly amended act has brought instrumental and stringent changes pertaining to citizenship in India. The Citizenship Amendment Act, 2019 has undoubtedly given rise to controversies, concerns and has impacted the entire country. Hence, it is of utmost significance and relevance that a thorough understanding of the evolution of the Act takes place in order to understand the concept of citizenship and its journey within India’s Constitution.
Before the CAA 2019, the status of citizenship was governed by the Citizenship Act, 1955. It laid down rules for determining and acquiring citizenship of India, the 5 methods are listed below:
• by birth • by descent • through registration • by naturalisation • incorporation of a foreign territory into India
It also provides instances which may lead to loss of citizenship; the grounds are: renunciation, termination and deprivation. The Act also covers special provisions of citizenship for people covered by the Assam accord and mentions aboutOverseas Citizen of India Card, for people who were once citizens of India but are now citizens of another country. This law has been amended time and again, the latest amendment being done in 2019. A short description of the provisions inserted during the time-period between 1955 and 2019 has been mentioned below:
1986 - to be a citizen of India, one of the parents had to be an Indian citizen during the time of birth
1992 - a person born outside India shall be a citizen of India by descent, on or after 26
January 1950 but before 10 December, 1992, provided that his father is a citizen of
India at the time of his birth.
2003 - inserted Section 14A, which provides for conduct of a National Register of Citizens
[NRC] and the concept of ‘illegal migrants’ was introduced
2005 - concepts and citizenship rights of Person of Indian Origin [PIO] and Overseas Citizen of India [OCI] were introduced.
2015 – The above two schemes were merged under a new concept ‘Overseas Citizen of
India Cardholder’ [OCC].
After this came the 2019 amendment, which is crucial in order to understand the structure of citizenship in India in the present scenario. The Citizenship (Amendment) Bill, 2019 was introduced in the Lok Sabha by Amit Shah, Minister of Home Affairs and the bill was passed by the Parliament of India. On 12th December 2019, the President of India gave his assent and the Act came into force. The CAA, 2019 amends the Citizenship Act, 1955 by inserting the following provision, among others:
It provides that ‘illegal migrants’ who fulfil the following conditions will not be treated as illegal migrants under the Act and thus will be eligible for acquiring Indian Citizenship:
they should belong to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community
from the countries of Afghanistan, Bangladesh or Pakistan
who entered into India on or before the 31st day of December, 2014
who have been exempted by the Central Government under the provisions of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946
Just like every coin has two sides, even this amendment had to face arguments from both opposition and supporting parties. Critics strongly believed that CAA 2019 is unconstitutional and discriminatory [in many ways]. They are of the opinion that the amended act fundamentally violates the secular fabric of the state by making ‘faith’ a condition of citizenship. They question the basis of the selection of the three countries. The amendment simply mentions 6 minority communities which exclude Muslims, Jews and Atheists, which is reflective of violation of Article 14 (equality before law) and Article 25 (Freedom of religion). They claim that the amendment is against the letter and spirit of the Assam Accord of 1985.
Despite these arguments, the fact remains that the CAA 2019 is perfectly legal and constitutional. The Parliament of India has got the exclusive power to make laws with respect to any matters listed in the list one in 7th Schedule of the Constitution; within which item 17 deals with citizenship and naturalisation of aliens. This means that no constitutional provision has been infringed and hence the Act cannot be invalidated on the ground of lack of legislative competence. Despite this assurance, the aftermath of the enactment of the act saw considerable chaos, so it is hoped that the strong decision taken by the government bears its fruits, if not immediately then some time later. The notion of citizenship has undergone evolution along with the Constitution of India throughout this seventy-year long journey and with changing circumstances and needs, it will experience amendments in the future as well.