Citizenship Act, 1955: Critical Analysis of CAA & NRC
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Journal of Constitutional Law and Jurisprudence
Volume 3, Issue 1
www.stmjournals.com
Citizenship Act, 1955: Critical Analysis of CAA & NRC
Monika Jain*
Senior Advocate, High Court of Delhi, New Delhi, India
Abstract
The Indian thought of nationality as in material form in the Constitution and the regulation is
in the throes of a hypothetical and most important insurrection. The double mechanisms of
this modification are the National Register of Citizens and the Citizenship Amendment Act.
But the previous is figurine out passageways to statelessness for on the breadline
assemblages, the second is creating alleyways to nationality for preferred crowds. At the same
time as the first is, notwithstanding the threatening of its adding up transversely India, at
present inadequate to the state of Assam, not merely do the two requirements to be understood
at the side of every additional, mutually of these in revolve necessitate to be understood in the
bigger circumstance of the administration guidelines towards minorities, whether in the
obligatory improvement of Muslim women by the criminalization of the triple talaq or the
move towards behind tough lying on, in view of the fact that near the beginning of August, in
the previous state of Jammu and Kashmir. They in addition require to be comprehended in the
surroundings of enlarge of velocity of aggression next to minorities above the long-ago not
many years, for the most part by guardian thread up crowd who have been flourishing on
inauguration of authorized indemnity. A sufficient appreciative of equally the National
Register of Census and the Citizenship Amendment Act depends on an authorization of the
arrangement for minorities represented by these dual observable facts, instigate on or after
the circumstances and civilization in that organization 3.
Keywords: National Register of Citizens, Citizenship Amendment Act, migrants, government,
India, minorities, administration, civilization, criminalization, triple talaq.
*Author for Correspondence E-mail: advmonikajain@gmail.com
INTRODUCTION mostly Bengali Hindu’s. Over the years since
India was partitioned in 1947 and two new 1947, and later post 1971, the members of the
countries and geographies were created. minority religions of Pakistan, Bangladesh and
Pakistan in the form of West and East Pakistan even that of Afghanistan, comprising mainly
was created as the Islamic Republic and India of Hindus, Christians and Sikhs, on facing
was a republic whose constitution said that it persecution have looked for refuge in India.
would be a secular nation. The partition
displaced 10 million people and saw the CITIZENSHIP (AMENDMENT) ACT
largest migration of people in history. In spite 2019
of the migration, a sizeable number of people The parliament of India passed the Citizenship
belonging to religions other than Islam stayed (Amendment) Act, 2019 on 11 December
behind in the new Pakistan and became 2019 [1]. This amendment to the 1955
citizens of the new Islamic Republic. In 1971, Citizenship Act makes those refugees
a revolution in East Pakistan resulted in the belonging to minority religions specifically
independence and creation of the Peoples Hindus, Sikhs, Buddhists, Jains, Parsis and
Republic of Bangladesh, a new country carved Christians who may have come to India as
out of Pakistan. This was due to the rise of refugees before 31 December 2014 from the
Bengali Nationalism, but a country whose three Islamic countries of Afghanistan,
official religion continued to be Islam is also Bangladesh and Pakistan, eligible for Indian
the fourth-largest Muslim majority nation in citizenship [2]. The Citizenship (Amendment)
the world, comprising of about 10 per cent of Act, 2019 has reduced the minimum residency
the population belonging to minority religions, period for the above category of immigrants to
JCLJ (2020) 7–19 © Law Journals 2020. All Rights Reserved Page 7Citizenship Act, 1955: Critical Analysis of CAA & NRC Monika Jain
six years from the earlier 12 years to apply for country; the National Register of Citizens is
citizenship. The Government of India says that immediately a situation work out theme to a
these minority groups have come to India, petition filed by the citizens of Assam, to
escaping persecution in Muslim-majority sketch off rising and falling against the law
nations. The reason states that India is migrants from Bangladesh keen on the state
probably the only Hindu nation in the world; and to defend its civilization. The conjecture
hence it becomes its duty to provide support to with the purpose of the Citizenship
minorities escaping these three Islamic (Amendment) Act, 2019 will contradict human
neighbors. rights to Indian Muslims was grounds unpaid
to the combination complete connecting the
Citizenship (Amendment) Act, 2019 and Citizenship (Amendment) Act, 2019 and a
National Register of Citizens an Unsound Link projected countrywide National Register of
The National Register of Citizens is an official Citizens. The government makes an endeavor
record of those who are legal Indian citizens. to explain to citizens by counterbalance these
As per the Citizenship Act 1955, the National unreasonable speculations and manufacture
Register of Census contains demographic comprehensible that it cannot obtain missing
information about all those individuals who the nationality of some Indian voter.
qualify as citizens of India as per the Act. Moreover, the National Register of Citizens
However, the register was updated only can simply become aware of against the law
recently after it was first prepared during the immigrants and keep in custody them, who are
1951 Census of India [3]. This state-specific able to be on or after any spiritual environment
exercise was undertaken to keep its ethnic and on or after in the least nation.
uniqueness unaltered. In 2013, Assam Public
Works and Assam Sanmilita Mahasangha & Nehru Liyaquat Agreement
Ors filed a writ petition before the Supreme During systematize to protect human rights of
Court demanding the deletion of illegal minorities in the same way the nation; an
migrants’ names from voter lists in Assam. agreement was entered connecting both the
Then in 2014, the Supreme Court of India Governments on 8.4.1950, which was
ordered the National Register of Citizens to be commonly known as Nehru Liyaquat
updated in all parts of Assam. The procedure agreement [5]. This agreement was done
authoritatively resulted by means of additional between the two Governments after incidents
than 1.9 million candidates deteriorating to of mass level loot, destruction of property
create it to the schedule and therefore killing of people, kidnapping and rapes of
recognized as unlawful the majority were women in both the countries recently after
Bangladeshi nationwide who had come into division with the migrating people. In order to
India and survive present illegitimately in bring harmony among the people of both
search for of monetary remuneration. Yet in minorities and majority communities and to
view of the fact that completion of the punish the offenders and to protect personal
National Register of Citizens in Assam, nearby and property rights of migrating people it was
has been increasing assumption for its decided by both the Governments that they
countrywide accomplishment [4]. In adding shall ensure to the minorities throughout their
together, at hand is a intellect of bewilderment territories complete equality of citizenship,
in the middle of lots of people of India so as to irrespective of religion, a full sense of security
the Citizenship (Amendment) Act, 2019 and in respect of life, culture, property and
National Register of Citizens will contradict personal honour, freedom of movement within
nationality to convinced accessible Indian each country and freedom of occupation,
general public or it is in opposition to Indian speech and worship subject to law and
Muslims. Resting on the different, the morality. Members of minorities shall have
Citizenship (Amendment) Act, 2019 and equal opportunity with members of the
National Register of Citizens are extremity majority community to participate in the
separately. At the same time as the Citizenship public life of their country, to hold political or
(Amendment) Act, 2019 is all over the other office and to serve in their country’s
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Volume 3, Issue 1
civil and armed forces. Both Governments persecution, however claim of the
declare these rights to be fundamental and Governments of these countries are quite
undertake to enforce them effectively. It is dissimilar.
policy of both Governments that the
enjoyment of these democratic rights shall be Citizenship in India under Citizenship Act
assured to all their nationals without 1955
distinction. Both governments wish to While exercising powers given under Article
emphasize that the allegiance and loyalty of 11 read with Entry 17 of the Central List of the
the minorities is to the State of which they are Constitution, [8] the Indian Parliament enacted
citizens and that is to the Government of their Citizenship Act, 1955 [9].
own State that they should look for the redress
of their grievances. By this agreement it was Citizenship by Birth
also agreed by the Governments of both the Section 3 every person who born in India after
countries that they shall ensure freedom of 26 January 1950 but before 1 July 1987
movement and protection in transit, rights of
their moveable and immoveable properties, to Citizenship by Descent
restore their immoveable properties if they Section 4 of the Citizenship Act prescribes
return till 31.12.1950. Particularly in East Citizenship by descent. According to section
Bengal, West Bengal, Assam and Tripura to 4, a person who born outside India is a citizen
institute Special Courts to re-establish standard of India by descent
existence and to penalize the criminals, to
reinstate plundered material goods and kidnap Citizenship by Registration
women, not to be familiar with compulsory Section 5 of the citizenship act prescribes
alterations, to employ Commission of conferment of citizenship by registration.
investigation by means of a high Court Judge
as its start, at on one occasion, to enquire Citizenship by Naturalization
interested in grounds and degree of turbulence, Section 6 of the citizenship act prescribes
to employ Minority Commissions to appear citizenship by naturalization [10].
keen on the complaints and wellbeing of
minorities [6]. The nationality is a subject Citizenship by Assam Accord
matter of entry 17 of Union List of Seventh section 6A a person shall be deemed to have
Schedule of the Constitution, in which States been detected to be a foreigner on the date on
have no function to participate or to hinder in which a Tribunal constituted under the
the federal construction of India [7]. Foreigners (Tribunals) Order, 1964 submits its
opinion to the effect that he is a foreigner to
Citizenship and Rights of Minorities in the officer or authority concerned in
Afghanistan, Pakistan and Bangladesh accordance with the Foreigners Act 1946 [11].
The three neighboring countries of India:
Afghanistan, Pakistan and Bangladesh are Citizenship by Incorporation of Territory
Islamic countries by their Constitution, but Section 7 if any territory becomes a part of
still in the Constitution or in the Citizenship India, the Central Government may, by order
Acts of Afghanistan, Pakistan and Bangladesh notified in the Official Gazette, specify the
there is no apparent discrimination with the persons who shall be citizens of India by
minorities to get citizenship, right to vote, reason of their connection with that territory;
right to profess religion or to enjoy other rights and those persons shall be citizens of India as
equally with that of majority, seats are from the date to be specified in the order [12].
reserved for non-Muslims in their National
and Provincial Assemblies. But by comparing Overseas Citizenship
census data of these countries and media In section 7A procedure for registration of
reports there is steep depletion in percentage Overseas Citizen of India Cardholder is
of non-Muslim population in these countries in given. Sub section (1) says that the Central
last few decades, due to atrocities religious Government may, subject to such conditions,
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restrictions and manner as may be may be, such commencement, cease to be a
prescribed, on an application made in this citizen of India: [23] Section 10 prescribes
behalf, register as an Overseas Citizen of about deprivation of citizenship. Sub section
India Cardholder. Sub section (2) says that (1) says that (1) A citizen of India who is
An Overseas Citizen of India Cardholder such by naturalization or by virtue only of
shall not be entitled to the rights conferred clause (c) of article 5 of the Constitution or
on a citizen of India [16]. Article 16 of the by registration otherwise than under clause
Constitution with regard to equality of (b) (ii) of article 6 of the Constitution or
opportunity in matters of public clause (a) of sub-section (1) of section 5 of
employment; [13] further article 58 of the this Act, shall cease to be a citizen of India, if
Constitution for election as President; [14] he is deprived of that citizenship by an order
in addition article 66 of the Constitution for of the Central Government under this section
election as Vice-President; [15] also article [24]. Section 13 prescribes that the Central
124 of the Constitution for appointment as a Government may, in such cases as it thinks
Judge of the Supreme Court; [16] article 217 fit, certify that a person with respect to whose
of the Constitution for appointment as a citizenship of India a doubt exists, is a citizen
Judge of the High Court;[ 17] section 16 of of India; and a certificate issued under this
the Representation of the People Act, 1950 section shall, unless it is proved that it was
in regard to registration as a voter; [18] obtained by means of fraud, false
sections 3 and 4 of the Representation of the representation or concealment of any material
People Act, 1951 with regard to the fact, be conclusive evidence that person was
eligibility for being a member of the House such a citizen on the date thereof, but without
of the People or of the Council of States, as prejudice to any evidence that he was such a
the case may be; [19] sections 5, 5A and citizen at an earlier date [25]. Section 14
section 6 of the Representation of the People prescribes about Disposal of application
Act, 1951 with regard to the eligibility for under sections 5, 6 and 7A. Sub section (1)
being a member of the Legislative Assembly says that the prescribed authority or the
or the Legislative Council, as the case may Central Government may, in its discretion,
be, of a State; [20] For appointment to grant or refuse an application under sections
public services and posts in connection with 5, 6 and 7A and shall not be required to
affairs of the Union or of any State except assign any reasons for such grant or refusal
for appointment in such services and posts [26]. Sub section (2) says that Subject to the
as the Central Government may, by special provisions of section l5 the decision of the
order in that behalf, specify [21]. prescribed authority or the Central
Government on any such application as
Termination of Citizenship aforesaid shall be final and shall not be called
Section 8 prescribes about Renunciation of in question in any court [27]. Section 14A
citizenship. On such renunciation every prescribes about Issue of national identity
minor child of such person shall also cease to cards. Sub section (1) says that The Central
be a citizen of India. Provided such child Government may compulsorily register every
may, within one year after attaining full age, citizen of India and issue national identity
make a declaration that he wishes to resume card to him [28]. Sub section (2) says that
Indian citizenship and shall thereupon again The Central Government may maintain a
become a citizen of India [22]. Section 9 National Register of Indian Citizens and for
prescribes the termination of citizenship. Sub that purpose establish a National Registration
section (1) says that Any citizen of India who Authority [29]. Sub section (3) says that On
by naturalization, registration or otherwise and from 3.12.2004, the Registrar General,
voluntarily acquires, or has at any time India, appointed under sub-section (1) of
between the 26th January, 1950 and the section 3 of the Registration of Births and
commencement of this Act, voluntarily Deaths Act, 1969 (18 of 1969) shall act as the
acquired, the citizenship of another country National Registration Authority and he shall
shall, upon such acquisition or, as the case function as the Registrar General of Citizen
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Volume 3, Issue 1
Registration [30]. Sub section (4) says that to a person referred to in the proviso to
the Central Government may appoint such clause (b) of sub-section (1) of section 2.
other officers and staff as may be required to 2. Subject to fulfillment of the conditions
assist the Registrar General of Citizen specified in section 5 or the qualifications
Registration in discharging his functions and for naturalization under the provisions of
responsibilities. Sub section (5) says that the the Third Schedule, a person granted the
procedure to be followed in compulsory certificate of registration or certificate of
registration of the citizens of India shall be naturalization under sub-section (1) shall
such as may be prescribed. Section 15 be deemed to be a citizen of India from the
prescribes about Revision. Any person date of his entry into India.
aggrieved by an order made under this Act by 3. On and from the date of commencement
the prescribed authority or any officer or of the Citizenship (Amendment) Act,
other authority other than the Central 2019, any proceeding pending against a
Government may, within a period of thirty person under this section in respect of
days from the date of the order, make an illegal migration or citizenship shall stand
application to the Central Government for a abated on conferment of citizenship to
revision of that order and the decision of the him. Provided that such person shall not
Central Government shall be final.[31] be disqualified for making application for
Section 15A another chance to the aggrieved citizenship under this section on the
person to file Review before Central ground that the proceeding is pending
Government;[32] section 17 related to against him and the Central Government
Offences, any person who, for the purpose of or authority specified by it in this behalf
procuring anything to be done or not to be shall not reject his application on that
done under this Act, knowingly makes any
ground if he is otherwise found qualified
representation which is false in a material
for grant of citizenship. Provided further
particular shall be punishable with
that the person who makes the application
imprisonment for a term which may extend to
for citizenship under this section shall not
five years, or with fine which may extend to
be deprived of his rights and privileges to
fifty thousand rupees, or with both [33].
which he was entitled on the date of
receipt of his application on the ground of
Citizenship Amendment Act, 2019
In the definition of illegal migrant given in making such application [37].
section 2 (1) (b), following proviso is inserted, 4. Nothing in this section shall apply to tribal
namely, Provided that any person belonging to area of Assam, Meghalaya, Mizoram or
Hindu, Sikh, Buddhist, Jain, Parsi or Christian Tripura as included in the Sixth Schedule
community from Afghanistan, Bangladesh or to the Constitution and the area covered
Pakistan, who entered into India on or before under The Inner Line notified under the
the 31st day of December, 2014 and who has Bengal Eastern Frontier Regulation, 1873
been exempted by the Central Government by [38]. (da) the Overseas Citizen of India
or under clause (c) of sub-section (2) of Cardholder has violated any of the
section 3 of the Passport Entry into India Act, provisions of this Act or provisions of any
1920[34]or from the application of the other law for time being in force as may
provisions of the Foreigners Act, 1946 [35] or be specified by the Central Government in
any rule or order made there under, shall not the notification published in the Official
be treated as illegal migrant for the purposes Gazette;
of this Act [36] 6B.
1. The Central Government or an authority (ii) After clause (f), the following proviso
specified by it in this behalf may, subject shall be inserted, namely Provided that no
to such conditions, restrictions and manner order under this section shall be passed unless
as may be prescribed, on an application the Overseas Citizen of India Card holder has
made in this behalf, grant a certificate of been given a reasonable opportunity of being
registration or certificate of naturalization heard [39].
JCLJ (2020) 7–19 © Law Journals 2020. All Rights Reserved Page 11Citizenship Act, 1955: Critical Analysis of CAA & NRC Monika Jain
Section 18 of the principal Act, in sub-section give his decision in writing with reasons to
(2), after clause (ee), the following clause include or exclude his name within 90 days
shall be inserted, (eei) the conditions, after hearing such person. Any objection to
restrictions and manner for granting any inclusion shall also be decided by the Sub
certificate of registration or certificate of District Registrar in the same manner.
naturalization under sub-section (1) of section Against aforesaid order of Sub District
6B [40]. Third Schedule to the principal Act, Registrar, the aggrieved person may file an
in clause (d), the following proviso shall be appeal before District Registrar, whose
inserted, Provided that for the person decision shall be final [48]. However, after
belonging to Hindu, Sikh, Buddhist, Jain, such decision, writ jurisdiction of the High
Parsi or Christian community in Afghanistan, Court’s start under Article 226 of the
Bangladesh or Pakistan, the aggregate period Constitution and then Supreme Court [49].
of residence or service of Government in Rule 11 prescribes that Registrar General
India as required under this clause shall be shall cause to maintain National Register on
read as “not less than five years” in place of the basis of extracts from various registers
“not less than eleven years [41]. specified under Registration of Births and
Deaths Act, 1969.[50] Rule 13 prescribes that
THE PASSPORT (ENTRY INTO Registrar General shall issue a National
INDIA) ACT, 1920 [42] Identity Card to every citizen whose
The Foreigners Act, 1946 [43] particulars are entered in National Register of
The Foreigners (Amendment) Act, 2004 Indian Citizens [51]. From these Rules it is
section 3, 3(A), 4, 5, 6, 7, 8, 9, 13, 14, 16 [44] clear that entry in registers of Birth and
Citizenship (Registration of Citizens and Issue Deaths and in National Population Register
of National Identity Cards) Rules 2003 are going to play a vital role in preparation of
Section 18 (1) and (3) of the Citizenship Act, National Register of Citizens. The main
1955, [45] the Central Government on provocation against CAA and NRC is that
10.12.2003 enacted Citizenship (Registration people of India are very illiterate, and they
of Citizens and Issue of National Identity will not be able to prove their births.
Cards) Rules 2003 [46]. These Rules mention
about both populations register as well as Registration of Births and Deaths Act, 1969
citizen’s register. According to Rule 3 the For the registration births Registration of
Registrar General of Citizen Registration Births and Deaths Act, 1969 was enacted by
shall establish and maintain National Register parliament in 1969, under which Central
of Indian Citizens, which shall be divided at Government shall appoint a Registrar General
State level, District level, sub district level, for India and State Governments shall appoint
village or ward level. The local register shall Chief Registrar and other officers for the
contain details of persons after due purpose of registration of births and deaths up
verification from the population register [47]. to local level or village level or municipality
According to Rule 4 for the purpose of level [52]. In this Act responsibilities were
National Register, the Registrar General shall fixed on several officers and other persons to
first notify in official gazette period and give information about births and deaths and
duration of house to house enumeration for according to Section 11 in case of delay of
collection for particulars of citizens. During information birth can be registered after 30
verification process, if citizenship of any days and within 1 year on affidavit and
person is found doubtful, shall be entered by prescribed fee and after one year on order of a
the local registrar with appropriate remark in Magistrate of First class on verification and
population register for further enquiry and also action will be taken against erring officers
such person or the family shall be informed in [53]. Section 30 Rule making powers under
a specified Performa immediately after this Act are with the State Governments
verification process is over. Such doubtful subject to prior approval of Central
person shall be given an opportunity of being Government. As on today in all the States in
heard by the Sub District Registrar, who will India there are full-fledged Rules and setups
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Volume 3, Issue 1
for registration of births and deaths, therefore Languages by collecting specific information
the fear of any person that he cannot prove his of all usual residents. As per decision of the
birth in India is baseless, because in case any Government of India, the National Population
birth is not registered in any register he can Register Database has been updated during
take orders from Magistrate who is a judicial 2015-16 in all States & UTs (except Assam
officer [54]. and Meghalaya) to make a comprehensive
resident database [59]. The Scheme for
Foreigners Tribunal Order 1964 creation of National Population Register is
The Central Government enacted Foreigners being undertaken under the provisions of The
Tribunal Order 1964 according to which any Citizenship Act, 1955 [60] and The
question regarding nationality of any person Citizenship Rules, 2003 [61]. The National
may be referred by Central Government or Population Register will contain the details of
registering authority to the Foreigners all the normal residents of the country
Tribunal, which will be a judicial Tribunal and regardless of whether they are citizens or non-
shall have powers of a Civil Court and shall citizens of India.
decide the question on the basis of judicial
scrutiny after giving proper opportunity of The Government has decided to update the
being heard to such person [55]. National Population Register database along
with House listing and Housing Census
Foreigners Tribunal (Amendment) Order phase of Census of India 2021 during April
2019 September 2020 according to the
This order was amended by the Central methodology given in the manual for
Government by Foreigners Tribunal National Population Register through mobile
(Amendment) Order 2019 by which powers to app by updating the existing National
refer question of nationality of any person has Population Register database by verifying
also been given to State Government, UT, the details of all residents by conducting a
District Collector or District Magistrates [56]. house to house details by the enumerator
In this order a right of appeal is provided to selected Government official and correcting
any person referred in Para 8 of schedule to the demographic data items, collecting
the Citizenship (Registration of Citizens and Aadhaar number from each resident
Issue of National Identity Cards) Rules 2003 voluntarily, collecting Mobile number,
before the designated Tribunal in this Order Election Photo Identity Cards or Voter ID
and the procedure to be followed by such Card number, Indian Passport number and
Tribunal is provided in Para 3A of this order, Driving License number, if available with
which is a judicial procedure [57]. In the the residents. All new residents, households
absence of any appeal, the designated found in the local area during the field work
authority may also refer the question to the will also be included in National Population
Tribunal and that shall also be decided by the Register [62].
Tribunal in the same manner.
Supreme Court on Citizenship Act and
Instruction Manual for Updating of NRC
National Population Register 2020 issued in The Honorable Supreme Court in the matter of
December 2019 Assam Public Works V. Union of India WP
National Population Register of all the (C) 274 of 2009 in several orders including
customary residents in the country was created order dated 13.8.2019 specifically directed
in 2010. The field work for National Union of India to update NRC on the pattern
Population Register data collection was of Aadhar. However, the Honorable Supreme
undertaken along with House listing and Court directed to specify and publish the
Housing Census 2010.[58] The electronic manner for inclusion or exclusion of names in
database of common residents of the country NRC [63]. In the matter of Assam Sanmilita
has already been created National Population Mahasangh V. Union of India 2015 (3) SCC 1
Register in English as well as the Regional the question of validity of section 3 (1) (a) and
JCLJ (2020) 7–19 © Law Journals 2020. All Rights Reserved Page 13Citizenship Act, 1955: Critical Analysis of CAA & NRC Monika Jain
(b) of Citizenship Act 1955 is referred to the of India provided if such person after so
Constitution bench of the Honorable Supreme migrated to Pakistan, has returned to India
Court and the same is still pending. under a permit for resettlement or permanent
returned issued by or under the authority of
Citizenship under Indian Constitution any law, shall also be deemed to be so
The citizenship is defined in Article 5 to 11 migrated to India under Article 6(b) after
of our Constitution. Article 5 of the 19th July 1948. To restore and recognize
Constitution says that at the commencement rights of citizenship of the persons who are
of this constitution, every person, who is residing out of India our Constitution under
residing in the territory of India and who born Article 8 provides that if any person who or
in India or either of his parents born in India either of whose parents or any of his
or who has been ordinarily resident in the grandparents was born in undivided India and
territory of India for not less than five years who is residing in any country outside India
immediately before commencement of the shall be deemed to be a citizen of India, if he
Constitution, every such person shall be is so registered by the diplomatic or consular
citizen of India. It means any person who representative of India in that country [68].
born in India or any of his parents born in As such article 8 provides an opportunity to
India is a citizen of India by birth and his the persons of Indian origin who are residing
citizenship is guaranteed by no other outside India if any of his parents or
document except the Constitution of India grandparents born in India, that he can apply
which is supreme law of the land. Therefore, to Indian consulate and can take citizenship
the fear of any person who born in India or of India if he so chooses, no doubt in that
any of his parents born in India that he can be condition he has to leave the citizenship of
deprived of his citizenship by any act or rules that country in which he is residing for the
is baseless and rumors only and is devoid of basic reason that a person cannot hold
any merit because any Act of Parliament or of citizenship of two countries [69]. The same
any State or any Rules made there under principle is also narrated in Article 9 in other
cannot supersede Indian Constitution [64]. words which says that if a person voluntarily
Article 6 of the Constitution provides acquired citizenship of any other country, he
citizenship to the persons who do not fulfill shall not be deemed to be citizen of India by
criteria of Article 5 but migrated to India good quality of article 5 or 6 or 8. Article 10
from Pakistan at the time of division. Article provides continuance of right of citizenship
6 provides that any such person who migrated subject to any law made by Parliament [70].
to India from Pakistan, who or either of his Article 11 read with entry 17 of Central list of
parents or either of his grandparents born in seventh schedule of the Constitution, it is
India [65] as defined in the Government of only the Parliament who can make law to
India Act 1935 and (i)[66] if he migrated regulate citizenship. India is a federal state
before 19 July 1948, he has been ordinarily and there is no concept of dual citizenship in
resident in India since the date of his India, therefore the States have no role to
migration, or if such person migrated to India play in granting a refusing citizenship to any
after 19 July 1948 and he has been registered person. The citizenship is a subject which
as a citizen of India by an officer appointed squarely falls in the domain of Parliament
by the central government on an application only [71].
made by him before commencement of this
constitution. However, the only condition for Implications of CAA
such application is that before making such The implications of these developments can
application that person must be residing in be interpreted in multiple ways. From a legal
India at least six months before his perspective, they imply a foundational shift in
application [67]. Article 7 provides that the conception of the Indian citizen embodied
notwithstanding anything in article 5 and 6, a in the Constitution of India, followed by the
person who after 1st March 1947, migrated to Citizenship Act, 1955. This is, first, a move
Pakistan shall not be deemed to be a citizen from soil to blood as the basis of citizenship,
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Volume 3, Issue 1
from a birth-based principle of citizenship in introduction of religious identity as a
the direction of a descent-based principle, and criterion into a matter as fundamental as
second, a shift from a religion-neutral law to citizenship is certainly questionable [76].
a law that differentiates based on religious Placing people in detention centers is
identity. From the perspective of India’s arguably also violation of Article 21 of the
social fabric, they signal an ominous fraying Constitution which guarantees the right to life
and unraveling of what was a daring and and liberty [77].
moderately successful experiment in
pluralism and diversity.[72] From a political The NRC and the CAA are manifestly
perspective, they point to a possibly tectonic conjoined in their objectives. The first paves
shift from a civic-national to an ethnic- the way to statelessness and detention centres
national conception of the political for many poor and vulnerable people, and
community and its terms of membership. most unjustly for those whose genuine
From a moral perspective, they prompt us to nationality is repudiated only on the basis of
confront the weakness of our commitment to their faith. The second offers a smooth path
human rights and to the moral and legal to citizenship for groups of migrants who are
personhood of all human beings. From an deemed acceptable only on grounds of their
international perspective, they remind us of, faith. In other words, faith is set to become
on the one hand, our longstanding aversion to the exclusive criterion for determining who is
signing international treaties on refugees and an Indian citizen and who is not, for inclusion
the reduction of statelessness and, on the as well as for exclusion. Together, the NRC
other, our easy engagement in doublespeak and the CAA have the potential of
with a valued neighbor. I will elaborate on transforming India into a majority polity with
some of these aspects to show how they are gradations of citizenship rights that
collectively refashioning the fundamentals of undermine the constitutional principle of
our collective life. universal equal citizenship, with privileges of
inclusion being attached to some categories
The Legal Battle of citizens while others suffer the disabilities
The legality of the NRC on the grounds that of exclusion [78]. The context of the anti-
provision under the Rules cannot contravene immigrant discourse that underlies the NRC,
the provisions of the parent Act. Authorized and the selective acceptance of persons
by the Registration of Citizens and Issue of treated as an illegal migrant that underpins
National Identity Card Rules, 2003, [73] the the CAA is important. It entails a substantive
NRC uses the cut-off date of 1971 based on disenfranchisement of the Muslim minority,
the Assam Accord rather than the date of normalization and justification of violence
1987 which is the defining criterion of both discursive and physical against it, and a
citizenship by birth according to the reconstruction of the Indian nation in the
Citizenship Act. A legal challenge to the form of a Hindu Rashtra in which this
Citizenship Amendment Act could plausibly minority lives on sufferance and must be
bring into question its constitutionality, [74] prepared for everyday discrimination, legal
specifically its contravention of Articles 14 and social.
and 15 of the chapter on Fundamental Rights.
Article 14 guarantees that The State shall not Citizenship Amendment Act 2019
deny to any person equality before the law or The Citizenship Amendment Act, 2019
the equal protection of the laws within the enables the migrants who have illegally
territory of India. This is not a right that is entered India from the countries of Pakistan,
dependent upon such a person being an Bangladesh and Afghanistan, and who have
Indian citizen; it is available even to stayed in India for five years, to receive Indian
foreigners who happen to be within the citizenship. However, what the Act also does
territory of India [75]. Article 15 prohibits the is define which migrant can be granted
state from discriminating against any citizen citizenship. It does soon the basis of religion,
on ground only of religion, race, caste and the which means, Hindu, Christian, Buddhist,
JCLJ (2020) 7–19 © Law Journals 2020. All Rights Reserved Page 15Citizenship Act, 1955: Critical Analysis of CAA & NRC Monika Jain
Jain, Sikh and Parsi migrants can be granted persons of Pakistan, Afghanistan and
citizenship [79]. This Act, combined with the Bangladesh who are religiously persecuted in
proposed nation-wide National Register of these countries and took shelter in India before
Citizens which had already invoked huge 31.12.2014. These three countries are
protests in Assam, is an exclusionary tool constitutionally Islamic countries and the
which discriminates against Muslims, and is population of the selected class depleted very
thus, definitely destructive for the secular steeply in past decades. The protected persons
fabric of India. have their roots in undivided India and before
division they or their ancestors were citizens
Concluding Remarks of undivided India and they fought freedom
National Register of Citizens is provided in struggle with other Indians, but unfortunately
section 14A of Citizenship Act, 1955 which at the time of division they opted any of these
was inserted by way of Amendment Act, 2003 three countries as a result they were facing
at the time of Congress Government and since unending persecution in the name of religion
then there is no challenge to this provision in these countries [88]. They had been killed in
[80]. The present Citizenship Amendment Act, large numbers in last so many years that their
2019 has nothing to do with National Register population decreased drastically in these
of Citizens it merely provides protection to countries and in fact they are facing genocide,
certain class of persons from the definition of therefore they took shelter in India to save
illegal migrants and intends to provide them their lives and families. They don’t have even
citizenship on fulfilling certain conditions basic human rights in these countries. This
mentioned in the Citizenship Act [81]. The classification cannot be applied to Muslims of
probable challenge to Citizenship Amendment these countries. Muslims of these countries
Act, 2019 will be on the ground of Article 14, were never persecuted in the name of religion
15, 16 and 21 of the Constitution [82]. Here it in those countries. They are natives and
is pertinent to mention that this amendment majority of these countries, they have all the
cannot be challenged on the ground of Article rights there to live a dignified life which is not
15 and 16 because the protection granted available to the protected class of Citizenship
under Article 15 and 16 is available only to Amendment Act, 2019. They enter in India in
citizens of India and not to other persons a planned manner with intention to spread
residing in India, whether they are illegal terrorism in India not to take shelter.
migrants or not [83]. Article 21 says no person Therefore, they cannot be kept on equal
shall be deprived of his life or personal liberty footing with the protected class of persons.
without procedure established by law. The hue and cry made nowadays by protestors
Therefore, Citizenship Amendment Act, 2019 by falsely provocation people on the fear that
cannot be challenged on the ground of Article by Citizenship Amendment Act, or National
21 [84]. As far as Article 14 is concerned it Register Census of any Muslim citizen of
provides equality before law and equal India will be snatched or they will be detained
protection of law to every person in India or thrown out of India is baseless. National
whether citizen or not,[85] as such Citizenship Register of Citizens will merely be a
Amendment Act, 2019 can be challenged procedural aspect of the mandate granted
under this Article only.[86] But on Article 14 under section 14A of the Citizenship Act in
there are numerous judgments of the accordance with the Rules of 2003. In case of
Honorable Supreme Court that the concept of citizenship by descent, registration or
equality enshrined under Article 14 applies naturalization there cannot be any problem to
only on equals and not on unequally and the Indian citizens who are citizens by birth. It
Article 14 prohibits discrimination but does is only in case of citizenship by birth fear is
not prohibit classification based on intelligible being spread among people. From the
differentia having reasonable nexus with the cumulative speculation of all prevailing laws
object of the Act [87]. The classification in and procedure in this aspect it can safely be
Citizenship Amendment Act, 2019 is said that a person can prove his birth in India
reasonable and is based on intelligible by any document such as Birth Certificate,
differentia. It provides exemption to a class of School certificate, PAN Card, Passport, Voter
JCLJ (2020) 7–19 © Law Journals 2020. All Rights Reserved Page 16Journal of Constitutional Law and Jurisprudence Volume 3, Issue 1 I card, Aadhar, Bank Account, driving license citizenship or their citizenship will be snatched and so on including affidavits or certificates by or they will be thrown out of the country. At village Panchayats or municipalities or by an the time of notification people should be given order of a Magistrate under Registration of sufficient time for procuring specified Births and Deaths Act, 1969 [89]. Even if his documents and all the concerned authorities nationality is found doubtful for not having will also be directed to provide required any of these documents, the question will be documents in an easy procedure and in a time- decided by Sub District Registrar after giving bound schedule and thereafter only preparation him opportunity of being heard and in case of of National Register of Citizens should start. adverse order, such person shall have a right of The Government should ensure that the appeal before District Registrar and against National Register of Citizens being an whose order he can file writ petition before important register for welfare schemes and High Court under Article 226 of the smooth functioning of the country should not Constitution [90] and lastly he can approach be a tool in the hands of some mischievous the Honorable Supreme Court under Article persons to spread rumors or to disturb peace 136 of the Constitution [91]. Apart from this, and harmony in the country. The government there is a parallel procedure in case of illegal implemented the Citizenship Amendment Act, migrants to refer their cases to the designated 2019 and proposed a nationwide NRC to sort Foreigners Tribunal for judicial scrutiny, these crises among the stranded immigrants, to against whose order writ petition before High provide a demographic identity to such Court and thereafter Special Leave Petition immigrants and also to draw off the illegal before Honorable Supreme Court will stretch immigrants from the country. Even many past out. Therefore, the provocation only on the governments and leaders across the nation basis of fear as to what would be criteria for have discussed the need for such an Act. The proving citizenship in the future National bill is seen discriminatory by the opposition Register of Citizens is very premature. The and pseudo-liberals mainly because Muslims criteria of citizenship are already provided in migrants have been excluded. On the contrary, our Constitution as well as in Citizenship Act Muslims immigrants can still apply for Indian [92]. National Register of Citizens being a citizenship as per Indian immigration laws that procedural aspect of the criteria laid down in govern the grant of citizenship to anyone Constitution and Citizenship Act cannot across the world irrespective of their religion, supersede Constitution or Citizenship Act and colour or nationality. This is supported by cannot fix criteria which are not in official data where 566 Muslims have been Constitution or in Citizenship Act. It will be a granted Indian citizenship from 2014 to 2019 register of citizens of India who fulfill criteria by the current government. Perhaps, if the of citizenship given in Constitution or government could have introduced the Citizenship Act. Citizenship Amendment Act, Citizenship Amendment Act, 2019 without 2019 nowhere prescribes any condition that it naming the religions and just by stating that it will snatch citizenship of any person who is covered the persecuted people belonging to already citizens of India by any manner minority religions from Afghanistan, Pakistan prescribed in Constitution or Citizenship Act. and Bangladesh, the opposition to the act However it is expected from the Central would have been muted [93]. In spite of the Government that at the time of issuance of opposition to the law, the government has notification for National Register of Citizens it made it very clear that it would proceed with should provide specific list of documents, its implementation. which will be admissible proof of citizenship for different classes of citizens, which is REFERENCES missing in the Citizenship (Registration of 1. Citizenship (Amendment) Act, 2019 Citizens and Issue of National Identity Cards) 2. Indian Citizenship Act, 1955 Rules 2003 and by taking benefit of which 3. NSSO opposition leaders are spreading rumors 4. Assam Public Works and Assam Sanmilita among people that they will be discriminated Mahasangha & Ors on 17 December 2014 or they will not be able to prove their 5. Nehru Liyaquat Agreement on 08.04.1950 JCLJ (2020) 7–19 © Law Journals 2020. All Rights Reserved Page 17
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