Citizenship Amendment Act

Case Description

The Citizenship (Amendment) Act, 2019 (hereafter ‘CAA’) amends the Citizenship Act, 1955 so as to grant a certain class of illegal migrants a path to Indian citizenship. The CAA makes illegal migrants eligible for citizenship if they (a) belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian community and (b) are from Afghanistan, Bangladesh or Pakistan. It only applies to migrants who entered India on or before 31 December, 2014. Certain areas in the North-East are exempted from the provision.

Viewed in combination with the proposed all-India National Register of Citizens (NCR), the CAA has the potential to deprive many Muslims residing in India of full citizenship. The proposed NRC will likely deprive many persons, both Muslim and non-Muslim, residing in India of citizenship. While excluded non-Muslims will have the opportunity to regain citizenship via the CAA, this will not be the case for Muslims. Hence, the NRC in combination with the CAA may disproportionately exclude Muslim residents of India.

On 11 December, Parliament passed the Citizenship (Amendment) Bill, 2019 (at which point it became the Citizenship (Amendment) Act, 2019). The CAA was officially notified on 10 January 2020.

Immediately after the Bill was passed, the Indian Union Muslim League (IUML) filed a petition under Article 32 of the Constitution challenging the constitutionality of the CAA. Soon various other litigants followed and there are currently around 200 petitions tagged to the IUML petition. These petitions primarily challenge the CAA for discriminating on the basis of religion. They also contend that it violates the fundamental rights to equality and dignity of illegal migrants under Articles 14 and 21 of the Constitution.

A majority of the petitions base their primary challenge to the CAA on Article 14. Article 14 guarantees all ‘persons’ (not only citizens) equality before the law and equal protection of law. In R.K. Garg (1981), the Supreme Court established that Article 14 prohibits Parliament from enacting laws that arbitrarily or irrationally differentiate between groups of persons. The Court has developed the two-part reasonable classification test for assessing whether a law unconstitutionally differentiates between persons: (1) any differentiation between groups of persons must be founded on ‘intelligible differentia’; (2) ‘that differentia must have a rational relation to the object sought to be achieved by the Act’. The petitioners claim that the CAA fails the reasonable classification test and thus violates Article 14 of the Constitution.

The stated aim (‘object sought to be achieved’) of the CAA is to accommodate persons facing religious persecution. The petitioners claim that this aim has no rational relation with a differentiation based on religion and country of origin. For example, there are illegal migrants who have fled to India after facing religious persecution in Sri Lanka, but the CAA arbitrarily excludes them. The petitioners conclude that there is no rational nexus between the differentia and the aim sought.

The petitions pray for the Supreme Court to strike down the CAA for violating the Constitution. A majority of the petitions single out Section 2(1)(b) of the CAA, which specifically provides for a path to citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh or Pakistan.

Further, many of the petitions pray for the Court to strike down four notifications issued by the Union government in 2015 and 2016 on the same grounds. The notifications (G.S.R. 685(E), 686(E), 702(E), 703(E)) exempt illegal migrants from the above six religions and three countries of origin from deportation and detention under the Passport (Entry into India) Act, 1920 and Foreigners Act, 1946.

On 28 May, the Government of India issued an order under Section 16 the Citizenship Act, 1955. The order gives district collectors in 13 districts with a high migrant population the power to accept citizenship applications from people from the same 3 countries belonging to the same 6 religions.

On 1 June, the IUML has filed an application requesting an interim stay on this order.