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A Contentious Legislation, Protests and a Regime of Division and Discrimination in India

December 27, 2019

Raghav Mendiratta is an advocate at the Delhi High Court. He is currently pursuing an LL.M. at the London School of Economics (LSE) and is a member of LSE’s Teaching Committee (Department of Law). He is an alumnus of the Annenberg-Oxford Media Policy Summer Institute 2018 and the National Law University, Punjab (India). His articles on issues of gender justice, constitutional law, criminal law, and media law have been published by organizations such as the Oxford Human Rights Hub, Columbia University Global Freedom of Expression, among others. 

Vibha Mohan is a human rights lawyer based in Stuttgart. A recipient of the J N Tata Endowment Scholarship, she is pursuing an LL.M. at the London School of Economics and Political Science (LSE). She is currently also assisting the Grantham Research Institute on Climate Change and the Environment, and the Pro-Bono Matters Committee with research on climate laws. She is an alumnus of Symbiosis Law School, Pune (India). Her articles on constitutional law, women’s rights and criminal jurisprudence have been published by the International Journal of Socio-Legal Research and the Indian Journal of Law and Public Policy, among others.

The Citizenship (Amendment) Act, 2019: The contentious Legislation and its Alleged Unconstitutionality  

      On 12 December 2019, the Parliament of India passed the Citizenship (Amendment) Act, 2019 (‘the CAA’). The CAA amends the former Citizenship Act of 1955, which is the legislation that governs the granting of citizenship within Indian. The CAA creates a distinction amongst illegal immigrants in India on the grounds of their nationality and their religion. Specifically, Section 2 of the CAA exempts persons from Afghanistan, Bangladesh, and Pakistan (otherwise known as the ‘specified countries’) belonging to the Hindu, Sikh, Buddhist, Jai, Parsi or Christian community (otherwise known as the ‘specified communities’) from being treated as illegal immigrants if they entered India on, or before, 31 December 2014. Notably, the specified countries from which persons are sought to be exempted are countries with a Muslim majority population, and the Act does not extend the exemption to persons belonging to the Muslim community from these countries.

      Within days of the CAA being passed, multiple petitions were filed in the Supreme Court of India challenging its constitutionality.[I] The petitioners contend that it is unconstitutional on the ground that it violates Article 14, 21 and 25 of the Constitution of India, 1950.[ii] Petitioners before the Supreme Court have argued that the CAA fails the classification test under Article 14 (equality before the law) which requires: 1) the existence of an intelligible differential; 2) a legitimate State goal; and 3) a rational nexus between the two. Arguably, under the Article 14 framework the CAA fails because  it creates an unjustified classification between individuals in identical circumstances, including: a) persons subject to non-religious persecution in the specified countries; b) persons belonging to other minority communities in the specified countries who are also subject to religious persecution – for example, the Ahmadiyya community in Pakistan.; and c) a person subject to religious/non-religious persecution in a neighboring country other than Afghanistan, Bangladesh and Pakistan – for example, a Tibetan political activist fearing persecution in China. The Government may, however, attempt to argue that exempting the criteria for certain illegal immigrants is a matter of parliamentary policy and privilege, especially in the absence of an enforceable right to citizenship to illegal migrants.

Nationwide Protests, Internet Shutdowns, and Ensuing Police Brutality

      On 13 December 2019, wide-scale protests against the CAA erupted in Assam, Manipur, Meghalaya, Tripura, New Delhi, and other states of the country.[iii] In most cases these protests were spearheaded by local university students; the youth factor did not, however, prevent the use of police force. On 15 December 2019, the Delhi Police – under the administrative control of the Home Ministry, Government of India – clashed with student protestors from the Jamia Milia Islamia University, New Delhi, resulting in numerous student injuries to those involved in the protests, as well as non-involved student bystanders. Reports indicate that the police stormed the campus premises, including the library and residential hostels, deployed tear gas shells, conducted strategic baton charges, and detained approximately one hundred students.[iv] The Jamia Milia Islamia University, New Delhi, case has acted as a catalyst for nationwide protests against the CAA, which has ultimately led to loss of life; protestor injuries; and loss and damage to public and private property. Thus far, the nationwide death toll is said to have reached 23.[v]

      In response to the wide-scale nationwide protests, State governments across the country, on 19 December 2019, resorted to internet shutdowns, alongside the imposition of Section 144 of the Code of Criminal Procedure, 1973.[vi] Section 144 is a colonial-era provision that empowers the executive to prohibit an assembly of more than four persons in an area. Contravention of Section 144 carries with it a maximum punishment of up to three (3) years imprisonment and/or fines. However, the momentum of these protests across India seem unaffected, with more people taking to the streets to express their dissent.  

National Citizenship Registry and CAA: The Double Displacement Reaction  

      A nationwide National Citizenship Registry (‘the NRC’) would be the process that gives effect to the discriminatory regime envisioned under the CAA. Initially designed for the state Assam, the NRC would include a record of names and information relevant to identification of Indian citizens. In November 2019, Home Minister Amit Shah declared that the NRC would be extended to the entire country.[vii]

      Formulated under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, the NRC addresses who is to be considered a citizen in India.[viii] As per the Schedule of the rules for NRC in Assam, an Indian resident in Assam has to apply for his/her name to appear in the NRC to the local registrar of citizenship. Once received by the local registrar, the registrar shall be responsible for verifying all enclosed documents, with the aim of determining: (a) whether the applicants name appeared in the pre-1971 electoral rolls, or (b) whether the applicant is a descendant of persons whose names are mentioned in the pre-1971electoral rolls. Those who are found to be ineligible, face the risk of being denationalized and put in detention centers.

      Further, if the geographic reach of the NRC is extended to operate across all of India, recognition of citizenship would depend on data obtained through the controversial National Population Register, as opposed to the application process followed in Assam. While the National Population Register would list residents of India, the NRC purports to identify people with “doubtful” citizenship.[ix]

      In operation, it translates to an extensive project of finding, submitting and verifying proof of descent and birth. Simply put, it requires a person to present documentary proof of relationship to one’s parents, as well as subsequent proof of lineage of the parents to the grandparents.[x] A lack of documentary proof that identifies participation in voting prior to 1971 automatically casts doubt on the status of the person as a qualified Indian citizen. A note of concern however is the fact that the percentage of people who vote in elections in India has always been a national average of 65% - 75%.[xi] In context, the descendants of the remaining 25 - 35% of people who may not have voted prior to 1971 will have a questionable chance of retaining their citizenship.

      Furthermore, there is no apparent consideration of loss of electoral rolls during earthquakes, floods, civil riots, etc. Again, this exposes a large section of people vulnerable to losing constitutional protection. Likewise, change of names after marriage, abbreviation of middle names and last names to initials, which were a common social phenomenon in India, may pose a problem. Since there is no procedure to address apparent discrepancies of information in an individual’s documents, citizenship may be denied even where documentation does exist.       

      Finally, while the CAA may justify a nationwide presence by pointing to the fact that it would provide for the naturalization of Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians, it is worth noting that the CAA fails to provide naturalization to Muslims – who constitute more than 20% of the country. Consequently, those Muslims who are not able to prove citizenship under the evidentiary standard outlined above, will have no route for naturalization, and thus, will be considered illegal immigrants.

      Whether the NRC will be successfully implemented across India is currently precarious.  On the 22nd of December, during a rally of the Bharatiya Janata Party in Delhi, Prime Minister Narendra Modi commented that there was never an agenda to extend the NRC to all of India,[xii] thus contradicting the stance of the Home Minister, Amit Shah who has time and again reaffirmed the link between the NRC and the CAA.[xiii] This discrepancy however, should not spare the NRC from being subject to constitutional scrutiny. The Supreme Court of India has sought the Government’s response on the petitions challenging the CAA’s constitutionality, and the next hearing in the case has been scheduled for 22 January 2020.

      After a year marked by forced integration, marginalization, internet deprivation and manipulated information, the question of whether the dissociation of the NRC from the CAA will resolve the clash between the political and social demography and quell protests remains. Unfortunately, it seems that only time will tell. 

End Notes

[I] Around 60 Petitions on Citizenship Law To Be Heard By Supreme Court Today, NDTV (Dec. 18, 2019), https://www.ndtv.com/india-news/caa-citizenship-amendment-act-around-60-petitions-on-citizenship-law-to-be-heard-by-supreme-court-to-2150459

[ii] Former Indian Ambassador To Nepal, Two (Rtd) IAS Officers Move SC Challenging Citizenship (Amendment) Act, 2019, (Dec. 13, 2019), https://livelaw.in/top-stories/-indian-ambassador-to-nepal-two-rtd-ias-officers-move-sc-citizenship-amendment-act-150783

[iii] This Is Not Just a Muslim Fight.’ Inside the Anti-Citizenship Act Protests Rocking India, Time (Dec. 19, 2019), https://time.com/5752186/india-protests-citizenship-act/

[iv] India police storm Jamia, AMU to break citizenship law protests, Aljazeera, (Dec.16, 2019), https://www.aljazeera.com/news/2019/12/dozens-injured-india-police-storm-universities-191216033648272.html

[v] Death Toll in India Citizenship Law Protests Climbs to 23, Time (Dec. 21, 2019), https://time.com/5754260/india-citizenship-law-protests/

[vi] India has seen at least 10 instances of section 144 in the last 8 months of Modi 2.0, (Dec. 19, 2019), https://www.businessinsider.in/india/news/india-has-seen-atleast-10-instances-of-section-144-ub-the-last-months-of-modi-2-0/articleshow/72884563.cms

[vii] NRC soon in entire country: Amit Shah, The Hindu Business Line (Nov. 20, 2019), https://www.thehindubusinessline.com/news/national/nrc-process-to-be-carried-out-in-entire-country-amit-shah/article30027360.ece

[viii] National Register of Citizens, Press Information Bureau, Ministry of Home Affairs (Dec. 18, 2018, 04:58 PM IST), https://pib.gov.in/newsite/PrintRelease.aspx?relid=186562

[ix] Government to prepare NPR to lay foundation for pan-India NRC, India Today.in (Aug. 3, 2019 06:47PM IST), https://www.indiatoday.in/india/story/government-npr-foundation-pan-india-nrc-1576860-2019-08-03

[x] Sushil Aaron, CAA+NRC Is the Greatest Act of Social Poisoning By a Government in Independent India, The Wire.in (Dec. 23, 2019), https://thewire.in/communalism/caa-nrc-bjp-modi-shah  

[xi] Anubhuti Vishnoi, Voting trends till now: National turnout similar to 2014, but big regional variations seen, Economic Times, (Apr. 25, 2019, 09:52 AM IST), https://economictimes.indiatimes.com/news/elections/lok-sabha/india/voting-trends-till-now-national-turnout-similar-to-2014-but-big-regional-variations-seen/articleshow/69034614.cms

[xii] Rohan Venkataramakrishnan, Modi claims his government never brought up NRC - after a year of Amit Shah promising one, scroll.in (Dec. 22, 07:08PM IST), https://scroll.in/article/947605/modi-contradicts-amit-shah-after-a-year-of-promising-nrc-prime-minister-claims-it-wasnt-discussed

[xiii] Shoaib Daniyal, ‘We saw what happened in Assam’: BJP’s citizens register gambit may be backfiring in Bengal, Scroll.in (Apr. 28, 2019, 09:00 AM IST), https://scroll.in/article/921481/we-saw-what-happened-in-assam-bjps-citizens-register-gambit-may-be-backfiring-in-bengal