Dec 29, 2019
Nationwide protests have gripped India since the Citizenship (Amendment) Bill, 2019 was tabled in the Lok Sabha (Upper House of the Indian Parliament) on December 7. On December 12, the Bill became an Act after being passed in both houses of the Parliament and receiving Presidential assent. In retrospect, the Government led by PM Narendra Modi did not possibly anticipate that the Citizenship (Amendment) Act, 2019 (hereafter ‘CAA’) would act as a catalyst for widespread protests around the country. In this article, I discuss the legal concepts surrounding the CAA; analyse the Constitutional challenge it faces in the Indian Supreme Court and briefly discuss its implications on India-Bangladesh relations.
KEY LEGAL CONCEPTS AROUND THE CAA
The Citizenship Act, 1955 governs citizenship in India. As per the Act, citizenship may be obtained in five ways: birth, descent, registration, naturalization, and incorporation of territory. The CAA amends the Citizenship Act, 1955 by altering the requirements to obtain citizenship through naturalization based on one’s nationality and religion. Section 2 of the CAA exempts persons from Afghanistan, Bangladesh, and Pakistan (hereafter ‘specified countries’) belonging to the Hindu, Sikh, Buddhist, Jai, Parsi or Christian community (hereafter ‘specified communities’) from being treated as illegal immigrants if they entered India on, or before, 31 December 2014. The specified countries from which persons are now exempted are countries with a majority Muslim population, and the Act does not extend the exemption to Muslim persons belonging to these countries. Interestingly, the model adopted by India of granting citizenship based on religion has some parallels to Israel’s Law of Return from 1950 that gave every Jew the right to come to Israel as an oleh (immigrant). However, critics of the CAA have also compared the Government’s moral concern expressed over the suffering of Hindus in neighboring countries  and the police’s ongoing exercise of detaining Muslim persons and subsequently subjecting them to custodial abuse as similar to the German regime starting 1933. 
To fully understand the implications of the CAA, one must view it through the lens of a nationwide National Register of Citizens (hereafter ‘NRC’) and the National Population Register (hereafter ‘NPR’). Initially, the NRC was intended only for the state of Assam to tackle the problem of illegal immigrants. In November 2019, Home Minister Amit Shah declared in Parliament that a nationwide NRC would follow the CAA to give effect to the amended law under the CAA.  However, in response to nationwide protests against the CAA, PM Modi on December 22 sought to disassociate the CAA and the NRC and contradicted Home Minister Shah by saying in an election rally that a nationwide NRC would not be generated. 
The NRC had been created by the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 to determine who is an Indian citizen in Assam. In Assam, an Indian resident had to apply to the local Registrar of citizenship for her name to appear in the NRC. The Registrar was responsible for verifying all the submitted documents and determining whether (a) the applicant’s 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-1971 electoral rolls. Those who were found to be ineligible faced the risk of being denationalized and put in detention centres. 
If extended to the entire country, recognition of citizenship would depend on data obtained through the NPR, as opposed to the application process followed in Assam.  The NPR is a database containing a list of all usual residents of the country. A usual resident for the purposes of NPR is a person who has resided in a place for six months or more and intends to reside there for another six months or more. The NPR’s objective is to create a comprehensive identity database of people residing in the country. It would be generated through house-to-house enumeration during the “house-listing” phase of the census, which is held once in 10 years.  Thus, the NPR would enlist residents of India and the NRC would be utilized to identify people who do not have documents to prove citizenship.
This would result in an extensive exercise of submitting and verifying proof of birth and descent and would require 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. Given that India has over 224 million people living below the poverty line  who may be homeless; it casts an onerous obligation on India’s poor to produce documents in order to claim citizenship. If unable to do so, they would face the risk of living as illegal immigrants off the government’s radar and thus losing access citizens’ welfare benefits or worse, being sent to a detention centre.
Within one day of the passing of the legislation, multiple petitions were also filed in the Supreme Court of India against the Constitutional validity of the CAA.
The petitioners contend that it is unconstitutional on the ground that it violates Article 14, 21 and 25 of the Constitution of India, 1950. They contend that the CAA fails the classification test under Article 14 (equality before the law) which requires: 1) the existence of an intelligible differentia; 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, Shia Muslims in Bangladesh or the Ahmadiyya community in Pakistan.; and c) a person subject to religious/non-religious persecution in a neighbouring country other than Afghanistan, Bangladesh and Pakistan – for example, a Tibetan political activist fearing political persecution in China.
It may also be argued that by compelling illegal immigrants to compulsorily disclose one’s religion may be a violation of the right to privacy under Article 21. Further, by making religion a basis for granting citizenship by naturalization damages the principle of secularism, which is enshrined in the Preamble of the Constitution and is recognized by the Supreme Court as a part of the Basic Structure of the Constitution.
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.
IMPACT ON INDIA-BANGLADESH RELATIONS
In public speeches leading up to the CAA, Home Minister Amit Shah spoke about the alleged religious persecution of Hindus in Bangladesh, referring to Bangladeshi immigrants as “termites”  and “throwing them out” from India.  Bangladesh has not officially reacted to the CAA yet. However, on December 13, a day after the CAA was enacted, Bangladesh’s Foreign Minister AK Momen and Home Minister Asaduzzaman Khan cancelled their scheduled visits to India citing pressing national events in Bangladesh.  Officially, Bangladesh maintained that the cancellations were not linked to the CAA and that the CAA was a domestic issue of India. PM Hasina’s Media Adviser Iqbal Chowdhary said that though the passing of the law was a domestic issue, it goes against India’s secular credentials to the global community. 
In what seemed like an attempt to make amends in response to these developments, PM Modi, in a public speech on December 22 in Delhi, spoke about India’s strong ties with Bangladesh and referred to recent instances of cooperation between the countries as evidenced by the Indo-Bangla border settlement.
Nationwide protests around India are now entering their fourth week. State governments have resorted to Internet shutdowns, prohibiting the congregation of protestors by imposing movement restrictions under Section 144 of the Code of the Criminal Procedure 1973  and detaining protestors.  Police have clashed with protestors on numerous instances leading to injuries and deaths. In the Bharatiya Janata Party ruled State of Uttar Pradesh, reports are emerging on a daily basis of police brutality. Police is accused of beating Muslim detainees and raiding households in Muslim dominated areas and causing damage to property.  The Uttar Pradesh Government is also seeking monetary compensation from protestors for the alleged damage cause by protestors during protests etc.  As per sources, the death toll in the country has risen to at least 25 , which and includes the death of an 8-year-old Muslim child in Uttar Pradesh. 
In the midst of these protests, the Union Cabinet on December 24 approved funds to initiate a nationwide NPR that would seek information about one’s religion and parents’ lineage. Critics of the CAA fear that this is the first move to obtain information that will later be used to create a nationwide NRC.  There appear to be no signs of the protests dying down and this move by the Government, along with emerging reports of police persecution of Muslim persons around the country is further fuelling protests in India. The situation remains fragile and it is yet to be seen if the Government stops the CAA from coming into force or if protests fade out with the passage of time.
Endnotes1. Raghav Mendiratta & Vibha Mohan, A Contentious Legislation, Protests and a Regime of Division and Discrimination in India, University of Pennsylvania Journal of Social Change Online, https://www.law.upenn.edu/live/news/9657-a-contentious-legislation-protests-and-a-regime-of/news/jlasc 2. In India’s Citizenship Act, an eerie echo of Nazi Germany’s claims to protect ‘racial comrades’, Scroll.in, https://scroll.in/article/946784/in-indias-citizenship-act-an-eerie-echo-of-nazi-germanys-claims-to-protect-racial-comrades 3. Sex, Hitler and IKEA: Indians protesting against new citizenship law get creative, GulfNews, https://gulfnews.com/world/asia/india/sex-hitler-and-ikea-indians-protesting-against-new-citizenship-law-get-creative-1.1577426391399 4. NRC soon in entire country: Amit Shah, The Hindu Business Line, https://www.thehindubusinessline.com/news/national/nrc-process-to-be-carried-out-in-entire-country-amit-shah/article30027360.ece# 5. India's Modi contradicts key aide on NRC in bid to douse protests, AlJazeera, https://www.aljazeera.com/news/2019/12/india-modi-defending-citizenship-law-protests-continue-191223075630465.html. 6. Raghav & Vibha Mohan, A Contentious Legislation, Protests and a Regime of Division and Discrimination in India, University of Pennsylvania Journal of Social Change Online, https://www.law.upenn.edu/live/news/9657-a-contentious-legislation-protests-and-a-regime-of/news/jlasc 7. Ibid 8. K Venkataramanan, Explained: What connects the NPR, NRIC and Census?, The Hindu, https://www.thehindu.com/news/national/what-connects-the-npr-nric-and-census/article30368465.ece 9. India’s Poverty Profile 2016, World Bank, https://www.worldbank.org/en/news/infographic/2016/05/27/india-s-poverty-profile. 10. Raghav Mendiratta & Vibha Mohan, A Contentious Legislation, Protests and a Regime of Division and Discrimination in India, University of Pennsylvania Journal of Social Change Online, https://www.law.upenn.edu/live/news/9657-a-contentious-legislation-protests-and-a-regime-of/news/jlasc 11. Bangladesh immigrants are termites: Amit Shah, The Telegraph, https://www.telegraphindia.com/india/bangladeshi-immigrants-are-termites-amit-shah/cid/1669836 12. At Great Cost, The Indian Express, https://indianexpress.com/article/opinion/editorials/citizenship-amendment-bill-india-protest-bjp-government-nrc-bangladesh-6168783/ 13. Bangladesh Ministers cancel visit to India, The Indian Express, https://indianexpress.com/article/india/bangladesh-ministers-cancel-visit-to-india-citizenship-amendment-bill-6164430/. 14. Don't club us with Pakistan, Afghanistan, says Bangladesh PM's media adviser on CAB, India Today, https://www.indiatoday.in/india/story/bangladesh-india-citizenship-amendment-bill-pak-afghanistan-modi-hasina-1628304-2019-12-14. 15. 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 16. India: Deadly Force Used Against Protesters, Human Rights Watch, https://www.hrw.org/news/2019/12/23/india-deadly-force-used-against-protesters 17. In Uttar Pradesh, mapping reports of violence and police brutality from 15 districts, Scroll.in, https://scroll.in/article/947980/in-uttar-pradesh-reports-of-violence-and-police-brutality-from-15-districts 18. CAA protests: UP government starts process to seize property of protesters involved in violence, India Today, https://www.indiatoday.in/india/story/caa-protests-up-government-starts-process-seize-property-protesters-involved-violence-1630471-2019-12-22 19. Indian police officer tells citizenship law protesters to 'go to Pakistan' as death toll rises, Independent, https://www.independent.co.uk/news/world/asia/india-citizenship-law-protests-pakistan-police-uttar-pradesh-death-toll-a9262671.html 20. Anti-CAA Protests: 8-Year-Old Boy Among 11 Dead In Uttar Pradesh, Huff Post, https://www.huffingtonpost.in/entry/anti-caa-protests-8-year-old-boy-among-11-dead-in-uttar-pradesh_in_5dfdcb5be4b05b08bab60700 21. NPR: Days after Modi says NRC word hasn’t been uttered, Cabinet clears Rs 3,900 crore for first step, Scroll.in, https://scroll.in/article/947784/npr-days-after-modi-says-nrc-word-hasnt-been-uttered-cabinet-clears-3900-crore-for-first-step
This article gives the views of the author, and not the DUCSU Law and Politics Review, nor the Dhaka University Central Students' Union (DUCSU)
Raghav Mendiratta is 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, University of Pennsylvania Journal of Law & Social Change Online, among others.