A three-judge Bench of the Supreme Court led by Chief Justice of India (CJI) U U Lalit will hear the challenge to the contentious Citizenship (Amendment) Act.

What is Citizenship Amendment Act (CAA), 2019?

• The act is sought to amend the Citizenship Act, 1955 to make Hindu, Sikh, Buddhist, Jain, Parsi, and Christian illegal migrants from Afghanistan, Bangladesh, and Pakistan, eligible for citizenship of India.
• In other words, it intends to make it easier for non-Muslim immigrants from India’s three Muslim-majority neighbours to become citizens of India.
• Under The Citizenship Act, 1955, one of the requirements for citizenship by naturalization is that the applicant must have resided in India during the last 12 months, as well as for 11 of the previous 14 years.
• The amendment relaxes the second requirement from 11 years to 6 years as a specific condition for applicants belonging to these six religions, and the aforementioned three countries.
• It exempts the members of the six communities from any criminal case under the Foreigners Act, 1946 and the Passport Act, 1920 if they entered India before December 31, 2014.

Key feature: Defining illegal migrants

• Illegal migrants cannot become Indian citizens in accordance with the present laws.
• Under the CAA, an illegal migrant is a foreigner who: (i) enters the country without valid travel documents like a passport and visa, or (ii) enters with valid documents, but stays beyond the permitted time period.
• Illegal migrants may be put in jail or deported under the Foreigners Act, 1946 and The Passport (Entry into India) Act, 1920.

Exceptions

• The Bill provides that illegal migrants who fulfil four conditions will not be treated as illegal migrants under the Act.  The conditions are:

1. they are Hindus, Sikhs, Buddhists, Jains, Parsis or Christians;
2. they are from Afghanistan, Bangladesh or Pakistan;
3. they entered India on or before December 31, 2014;
4. they are not in certain tribal areas of Assam, Meghalaya, Mizoram, or Tripura included in the Sixth Schedule to the Constitution, or areas under the “Inner Line” permit, i.e., Arunachal Pradesh, Mizoram, and Nagaland.

Controversy with the Act

• Country of Origin: The Act classifies migrants based on their country of origin to include only Afghanistan, Pakistan and Bangladesh.
• Other religious minorities ignored: It is unclear why illegal migrants from only six specified religious minorities have been included in the Act.
• Defiance of purpose: India shares a border with Myanmar, which has had a history of persecution of a religious minority, the Rohingya Muslims.
• Date of Entry: It is also unclear why there is a differential treatment of migrants based on their date of entry into India, i.e., whether they entered India before or after December 31, 2014.
• Against the spirit of Secularism: Further, granting citizenship on the grounds of religion is seen to be against the secular nature of the Constitution which has been recognised as part of the basic structure that cannot be altered by Parliament.

Basis of challenging in Supreme Court

• The challenge rests primarily on the grounds that the law violates Article 14 of the Constitution that guarantees that no person shall be denied the right to equality before law or the equal protection of law in the territory of India.

The Supreme Court has developed a two-pronged test to examine a law on the grounds of Article 14.

1. First, any differentiation between groups of persons must be founded on “intelligible differentia”
2. Second, that differentia must have a rational nexus to the object sought to be achieved by the Act

• Simply put, for a law to satisfy the conditions under Article 14, it has to first create a “reasonable class” of subjects that it seeks to govern under the law.
• Even if the classification is reasonable, any person who falls in that category has to be treated alike.

What happens next?

• The listing of the CAA challenge indicates that the hearing will be fast-tracked.
• The court will have to ensure that all pleadings, written submissions are filed and served to the opposite party before it is listed for final hearing.
• Some petitioners could also seek a referral to a larger Constitution Bench.
• However, the challenge is to a statute and does not directly involve interpretation of the Constitution.
• These issues are also likely to be debated before the court allots time for the final hearing.

Way forward

• India is a constitutional democracy with a basic structure that assures a secure and spacious home for all Indians.
• Being partitioned on religious grounds, India has to undertake a balancing act for protecting the religious minorities in its neighbourhood.
• These minorities are under constant threat of persecution and vandalism.
• India needs to balance its civilization duties to protect those who are prosecuted in the neighbourhood.

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