Framework and Challenges to Citizenship (Amendment) Act and National Register of Citizens

By Dr Abhishek Atrey

From the ancient time citizenship always remain a concept of Sovereign in nature. Even in Vedas and Upanishads there are several chapters of duties of Raja (Kings) towards their praja (subjects or citizens). To grant or to refuse citizenship is prerogative of the sovereign, which cannot be tested on any scale of equality, arbitrariness or reasonableness. The citizenship is a subject of entry 17 of Union List of Seventh Schedule of the Constitution, in which States have no role to play or to interfere in the federal structure of India.

Citizenship under Indian Constitution

The citizenship is defined in Article 5 to 11 of our Constitution. Article 5 of the Constitution says that at the commencement of this constitution, every person, who is residing in the territory of India and who born in India or either of his parents born in India or who has been ordinarily resident in the territory of India for not less than five years immediately before commencement of the Constitution, every such person shall be citizen of India. It means any person who born in India or any of his parents born in India is a citizen of India by birth and his citizenship is guaranteed by no other document except the Constitution of India which is supreme law of the land. Therefore the fear of any person who born in India or any of his parents born in India that he can be deprived of his citizenship by any act or rules is baseless and rumours only and is devoid of any merit because any Act of Parliament or of any State or any Rules made there under cannot supersede Indian Constitution.

Article 6 of the Constitution provides citizenship to the persons who do not fulfil criteria of Article 5 but migrated to India from Pakistan at the time of division. Article 6 provides that any such person who migrated to India from Pakistan, who or either of his parents or either of his grandparents born in India as defined in the Government of India Act 1935 and (i) if he migrated before 19 July 1948, he has been ordinarily resident in India since the date of his migration, or if such person migrated to India after 19 July 1948 and he has been registered as a citizen of India by an officer appointed by the central government on an application made by him before commencement of this constitution. However the only condition for such application is that before making such application that person must be residing in India at least six months before his application.

Article 7 provides that notwithstanding anything in article 5 and 6, a person who after 1^st March 1947, migrated to Pakistan shall not be deemed to be a citizen of India provided if such person after so migrated to Pakistan, has returned to India under a permit for resettlement or permanent returned issued by or under the authority of any law, shall also be deemed to be so migrated to India under Article 6(b) after 19^th July 1948.

With intention to restore and recognise rights of citizenship of the persons who are residing out of India our Constitution under Article 8 provides that if any person who or either of whose parents or any of his grandparents was born in undivided India and who is residing in any country outside India shall be deemed to be a citizen of India, if he is so registered by the diplomatic or consular representative of India in that country. As such article 8 provides an opportunity to the persons of Indian origin who are residing outside India if any of his parents or grandparents born in India, that he can apply to Indian consulate and can take citizenship of India if he so chooses, no doubt in that condition he has to leave the citizenship of that country in which he is residing for the basic reason that a person cannot hold citizenship of two countries. The same principle is also narrated in Article 9 in other words which says that if a person voluntarily acquired citizenship of any other country, he shall not be deemed to be citizen of India by virtue of article 5 or 6 or 8. Article 10 provides continuance of right of citizenship subject to any law made by Parliament. Article 11 read with entry 17 of Central list of seventh schedule of the Constitution, it is only the Parliament who can make law to regulate citizenship. India is a federal state and there is no concept of dual citizenship in India, therefore the States have no role to play in granting a refusing citizenship to any person. The citizenship is a subject which squarely falls in the domain of Parliament only.

Nehru Liyaquat Agreement dated 8.4.1950

In order to protect rights of minorities in both the countries, an agreement was entered between both the Governments on 8.4.1950, which was commonly known as Nehru Liyaquat agreement. This agreement was done between the two Governments after incidents of mass level loot, destruction of property, killing of people, kidnapping and rapes of women in both the countries recently after division with the migrating people. In order to bring harmony among the people of both minorities and majority communities and to punish the offenders and to protect personal and property rights of migrating people it was decided by both the Governments that they shall ensure to the minorities throughout their territories complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship subject to law and morality. Members of minorities shall have equal opportunity with members of the majority community to participate in the public life of their country, to hold political or other office and to serve in their country’s civil and armed forces. Both Governments declare these rights to be fundamental and undertake to enforce them effectively. It is policy of both Governments that the enjoyment of these democratic rights shall be assured to all their nationals without distinction. Both governments wish to emphasize that the allegiance and loyalty of the minorities is to the State of which they are citizens and that is to the Government of their own State that they should look for the redress of their grievances.

By this agreement it was also agreed by the Governments of both the countries that they shall ensure freedom of movement and protection in transit, rights of their moveable and immoveable properties, to restore their immoveable properties if they return till 31.12.1950. Especially in East Bengal, West Bengal, Assam and Tripura to establish Special Courts to restore normal life and to punish the offenders, to restore looted property and abducted women, not to recognize forced conversions, to appoint Commission of Inquiry with a high Court Judge as its head, at once, to enquire into causes and extent of disturbances, to appoint Minority Commissions to look into the grievances and welfare of minorities.

Citizenship and rights of Minorities in Afghanistan, Pakistan and Bangladesh

The three neighbouring countries of India i.e. Afghanistan, Pakistan and Bangladesh are Islamic countries by their Constitution, but still in the Constitution or in the Citizenship Acts of Afghanistan, Pakistan and Bangladesh there is no apparent discrimination with the minorities to get citizenship, right to vote, right to profess religion or to enjoy other rights equally with that of majority, seats are reserved for non Muslims in their National and Provincial Assemblies. But by comparing census data of these countries and media reports there is steep depletion in percentage of non Muslim population in these countries in last few decades, due to atrocities religious persecution, however claim of the Governments of these countries are quite contrary.

Citizenship in India under Citizenship Act 1955

While exercising powers given under Article 11 read with Entry 17 of the Central List of the Constitution, the Indian Parliament enacted Citizenship Act 1955, which received assent of the President on 30 December 1955 and came into force since then. Since its inception, the Citizenship Act has been amended 10 times firstly in 1957 w.e.f. 27.12.1957, then in 1960 w.e.f. 26.12.1960, then in 1985 w.e.f. 7.12.1985, again in 1986 w.e.f. 15.5.1986, then in 1987 w.e.f. 1.7.1987, then in 1992 w.e.f. 10.12.1992, then in 2004 w.e.f. 3.12.2004, then in 2005 w.e.f. 28.6.2005, then in 2015 w.e.f. 6.1.2015 and now in 2019 w.e.f. 12.12.2019.

Before coming to the present controversial citizenship amendment act of 2019 first we have to understand the provisions of Citizenship Act 1955 which were before Amendment of 2019 and what amendments are done by the Act of 2019. Citizenship Act is a very small Act comprising of only 19 provisions. Section 2 of this Act is definition clause in subsection (a) the government of India is defined as central as well as state government. In subsection (b) of section 2 an ‘illegal migrant’ is defined, which is very important to understand in the atmosphere of present controversy. By this subsection only two categories of persons were held illegal migrants first any foreigner who enters into India without a valid passport or any other travel document and second who entered into India with valid passport or any other travel document but he remains in India beyond the permitted period of time. Buy present Amendment Act 2019 a proviso is added in this definition of illegal migrants, by implication of which any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan who entered into India on or before 31 December 2014 and who has been exempted by central government under section 3 of the Passport Entry Into India Act 1920 or from the application of the provisions of the Foreigners act 1946 or any rule made thereunder, shall not be treated as illegal migrant for this purpose. Therefore the persons of these six communities from these three countries shall not be treated illegal migrant only if they fulfil two criteria firstly they have entered into India before 31st December 2014 and on an application they are exempted by the central Government under the Passport (Entry into India) Act, 1920 or Foreigners Act, 1946. Therefore by virtue of this amendment, these persons shall not become automatically a citizen of India but first of all before coming out of the category of illegal migrant they have to prove that they entered into India before 31 December 2014 and they have to take permission from central Government.

According to Citizenship Act, the citizenship of India can be provided in following four manners i.e. citizenship by birth, Citizenship by descent, citizenship by registration and citizenship by naturalisation.

Citizenship by birth

According to section 3 every person who born in India after 26 January 1950 but before 1 July 1987 or he born after 1 July 1987 but before 3 December 2004 and either of his parents is a citizen of India at the time of his birth or he born after 3 December 2004 and both of his parents are citizen of India or one of his parent is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be deemed to be citizen of India by birth. However the validity of section 3 (1) (a) and (b) are under challenge before the Hon’ble Supreme Court and has been referred to the Constitution Bench.

This section was amended firstly 1987 and then in 2003. Subsection (2) of this section further provides that a person shall not be deemed to be a citizen of India by virtue of this Act as a result of his birth if at the time of his birth any of his parent possesses such immunity from suits or legal process as is accorded to invite to an envoy of foreign sovereign power accredited to the President of India and he or she is not a citizen of India or any of his parents is an enemy alien and the birth occurs in a place then and occupation by the enemy. Therefore if we carefully look into the section it appears that by this section the Parliament tried to control conferment of citizenship by birth time and again as and when Indian Government faces new problems. By first amendment in this section in 1987, the Indian government prescribed that a person who took birth in India after 26 January 1950 but before 1 July 1987 is a citizen of India irrespective of any condition, whereas by the Amendment of 1987 the condition was imposed on conferring citizenship by birth, that if a person took birth in India after 1 July 1987, he can be conferred citizenship by birth only in case any of his parent is a citizen of India and this condition exemption was provided only up to 2003 and was confined by the Amendment Act 2004, by which it is provided it was provided that if a person takes birth in India after commencement of Amendment act 2004 i.e. 3.12.2004 can be conferred Citizenship by birth only in that condition if both of his parent are citizens of India or one of his parent is citizen of India and the other is not illegal migrant at the time of his birth.

Citizenship By Descent

Section 4 of the Citizenship Act prescribes Citizenship by descent. According to section 4, a person who born outside India is a citizen of India by descent (i) if he born after 26 January 1950 but before 10 December 1992 and his father is citizen of India at the time of this his birth and if he born after 10 December 1992, either of his parents is citizen of India at the time of his birth. The proviso of the section puts certain conditions on citizenship by descent. The proviso says that if the father (or either of his parent if born after 10.12.1992) of such person is a citizen by descent, that person shall not be a citizen of India unless his birth is registered at Indian consulate or his father is in the service of Government of India. Subsection (1) of section 4 further prescribes that no such birth shall be registered unless his parents declare that the minor does not hold passport of any other country. Subsection (3) of section 4 also prescribes that if a person born outside undivided India and was citizen of India at the commencement of our Constitution, shall be deemed to be a citizen of India by descent only.

Citizenship By Registration

Section 5 of the citizenship act prescribes conferment of citizenship by registration. Under this section the Central government on an application made in this behalf by any person who is not illegal migrant, may grant citizenship if he belongs to any of the following categories:

• A person of Indian origin who is ordinarily resident in India for seven years before making such application.
• A person of Indian origin who is ordinarily resident in any country outside undivided India.
• A person who is married to a citizen of India and is ordinarily resident in India for seven years before making such an application.
• Minor children of citizens of India.
• A person of full age and capacity whose parents registered a citizen of India under section 6 (1) (a).
• A person of full age and capacity who, or either of his parents, was earlier citizen of independent India and is ordinarily resident in India for 12 months immediately before application.
• A person of full age and capacity, who has been registered as an Overseas Citizen of India Card Holder (OCI) for five years and who is ordinarily resident in India for 12 months before making such application.

For the purpose the first and third category a person shall be deemed to be ordinarily resident in India if he is residing in India throughout the period of 12 months immediately before making an application and who has resided not less than six years during last eight years preceding the aforesaid period of 12 months.

For the purpose of this subsection, a person shall be deemed to be of Indian origin if he or either of his parents was born in undivided India or in such other territory which became part of India after 15 August 1947.

Subsection (3) of section 5 prescribes that no person, who has renounced or has been deprived of his Indian citizenship or whose citizenship has terminated, shall be registered as Indian citizen except by order of central government. By the amending act of 2004 subsection (6) was added in section 5 which empowers the central government to grant exemption from residential requirement to any person or class of persons as may be decided in writing.

Citizenship By Naturalisation

Section 6 of the citizenship act prescribes citizenship by naturalisation. Under this section, if a person who is not an illegal migrant and qualifies the conditions given in third schedule, makes an application, maybe conferred certificate of naturalisation by central government and on taking oath of allegiance, such person shall become citizen of India by naturalisation from the date of such certificate. Under this section the central government is also empowered to waive all or any of the conditions specified in the third schedule while conferring certificate of naturalisation to any person, who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress. The qualifications for naturalisation are given in third schedule and are summarised as under:

Third Schedule

(a) That he is not a subject or citizen of any country where citizens of India are prevented by law or practice of that country from becoming subjects or citizens of that country by naturalisation;

(b) that, if he is a citizen of any country, he undertakes to renounce the citizenship of that country in the event his application for Indian citizenship being accepted,

(c) that he has either resided in India or been in the service of a Government in India or partly the one and partly the other, throughout the period of twelve months immediately preceding the date of the application;

Provided that if the Central Government is satisfied that special circumstances exist, it may, after recording the circumstances in writing, relax the period of twelve months up to a maximum of thirty days which may be in different breaks.]

(d) that during the [fourteen years] immediately preceding the said period of twelve months, he has either resided in India or been in the service of a Government in India, or partly the one and partly the other, for periods amounting in the aggregate to not less than [eleven years];

(e) That he is of good character;

(f) That he has an adequate knowledge of a language specified in the Eighth Schedule to the Constitution; and

(g) that in the event of a certificate of naturalisation being granted to him, he intends to reside in India, or to enter into, or continue in, service under a Government in India or under an international organisation of which India is a member or under a society, company or body of persons established in India:

Provided that the Central Government may, if in the special circumstances of any particular case it thinks fit, ―

(i) Allow a continuous period of twelve months ending not more than six months before the date of the application to be reckoned, for the purposes of clause (c) above, as if it had immediately preceded that date;

(ii) Allow periods of residence or service earlier than 3[fifteen years] before the date of the application to be reckoned in computing the aggregate mentioned in clause (d) above.

Citizenship by Assam Accord

According to section 6A a person shall be deemed to have been detected to be a foreigner on the date on which a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits its opinion to the effect that he is a foreigner to the officer or authority concerned in accordance with the Foreigners Act 1946.

Subsection (2) says that subject to the provisions of sub-sections (6) and (7), all persons of Indian origin who came before the lst day of January, 1966 to Assam from the specified territory (Means Bangladesh) (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the lst day of January, 1966.

Sub section (3) says that subject to the provisions of sub-sections (6) and (7), every person of Indian origin who―

(a) Came to Assam on or after the lst day of January, 1966 but before the 25th day of March 1971 from the specified territory; and

(b) Has, since the date of his entry into Assam, been ordinarily resident in Assam; and

(c) Has been detected to be a foreigner;

shall register himself in accordance with the rules made by the Central Government in this behalf under section 18 with such authority (hereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted there from.

Explanation.―In the case of every person seeking registration under this sub-section, the opinion of the Tribunal, holding such person to be a foreigner, shall be deemed to be sufficient proof of the requirement under clause (c) of this sub-section and if any question arises as to whether such person complies with any other requirement under this sub-section, the registering authority shall,―

(i) If such opinion contains a finding with respect to such other requirement, decide the question in conformity with such finding;

(ii) If such opinion does not contain a finding with respect to such other requirement, refer the question to a Tribunal and decide the question in conformity with the opinion received on such reference.

Sub section (4) says that A person registered under sub-section (3) shall have, as from the date on which he has been detected to be a foreigner and till the expiry of a period of ten years from that date, the same rights and obligations as a citizen of India (including the right to obtain a passport under the Passports Act, 1967 (15 of 1967) and the obligations connected therewith), but shall not entitled to have his name included in any electoral roll for any Assembly or Parliamentary constituency at any time before the expiry of the said period of ten years.

Sub section (5) says that a person registered under sub-section (3) shall be deemed to be a citizen of India for all purposes as from the date of expiry of a period of ten years from the date on which he has been detected to be a foreigner.

Sub section (6) says that without prejudice to the provisions of section 8―

(a) if any person referred to in sub-section (2) submits in the prescribed manner and form and to the prescribed authority within sixty days from the date of commencement of the Citizenship (Amendment) Act, 1985 (65 of 1985), a declaration that he does not wish to be a citizen of India, such person shall not be deemed to have become a citizen of India under that sub-section;

(b) if any person referred to in sub-section (3) submits in the prescribed manner and form and to the prescribed authority within sixty days from the date of commencement of the Citizenship (Amendment) Act, 1985(65 of 1985), or from the date on which he has been detected to be a foreigner, whichever is later, a declaration that he does not wish to be governed by the provisions of that sub-section and sub-sections (4) and (5), it shall not be necessary for such person to register himself under sub-section (3).

Explanation.―Where a person required to file a declaration under this sub-section does not have the capacity to enter into a contract; such declaration may be filed on his behalf by any person competent under the law for the time being in force to act on his behalf.

Sub section (7) says that nothing in sub-sections (2) to (6) shall apply in relation to any person―

(a) Who, immediately before the commencement of the Citizenship (Amendment) Act, 1985(65 of 1985), is a citizen of India;

(b) Who was expelled from India before the commencement of the Citizenship (Amendment) Act, 1985, under the Foreigners Act, 1946 (31 of 1946).

Sub section (8) says that Save as otherwise expressly provided in this section, the provisions of this section shall have effect notwithstanding anything contained in any other law for the time being in force.

Citizenship by Incorporation of Territory

According to section 7 if any territory becomes a part of India, the Central Government may, by order notified in the Official Gazette, specify the persons who shall be citizens of India by reason of their connection with that territory; and those persons shall be citizens of India as from the date to be specified in the order.

Overseas Citizenship

In section 7A procedure for registration of Overseas Citizen of India Cardholder is given. Sub section (1) says that the Central Government may, subject to such conditions, restrictions and manner as may be prescribed, on an application made in this behalf, register as an Overseas Citizen of India Cardholder―

(a) Any person of full age and capacity,―

(i) Who is a citizen of another country, but was a citizen of India at the time of, or at any time after the commencement of the Constitution; or

(ii) Who is a citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the Constitution; or

(iii) Who is a citizen of another country, but belonged to a territory that became part of India after the 15th day of August, 1947; or

(iv) Who is a child or a grandchild or a great grandchild of such a citizen; or

(b) A person, who is a minor child of a person mentioned in clause (a); or

(c) A person, who is a minor child, and whose both parents are citizens of India or one of the parents is a citizen of India; or

(d) Spouse of foreign origin of a citizen of India or spouse of foreign origin of an Overseas Citizen of India Cardholder registered under section 7A and whose marriage has been registered and subsisted for a continuous period of not less than two years immediately preceding the presentation of the application under this section:

Provided that for the eligibility for registration as an Overseas Citizen of India Cardholder, such spouse shall be subjected to prior security clearance by a competent authority in India:

Provided further that no person, who or either of whose parents or grandparents or great grandparents is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify, shall be eligible for registration as an Overseas Citizen of India Cardholder under this sub-section.

Sub section (3) says that notwithstanding anything contained in sub-section (1), the Central Government may, if it is satisfied that special circumstances exist, after recording the circumstances in writing, register a person as an Overseas Citizen of India Cardholder.

Section 7B prescribes Conferment of rights on Overseas Citizen of India Cardholder. Sub section (1) says that notwithstanding anything contained in any other law for the time being in force, an Overseas Citizen of India Cardholder shall be entitled to such rights, other than the rights specified under sub-section (2), as the Central Government may, by notification in the Official Gazette, specify in this behalf.

Sub section (2) says that An Overseas Citizen of India Cardholder shall not be entitled to the rights conferred on a citizen of India―

(a) Under article 16 of the Constitution with regard to equality of opportunity in matters of public employment;

(b) Under article 58 of the Constitution for election as President;

(c) Under article 66 of the Constitution for election as Vice-President;

(d) Under article 124 of the Constitution for appointment as a Judge of the Supreme Court; (e) under article 217 of the Constitution for appointment as a Judge of the High Court;

(f) Under section 16 of the Representation of the People Act, 1950 (43 of 1950) in regard to registration as a voter;

(g) Under sections 3 and 4 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the House of the People or of the Council of States, as the case may be;

(h) Under sections 5, 5A and section 6 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the Legislative Assembly or the Legislative Council, as the case may be, of a State;

(i) For appointment to public services and posts in connection with affairs of the Union or of any State except for appointment in such services and posts as the Central Government may, by special order in that behalf, specify.

(3) Every notification issued under sub-section (1) shall be laid before each House of Parliament.

According to Section 7C on renunciation of Overseas Citizen of India Card by any person, every minor child of that person shall also cease to be OCI.

Section 7D empowers Central Government to cancel registration of OCI, if it is satisfied that―

(a) the registration as an OCI was obtained by means of fraud, false representation or the concealment of any material fact; or

(b) The OCI has shown disaffection towards the Constitution, as by law established; or

(c) the OCI  has, during any war in which India may be engaged, unlawfully traded or communicated with an enemy or been engaged in, or associated with, any business or commercial activity that was to his knowledge carried on in such manner as to assist an enemy in that war; or

(d) The OCI has, within five years after registration under sub-section (1) of section 7A, been sentenced to imprisonment for a term of not less than two years; or

(e) it is necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public; or

(f) The marriage of an OCI, who has obtained such Card under clause (d) of sub-section (1) of section 7A,―

(i) Has been dissolved by a competent court of law or otherwise; or

(ii) Has not been dissolved but, during the subsistence of such marriage, he has solemnised marriage with any other person.

Termination Of Citizenship

Section 8 prescribes about Renunciation of citizenship. On such renunciation every minor child of such person shall also cease to be a citizen of India. Provided such child may, within one year after attaining full age, make a declaration that he wishes to resume Indian citizenship and shall thereupon again become a citizen of India.

Section 9 prescribes the termination of citizenship. Sub section (1) says that Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India:

Section 10 prescribes about Deprivation of citizenship. Sub section (1) says that (1) A citizen of India who is such by naturalisation or by virtue only of clause (c) of article 5 of the Constitution or by registration otherwise than under clause (b)(ii) of article 6 of the Constitution or clause (a) of sub-section (1) of section 5 of this Act, shall cease to be a citizen of India, if he is deprived of that citizenship by an order of the Central Government under this section.

Sub section (2) says that Subject to the provisions of this section, the Central Government may, by order, deprive any such citizen of Indian citizenship, if it is satisfied that―

(a) The registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact; or

(b) that citizen has shown himself by act or speech to be disloyal or disaffected towards the Constitution of India as by law established; or

(c) That citizen has, during any war in which India may be engaged, unlawfully traded or communicated with an enemy or been engaged in, or associated with, any business that was to his knowledge carried on in such manner as to assist an enemy in that war; or

(d) That citizen has, within five years after registration or naturalisation, been sentenced in any country to imprisonment for a term of not less than two years; or

(e) That citizen has been ordinarily resident out of India for a continuous period of seven years, and during that period, has neither been at any time a student of any educational institution in a country outside India or in the service of a Government in India or of an international organisation of which India is a member, not registered annually in the prescribed manner at an Indian consulate his intention to retain his citizenship of India.

Sub section (3) says that The Central Government shall not deprive a person of citizenship under this section unless it is satisfied that it is not conducive to the public good that person should continue to be a citizen of India.

Sub section (4) says that Before making an order under this section, the Central Government shall give the person, against whom the order is proposed to be made, notice in writing informing him of the ground on which it is proposed to be made and, if the order is proposed to be made on any of the grounds specified in sub-section (2) other than clause (e) thereof, of his right, upon making application therefore in the prescribed manner, to have his case referred to a committee of inquiry under this section.

Supplemental

Section 13 prescribes that the Central Government may, in such cases as it thinks fit, certify that a person with respect to whose citizenship of India a doubt exists, is a citizen of India; and a certificate issued under this section shall, unless it is proved that it was obtained by means of fraud, false representation or concealment of any material fact, be conclusive evidence that person was such a citizen on the date thereof, but without prejudice to any evidence that he was such a citizen at an earlier date.

Section 14 prescribes about Disposal of application under sections 5, 6 and 7A. Sub section (1) says that the prescribed authority or the Central Government may, in its discretion, grant or refuse an application under sections 5, 6 and 7A and shall not be required to assign any reasons for such grant or refusal.

Sub section (2) says that Subject to the provisions of section l5 the decision of the prescribed authority or the Central Government on any such application as aforesaid shall be final and shall not be called in question in any court.

Section 14A prescribes about Issue of national identity cards. Sub section (1) says that The Central Government may compulsorily register every citizen of India and issue national identity card to him.

Sub section (2) says that The Central Government may maintain a National Register of Indian Citizens and for that purpose establish a National Registration Authority.

Sub section (3) says that On and from 3.12.2004, the Registrar General, India, appointed under sub-section (1) of section 3 of the Registration of Births and Deaths Act, 1969 (18 of 1969) shall act as the National Registration Authority and he shall function as the Registrar General of Citizen Registration.

Sub section (4) says that the Central Government may appoint such other officers and staff as may be required to assist the Registrar General of Citizen Registration in discharging his functions and responsibilities.

Sub section (5) says that the procedure to be followed in compulsory registration of the citizens of India shall be such as may be prescribed.

Section 15 prescribes about Revision. Any person aggrieved by an order made under this Act by the prescribed authority or any officer or other authority (other than the Central Government) may, within a period of thirty days from the date of the order, make an application to the Central Government for a revision of that order and the decision of the Central Government shall be final.

Section 15A another chance to the aggrieved person to file Review before Central Government

According to section 17 related to Offences, any person who, for the purpose of procuring anything to be done or not to be done under this Act, knowingly makes any representation which is false in a material particular shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to fifty thousand rupees, or with both.

Citizenship Amendment Act, 2019 w.e.f. 12.12.2019

By Amendment Act, 2019 following amendments were done in the Citizenship Act:

1. Amendment of section

In the definition of illegal migrant given in section 2 (1) (b), following proviso is inserted, namely:—

“Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;”.

2. After section 6A of the principal Act, the following section is inserted:

‘6B. (1) The Central Government or an authority specified by it in this behalf may, subject to such conditions, restrictions and manner as may be prescribed, on an application made in this behalf, grant a certificate of registration or certificate of naturalisation to a person referred to in the proviso to clause (b) of sub-section (1) of section 2.

(2) Subject to fulfilment of the conditions specified in section 5 or the qualifications for naturalisation under the provisions of the Third Schedule, a person granted the certificate of registration or certificate of naturalisation under sub-section (1) shall be deemed to be a citizen of India from the date of his entry into India.

(3) On and from the date of commencement of the Citizenship (Amendment) Act, 2019, any proceeding pending against a person under this section in respect of illegal migration or citizenship shall stand abated on conferment of citizenship to him:

Provided that such person shall not be disqualified for making application for citizenship under this section on the ground that the proceeding is pending against him and the Central Government or authority specified by it in this behalf shall not reject his application on that ground if he is otherwise found qualified for grant of citizenship under this section:

Provided further that the person who makes the application for citizenship under this section shall not be deprived of his rights and privileges to which he was entitled on the date of receipt of his application on the ground of making such application.

(4) Nothing in this section shall apply to tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873.’.

3. In section 7D of the principal Act

(i) After clause (d), the following clause is inserted:

“(da) the Overseas Citizen of India Cardholder has violated any of the provisions of this Act or provisions of any other law for time being in force as may be specified by the Central Government in the notification published in the Official Gazette; or”;

(ii) After clause (f), the following proviso shall be inserted, namely:—

“Provided that no order under this section shall be passed unless the Overseas Citizen of India Cardholder has been given a reasonable opportunity of being heard.”

4. In section 18 of the principal Act, in sub-section (2), after clause (ee), the following clause shall be inserted, namely:—

“(eei) the conditions, restrictions and manner for granting certificate of registration or certificate of naturalisation under sub-section (1) of section 6B;”.

5. In the Third Schedule to the principal Act, in clause (d), the following proviso shall be inserted, namely:—

‘Provided that for the person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community in Afghanistan, Bangladesh or Pakistan, the aggregate period of residence or service of Government in India as required under this clause shall be read as “not less than five years” in place of “not less than eleven years”.’.

The Passport (Entry into India) Act, 1920 w.e.f. 9.9.1920

Before going further it is also necessary to have a look on some important provisions of The Passport (Entry into India) Act, 1920, which are as under:

In section 2 of definitions clause it is defined that

“entry” means entry by water, land or air;

“passport” means a passport for the time being in force issued or renewed by the prescribed authority and satisfying the conditions prescribed relating to the class of passports to which it belongs; and

“prescribed” means prescribed by rules made under this Act.

By section 3 The Central Government is empowered to make rules requiring that persons entering India shall be in possession of passports, and for all matters ancillary or incidental to that purpose. The Central Government may

• Prohibit the entry into India or any part thereof of any person who has not in his possession a passport issued to him. The Passport (Entry into India) Rules, 1950 were notified in the year 1950.
• prescribe the authorities by whom passports must have been issued or renewed, and the conditions with which they must comply, for the purposes of this Act; and
• Provide for the exemption, either absolutely or on any condition, of any person or class of persons from any provision of such rules.

(3)     Rules made under this section may provide that any contravention thereof or of any order issued under the authority of any such rule shall be punishable with imprisonment for a term which may extend to three months, or with fine or with both.

Section 4 prescribes that

(1) Any officer of police, not below the rank of a sub-inspector, and any officer of the Customs Department empowered by a general or special order of the Central Government in this behalf, may arrest without warrant, any person who has contravened or against whom a reasonable suspicion exists that he has contravened any rule or order made under section 3.

(2)     Every officer making an arrest under this section shall, without unnecessary delay, take or send the person arrested before a Magistrate having jurisdiction in the case or to the officer in charge of the nearest police-station and the provisions of section 61 of the Code of Criminal Procedure, 1898, (5 of 1898) shall, so far as may be, apply in the case of any such arrest.

Section 5 prescribes that

The Central Government may, by general or special order, direct the removal of any person from India who, in contravention of any rule made under section 3 prohibiting entry into India without passport, has entered therein, and thereupon any officer of the Government shall have all reasonable powers necessary to enforce such direction.

The Foreigners Act, 1946 w.e.f. 23rd November, 1946 as amended by the Foreigners (Amendment) Act, 2004 w.e.f 20th February, 2004

According to the Foreigners Act, 1946″foreigner” means a person who is not a citizen of India;

Section 3 prescribes that

(1) The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein.

(2)     In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner-

(a)     Shall not enter India or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed;

(b)     Shall not depart from India, or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed;

(c)      Shall not remain in India or in any prescribed area therein;

(cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal;

(d)     Shall remove himself to, and remain in, such area in India as may be prescribed;

(e)      Shall comply with such conditions as may be   prescribed or specified-

(i)      Requiring him to reside in a particular place;

(ii)     Imposing any restrictions on his movements;

(iii)    Requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified;

(iv) Requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified

(v)     Requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified;

(vi)    Prohibiting him from association with persons of a prescribed or specified description ;

(vii)   Prohibiting him from engaging in activities of a prescribed or specified description ;

(viii)  Prohibiting him  from  using  or  possessing  prescribed or specified articles ;

(ix)    Otherwise regulating his conduct in any such particular as may be prescribed or specified ;

(f)      Shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions

(g) Shall be arrested and detained or confined;

and may make provision for any matter which is to be or may be prescribed and] for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act.

(3) Any authority prescribed in this behalf may with respect to any particular foreigner make orders under clause (e) or clause (f) of sub-section (2).

Section 3A prescribes that

(1) The Central Government may, by order, declare that all or any of the provisions of this Act or of any order made there under shall not apply, or shall apply only in such circumstances or with such exceptions or modifications or subject to such conditions as may be specified in the order, to or in relation to-

(a)     the citizen’s  of any such Commonwealth country  as  may  be  so specified ; or

(b)     any  other  individual  foreigner  or  class  or  description  of foreigner.

(2)     A copy of every order made tinder this section shall be placed on the table of both Houses of Parliament as soon as may be after it is made.

Section 4 prescribes that

(1) Any foreigner (hereinafter referred to as an internee) in respect of whom there is in force any order made under clause (g) of sub-section (2) of section 3, directing that he be detained or confined, shall be detained or confined in such place and manner and subject to such conditions as to maintenance, discipline and the punishment of offences and breaches of discipline as the Central Government may from time to time by order determine.

(2)     Any foreigner (hereinafter referred to as a person on parole) in respect of whom there is in force an order under clause (e) of sub- section (2) of section 3 requiring him to reside at a place set apart for the residence under supervision of a number of foreigners, shall while residing therein be subject to such conditions as to maintenance,

(3) No person shall-

(a)     knowingly assist an internee or a person on parole to escape from custody or the place set apart for his residence, or knowingly harbour an escaped internee or person on parole, or

(b)     Give an escaped internee or person on parole any assistance with intent thereby to prevent, hinder or interfere with the apprehension of the internee or the person on parole.

(4)     The Central Government may, by order, provide for regulating access to, and the conduct of persons in, places in India where internees or persons on parole are detained or restricted, as the case may be, and for prohibiting or regulating the despatch or conveyance from outside such places to or for internees or persons on parole therein of such articles as may be prescribed.

Section 5 prescribes that

(1) No foreigner who was in India on the date on which this Act came into force shall, while in India, after that date, assume or use or purport to assume or use for any purpose any name other than that by which he was ordinarily known immediately before the said date.

(2)     Where, after the date on which this Act came into force, any foreigner carries on or purports to carry on (whether alone or in association with any other person) any trade or business under any name or style, other than that under which that trade or business was being carried on immediately before the said date, he shall, for the purposes of sub-section(1), be deemed to be using a name other than that by which he was ordinarily known immediately before the said date.

(3)     In relation to any foreigner who, not having been in India on the date on which this Act came into force, thereafter enters India, sub-sections (1) and (2) shall have effect as if for any reference in those sub-sections to the date on which this Act came into force there were substituted a reference to the date on which he first enters India thereafter.

(4)     For the purposes of this section-

(a) The expression “name” includes a surname, and

(b)     A name shall be deemed to be changed if the spelling  thereof  is altered.

(5)     Nothing in this section shall apply to the assumption or use-

(a)     Of any name in pursuance of a 1* * * licence or permission granted by the Central Government; or

(b)     By any married woman, of her husband’s name.

Section 6 prescribes obligations of master of any vessel and the pilot of any aircraft landing or embarking in India

Section 7 prescribes Obligation of hotel keepers and others to furnish particulars.

Section 8 prescribes that

(1) When a foreigner is recognised as a national by the law of more than one foreign country or where for any reason it is uncertain what nationality if any is to be, ascribed to a foreigner, that foreigner may be treated as the national of the country with which he appears to the prescribed authority to be most closely connected for the time being in interest or sympathy or if he is of uncertain nationality, of the country with which he was last so connected :

Provided that where a foreigner acquired a nationality by birth, he shall, except where the Central Government so directs either generally or in a particular case, be deemed to retain that nationality unless he proves to the satisfaction of the said authority that he has subsequently acquired by naturalization or otherwise some other nationality and still recognized as entitled to protection by the Government of the country whose nationality he has so acquired.

(2)     A decision as to nationality given under sub-section (1) shall be final and shall not be called in question in any Court:

Provided that the Central Government, either of its own motion or on an application by the foreigner concerned, may revise any such decision.

Section 9 prescribes that If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class- or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, not withstanding anything contained in the Indian Evidence Act, 1872, lie upon such person.

Section 13 prescribes that

(1) Any person who attempts to contravene, or abets or attempts to abet, or does any act preparatory to, a contravention of, the provisions of this Act or of any order made or direction given there under, or fails to comply with any direction given in pursuance of any such order, shall be deemed to have contravened the provisions of this Act.

(2)     Any person who, knowing or having reasonable cause to believe that any other person has contravened the provisions of this Act or of any order made or direction given there under, gives that other person any assistance with intent thereby to prevent, hinder or otherwise interfere with his arrest, trial or punishment for the said contravention shall be deemed to have abetted that contravention.

(3)     The master of any vessel or the pilot of any aircraft, as the case may be, by means of which any foreigner enters or leaves 1[India] in contravention of any order made under, or direction given in pursuance of, section 3 shall, unless he proves that he exercised all due diligence to prevent the said contravention, be deemed to have contravened this Act.

Section 14 prescribes that

14. Penalty for contravention of provisions of the Act, etc.-.Whoever-

(a)     Remains in any area in India for a period exceeding the period for which the visa was issued to him;

(b)     Does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder;

(c)      contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act,

shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if he has entered into a bond in pursuance of clause (f) of sub-section (2) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting Court why such penalty should not be paid by him.

Explanation. For the purposes of this section, the expression “visa” shall have the same meaning as assigned to it under the Passport (Entry into India) Rules, 1950 made under the Passport (Entry into India) Act, 1920 (34 of 1920).

14A. Penalty for entry in restricted areas, etc.-Whoever-

(a)     enters into any area in India, which is restricted for his entry under any order made under this Act, or any direction given in pursuance thereof, without obtaining a permit from the authority, notified by the Central Government in the Official Gazette, for this purpose or remains in such area beyond the period specified in such permit for his stay; or

(b)     enters into or stays in any area in India without the valid documents required for such entry or for such stay, as the case may be, under the provisions of any order made under this Act or any direction given in pursuance thereof, shall be punished with imprisonment for a term which shall not be less than two years, but may extend to eight years and shall also be liable to fine which shall not be less than ten thousand rupees but may extend to fifty thousand rupees; and if he has entered into a bond in pursuance of clause (f) of sub-section (2) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof, or show cause to the satisfaction of the convicting Court why such penalty should not be paid by him.

14B. Penalty for using forged passport.-Whoever knowingly uses a forged passport for entering into India or remains therein without the authority of law for the time being in force shall be punishable with imprisonment for a term which shall not be less than two years, but may extend to eight years and shall also be liable to fine which shall not be less than ten thousand rupees but may extend to fifty thousand rupees.

14C. Penalty for abetment.-Whoever abets any offence punishable under section 14 or section 14A or section 14B shall, if the act abetted is committed in consequence of the abetment, be punished with the punishment provided for the offence.

Explanation.-For the purposes of this section,-

(i)      An act or offence is said to be committed in consequence of the abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the offence;

(ii)     The expression “abetment” shall have the same meaning as assigned to it under section 107 of the Indian Penal Code (45 of 1860).

Section 16 prescribes that the provisions of this Act shall be in addition to, and not in derogation of, the provisions of the Registration of Foreigners Act 1939, (16 of 1939.) the Indian Passport Act, 1920, (34 of 1920.) and of any other enactment for the time being in force.

Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003 w.e.f. 10.12.2003

In exercise of the powers under section 18 (1) and (3) of the Citizenship Act, 1955, the Central Government on 10.12.2003 enacted Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003.

These Rules mention about both population register as well as citizen’s register. According to Rule 3 the Registrar General of Citizen Registration shall establish and maintain National Register of Indian Citizens, which shall be divided at State level, District level, sub district level, village or ward level. The local register shall contain details of persons after due verification from the population register. According to Rule 4 for the purpose of National Register, the Registrar General shall first notify in official gazette period and duration of house to house enumeration for collection for particulars of citizens. During verification process, if citizenship of any person is found doubtful, shall be entered by the local registrar with appropriate remark in population register for further enquiry and such person or the family shall be informed in a specified proforma immediately after verification process is over. Such doubtful person shall be given an opportunity of being heard by the Sub District Registrar, who will give his decision in writing with reasons to include or exclude his name within 90 days after hearing such person. Any objection to any inclusion shall also be decided by the Sub District Registrar in the same manner. Against aforesaid order of Sub District Registrar, the aggrieved person may file an appeal before District Registrar, whose decision shall be final. However after such decision writ jurisdiction of the High Courts start under Article 226 of the Constitution and then Supreme Court.

Rule 11 prescribes that Registrar General shall cause to maintain National Register on the basis of extracts from various registers specified under Registration of Births and Deaths Act, 1969.

Rule 13 prescribes that Registrar General shall issue a National Identity Card to every citizen whose particulars are entered in National Register of Indian Citizens.

From these Rules it is clear that entries in registers of Birth and Deaths and in National Population Register are going to play a vital role in preparation of National Register of Citizens. The main provocation against CAA and NRC is that people of India are very illiterate and they will not be able to prove their births.

Registration of Births and Deaths Act, 1969

For the registration births Registration of Births and Deaths Act, 1969 was enacted by parliament in 1969, under which Central Government shall appoint a Registrar General for India and State Governments shall appoint Chief Registrar and other officers for the purpose of registration of births and deaths upto local level i.e. village level or municipality level. In this Act responsibilities were fixed on several officers and other persons to give information about births and deaths and according to Section 11 in case of delay of information birth can be registered after 30 days and within 1 year on affidavit and prescribed fee and after one year on order of a Magistrate of First class on verification and also action will be taken against erring officers. Under section 30 Rule making powers under this Act are with the State Governments subject to prior approval of Central Government. As on today in all the States in India there are full-fledged Rules and setups for registration of births and deaths, therefore the fear of any person that he cannot prove his birth in India is baseless, because in case any birth is not registered in any register he can take orders from Magistrate who is a judicial officer.

Foreigners Tribunal Order 1964 w.e.f. 23.9.1964

The Central Government enacted Foreigners Tribunal Order 1964 w.e.f. 23.9.1964 according to which any question regarding nationality of any person may be referred by Central Government or registering authority to the Foreigners Tribunal, which will be a judicial Tribunal and shall have powers of a Civil Court and shall decide the question on the basis of judicial scrutiny after giving proper opportunity of being heard to such person.

Foreigners Tribunal (Amendment) Order 2019 w.e.f. 30.5.2019

This order was amended by the Central Government by Foreigners Tribunal (Amendment) Order 2019 w.e.f. 30.5.2019 by which powers to refer question of nationality of any person has also been given to State Government, UT, District Collector or District Magistrates. In this order a right of appeal is provided to any person referred in Para 8 of schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003 before the designated Tribunal in this Order and the procedure to be followed by such Tribunal is provided in Para 3A of this order, which is a judicial procedure. In the absence of any appeal, the designated authority may also refer the question to the Tribunal and that shall also be decided by the Tribunal in the same manner.

Instruction Manual for Updation of National Population Register (NPR) 2020 issued in December 2019

National Population Register (NPR) of all the ‘usual residents’ in the country was created in 2010. The field work for NPR data collection was undertaken alongwith Houselisting and Housing Census 2010.The electronic database of more than 119 crore usual residents of the country has already been created under NPR in English as well as the Regional Languages by collecting specific information of all usual residents. As per decision of the Government of India, the NPR Database has been updated during 2015-16 in all States/UTs (except Assam and Meghalaya) to make a comprehensive resident database.

The Scheme for creation of National Population Register is being undertaken under the provisions of The Citizenship Act, 1955 and The Citizenship Rules, 2003. The NPR will contain the details of all the ‘usual residents’ of the country regardless of whether they are citizens or non-citizens of India.

The Government has decided to update the NPR database along with Houselisting and Housing Census phase of Census of India 2021 during April– September 2020 according to the methodology given in the manual for NPR through mobile app by updating the existing NPR database by verifying the details of all residents by conducting a house to house enumeration by the enumerator (designated Government official) and modifying/correcting the demographic data items, collecting Aadhaar number from each resident voluntarily, collecting Mobile number, Election Photo Identity Cards (EPIC) or Voter ID Card number, Indian Passport number and Driving License number, if available with the residents.All new resident(s)/new household(s) found in the local area (HLB) during the field work will also be included in NPR.

Supreme Court on Citizenship Act and NRC

The Hon’ble Supreme Court in the matter of Assam Public Works V. Union of India WP (C) 274 of 2009 in several orders including order dated 13.8.2019 (2019 (9) SCC 70) specifically directed Union of India to update NRC on the pattern of Aadhar. However the Hon’ble Supreme Court directed to specify and publish the manner for inclusion or exclusion of names in NRC.

In the matter of Assam Sanmilita Mahasangh V. Union of India 2015 (3) SCC 1 the question of validity of section 3 (1) (a) and (b) of Citizenship Act 1955 is referred to the Constitution bench of the Hon’ble Supreme Court and the same is still pending.

Conclusion

By the above discussion it is apparent that mandate of NRC is provided in section 14A of Citizenship Act, 1955 which was inserted by way of Amendment Act, 2003 w.e.f. 3.12.2004 at the time of Congress Government and since then there is no challenge to this provision. The present CAA 2019 has nothing to do with NRC, it merely provides protection to certain class of persons from the definition of illegal migrants and intends to provide them citizenship on fulfilling certain conditions mentioned in the Citizenship Act. The probable challenge to CAA 2019 will be on the ground of Article 14, 15, 16 and 21 of the Constitution. Here it is pertinent to mention that this amendment cannot be challenged on the ground of Article 15 and 16 because the protection granted under Article 15 and 16 is available only to citizens of India and not to other persons residing in India, whether they are illegal migrants or not. Article 21 says no person shall be deprived of his life or personal liberty without procedure established by law. Therefore CAA cannot be challenged on the ground of Article 21. As far as Article 14 is concerned it provides equality before law and equal protection of law to every person in India whether citizen or not, as such CAA can be challenged under this Article only. But on Article 14 there are numerous judgments of the Hon’ble Supreme Court that the concept of equality enshrined under Article 14 applies only on equals and not on unequals and Article 14 prohibits discrimination but does not prohibit classification based on intelligible differentia having reasonable nexus with the object of the Act. The classification in CAA is reasonable and is based on intelligible differentia. It provides exemption to a class of persons of Pakistan, Afghanistan and Bangladesh who are religiously persecuted in these countries and took shelter in India before 31.12.2014. These three countries are constitutionally Islamic countries and the population of the selected class depleted very steeply in past decades. The protected persons have their roots in undivided India and before division they or their ancestors were citizens of undivided India and they fought freedom struggle with other Indians, but unfortunately at the time of division they opted any of these three countries as a result they were facing unending persecution in the name of religion in these countries. They had been killed in large numbers in last so many years that their population decreased drastically in these countries and in fact they are facing genocide, therefore they took shelter in India to save their lives and families. They don’t have even basic human rights in these countries. This classification cannot be applied to Muslims of these countries. Muslims of these countries were never persecuted in the name of religion in those countries. They are natives and majority of these countries, they have all the rights there to live a dignified life which is not available to the protected class of CAA. They enter in India in a planned manner with intention to spread terrorism in India not to take shelter. Therefore they cannot be kept on equal footing with the protected class of persons.

The hue and cry made nowadays by protestors by falsely provocating people on the fear that by CAA or NRC citizenship of any Muslim citizen of India will be snatched or they will be detained or thrown out of India is baseless. NRC will merely be a procedural aspect of the mandate granted under section 14A of the Citizenship Act which came into force on 3.12.2004 and in accordance with the Rules of 2003. In case of citizenship by descent, registration or naturalisation there cannot be any problem to the Indian citizens who are citizens by birth. It is only in case of citizenship by birth fear is being spread among people. From the cumulative speculation of all prevailing laws and procedure in this aspect it can safely be said that a person can prove his birth in India by any document such as Birth Certificate, School certificate, PAN Card, Passport, Voter I card, Aadhar, Bank Account, driving license and so on including affidavits or certificates by village Panchayats or municipalities or by an order of a Magistrate under Registration of Births and Deaths Act, 1969. Even if his nationality is found doubtful for not having any of these documents, the question will be decided by Sub District Registrar after giving him opportunity of being heard and in case of adverse order, such person shall have a right of appeal before District Registrar and against whose order he can file writ petition before High Court under Article 226 of the Constitution and lastly he can approach the Hon’ble Supreme Court under Article 136 of the Constitution. Apart from this, there is a parallel procedure in case of illegal migrants to refer their cases to the designated Foreigners Tribunal for judicial scrutiny, against whose order writ petition before High Court and thereafter SLP before Hon’ble Supreme Court will lie.

Therefore the provocation only on the basis of fear as to what would be criteria for proving citizenship in the future NRC is very premature. The criteria of citizenship is already provided in our Constitution as well as in Citizenship Act. NRC being a procedural aspect of the criteria laid down in Constitution and Citizenship Act cannot supersede Constitution or Citizenship Act and cannot fix a criteria which is not in Constitution or in Citizenship Act. It will be a register of citizens of India who fulfil criteria of citizenship given in Constitution or Citizenship Act. CAA nowhere prescribe any condition that it will snatch citizenship of any person who are already citizens of India by any manner prescribed in Constitution or Citizenship Act. However it is expected from the Central Government that at the time of issuance of notification for NRC it should provide specific list of documents, which will be admissible proof of citizenship for different classes of citizens, which is missing in the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003 and by taking benefit of which opposition leaders are spreading rumours among people that they will be discriminated or they will not be able to prove their citizenship or their citizenship will be snatched or they will be thrown out of the country. At the time of notification people should be given sufficient time for procuring specified documents and all the concerned authorities will also be directed to provide required documents in an easy procedure and in a time-bound schedule and thereafter only preparation of NRC should start. The Government should ensure that the NRC, being an important register for welfare schemes and smooth functioning of the country should not be a tool in the hands of some mischievous persons to spread rumours or to disturb peace and harmony in the country.

—The writer is Advocate on Record, Supreme Court

Lead pic: Photo Courtesy UNI