March 20, 2024


Is the Citizenship Amendment Act (CAA) unconstitutional?

(Image credit: DiplomatTesterMan, CC BY-SA 4.0, via Wikimedia Commons)

It has been a long time coming, but the government finally notified rules to implement the contentious Citizenship Amendment Act (CAA) ahead of the upcoming Lok Sabha elections. To sum it up, it grants eligibility for Indian citizenship to migrants from Muslim-majority countries of Pakistan, Afghanistan, and Bangladesh who came to India before December 31, 2014.

The concept of who can and can’t be an Indian citizen has been debated for a long time. Mix in religion, and you’ve got something that’s going to be polarising and controversial. That’s what the CAA has become, and it always has since its conception. Since it’s now going to be implemented, is it even constitutional?


In December 2019, the Parliament passed an amendment to the 1955 Citizenship Act. It was a new provision that defined “illegal migrants”. A Hindu, Sikh, Buddhist, Jain, Parsi, or Christian from Bangladesh, Pakistan, and Afghanistan who entered India on or before December 31, 2014, and whom the government exempted under the Passport (Entry into India) Act, 1920, or the Foreigners Act, 1946, were not to be deemed illegal migrants. They would instead be eligible for Indian citizenship.

These questions of citizenship and religion were debated by the Constituent Assembly 70 years ago. Some members wanted India to be the natural home for all Hindus and Sikhs. The argument made was blunt – they have nowhere else to go. Parsi Congressman RK Sidhwa got into the semantics. He questioned why to specify a couple of religions since it would look like others are being ignored. He went to bat for Christians and Parsis.

At the time, much like today, there was concern about how Assam’s demographics would change by migration from Bangladesh (then East Pakistan). Jawaharlal Nehru waded in and pointed out the repeated use of the words ‘appeasement’ and ‘secular’.

Back to today, here’s what the CAA says. It presumes members of some communities, as mentioned before, entered India because they faced religious persecution elsewhere. They are supposed to prove their country of origin, religion, date of entry into India, and knowledge of an Indian language to apply for citizenship.

The Centre is clear – the CAA won’t be revoked. That hasn’t stopped non-BJP-ruled states from threatening not to implement it and legal challenges in courts. The Indian Union Muslim League filed a petition in the Supreme Court in 2020 challenging its constitutionality. Since then, about 250 petitions have been filed on similar grounds.

Critics continue to argue that the law is discriminatory and was drafted on religious lines since it excludes some people from the Muslim community. In October 2022, a three-judge bench of the Supreme Court said the final hearings would begin that December. But it only began this Tuesday, March 19, when the Supreme Court issued a notice to the Union Government regarding a group of applications requesting a stay on the Citizenship Amendment Act (CAA) and the Citizenship Amendment Rules 2024. The court has scheduled the next hearing for April 9, awaiting the Union’s response.

So, does the CAA violate the Indian Constitution?

VIEW: It goes against the Constitution

While the CAA is advertised as a benevolent act for Indian citizenship, the Opposition parties consider it to be a stunt by the BJP government to strip Indian Muslims of their citizenship rights. Article 14 of the Constitution guarantees equality before the law and equal protection to all persons. Rights under Article 14 are absolute and apply to any person. Migrants coming to India could be of any religion. Excluding Muslims violated these rights.

Another thing to keep in mind is that India isn’t a signatory to the UN Refugee Convention of 1951 or the 1967 Protocol, which protects refugee rights. The CAA doesn’t provide any overarching refugee protection framework. The problem lies in the law itself. It makes problematic distinctions between groups of people based on religion. The CAA might grant pathways to citizenship for most people, but not Muslims. Muslims from Myanmar, for example, have faced persecution.

One of the basic features of the Constitution is secularism. This is related to the broader issue of eligibility. Should religion be a criterion for citizenship? If the answer is yes, that violates one of the Constitution’s basic features. The Constitution confers citizenship through birth, descent, and migration, regardless of religion. These are codified in Articles 5 through 10. Even the 1955 Citizenship Act doesn’t make religion a criterion.

COUNTERVIEW: No one’s being discriminated

The CAA has nothing to do with the millions of Indian Muslims, or any existing Indian citizen for that matter. Some Muslim groups have obfuscated the law’s intentions for political purposes. All-India Muslim Jamaat president Maulana Shahabuddin Razvi Barelvi welcomed the CAA. He said the law didn’t apply to Muslims in India, and now there’s a law that gives Muslims coming from Pakistan, Afghanistan, and Bangladesh a path to citizenship.

The CAA is a narrow-window legislation to protect persecuted religious minorities, not sects. Muslims from other countries can still apply for citizenship under the Citizenship Act. The US has something similar called the Lautenberg-Specter Amendments for persecuted minorities from Russia and Iran. To give some historical context, the CAA’s premise is the Liaquat-Nehru pact signed in 1950 to safeguard minorities in the divided subcontinent. While the minority population has grown in India, the same can’t be said for Pakistan, Bangladesh, and Afghanistan.

The law is a reflection of solidarity and humanity. It validates some of the Constitution’s basic rights and principles – equality and freedom of religion. If India is to be considered a secular republic and live up to those ideals, then there needs to be a focus on people facing religious persecution elsewhere. The CAA gives them a chance to come to India and become citizens.

Reference Links:

  • CAA rules out: How Constituent Assembly debated the questions of citizenship, tying it to religion – The Indian Express
  • Who Belongs, and How? Locating the CAA in Today’s India – The Wire
  • Explained: Citizenship Amendment Act and the legal challenges – The Week
  • CAA’s Discriminatory Nature: Explaining With The Help Of A Supreme Court Case – Live Law
  • CAA Rules go against equality, federalism and India’s Constitution – The Indian Express
  • View: CAA is not a threat to Indian Muslims – The Economic Times
  • CAA Is Anti-Persecution, Not Anti-Muslim – News18
  • Indian Muslims should welcome CAA, question those peddling false narratives about it – The Print

What is your opinion on this?

a) The Citizenship Amendment Act (CAA) is unconstitutional.

b) The Citizenship Amendment Act (CAA) isn’t unconstitutional.


For the Right:

The Source of Hatred in India Is Not a Mystery

For the Left:

Why is Mamata going after CAA? Recent EPW paper on India’s district-wise religious composition gives the best answer