CITIZENSHIP (AMENDMENT) ACT 2019 AND INTERNATIONAL LAW Professor Michelle Foster∗ and Dr Adil Hasan Khan# 1ST APRIL 2021 I INTRODUCTION 1. This legal brief considers the Citizenship (Amendment) Act 2019 (‘CAA’) and its compliance with India’s international legal obligations. India’s treaty and customary obligations will be outlined, with a primary focus on the conflict between the CAA and the principles of non-discrimination and the prohibition on arbitrary deprivation of nationality. 2. As background to the legislative development of the CAA, amendments made in 2004 to the Indian Citizenship Act 1955 (‘Citizenship Act’) explicitly excluded ‘illegal migrants’ from applying for naturalization as Indian citizens. 1 An ‘illegal migrant’ is defined under s2(1)(b) of the Citizenship Act to be a foreigner who had entered India either (i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or (ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time’. 2 3. In July of 2016 the Citizenship (Amendment) Bill 2016 was introduced into the Lok Sabha. The 2016 Bill followed the introduction of the Passport (Entry into India) Amendment Rules 2015 made under the Passport (Entry into India) Act 1920. The Rules exempted persons of Hindu, Sikh, Buddhist, Parsi, Jain and Christian faiths from Bangladesh and Pakistan, ‘who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December 2014’ from the requirement to possess valid travel documents to enter and remain in India. 3 This same group of persons was, through the Foreigners (Amendment) Order 2015, exempt from the provisions of the Foreigners Act 1946 which provide the Central Government broad powers to make orders in respect to freedom of movement, deportation, and other ∗ Professor and Director, Peter McMullin Centre on Statelessness, University of Melbourne. We are grateful to Hannah Gordon, JD, Melbourne Law School for excellent research assistance and Katya Harrop, JD candidate, Melbourne Law School for editing assistance. Any errors or omissions remain our own. The author can be contacted at m.foster@unimelb.edu.au # Visiting Fellow, Institute for International Law and the Humanities (IILAH), University of Melbourne. 1 See Citizenship Act 1955 (India) (as amended 2004) s 6(1). Ibid s 2(1)(b). 3 Passport (Entry into India) Amendment Rules 2015 (India) r 2. 2 2