Value Added Article: The Constitutional Case against the Citizenship Amendment Bill | Category – Polity & Governance | Source – EPW

Relevance: GS Paper II (Polity and Governance)

Source
economic-and-political-weekly

 


Why has this issue cropped up?

The Lok Sabha passed the Citizenship (Amendment) Bill on 8 January 2019.


Major issue  with the Amendment Bill

The bill violates the Constitution because the classification it adopts is manifestly arbitrary and unjustified. Citizenship law defines a country’s political and constitutional identity. Laying down rules that determine membership in our political community only on the basis of one’s religious beliefs completely violates this principle.


Previous position under the Citizenship Act

  • In 2004, the act was amended by the introduction of the term “illegal migrant,” which was defined as someone who enters or stays in India without legal authorisation.
  • The amendment was an obvious response to the anxiety that Bangladeshi migrants would get Indian citizenship and participate in elections.
  • After the amendment, any child born 2004 onwards to even one parent who is an illegal migrant would be disqualified from citizenship by birth.
  • Illegal migrants were also disqualified from the other routes to citizenship.
  • Any person who was an “illegal migrant” or a descendant of an “illegal migrant” would be disqualified from getting Indian citizenship through any means whatsoever.

Proposed Amendments to the Bill

  • The amendment bill removes the disqualification based on illegal migration for “minority communities,” specifically “Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan.” These groups would not be considered “illegal migrants,” thus allowing them and their descendants to be Indian citizens or apply for Indian citizenship.
  • The proposed amendment also shortens the minimum period of residence in India for them. Instead of the 11 years applicable to everyone, they need six years to qualify for citizenship through naturalisation.
  • In other words, the proposed amendment seeks to make two changes, specifically for non-Muslim migrants from these three neighbouring countries: it removes the possibility of their and their descendants’ disqualification from citizenship, and accelerates obtaining citizenship by naturalisation.

Impacts of the proposed Amendments

  • The most dramatic impact of the proposed amendment is to place certain Indian residents at a profound disadvantage because of their religious identity and the country of origin.
  • If the proposed amendment were passed, the non-Muslim residents who illegally migrated from Afghanistan, Pakistan, and Bangladesh will be able to apply for citizenship through registration and naturalisation. Similarly placed Muslim residents will continue to be barred.
  • If the proposed amendment were passed, a child born in India after 2003 to Hindu “illegal migrants” would qualify as a citizen by birth. If the child is born to even one Muslim “illegal migrant,” they would not.
  • The proposed amendment also places residents who may have illegally migrated from other countries like Sri Lanka, Nepal, China, and Myanmar at a disadvantage. For example, while a Buddhist who illegally migrated from Pakistan owing to religious persecution would qualify for citizenship, a Buddhist who fled China for the same reason would not.

Assessing Constitutionality of the Amendments

  • This differential treatment of Indian residents must meet the requirement of equality before law and equal protection of laws under Article 14 of the Constitution.
  • The Constitution extends this right to all persons within the territory of India irrespective of citizenship.
  • Equal protection does not demand exact treatment. But, it does demand that any differential treatment be reasonable and justified. The classification made by a law should be rational and the differentiation must correspond with its proclaimed purpose.
  • The central government has argued that the purpose behind the amendment is to accommodate minorities facing religious persecution.
  • In light of this, the proposed amendment and the executive orders make three distinctions: (i) between Muslim and non-Muslim migrants from Afghanistan, Bangladesh, and Pakistan; (ii) between migrants from these three countries and those from other countries; and (iii) between residents who migrated due to reasons of religious persecution and those who migrated due to other forms of persecution like racial or ethnic persecution.
  • The question for the purpose of constitutional validity is whether this classification meet the test of equal protection; whether the classification is rational and corresponds with the proclaimed purpose. If the proposed amendment and executive orders fail to meet both these requirements, they will be deemed unconstitutional on account of discrimination.

Discriminatory Amendment

  • If the proclaimed purpose of the amendment bill and executive orders is to accommodate minority communities suffering from religious persecution, the distinction between Muslim and non-Muslim migrants is irrational and unjustified. So is the distinction between migrants from Afghanistan, Bangladesh, and Pakistan, versus those from other countries.
  • What if a Muslim illegal migrant from Afghanistan converts to Hinduism during her stay in India? What about a child born in India to an inter-religious couple from Bangladesh that had to illegally migrate because of religious persecution?
  • The fundamental constitutional flaw in the proposed amendment is that it is not based on an assessment of actual persecution. Rather than defining the nature of persecution and leaving the rest to a case-to-case evaluation for the purposes of granting citizenship, the amendment seeks to respond by generalisations that do not correspond with the proclaimed purpose. This makes the proposed amendment unjustified and discriminatory.

Arbitrary and Unconstitutional

  • Various minority communities in India’s neighbourhood have suffered severe persecution, not only based on their religious beliefs, but also their race, ethnicity, and language. The case of Tamils in Sri Lanka and Tibetans in China are the most prominent examples.
  • India has also received Hindu Nepalese migrants fleeing persecution in Bhutan. The persecution of the Rohingyas is religious and ethnic in equal measure. India’s neighbourhood has also seen political persecution.
  • There is no good reason why religious persecution should be seen as more severe compared to any of these other forms of persecution.
  • Secularism has consistently been declared to be a facet of the Constitution’s basic structure that Parliament cannot abrogate.
  • Citizenship law defines a country’s political and constitutional identity. Laying down rules that determine membership in our political community only on the basis of one’s religious beliefs completely violates this principle.

Conclusion

Indian citizenship law has continued to remain compellingly secular. Religious and ethnic identity may have shaped this law, but have not filtered into it as qualifications or disqualifications. The Citizenship (Amendment) Bill threatens to change this.