On
12th December 2019, the Parliament passed the Citizenship Amendment Bill
amending the Citizenship Act, 1955. The Bill seeks to make illegal migrants who
are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan,
Bangladesh and Pakistan and who arrived in India till 31st December
2014, eligible for Indian citizenship.
A
plain reading of the Act makes it clear that it is unlikely to stand the test of Article
14 and 21 of the Constitution. In this essay, I wish to write about why this
Act is legally flawed and how it exposes the agenda of the ruling
establishment.
The Context
In
India, citizenship is acquired on the following grounds: i) by birth ii) by
descent iii) by registration iv) by naturalisation v) by incorporation of
territory. All other persons who are living in India and do not fall under any
of these 5 categories are termed as illegal
immigrants. The Foreigners Act, 1946, and the Passport (Entry into India)
Act, 1920, would apply to them and they are liable to be jailed or deported.
What
the new Citizenship Act seeks to do is amend the Citizenship Act of 1955, The
Foreigners Act and the Passport (Entry into India) Act and neutralise the
provisions that call for jailing and deporting illegal migrants provided they
are Hindus, Sikhs, Buddhists, Jains, Parsis or Christians from Bangladesh,
Pakistan and Afghanistan.
The Legal Aspect
Article
14 of the Constitution states that “the state
shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India”. Equality before law means the
State will treat every class of persons without discrimination. The equal
protection of law means the State will not frame laws or rules that
discriminate between two persons.
Article
14 is one of the most important articles of the Constitution. Most importantly,
rights under Article 14 are absolute. These rights are not exclusive to
citizens of India but for any person on Indian territory. This is also part of
the basic structure of the Constitution.
The
“basic structure of Constitution” is a doctrine that the Supreme Court laid
down in the Keshavanda Bharti vs. State
of Kerala (1973) case wherein the apex court held that Parliament could
amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of
the Constitution”. This judgement is used as a litmus to test the Constitutionality
of any legislation passed by Parliament.
The
Citizenship Amendment Act seeks to make persecuted Hindus, Sikhs, Buddhists,
Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan eligible
for Indian citizenship. If the objective of the bill is to provide citizenship
for religiously persecuted persons, then why only these six communities? Why
not consider refugees such as Rohingyas from Myanmar or Hindu or Muslim Tamils
from Sri Lanka or Ahmadis from Pakistan? This reflects discrimination as equal
protection of Law is not granted to these people, which makes it against the
spirit of Article 14.
It
is also important to note that this Act, based on the above reasons, intrudes
into the basic structure of the Constitution as it violates Article 14, which
is an intrinsic part of the basic structure. Therefore, as per the Supreme
Court’s judgement in the Keshavanda Bharti vs. State of Kerala case, I am of the view that the
Parliament does not have the legislative competence to pass such a Law.
Lack of Clarity
One argument of the Government, as stated in the Statement of Objects and Reasons in the Bill is that India has had historic migration of people from Afghanistan, Pakistan and Bangladesh and that these countries have a state religion which has resulted in religious persecution of minorities there. However, there is no reason mentioned in the Statement of Objects and Reasons to explain the inclusion of Afghanistan.
Also, no reason has been given to substantiate the differential treatment of migrants based on their date of entry into India (i.e. based on whether they came before or after 31st December 2014).
Exclusive
The Act excludes migrants who are residing in areas covered by the 6th Schedule (i.e. notified tribal areas in Assam, Meghalaya, Mizoram and Tripura). The Act also excludes the Inner Line Permit areas which regulates the entry of people, including Indian citizens into Arunachal Pradesh, Mizoram and Nagaland.
If the real purpose was to provide relief to persecuted religious minorities, the Act should have included persons in these areas too.
Conclusion
This
Act seeks to divert attention of the people from the variety of problems they
are facing at present. Unemployment is an all time high, prices of essential
commodities are soaring, GDP is on a downward slope, tax collections have
fallen and the Centre is not able to pay GST dues to the States. The demographic
dividend that we used to boast of is turning into a demographic disaster.
Today’s
India is a very young India. Youth also means impatience. An aspirational India
is waiting for opportunities, its wait will not be endless. The consequences of
that impatience will be very dangerous. It is high time that the Government
sheds its arrogance, accepts the reality and work towards resolving real issues
instead of fanning passions and diverting the minds of people.
As I
write this essay, there are protests across the country against the
implementation of this Act. People from all walks of life, especially young
university students, are on the streets. It is important for each one of us to
lend our voice in support of every peaceful protest and condemn unequal display
of force on peaceful protestors. While those in power may think that they have
got the license to implement their Mission Hindu Rashtra through the majority
in Parliament, the students of this country have shown them that it won’t be an
easy ride. But will they realise it? Its highly unlikely.
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