The Citizenship (Amendment) Bill of 2019 raises several questions, including possible violation of Article 14 of the Constitution which provides equality before law and equal protection of law to "any person" within the territory of India.
- Prasanna Mohanty
- New Delhi
- June 11, 2019
- UPDATED: June 11, 2019 10:19 IST
The run-up to the general elections witnessed the Northeast region erupting in protest against the Citizenship (Amendment) Bill of 2019 (CAB) in January this year. Citizens, ethnic groups, opposition parties, and even the BJP leaders and their allies opposed it for reasons ranging from fear of demographic changes to violation of equality before law and others.
The CAB seeks to amend the Citizenship Act of 1955 to grant citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians - leaving out the Muslims - from Afghanistan, Bangladesh and Pakistan - leaving out Sri Lanka and Myanmar - who entered into India on or before the 31st December 2014.
In Assam, for example, it has been pointed out that the CAB violates the Assam Accord of 1985 and the National Register of Citizens (NRC) being finalised now. Both (Assam Accord and NRC) are religion agnostic and set the cut-off data at March 24, 1971 for being declared as a foreigner or claiming citizenship. That is not all.
This article is the ninth in a series that looks at the agenda for the Narendra Modi government's second term. Read the first, second, third, fourth, fifth, sixth, seventh, and eighth part on anti-corruption architecture here.
Purpose of amendment
A reading of the CAB does not throw light on the basis of creating a new group of intended beneficiaries for citizenship. Its "Statement of Objects and Reasons," which is supposed to explain it, is silent.
A Joint Committee of the Parliament (JPC), which examined the amendment for two-and-half years and submitted its report in January this year, sought explanations and received two: (a) 'Cabinet Note' seeking the amendment "mentioned" it and (b) so did the 2015 and 2016 notifications of the Ministry of Home Affairs (MHA).
The JPC accepts these explanations without questioning. That is strange given the fact that a Cabinet Note is not a public document and its contents are not known, while all amendments to laws are required to be explained and justified in the Bill's Statement of Objects and Reasons.
Secondly, the MHA's notifications merely mention "religious persecution" for creating a new group of beneficiaries. These notifications amended the Passport (Entry into India) Rules of 1950 to add the six minority groups (Hindus, Sikhs, Buddhists, Jains, Parsis and Christians) from two neighbours (Bangladesh and Afghanistan) and said they were "compelled to seek shelter in India due to religious persecution or fear of religious persecution."
Nowhere is it explained on what basis, data or assessment it was inferred that certain religious groups from certain countries are being persecuted on religion ground, but not others.
In fact, the Minister of State for Home Kiran Rijiju admitted that there was no authentic survey or accurate data on who would benefit from the amendment in the Citizenship Act of 1955. However, he said more than 30,000 people belonging to the minority groups, who are staying on Long Term Visa, would benefit. The JPC report too confirms it. It quotes the Intelligence Bureau (IB) as saying that post-amendment, those seeking citizenship "will have to prove that they came to India due to religious persecution."
Classification of beneficiaries and intelligible differentia
A bigger challenge to the CAB comes from the right to equality enshrined in Article 14 of the Constitution, which reads: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
A petition challenging the CAB is pending before the Supreme Court and would be taken up once the Parliament passes it. The CAB was passed by the Lok Sabha in January this year but not by the Rajya Sabha. With the dissolution of the last Lok Sabha, it has lapsed and needs to be reintroduced.
Aware of the need to confirm to Article 14, the JPC sought clarifications from the Department of Legal Affairs (DLA). The DLA said there would be no such violation and relied on the Supreme Court judgement in the Ram Krishna Dalmia vs Justice SR Tendolkar case of 1959 for the test of the "true meaning and scope of Article 14."
This judgement laid down two preconditions for equality of treatment in any classification: (i) it must be founded on "intelligible differentia", which distinguishes persons or things that are grouped together from others left out of the group and (ii) the differentia must have a "rational relation" to the object sought to be achieved.
The JPC does not seek or explain why or how non-inclusion of the Muslims in the classification of beneficiaries would not be discriminatory or violate Article 14. It simply takes a mere assertion of the DLA that it would be so. It is well known that the Rohingyas in Myanmar (some of them were deported from India to Bangladesh in January this year), Ahmadis in Pakistan and Shia Muslims in Bangladesh and Afghanistan (Hazaras) are facing religious persecution. The Indian Muslims who migrated to Pakistan at the time of the partition (known as Mohajirs) too face persecution in Pakistan.
Similarly, the JPC does not question why non-inclusion of Sri Lanka and Myanmar would not fall foul of Article 14. It accepts the MHA's explanation that the matter relating to refugees from these countries would be dealt with by the Standard Operating Procedure (SOP) issued on 29th December, 2011 - different from the CAB.
The 2011 SOP stipulates that "cases, which are prima facie justified on the grounds of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion, can be recommended by the State Government/Union Territory Administration to the Ministry of Home Affairs for grant of Long Term Visa (LTV) after due security verification."
So, the SOP talks about LTV, not citizenship, and the basis of granting LTV is for refugees from Sri Lanka and Myanmar for facing persecution for a wider range of reasons than just "religious persecution."
In light of these differences, it is not clear how "intelligible differentia" will be maintainable before the Supreme Court.
Going forward
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