This Research Paper is written by Parinay Gupta, a Fifth Year B.A LL.B (Hons.) Student at Amity Law School, Delhi.
Citizenship (Amendment) Act, 2019
Even though the Citizenship (Amendment) Act, 2019 is now a law as of January 2020, its implications could be so dangerous that it’s necessary to analyse and review the amendment in light of the principles laid down in the Indian Constitution. In India, fundamental rights and the right of residence on the land of India is dependent upon getting citizenship. The very foundation of our nation is built upon the ideas of secularism. Which is why excluding certain religious groups seeking haven from a particular set of countries from enjoying the rights we guarantee could prove to be extremely problematic.
The Central Government passed the bill for the amendment on December 10, 2019 in a cabinet meeting. After going through the Lok Sabha and then the Rajya Sabha, the amendment came into force on January 10, 2020. It aims to amend Section 2 (1) of the 1955 Citizenship Act so that the term “illegal immigrants” no longer includes people from Hindu, Jain, Sikh, Parsi, Buddhist and Christian communities who are minorities in Bangladesh, Pakistan and Afghanistan.
The amendment also seeks to modify the 1955 Citizenship Act’s Third Schedule, specifically Clause (d), by reducing the period of naturalization for period of residence, from “not less than eleven years” to “not less than five years” for the abovementioned religious communities so that they can attain their Indian citizenship.
According to Indian law, illegal immigrants are not refugees. Furthermore, illegal migrants cannot get citizenship of India according to the Citizenship Act of 1955. Under Section 2 (b) of the Act, ‘illegal migrants’ are defined as those who have stayed longer than the prescribed time permitted even if they have a valid passport and other required travel documents or have entered the country without a valid passport and other required travel documents. Migrants who fall under this definition are either sent back to their countries as per the procedure laid down in the Passports (Entry into India) Act, 1920 and the Foreigners Act, 1946 or they are sent to jail. The purpose of the 2019 amendment is to ensure that any person from the abovementioned religious communities who enters India without a valid password or travel documents cannot be deported or imprisoned.
It must be noted that Section 2 (a) of the Foreigners Act, 1946 defines “foreigner” as “any person who is not a citizen of India”. The definition is not only outdated, but also vague in explaining who can fall under this definition. The act fails to lay down any procedure that the Government will follow for such detection of nationality or any methodology which will be used for identifying foreigners. The slippery slope that exists with this definition is dangerous considering the vagueness of the definition gives the Government space for exploitation and naming any individual a foreigner without a set process designed for such classification.
Arguments defending the Amendment
The Central Government has made it clear that the rationale behind this amendment is that Bangladesh, Pakistan and Afghanistan are Islamic Republics, meaning they are predominantly Muslim. Due to this, the Muslims living in these countries cannot be considered to ever be victims of persecution. It has also been clarified that the earlier procedure for citizenship still remains and that an application from any other community will be decided on a case-to-case basis.
The Home Minister also reminded the people of the country that the Nehru-Liaquat Pact that was signed between India and Pakistan in 1950 was also designed to ensure better treatment to the minorities of both countries. He pointed out that the said Pact was not successful in achieving its purpose of protecting minorities in Pakistan and this failure is what the Central Government aims to correct through the 2019 amendment.
The Union Government has argued that many of the citizens of undivided India ended up living in territories of Pakistan and Bangladesh after the Partition in 1947. Due to the fact that the Constitutions of Bangladesh, Pakistan and Afghanistan specifically provide for Islam to be the State religion, many people belonging to the Hindu, Jain, Sikh, Parsi, Buddhist and Christian communities face persecution on the basis of their religions in these countries.
Living under constant threat of being denied their right to practice, profess and propagate their religion, members of these communities fear having to face persecution almost on a daily basis. Due to such fears, many people have fled to India seeking shelter and to get a chance to continue living in India despite their travel documents either expiring, being incomplete or not existing at all.
The Government of India defends their decision to reduce the period from “not less than eleven years” to “not less than five years” for persecuted minorities belonging to the three countries by stating that imposing the “not less than eleven years” condition for obtaining citizenship through naturalization would result in denial of opportunities and advantages that may come up for them in those years if they were actual citizens of the country.
Arguments Criticizing the Amendment
The Amendment is based on two types of classifications; first, that is based on religion, that is, deciding to extend the benefits of the amendment to members of the Hindu, Jain, Sikh, Parsi, Buddhist and Christian communities and second, that is based on nationality, that is, members of these communities coming only from Bangladesh, Pakistan and Afghanistan. By differentiating between illegal migrants on the basis of these classifications, the Amendment infringes upon the fundamental right to equality that is guaranteed as per Article 14 of the Constitution of India.
The two-fold test for deciding if a law that differentiates between individuals or classes, is violating Article 14 of the Constitution, was laid down in the Supreme Court case of U.P. Power Corporation Ltd v. Ayodhya Prasad Mishra in which the apex court laid down that: –
- There needs to be a degree of reasonability in classifications and must be based on intelligible differentia which differentiates people or things that are grouped with people who are left out of the group.
- For such a differentia, there needs to be a rational connection between the law in question and the legislative objective that was to be achieved.
In the Supreme Court case of the State of West Bengal. v. Anwar Ali SarkarThe apex court stated that intelligible differentia means there needs to be a reasonable classification when distinguishing between those excluded from the group and those in the group. The amendment is based on the objective of protecting minorities facing religious persecution from the above mentioned three countries. However, the objective is based on the logic that only Hindus, Jains, Sikhs, Parsis, Buddhists and Christians face persecution in a Muslim-majority country and Muslims have to be excluded. This logic fails to explain why Shias facing religious persecution in Pakistan, or the Rohingyas of Myanmar or the Tamils of Sri Lanka are excluded as well.
In the Supreme Court case of Pradeep Kumar Biswas v Indian Institute of Chemical Biology The apex court using judicial interpretation widened the scope and range of Article 14 has been widened by so that apart from the right to not be discriminated, the constitutional right to equality now also includes being protected from any irrational or arbitrary act committed by the State.
As laid down in the Supreme Court case of Om Kumar v Union of India, an action is deemed arbitrary when it is unreasonable, not based on sound reason, or is irrational.
The classification based on country of origin, as per the 2019 amendment, also infringes upon Article 14 and the right to equality, as it fails the test of “manifest arbitrariness” which was established in the Supreme Court case of Shayara Bano v. Union of India, in which a law was considered as excessive, disproportionate or being manifestly unreasonable when it is not transparent, not rational, not fair, biased, discriminatory, capricious, or colored with nepotism or favouritism. The fact that all three countries covered in the amendment are India’s neighbours and Muslim-majority countries seems to be the common link upon which the amendment itself is built.
If the amendment wants to avoid being considered manifestly unreasonable and arbitrary, it must be explained why Myanmar and Sri Lanka were excluded from the 2019 amendment, despite being India’s neighbours and despite being countries where religious persecution does take place as well. It has been argued that a lack of a properly determined yardstick for guiding this classification is the reason behind the absence of a proper justification for only picking these three countries.
Afghanistan has been included in the list despite the fact that the Government claims the determining principles behind the amendment were to cover countries that were originally a part of India before the Partition of 1947. Even if that argument was ignored, Sri Lanka should’ve been included if the rationale behind the choosing of countries was that they have to be neighbours of India.
Furthermore, it’s astonishing to see that Myanmar was not included in the list despite the scale and degree of religious persecution the Rohingyas face in Myanmar. On the contrary, the NDA Government has chosen to send Rohingyan refugees back to Myanmar. It seems clear to the lobby against this amendment, that the only determining principle behind this amendment is the belief that Muslims cannot be religiously persecuted and do not deserve protection from such persecution. Such an assumption can only be considered as unreasonable, discriminatory and biased.
As decided in the Supreme Court case of the State of Bombay v. Balsara, if the statute prima facie shows that there was no attempt made by the legislature to make a reasonable classification, instead, preferring to single out a particular class without any reason, then the presumption of reasonableness usually given in their favour, would have to be taken back.
The biggest issue of contention, with regards to the 2019 amendment, is that it only seeks to relax the requirements to obtain citizenship for non-Muslim immigrants, who now have to live for only “not less than five years” India to pass the test of naturalisation after coming/fleeing from three very specific Muslim-majority countires. Nevertheless, the Government has assured that other foreigners can still file an application for citizenship, but have to live in India for “not less than eleven years” so as to obtain citizenship, which means they have to only satisfy the process of naturalisation that existed before the 2019 amendment.
The legality of the amendment cannot be questioned since the Supreme Court had initially, in March 2020, already stated that the amendment is not unconstitutional. However, the petition challenging the amendment has been pending in the Supreme Court, with hearings still happening as of August 2020, to decide its constitutional validity. It is the question of morality, ethics and notions of discrimination that are currently clashing with what is otherwise, a completely legal amendment created by expertly manoeuvring the legal loopholes of our Constitution.
 (2008) 10 SCC 139
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 (2002) 5 SCC 111
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 (2017) 9 SCC 1
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