Citizenship Act-Can Law resolve the Political Malady

[PS: No figures, some facts]

India has the basic foundation of citizenship law provided in the Indian Constitution, 1950. Then there is the Citizenship Act, 1955 which provides for acquisition and determination of Indian citizenship. In this Act, Section 2(1) (b) defines an “illegal migrant” as a foreigner who has entered into India (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. The Citizenship (Amendment) Act of 2019 added a proviso to the above Section as noted below.

“Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;”

Thus, any foreigner who enters illegally into Indian territory without a valid document or authorisation for such entry or remains in India after the prescribed period of a valid entry shall be treated as illegal migrants. After the amendment, certain communities from certain neighbouring nations who have entered India on or before 31st December 2014 shall not be treated as illegal migrants for the purpose of the Act. The purpose of the Act is to provide citizenship. Hence it is understood that these migrants specified above can acquire Indian citizenship. The exemption provided on the ground of Passport (Entry into India) Act, 1920 makes it clear that the migrants need not have passports with them.

After passing of the Citizenship (Amendment) Act, 2019 the above-specified people can apply for citizenship through naturalisation. Apart from the Christian community, Sikh, Buddhist, Jain and Parsi are treated as Hindu in the Hindu personal law. Further, the migrants allowed are from Muslim neighbouring countries. India has not considered Sri Lanka or Myanmar from where religious persecution was reported. It is evident that there are illegal migrations from several neighbouring nations and the migrants include persons from all communities including the Muslims. But the new Amendment, interestingly, favours certain classes of people from a certain type of nations.

NRC required that every migrant should claim and prove that he is a citizen of India. While CAB/CAA asks them to prove the persecution and that they have crossed borders from another country! Now everyone left out of NRC in Assam will have to reverse their statement which they have given earlier! CAB is considered by many opposing the law as an attempt by the ruling party to absorb all of the excluded Hindus due to the implementation of NRC in Assam.

Many opposing the CAB/CAA say that it is anti-secular and violates the fundamental right of equality. The question remains unanswered as to why the Bill chose only some of the neighbouring countries, that too community-based nations. The present government has to clarify all aspects so as to clear the confusions caused by the Act. Non-inclusion of people from Myanmar and Sri Lanka are also making people frown.

It is evident from the Census carried out by these neighbouring nations that there is a decline of the non-Muslim community in those nations. However, the decline is not too high. These religious minorities may have found shelter in India which is their neighbour country. There is also a remote chance that they were forcibly converted or murdered.

The Law Point

As a law blog, we are limited to points of law only. So our Prime Question is whether the CAB/CAA is anti-Constitutional? Whether the CAB denies a particular community their right to citizenship and thereby denies their fundamental right to equality as promised by the Constitution?

Article 14 of the Indian constitution of India provides that the state shall not deny to any person Equality before the law or the equal protection of the laws in the Territory of India. The provision uses the term “person”. There should be equality before the law which means that equals should be treated alike under the law. This means that there can be a classification. But that classification shall not be arbitrary. It must be a reasonable one.

Reasonable classification on the basis of intelligible differentia is the key element for making a law in consonance with equality principle. The classification must also have nexus with the object sought to be achieved by the legislation. On the first impression, the Act itself presents us a picture of protecting the minorities (non-Muslims) in the neighbouring Islamic Nations. So in that aspect, Muslims will not be included. Moreover, as the object of law is to save those persecuted people by giving them citizenship, the classification seems to be a reasonable one on plain sight. The people supporting this legislation will highlight this aspect to state that the law is within the ambit of the constitution.

But it is an important matter to be noted there was no provision which enabled granting of citizenship to minorities in the Citizenship Act prior to its present amendment. As per the data submitted in Parliament, there are many refugees from Bangladesh, Sri Lanka, Myanmar, Tibet, Pakistan, Afghanistan. Interestingly, Sri Lanka which is not included in the Amendment constitutes the most number of refugees after Bangladesh.

So, does the law satisfy the dual test of reasonable classification and rational nexus as prescribed by Courts for making it compatible with the letter and spirit of Article 14 of the Constitution? If the above legal principle is taken, we could say that the law is within the ambit of Constitution because the law takes care of minorities (non-Muslims are the minorities in the specified nations in the new law). But what if a Muslim happens to seek refuge to India from those Muslim prominent nations specified in the law?!!! It was made clear in the Parliament by the ruling party that Rohingya Muslims will not be allowed in India. There are also instances of a certain category of Muslims who face persecution in those Islamic nations. However, the government has ruled out any possibility of Muslim taking refuge in India.

As in the case of Assam, the new law provides a fresh chance to the Hindus to become citizens of India. Now here lies the prime question. What about the Muslims who are left out of NRC in Assam. They are clearly left out as per the new Amendment. Now, this is a real concern to be resolved in order to contain this law in the basic feature of secularism expressed by the Constitution. This will be a huge blow on the new law on the ground of violation of Article 14 and other relevant Fundamental Rights.

Now if NRC is made compulsory pan India, then people from many religions will be excluded. In such a case, the government only want Non-Muslim category to remain in India by using the present CAB law. We do not want to comment on the different aspects of government policy now. But the exercise will be futile and will be very difficult if there is a plan to implement Pan India NRC. We feel that clearly, the protesters do have an edge over the present government action as it is difficult to establish that the law satisfies the true spirit of Article 14 and other relevant provisions of the Constitution along with its secular nature.

However, the States cannot blindly refuse to implement CAA. But there is always a legal remedy available to them to challenge the new law in Constitutional Courts.