Anmol Jain

Citizenship is considered to be the most important right of all, as it determines the relationship between the state and its constituents. Devoid of citizenship, a person gets reduced to a mere subject of the rule and lacks multiple fundamental, constitutional and legal rights. Therefore, the dynamics of this relationship are sacred and any change has implications beyond imagination.

The government seems to be drastically changing such dynamics. While addressing the ‘NRC Seminar’ in Kolkata some days back, the Home Minister reminded the audience of the efforts of the Sixteenth Lok Sabha to pass the infamous Citizenship (Amendment) Bill, 2016, which lapsed with the dissolution of Parliament. He stated that the government shall reintroduce the Amendment Bill and claimed:

“I today want to assure Hindu, Sikh, Jain, Buddhist and Christian refugees, you will not be forced to leave India by the Centre…I’m telling you that we will not allow even a single intruder inside India. We will expel all of them.”

In this background, it becomes necessary for us to understand who constitutes “illegal immigrants” under the Amendment Bill.

The Citizenship Act, 1955 defines an “illegal migrant” as one who has entered India without a valid passport or travel documents, or has stayed in India beyond the permitted period. Being termed as an illegal migrant affects one’s right to claim Indian citizenship. The Amendment Bill aims to insert a proviso to the definition of illegal migrant, which shall read as follows:

“Provided that person belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh and Pakistan…shall not be treated as illegal migrants for the purpose of this Act.”

Therefore, this insertion shall confer citizenship rights specifically upon non-Muslim immigrants. For the said communities, the Bill also reduces to half the minimum period of residence or service of a government required for citizenship by naturalization. I believe that this Bill is an unconstitutional exercise of the Executive towards securing political gains. Whether or not it passes judicial scrutiny is what remains to be seen.

Before delving into the constitutional challenges to the Bill, I wish to shed light on past developments that have shaped the citizenship regime in India. 

A Journey to the Past

When the Constituent Assembly of India initiated its deliberations in December 1946, there was no agenda for including a provision pertaining to citizenship in the Constitution as it was believed that citizenship norms must ideally be set by the Parliament. However, the untimely Partition intervened the Assembly proceedings, and it became necessary to decide upon the citizenship of the divided nations. 

Nevertheless, it must be remembered that the aim of drafting Part II was merely to decide citizenship at the moment of its enactment. In the words of Dr. BR Ambedkar, they were meant only as an ‘ad-hoc’ arrangement ‘for the time being’. This is also reflected in the language of Article 11 of the Constitution that secures the power of Parliament to rule in respect of acquisition and termination of citizenship and all other incidental matters notwithstanding Part II. Similarly, Article 10 also subjects the continuance of the right of citizenship to such laws as made by the Parliament under Article 11. Therefore, we see that the constitution-drafters chose not to entrench the citizenship provisions in the Constitution.

The repercussions of this omission were first seen in the 2004 Amendment inserting Section 8A to the Citizenship Rules, 1956 (Repealed later in 2009). It was a covert attempt by the Legislature to put religious identity at the center of the citizenship questions concerning the states of Rajasthan and Gujarat in respect of ‘minority Hindus with Pakistan citizenship.’ 

The Legislature did not deem it fit to question the intentions of these immigrants similar to the manner in which it questioned the intentions of the Pakistani immigrants coming to India under Article 7 (most of whom mere unsurprisingly Muslims). While commenting on this provision, the Gauhati High Court declined any interference, noting that: 

“the issue being a political one and the laws relating to foreigners making no distinction in that line, this Court is not the appropriate forum to deal with the said issue…”

While this was not the first attempt to religiously colour the citizenship question, it was indeed the first explicit attempt. Previously, the Citizenship Act was amended in a secular fashion in 1985 to provide for the citizenship matters concerning immigrants to Assam, specially from Bangladesh post 1971. It was to detect the inflow of illegal immigrants and denude them of citizenship rights.  

Therefore, the failure of the drafters to constitutionally entrench the citizenship provisions has led to a religiously-motivated understanding of citizenship on multiple occasions. On one hand, restrictions are placed on the influx of illegal migrants into Assam, but on the other, illegal migrants are deemed as refugees when they constitute the Hindu minority in the Muslim nations. 

In next part, I shall discuss the constitutional infirmities that the Citizenship Amendment Bill suffers from. 

Constitutional Challenges to the Amendment Bill

Th arguments against the Amendment Bill are three-fold. First, that the Bill is manifestly arbitrary and thus, violates Article 14 of the Constitution; second, it goes against the secularistic understanding of the Indian Constitution; and third, constitutional morality does not allow the government to enact religiously-motivated laws. 

Article 14 ensures to ‘every person’ the right to equality before the law and equal protection of laws within the Indian territory. In the celebrated case of EP Royappa v. State of Tamil Nadu (1974), the Supreme Court interpreted this right in the following terms:

“From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belonging to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.”

Similarly, after referring to multiple precedents, Hon’ble Nariman and Lalit, JJ. concluded in the Triple Talaq case that a constitutional infirmity is found in Article 14 whenever a “legislation is manifestly arbitrary, i.e. when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favoritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment.” 

Studied in this light, the Citizenship Bill cannot pass the muster of non-arbitrariness as it arbitrarily saves certain communities from being tagged as illegal migrants, and allows them to acquire citizenship, while excluding other communities. Moreover, the fact that it creates a different timeline for the naturalization purposes for people migrating from Pakistan, Afghanistan and Bangladesh against creates an arbitrary difference in treatment of the people migrating from other nations. 

Moving on to secularism, we must start the discussion with a quote from one of our founding fathers. Speaking just after independence, Jawaharlal Nehru presented the following as the idea of India:

“So far as India is concerned, we have very clearly stated as Government and otherwise, that we cannot think of any State which might be called a communal or religious State. We can only think of a secular, non-communal democratic state, in which any individual, to whatever religion he may belong, has equal rights and opportunities.”

The Forty-Second Constitutional Amendment added the word “secular” to the Preamble to the Constitution in 1976. In 1994, the Supreme Court stated that:

“It is clear from the constitutional scheme that it guarantees equality in the matter of all individuals and groups irrespective of their emphasizing that there is no religion of the State itself…Secularism is embodied in the constitutional scheme as a creed adopted by the Indian people…The concept of secularism is one facet of the right to equality woven as the central golden thread in a fabric depicting the pattern of the scheme in our Constitution.”

In his recent work, Prof MP Singh notes that observance of ‘constitutional morality is as important for the smooth working and survival of the Constitution as public morality is for the smooth working and survival of a society.’ Prof. Singh cites Dr. Ambedkar’s speech identifying diffusion of constitutional morality as an indispensable condition for a government to have a peaceful working of a democratic Constitution. 

Last year, the idea of constitutional morality was endorsed on multiple occasions by the Supreme Court while deciding important matters such as the Sabarimala temple issue and the matter concerning criminalization of homosexual relations. The Amendment Bill far from adheres to constitutional morality. Even at the time of partition on religious lines, the constitutional drafters opted to base citizenship on the place of birth of an individual, without any implication to religion. 

Dr. Ambedkar was indeed prophetically correct when he stated that ‘it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution.’ I believe that the Amendment Bill is one such unconstitutional step that affects the constitutional spirit. 

Concluding Remarks

The Indian tradition towards citizenship proves at least one thing beyond debate: there has always been a negative bias towards Muslims under a Constitution claimed to be operating in a secular fashion. The Citizenship Amendment Bill is one such manifestation that has the potential to nullify the effect of any cut-off date when it comes to those six communities if they are able to trace their source of migration to Pakistan, Afghanistan and Bangladesh. 

Moreover, grave political consequences lurk underneath. The Bill presents the Indian dispensation as a Hindu state and it might change the political attitude of the leaders of the neighbouring nations and weaken the political rights of the religious minorities. It has been very correctly pointed out elsewhere that the Bill will provide an easy weapon in the hands of the Muslim leaders to enthusiastically persecute the religious minorities and show them the path towards India.  

Anmol Jain is a penultimate year student at National Law University, Jodhpur.

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.