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Kanu Agrawal
The qualitative selections and the objective exclusions in the Citizenship Amendment Act are intrinsically linked to the object of the Act and to the idea of what the idea of Indian citizenship stands for.
Immigration and the Citizenship Act
The immigration and naturalisation debate in any country in the world brings to forth a deep fissure on either side of the political spectrum. From the classic Democrat versus Republican positions in the United States, a country originally founded by migrants to the more recent immigrant crisis Europe, different parts of the world are engulfed with the said issue. While the said issue remained politically dormant in India [except for Assam and the Northeastern States] for a long time, the change of the government at the Centre and the passing of the Citizenship Amendment Act, 2019 [“the Amendment Act”] in the Parliament, has brought the issue to the forefront at the national level. At first, it is necessary to understand the present regime governing citizenship and naturalization in India. The Foreigners Act, treats everyone, who has entered the country without requisite documents, as “foreigners” liable to be detained and deported. Similarly, the unamended Citizenship Act, 1955 [“Unamended Act”] provides that anyone who has entered the country without requisite documents is an “illegal migrant”. Therefore, India has no immigration policy, statutory or otherwise, and the citizenship regime is completely dependent on executive discretion.
The Unamended Act provides for the usual form of citizenship by ‘birth’ and by ‘descent’. Apart from this, citizenship can also be acquired by way of ‘registration’ and ‘naturalisation’. The registration clause provides for citizenship for ‘persons of Indian origin’, ‘person who is married to a citizen of India’, “minor children of persons who are citizens of India‘, ‘Overseas Citizen of India Cardholder‘ and some similar categories on the basis of fulfillment of certain conditions. The naturalization clause provides for acquiring citizenship by way of efflux of time, again subject to fulfillment of certain conditions. However, this is not available to illegal migrants.
The Amendment Act seeks to provide circuit to citizenship, with a lower threshold, to a particular class of persons from a particular class of countries in the Indian-subcontinent. The Amendment Act classifies six communities, Hindus, Buddhists, Sikhs, Parsis, Jains and Christians [“classified communities”], from three countries, the People’s Republic of Bangladesh, the Islamic Republic of Afghanistan and the Islamic Republic of Pakistan [“neighboring countries”] to dilute the conditions precedent for acquiring citizenship. The Amendment Act excludes the persons from the classified communities, who belong to the neighboring countries, from being recognized ‘illegal migrant’, thereby providing for a means to overcome the express exclusion from registration or naturalization as Indian citizens. Further, the Amendment Act seeks to provide certain technical relaxations to the persons from the classified communities, who belong to the neighboring countries while making applications. The Amendment Act further seeks to exclude the application of the said relaxation to sparsely populated areas in the Northeast.
These relaxations are premised on a three-tier classification: first in terms of selection of minority communities, second in terms of selection of particular countries in the sub-continent and the third in terms of exclusion of the applicability of the relaxations in some parts of the country. It may be noted that these cges do not dilute the present regime wherein other communities in the said neighbouring countries and the all communities outside the said neighbouring countries, may apply for a valid visa, entry into the country and thereafter, subject to fulfilment of conditions, apply for citizenship. In essence, the Amendment Act, does not take away any vested rights from any community, as every foreigner without documents /illegal migrant, is liable to be deported/detained.
Without prejudice to the non-applicability of law against arbitrariness to non-citizens, the above classifications must be examined from the purview of constitutional viability. It is elementary constitutional law, settled in the initial years of the Indian Supreme Court that permissible classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and the differentia must have a rational relation to the object sought to be achieved by the statute in question[1].
The broad classifications
The first element of the qualitative selection of Hindus, Buddhists, Sikhs, Parsis, Jains and Christians as a class in themselves in the neighboring countries is a classification, grounded in the intelligible differentia of the said minorities as persecuted communities. Apart from the merits of the persecution of the said communities, the said classification is further based on the undeniable fact that five out of the six perceivably persecuted communities, have India, as their only natural, religious and civilizational abode.
The second element of qualitative selection is the identification of the People’s Republic of Bangladesh, the Islamic Republic of Afghanistan and the Islamic Republic of Pakistan within the Indian subcontinent as a class in themselves, which is centered on a recognition of countries with a specific state religion [sharia inclined countries] within the neighborhood. This classification is not novel within the immigration setups across the world which, identify and classify, countries with a specific state religion [sharia inclined States] as a “class” in themselves considering the obvious difference in the governance and the religious situation prevailing therein. The “intelligible differentia” in that view of the matter, is writ large in the three countries classified and is in fact, enshrined in their respective constitutions[2]. This classification also is deeply grounded in the long history of the ‘clash of civilizations’ with a perceptible presence of revisionism, destruction and persecution through generations preceding the Independence and the religious partition of Undivided India and extended territories.
The third qualitative selection, or exclusion, of Northeastern states within the country, is based on factors surrounding the fundamental differences in the population density, the constitutional obligation of protection of native culture, the economic and social inability/impact in case of mass immigration. Article 29(1) and Article 30(1) of the Constitution of India clearly demarcate the said aims and the Amendment Act seeks to preserve and protect the said rights thereby performing the obligation of the State.
The critical exclusions
Apart from the qualitative selections, it is necessary to understand the exclusions made in the Amendment Act. At first, it is clear that considering the basis of classification being minorities, the Muslim community in Muslim majority nations could not have been included. Second, it must be noted that universally, immigrant is classified as economic and otherwise. It is reasonable to assume that immigrants from the said countries who belong to the Muslim community, are economic migrants and cannot be treated similarly as the classified minority communities. This exclusion also subsumes the unfortunate class of Ahmediyas, Shias and Atheists in the neighbouring countries who may be persecuted, although on a different basis, from the classified communities. In this regard, it may be noted that legislative classifications are not ‘mathematical niceties’ and it is not always possible to perfectly tailor a legislation especially one dealing with wide mosaic of society, cultures and religions.[3] In the present case, it may be legislatively impossible to surgically segregate the said classes (Ahmediyas and others) from the excluded category and further to practically execute the same.
The other critical exclusion is the exclusion of non-sharia inclined States within the Indian subcontinent. This results in exclusion of cases of persecution of any other community, including Muslims, outside the three sharia-inclined States, but within the Indian subcontinent like Rohingyas or Tamils. At first, it is necessary to appreciate the differences in the constitutional setup of the classified countries in the neighbourhood in comparison with Myanmar and Sri Lanka. The classified countries in their respective constitutions expressly provide for a ‘state religion’. Pakistan and Afghanistan debar any law to be enacted against the ‘tenets of Islam’ thereby providing a sharia based judicial review of legislation.[4] To compare such constitutional setups with Sri Lanka and Myanmar which expressly provide and practice freedom of all religions, would be a complete incongruity. Further, as has been discussed in the public domain, a legislative measure may seek to tackle one particular problem in one particular manner and not be a panacea for all similar problems existing across the world.
Further, the criticism of this classification is based on two fundamental misconceptions: first that the classification is based on a country having a ‘state religion’ and second that every country that has a ‘state religion’ will treat the minorities badly. To illustrate, even the globalized overtly multicultural States like England, Germany and France, to name a few, have ‘State religions’ with the democratically elected governments protecting/preferring one religion over the other. However, to allege that the minorities are suffering in such States who recognize a ‘state religion’ would be an absolute absurdity. Therefore, the mere presence of a ‘state religion’ in a country’s constitution is not sole criteria for a legislative classification, rather it is intrinsically embedded in the past experiences, the systematic functioning of a State and perception of fear that may be prevalent amongst minorities as per the de facto situation in said countries. Therefore, while Myanmar and Sri Lanka may be inclined towards some form of Buddhism as a under the aegis of the State, the same cannot be compared to the classified neighbouring countries.
The sovereign power aspect
The issues concerning immigration policy and the citizenship requirement of foreigners are issues which ought to be in the exclusive domain of executive decision making / legislative policy making of the State. Considering the complex nature of problem, constitutional courts across the world have thought it to be desirable, expedient and constitutionally imperative to leave such decisions, outside the purview of judicial scrutiny. The Courts have interfered only on the limited aspects of individual procedural fairness rather than judicially reviewing the legislative policy itself. For example, in the United States, despite being a nation of immigrants unlike India, the question of immigration has been subsumed in the ‘plenary powers doctrine’. The United States Supreme Court has consistently held that it is the political force inherent in sovereignty, which holds the keys to such questions. As stated above, for obvious reasons, the same is inherent in the nature of the subject itself wherein several judicially unrecognisable factors, facts, possibilities and parameters come into consideration. The said policies are designedly entrusted exclusively to elected representative [carried out by the executive] and is ‘firmly imbedded in the legislative and judicial tissues of the body politic’ across the world.[5] It was no surprise that the so called ‘Muslim ban’ by President Trump, despite being a Presidential diktat rather than a law enacted by the elected Legislature, was upheld by the United States Supreme Court[6]. In essence, the power of exclusion of immigrants is an ‘incident of sovereignty’ belonging to a duly constituted Nation-State.
Further, immigration policy, due to its very nature, has an impact on the foreign policy of a State and by extension, affects the security apparatus, especially in certain cases of mass migration from neighbouring countries. Typically, the relationship of the purported minority with the constitutional order of the original country may also be relevant recognizable criterion for distinction. In some instances, it has been observed that certain immigrant communities, once given shelter, have used the territory of the host country to further extra-political objectives or subvert the constitutional order in their original country. While this cannot be presumed across the board and outside the context of mass migration, such internationalised issues touching upon the sovereignty of a nation are best left for the legislature/executive to take a judgment call. The judicial apparatus, consisting of judges, lawyers and the Courts, may not be most appropriate forum comprehend and adjudicate on such issues. To examine the same from strictly fundamental rights perspective would be looking at the problem with an eye closed. Therefore, the exclusion of the Baloch community in Baluchistan, the Tamils in Srilanka and Rohingyas in Myanmar, may at first blush seem unfair, but considering the nature of their relationship as a community with the constitutional order in their respective countries, it is necessary to not equate them with the classified communities in the Amendment Act.
Fundamental rights and illegal migrants
Another critical and often ignored aspect is the applicability of fundamental rights under Part III to non-citizens. It may be noted that fundamental rights are available only to “citizens”, with the said word being used in every Article expect Article 14 and Article 21. The said articles use the word “person” instead of citizens. This conspicuous use has led to numerous arguments of Article 14 and Article 21 being available, in their vast totality, even to foreigners/illegal migrants. The constituent assembly debates are silent on the said usage and therefore, the said usage seems to be more incidental than indicative of any constituent intent. The Supreme Court has never directly adjudicated the issue but has however held that ‘the fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of this country’[7].The Supreme Court has also noted that the machinery of Article 14 cannot be invoked to obtain the fundamental right to reside in the country.[8] While upholding the Foreigners Act, the Supreme Court has held that the Central Government has absolute and unfettered discretion to expel foreigners from India and as there is no provision fettering this discretion in the Constitution, the unrestricted right to expel remains.[9]
Without prejudice to the same, it is arguable that some aspects of Article 14 and Article 21 may be available to non-citizen in individual cases of expulsion wherein it has occurred without following the procedure established by law. However, it would be absurd to argue that the entire gamut of protection under Article 14 and Article 21 is available to foreigners / illegal migrants. One must remember that Article 14 and Article 21, despite being negatively couched, have been interpreted very widely, perhaps with “citizens” in mind and not illegal migrants. The question that needs to be examined is whether an “illegal migrant” can have the locus to question the legislative policy of a law enacted by the elected representative of the “citizens” of India? For that matter, can a foreigner, whose visa has been rejected by the Indian Embassy, file a writ petition in the constitutional court on grounds of arbitrariness? Or can a foreigner file a writ seeking shelter in India because his ‘right to sleep under Article 21’ is being violated in the country of origin? Extrapolations aside, it would not be judicially prudent especially considering the vast nature of jurisprudence on Article 14 and Article 21, both of which are ‘tag-along’ provisions with other fundamental rights – which are expressly limited to citizens. It is constitutionally imperative, in a welfare State with limited means, extensive poverty and exploding population, to limit the scope of migration in the country.
Conclusions
The legal criticisms of the Amendment Act often ignore the sharp constitutional divide on the law on immigration between political issues and legal issues. The criticisms often mistakenly allege that the Amendment Act is geared towards instilling fear in one particular community of citizens ignoring that the Amendment Act merely provides for a benefits to a particular class and does not withdraw any existing legal rights from others and further, the Amendment Act is geared towards illegal migrants and has no relation to legal citizens or valid migrants. The critique of the Amendment Act must remember that everything that does not fit the political ideology of a particular clique, is not unconstitutional[10].
Citizenship, as an idea, is not a judicial question but a political question. The question of who to consider ‘citizens’, forms an essential element of the sovereign identity of any country. The idea of citizenship forms the bed-rock of the social contract that any nation-state promises its existing citizens. The sovereign owes its primary duty to the citizens and hence, it is the Parliament which must remain sole custodian of issues concerning citizenship. The wisdom of the Parliament, with regard to certain exclusions/inclusions, may be a matter of public debate, as it ought to be, but not of judicial review. If one can rise over the usual hysteria in certain quarters[11], the Citizenship Amendment Act, if examined dispassionately and purely from a legal perspective, seems to further a solemn civilizational objective. The Amendment Act merely seeks to extend certain benefits and in no manner whatsoever, seeks to withdraw any existing right from anyone. The Amendment Act provides for a cut-off date and therefore, works merely as a one-time amnesty scheme.
The Amendment Act represents a watershed moment in the polity. The concept of Indian citizenship and its genesis, at the time of the partition, may have been “birth” however it cannot remain stagnant. Indian citizenship has to evolve through advancing the moral duty of protecting those in the subcontinent for whom India represents the only natural civilizational home whilst balancing the other sovereign concerns. The qualitative selections and the objective exclusions in the Amendment Act are intrinsically linked to the object of the Act and to the idea of what the idea of Indian citizenship stands for. It is specialised legislative measure, providing for a special localised problem.
About the author: Kanu Agrawal is an advocate at the Supreme Court of India.
Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.
[1] See Chiranjit Lal Chowdhuri v. Union of India, 1950 SCR 869; State of Bombay v. F.N. Balsara, 1951 SCR 682; State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284; Kathi Raning Rawat v. State of Saurashtra, 1952 SCR 435; Habeeb Mohamed v. State of Hyderabad, 1953 SCR 661; Budhan Choudhry v. State of Bihar, (1955) 1 SCR 1045; Ram Krishna Dalmia v. Justice S.R. Tendolkar, 1959 SCR 279; Raja Bira Kishore Deb v. State of Orissa, (1964) 7 SCR 32; P. Balakotaiah v. Union of India, 1958 SCR 1052; Express Newspaper (P) Ltd. v. Union of India, 1959 SCR 12; Khandige Sham Bhat v. Agrl. ITO, (1963) 3 SCR 809
[2] See the Preamble and Articles 2, 19, 40, 62, 203A, 203C, 203D, 203DD, 227, 228, 229, 230 of the Constitution of Pakistan. See Articles 2, 3, 62 and 149 of the Constitution of Afghanistan. See the Preamble and Article 2A and 25 of Constitution of Bangladesh.
[3] See Ganga Ram v. Union of India, (1970) 1 SCC 377; Kedar Nath Bajoria v. State of W.B., 1954 SCR 30
[4]See the 203A, 203C, 203D, 203DD, 227, 228, 229, 230 of the Constitution of Pakistan.
[5]Galvan v. Press 347 U.S. 522 (1954);Chae Chan Ping v. United States, 130 U.S. 581 (1889); Kleindienst v. Mandel, 408 U.S. 753 (1972)
[6]Trump, President Of The United States, Et Al. V. Hawaii Et Al.138 S. Ct. 2392; 201 L. Ed. 2d 775
[7]Mr. Louis De Raedt & Ors vs Union Of India And Ors., (1991) 3 SCC 554
[8]State of Arunachal Pradesh v. Khudiram Chakma, 1994 Supp (1) SCC 615
[9]Hans Muller of Nurenburg v. Superintendent, Presidency Jail, AIR 1955 SC 367
[10] Borrowed from the classic meme – “Everything I don’t like is Hitler-A child guide to online political discussion”
[11] Pratap Bhanu Mehta @pbmehta on Twitter – We can debate the past forever. But with CAB India takes a giant step to officially convert a constitutional democracy into a unconstitutional ethnocracy at https://twitter.com/pbmehta/status/1204044280345456643?s=20; Apurva Thakur in Economic and Political Weekly – Why the Citizenship Amendment Bill Goes Against the Basic Tenets of the Constitution at https://www.epw.in/engage/article/why-the-citizenship-amendment-goes-against-the-basic-tenets-of-the-constitution; Jeffrey Gettleman and Suhasini Raj in the New York Times – India Prepares to Block Naturalization for Muslims at nytimes.com/2019/12/09/world/asia/india-muslims-citizenship-narendra-modi.html ; Tavleen Singh in the Indian Express – CAB a majoritarian exercise to prove Muslims have lesser place in the ‘new India’ at https://indianexpress.com/article/opinion/columns/citizenship-legally-weaponised-6155936/ ; Gautam Bhatia in Indian Express – Proposed citizenship law is immoral, will unleash a legally-sanctioned regime of discrimination at https://indianexpress.com/article/opinion/citizenship-amendment-bill-union-cabinet-strangers-in-their-own-land-6154534/ ;