Indian Citizenship Bill may face strong challenge in Supreme Court

The absence of the Muslim community from the proviso is conspicuous and was the subject of intense debate among parliamentarians in the past few days.

The Citizenship Amendment Bill, 2019 (CAB) was passed by the Parliament on Wednesday even as the Upper House debated its validity under a Constitution in which secularism is a central tenet. The bill which awaits President's nod, is likely to be challenged in Supreme Court soon.

Specifically, the bill amends Section 2 of the Citizenship Act, 1955, which defines "illegal migrants" by adding a proviso -- Section 2 (1)(b) -- according to which any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Bangladesh or Pakistan, and who have been exempted by the Central Government under the Passport (Entry into India) Act, 1920 or the Foreigners Act, 1946, shall not be treated as "illegal migrant". Further, any proceeding pending against such persons shall abate allowing them to be eligible to apply for citizenship by naturalisation, which is laid down under Section 6 of the 1955 act.

The absence of the Muslim community from the proviso is conspicuous and was the subject of intense debate among parliamentarians in the past few days.

What the CAB does not do

It does not automatically confer citizenship on a person from Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan. They have to apply for citizenship and possess the qualifications laid down under the Citizenship Act. The amendments will not affect a person who is already a citizen of India.

The bill also does not exclude Muslims as a whole, as Muslims, including from the three countries specified in the proviso, can become Indian citizens by following the procedure laid down in the act. The prohibition is only if they are "illegal migrants": those who travel without valid passport and documents, or those with valid documents who stay in India beyond the permitted time period.

There are Muslim communities facing discrimination in Muslim majority countries, such as the Rohingya Muslims who are a persecuted community in Myanmar. The amendment disregards this by classifying Muslims as one homogenous group. Thus, Muslim illegal migrants, as a whole, are denied a benefit irrespective of whether they are persecuted in their home country or not.

Non-Muslim illegal migrants from other countries will not get the benefit of this exemption.

The implications

Though the amendment does not automatically confer citizenship to Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, it removes the tag of "illegal migrant" which is a roadblock for acquiring citizenship by naturalisation.

Further, it also relaxes the condition to acquire citizenship by naturalisation. As per the current requirement, a person should have 11 years of residence in India or service of government in India. The amendment reduces this to a period of five years.

Muslim illegal migrants from these three countries cannot apply for citizenship and will continue to remain illegal migrants.

"In effect, what the law does is pick out certain groups of people from a larger class of "illegal migrants" and gives them preferential treatment by enabling them to shed the tag of illegal migrants and consequently open up an opportunity for them to acquire Indian citizenship," said Senior Resident Fellow at Vidhi Centre for Legal Policy, Alok Prasanna Kumar.

Effectively, the amendment can be seen as negatively discriminating against a class of people (Muslims) based on their religion. This is in violation of Article 14 of the Constitution, which is wide in its scope and applies to citizens and non-citizens alike. It lays down that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Thus, the argument against CAB would be that it discriminates against a certain section of illegal migrants on the ground of religion by not providing them an opportunity which is afforded to other similarly situated persons. Another possible argument is that the law discriminates against illegal migrants based on the country from which such illegal migrants have come to India since the benefit is limited only to three countries.

As held by various judgments of the Supreme Court, classification of persons by a law, in order, to pass the test of Article 14 should have a rational nexus to the object sought to be achieved by the law. The classification by CAB, it can be argued has no rational nexus to the object sought to be achieved by it which is protection of minorities fleeing persecution.

"Article 14 speaks of equal protection of law for all. This is a law which is meant to protect illegal migrants from the consequences of deportation. So then if a distinction is made solely on religion, you are not equally protecting all," said senior counsel Sanjay Hegde.

However, Hegde said that applying CAB to only three countries and excluding other countries is a matter of legislative policy which courts might not prefer to interfere with.

"That could possibly be justified as legislative policy because the legislature can claim that we have a bigger problem as far as these three countries are concerned and we can, therefore, start with these countries. If a position is taken that all countries should be covered then we might have Myanmar, Sri Lanka etc. But excluding countries can be justified as legislative policy and it might not be appropriate for courts to interfere on such a ground", Hegde said.