The Citizenship (Amendment) Act, 2019: Religion Over Rights

  • Mayur Kulkarni

The Indian Parliament recently passed the Citizenship (Amendment) Act, 2019 (hereinafter Act) which seeks to provide Indian nationality to six communities-Hindus, Christians, Sikhs, Parsis, Jains and Buddhists fleeing persecution from Pakistan, Afghanistan, and Bangladesh. The Act amends the Citizenship Act, 1955 to make illegal migrants in the select categories eligible for citizenship.

On the face of it, the Act seems to be an attempt to provide Indian Citizenship to the persecuted minorities from the neighboring countries, however, when seen in light of the National Register for Citizens (NRC)(an exercise conducted by the government to identify illegal immigrants from Bangladesh), the Act seems to suggest otherwise. To illustrate, if a Hindu is declared illegal immigrant under the NRC, she would be protected from detention and eventual deportation by the operation of this Act. However, if a Muslim is declared illegal immigrant, she would be deported as the Act excludes Muslims from its purview. Due to such religion-based classification of people, the Act has come under widespread criticism from civilians, human rights activists, and the international community. The basic criticism is that the Act is prejudicial to the Muslims minorities in India and also that the Act violates the settled principles of Indian Constitutional law. In this post, I would analyze the constitutionality of the Act.

The most severe criticism of the Act is that it violates Article 14 of the Indian Constitution. Article 14 guarantees that no person shall be denied equality before the law or the equal protection of laws within the territory of India. The Indian Supreme Court while interpreting Article 14 has laid down the test that whenever an act makes a classification among groups, such classification must have an intelligible differentia and a reasonable nexus with the legislative object. The Court in a landmark judgment explained that intelligible differentia means that there must be a yardstick to differentiate between those included in and those excluded from the group. Later in its 2018 landmark judgment, the Court held that the yardstick used to make the differentiation must also be reasonable and that whenever legislation makes discrimination on the basis of an intrinsic or core trait of an individual, it cannot form a reasonable classification based on intelligible differentia. The Court also noted that “Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an individual’s personal autonomy”.[1]Therefore classification on such grounds would not be permissible.

Another test laid down under Article 14 is that the classification made must have a reasonable nexus with the legislative object. The object of this Act is to ‘protect those who have faced religious persecutions in Afghanistan, Pakistan and Bangladesh’. However exclusion of Muslims from the category of ‘persecuted’ the Act is based on false premises that no Muslims are persecuted in the Muslim-majority countries. However, different sects of Muslims like the Shias and Ahmadiyyas in Pakistan, Rohingyas in Myanmar have faced serious persecution based on religion. Thus, the exclusion of Muslims from the protection of the Act does not have any reasonable nexus with the legislative object of the Act.

The Act further makes a county-based classification also. The persecuted minorities from only Pakistan, Bangladesh and Afghanistan are covered under the Act. Such country-based classification fails the ‘manifest arbitrariness’ test under Article 14 which was laid down by the Supreme Court in Shayara Bano[2] case. The ‘manifest arbitrariness’ is something done by the legislature capriciously, irrationally and/or without adequate determining principle’. There seems to be no adequate determining principle for bringing only these countries under the Act. The common factors among these countries are that one, they are Muslim-majority and second they are India’s neighboring countries. Firstly, the justification that all three countries are Muslim-majority countries and hence Muslims are not ‘persecuted’ in those countries is refuted above. Secondly, all these are the neighboring countries of India that also do not seem to be adequate because other neighboring countries like Sri Lanka where Tamilians have historically faced persecution and also Myanmar where the Rohingyas are subject to serious persecution have been excluded from the Act. Moreover, no reasoning has been given by the government for the non-inclusion of other neighboring countries. Hence the Citizenship Amendment Act fails to pass both the reasonable differentia test and the nexus test and thus violates Article 14 of the Constitution.

Another criticism of the Act is that it violates the ‘basic structure’ doctrine of the Indian Constitution as laid down in the landmark Kesavananda Bharati[3] case. The Act violates the principle of secularism which is enshrined in the Preamble and also is a part of basic structure as per the landmark judgment of the Supreme Court. The Act also violates Article 15 which prohibits ‘discrimination based only religion’. The Act envisages providing citizenship to groups based only on the religion and this stands in blatant violation of secularism and Article 15 of the Constitution.

Other criticisms include that the Act goes against the principles of jus soli and the obligation to reduce to statelessness which has come to be recognized as part of the customary international law.

As discussed above, I believe that the Act is unconstitutional and accordingly an Act that stands in blatant violation of the basic tenets of the Constitution must be done away with. Accordingly, the government must consider the criticisms expressed against the Act and make necessary amendments so as to uphold the sacrosanct tenets of the Indian Constitution.

The author is a student of Gujarat National Law University, Gandhinagar (2nd Year).

[1]Navtej Singh Johar v. Union of India, 2018 SCC OnLine SC 1350

[2] Shayara Bano v. Union of India, (2017) 9 SCC 1

[3] Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr., (1973) 4 SCC 225