Jointly authored by: Harsh Bajpai, Ahmed Shafquat Hassan, Shreya Khandelwal
The 2019 winter session of the Indian Parliament saw discussion, debate and disagreements surrounding the Citizenship Amendment Bill which – after receiving the President’s assent on 12th December, 2019 – has now become the Citizenship (Amendment) Act 2019 (henceforth referred to as ‘the said act’). It is pertinent to note that this Act completely changes the laws surrounding citizenship that have been followed the past 64 years in India, by amending the erstwhile Citizenship Act, 1955 (hereafter, the 1955 Act).
In a nutshell, the said act, passed by the ruling government in India, is one that expressly offers protection to members of the minority communities (Hindus, Sikhs, Buddhists, Jains, Parsis and Christians) from India’s three Muslim-majority neighbours (Afghanistan, Bangladesh and Pakistan) seeking refuge in India through requesting for citizenships. By not including persons of the Islamic faith, the Act expressly excludes certain neighbouring nations and Muslim minorities, such as the Shia Muslims in Bangladesh or the Ahmediya Muslims in Pakistan. We deem it evident that the bill provides for de facto discriminatory treatment of illegal immigrants on the basis of four individual factors: their faith, their country of origin, their date of entry and finally, their place of residence in India. However, in line with the discussion surrounding the constitutional validity of the act with specific regard to its overarching objective, the biggest problem arises from the first two features which is inherently discriminatory on matters of individual autonomy.
The design of the bill was problematic to begin with, but to make matters worse, with years of debates conducted in the parliament of India, this bill is now an Act. It is, for one major reason, an affront to the very essence of the Indian constitution. The conditions of the Act, and the factors by which it would determine eligibility of illegal immigrants to apply for citizenship, have been set entirely arbitrarily and without sound reasonable grounding.
THE NEXUS BETWEEN INDIA’S CITIZENSHIP POLICIES AND ELECTORAL SKEWING
To understand the gravity of the issue in the said act, one needs to understand the importance of National Register of Citizens (NRC). The NRC in Assam was updated over the last few years to figure out a way to get data about undocumented migrants who had come from Bangladesh after 1971. During this exercise 1.9 million people in the Indian state of Assam were excluded from the final register of citizens, which instead featured a large concentration of Bengali Hindus – a strong voting base for the present ruling government, i.e. the Bhartiya Janta Party (BJP). This exclusion proved to be a reason for immense political backlash against the BJP in the North-eastern states of India, and the government had three options to find a way to include these undocumented Hindu immigrants.
First, it could scrap the whole NRC project, but it is unimaginable, considering the promises made to the public. The second suggestion was to rework the entire NRC program without errors. And third is of course the enactment of the said act. BJP before 2016 State Assembly elections carried out an anti-infiltration campaign and promised to throw foreigners out of the state of Assam. BJP’s whole Northeast India elections worked in it’s favour because of the anti-migrants and Hindu nationalism wave. However, the exclusion of Hindu Bengalis in the final draft of NRC prompted BJP to provide a cushion to the community by way of CAA. This is because of the fact, that those excluded in the final draft of NRC, within 120 days of receiving the rejection slip by the authorities, are to approach the Foreigners Tribunal to appeal and decide their citizenship status. But the rejection of NRC by the Assam Government meant that BJP got enough time to try and pass CAA The point that needs to be recognized here is that the BJP, when selling their anti-migration ideology, targeted that sentiment towards the largest minority group and the one that was most distinguishable from the Hindu population: the Muslims. This therefore shows a malafide intention of the government for bringing amendment, and is therefore unconstitutional.
THE DISCUSSION SURROUNDING RELIGIOUS PERSECUTION
Further, there is a lot of discussion about how the Citizenship (Amendment) Act pertains to people who have dealt with or are dealing with ‘religious persecution’ but what is interesting to note is that the lawmakers have decided to spare not a single mention to the phrase ‘religious persecution’, what it means, who it includes/excludes or how they came to the decision of who to include and who not to. The act has not gone into the much needed discussion of the meaning of the phrase “religious persecution” except limited mentioning of the words in its Statement of Object and Reasons: “…persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries”. This allowed the BJP to steer the discourse away from the obvious exclusion of the Muslim population, and focus predominantly around the inclusion of those persecuted in neighbouring nations with Islam as a state religion. The only possible reasonable explanation for this lack of information is perhaps to cleverly word the law in such a way that it brings about a sense of confusion and therefore a lack of correct information amongst the citizens of India. The BJP is then able to use this confusion to defend themselves in political debates by making the narrative about inclusion of persecuted minorities and not about the exclusion of the Muslim people. Critics are therefore not wrong to say that the current government does it with an ill-intention of keeping its public in the dark. Based on the records of all the parliamentary debates, it is evident that the narrative around the Act has been largely skewed to ensure political favour from the general mass, without seeming bigoted.
In such a scenario, looking at the Rules of Passport Act 1967, amended in 2015 (hereafter, ‘said Rules’), gives a much required insight into the meaning of the phrase ‘religious persecution’. Rule 2 includes the phrase “religious persecution or fear of religious persecution”. The same rules can be seen mentioned as an exemption under the newly amended Section 2 of the Citizenship (Amendment) Act. Reading them together (Section 2 and Rule 2), quite simply states that a person exempted from the meaning of illegal migrant can be one who flees due to religious persecution or in fear of it.
Looking at the political-social scenario that this interpretation will come with, this particular amendment of Section 2 of CAA is quite evidently done to give recourse to those citizens who have been excluded from NRC and are effectively the vote bank of the ruling party – Hindus, Jains, Sikhs, Parsis, Buddhists and Christians. This amendment not only overlooks Muslims but also Jews and Atheists making it absolutely discriminatory as it does not provide recourse to all religions in case of an error of already existing framework i.e. the NRC. Historically, when trying to amass mandate, finding a common enemy has always proven to be an useful tool. The identifying of Muslims as that common enemy is exactly what the BJP intends to thrive on. The six listed communities are all minorities in India and align closer to the Hindu faith than the Muslim community (or so the narrative is built). The BJP seeks to take advantage of this difference in basic structures of the faiths to single out a common enemy in the Muslim community. The strategy is effectively to unite everyone under the same banner to fight off “the Muslim scourge”. By extending favours to these communities, the BJP seeks to gain their votes. Historically, as well, the Muslim community has often usually aligned with the Congress party in India. By uniting the other minorities against them, the BJP seeks to gain political mandate in the years to come.
LEGAL ARGUMENTS
Propagators of the Act would argue that it is an attempt to offer protection to individuals suffering in nations that have no vested interest in protecting its minority communities by virtue of three factors: their constitutional inclination towards the Muslim faith, a national demography where the Muslim population significantly outweighs the other communities and lastly, their continuous trans-migration patterns. However, choosing on the lines of the individual’s faiths or on the lines of how a nation state aligns itself to a specific religion, is discriminatory and is violative of the basic structure of the Indian constitution – a principle enunciated in Keshavananda Bharti v. State of Kerala[1] in that it goes on to draw distinctions in how different faiths are treated differently.
The Choice of Faith
The statement of Objects and Reasons of the Bill is fairly straight-forward. It provides in clear language the distinction it draws between the six faiths it seeks to protect and the one faith it singles out. However, there is something within the Objects and Reasons that stands as an affront to Article 14 of the Indian Constitution, which promises equality before the law for all.
In the landmark case of West Bengal v Anwar Ali Sarkar (1952) Justice SR Das provides that:
“While Article 14 does not insist on universal application for every piece of legislation, it does however require the basis for any legislation, proposing classification, to be founded on intelligible differentia which must then have a rational relationship to the objective to be achieved by the Act.”
That is to say that the basis of the objective in and of itself must bear reasonable rationale, failing which, if the object itself is arbitrary then, it proves to point that the Act as it stands fails to live up to the yardsticks as set by Article 14.
In the case of Navtej Singh Johar v. Union of India [(2018) 10 SCC 1] (hereafter known as Navtej Singh case), the court stated that:
“Where a legislation discriminates on the basis of an intrinsic core and traits of an individual, it cannot form a reasonable classification based on an intelligible differentia.”
It was further held 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 a person’s individual autonomy”.
Therefore, expulsion of a community on the basis of religion is arbitrary and unconstitutional.
The Choice of Nation, Based on the factor of State Religion
The Act, in its Statement of Objects and Reasons clearly singles out the Islamic community. Firstly, its choice of nations is arguably arbitrary. The Statement of Objects and Reasons points to nations with two dominant features: i) having a state religion of Islam and ii) having a continuous trans-migration history with India. Taking these two features at their best, the Act still fails to give sufficient reasons as to why it was bound to the specificities of these particular nations and religions
The best argument coming out of the government proposing the Act is that these Nations go on to persecute their religious minorities (ie, the six that are listed in the Act) to an extent that individuals belonging to those communities now need protection.
It is pertinent to note two points here. First, having a state religion is not the same as being a religious state. Turkey and Morocco quite ardently identify with Islam as being part of the state ethos, but both nations have long standing history of interculturalism and secular practices. It is true that both Afghanistan and Pakistan purport to be Islamic states, however, Bangladesh has quite aggressively fought for its vision of secularism and in recent years has shown significant strides in favour of secularism, developing more and more judicial precedent and internal mechanisms to minimize any attempted discrimination. Even at their worst, nations like Afghanistan and Pakistan do have liberal bubbles within their cities that tend to be significantly persecutory. There are still, minority communities that live in these nations. Unlike what the ruling government in India would have us believe, the point of the Nehru-Liaquat pact was not to have hostages from each other’s lands within their own; it was to ensure that people were not torn between their motherland and their faith.
Secondly, while Bangladesh has a state religion, it also propagates “secularism” as one of its fundamental principles, with the state having significant protection mechanisms available for individuals being persecuted. Conversely, Myanmar, a state having significant history of trans-migration with India purports, in its constitution, that it has a state religion: Buddhism. Furthermore, Myanmar’s constitution, does not provide defense mechanisms to its minority communities, predominantly, the Rohingya Muslims in the Rakhine state. The fate of the Rohingyas is no longer a secret unknown to the world. In stark contrast to the sympathy shown to the six persecuted faiths in Afghanistan, Bangladesh and Pakistan, the Act shows no sympathy to the oppression of the minority community in Myanmar. This stands as evidence of the fact that the choice of Nations was arbitrary and alienating, in that the act only seems to target nations with Muslim majorities, under the assumption that by simple virtue of having a Muslim majority or a religious identity, states tend to be oppressive towards members of other faiths.
The Choice of Nation, Based on the factor of Trans-migration history
As for the point of trans-migration history (i.e., nations that have had citizens migrate to India or have had Indian citizens migrate into them), India shares its borders, not only with these three nations, but also with China and Myanmar. Both these nations have long standing history of trans-migration with India and both have significantly large minority communities; the Uighur Muslims in China and the Rohingya Muslims in Myanmar. Both these communities have faced systematic oppression from state agents or in situations where they have been persecuted by society, there has been no protection afforded to them by the States. It almost seems true that simply by virtue of them being Muslims, they are excluded from being beneficiaries of the Act. Of all the nations that share a border with India, it is indeed curious, why these two nations were left out of the Act, when they clearly had concerns regarding their minority communities This ties into the political motives of those designing the Act and policy. This is evident of the fact, that the population in India is being specifically engineered to include individuals who are more likely to vote for BJP, simply by virtue of them being from a certain religious background.
The act also goes on to assume that the entire Islamic community is one monolithic group with no internal friction among its many sects. Sectarian divide within the Islamic faith has been a problem for over a millennium now. For generations, now, Ahmediyas, Shias and other minor sects have suffered the brunt of persecutory violence within nations like Afghanistan and Pakistan. The argument that they are still Muslims, and are thus technically safe under the constitution of those nations is ignorant and fallacious. The BJP’s stance that nations with Islam as a state religion do not infringe the rights of Muslims is untrue. The problem stems from an ill-informed view of the Muslim world as one monolithic group and thus by simple virtue of the Nation having Islam as a state religion, it does not automatically translate into the constitutional protection of ALL Muslims, despite their sectarian identities.
Additionally, atheists in Bangladesh have faced significant threats from pro-Muslim communities as well. While the state has intervened in some cases, it is still largely inadequate. The point to be noted here is that beyond the six listed minority communities, there exists a large number of groups that suffer from persecution. Much like the six, even with the existence of some protection mechanisms, they are often made to suffer simply by virtue of being fewer in numbers. For these individuals, they have been singled out by virtue of their belief structures, much like the listed six. However, while the listed six are now being offered refuge in India, a nation promising equality before the law for all people, these individuals are, again, disenfranchised by virtue of their faith. It is not only inadequate for anyone to suggest that their suffering is not equal, it is also bigoted.
In order for the Act to be consistent with Article 14, ‘intelligible differentia’ must have some rational relationship with the desired objective. Whether the distinctions drawn are sufficiently clear or not, is not the issue. The classifications created are clear. It is immaterial whether the classification of the refugees achieves the objectives set forth in the Statement of Objectives and Reasons; it does go on to protect a certain persecuted class. What is important here, is that it does so with a view to further divide and rule, by singling out the Muslim faith, even though they happen to be a diverse population who suffer the horrors of persecution as much as any other, the situation being much worse for the Rohingyas and the Uighurs. The very objective of the act is stained with bigotry as its rationale. This is sufficient ground to suggest that this Act is indeed, unconstitutional by virtue of the protection or treatment afforded to all individuals under the constitutional of India.The entire justification of ‘intelligible differentia’ rests on the idea that the objective of the Act as provided in its Statement of Reasons and Objectives is achieved. It fails the standards of the Indian constitution where the objective in and of itself seeks to exclude certain people from the benefits afforded by the Act. Article 14 is applicable to ‘all people’ and affords the same protection to ‘all people’. Falling short of that standard, is contrary to its spirit in its entirety.
Anticipating Counter Arguments
Separation of powers
People can argue that the said rules mentioned above are the sole authority of an executive granted under any legislative act. Thus, it’s whim of the executive to frame any rule and make amendments whenever it wishes so.
As proven above, the targeted exclusion of a particular religion can only be based on a 2015 Notification – Amendments to 2015 Passport Rules which does not need parliamentary approval. However, it is not in line with the Indian ethos of democracy, even if the executive has the sole power to define a set of class as “illegal immigrants”. As John Locke said in 1690: ‘The legislative cannot transfer the power of making laws to any other hands’. Any affirmative resolution made on the legislation adds strongest legitimation to the ‘rules’, however, rarely they are subjected to parliamentary procedure in India.
The Constitution Bench in Rai Sahib Ram Jawaya Kapur & Ors. v. State of Punjab (1960) was clear in its stance that:
“The executive government of the country can never go against the provisions of the Indian Constitution or of any law. Not just this, it is after all settled law that any law or delegated legislation must be in compliance with the Preamble of the Indian Constitution, which clearly describes India as a secular country.”
These rules are not ordinary class of legislations but ones revolving around the notion of ‘secularism’. Secularism as a concept falls under the basic structure of the constitution (enunciated in S.R. Bommai v. Union of India) which means that all religions are equal in the eyes of law and the State shall not propagate or endorse any one particular religion. Framing such rules without participation of the legislature takes away the characteristics of a ‘democracy’ – free and fair elections, passage of laws after a healthy debate. It will therefore not be incorrect to state that the 2015 (Passport) Rules forms a piece of delegated legislation which is against the latter giving way to religious markers to form legal differences. If a special legislation is dedicated to citizenship of an individual, so intrinsically entrenched, needs to be democratically legitimized by proper legislative decision making.
Legislative Wisdom
The court in A.K. Goaplan case enunciated the principle of judicial subordination to legislative wisdom and discretion. It is the policy area where the legislature is given a free hand and is generally not subjected to judicial review. However, the argument that deference to legislative wisdom on issues like citizenship or admittance refugees should be upheld – simply as it falls in the realm of legislative policy – is short-sighted.
The apex court has stated in Navtej Singh case that sexual orientation of an individual is a facet of personal autonomy. Similarly, citizenship is a ground which is too personal to an individual. Even the Supreme Court of Canada in the case of Andrew v. Law Society of British Columbia held that:
“Citizenship is a ground of personal autonomy too and defined it as ‘personal characteristic’.”
It was decided in this case that personal autonomy grounds should be determined based on the socio political and legal fabric of the country. In India, where rights are accrued on the basis of citizenship, is surely a personal characteristic and a ground which should be judicially reviewed and not left to legislative wisdom.
Remembering India’s own ethos
The fact that there has been a clear disregard of the suffering of a certain community and sects within those communities, India’s ascension of the said act is evidently against its very secular nature. Not only that, by virtue of long-standing precedent the said act goes against the limitations imposed on legislature by the constitution. There has been no adequate response with regard to the choice of nations, as well as to why the Muslim population (or its various sects) have clearly been excluded from benefiting from the said act. This is evidence of a discriminatory objective.
Perhaps the most long-standing effect that this law will have is on India as a country and the principles that she was born with. The Preamble enlists guidelines for the nation and its people and the status it enjoys as a basic structure of the Constitution of India is a testament of how important the resolution of constituting India as a Sovereign, Socialist, Secular, Democratic and Republic state, is. One can safely say, therefore, that the Preamble is a testament to the centrality of secularism as the founding principle that binds the country together and holds the key to India’s survival as a nation. The Indian constitution and the spirit with which the nation was born, emphasizes inclusion of all people. The Act, in its design, does something good, in allowing those persecuted to find refuge in India. However, the design is sinister in how it functions. In conjunction with the NRC, the CAA actively harms India’s largest minority group and ensures that no more members of this community manages to find their way into the voting population of India.
That India prides itself on its ‘Unity in Diversity’ ethos is undisputed internationally, and this is exactly why any rule, regulation or legislation that arises from a place of religion exclusion of any form is nothing short of a direct attack to the Constitution of India. Whether expressed or implied, the formal introduction of religion as a marker of citizenship in India will create a category of citizenship based on religious identity and will stand against India’s constitution and its basic feature of secularism. It will, in essence, make religious affiliation a criterion for eligibility which is rather contrary to the spirit of the nation, its people and the law that governs it.
Harsh Bajpai, PhD Student at Durham University, UKLLM, George Washington University, US
BBA-LLB, Symbiosis International University, India
Ahmed Shafquat Hassan,
LLM (International Law and Governance), Durham University, UK
Bar Professional Training Course, University of the West of England, UK,
Called to the Bar by The Honourable Society of the Inner Temple,
LLB, University of the West of England, UK
Shreya Khandelwal,
LLM (International Trade and Commercial Law), Durham University, UK
BBA-LLB, Symbiosis International University, India
[1] Kesavananda Bharati vs State of Kerala (AIR 1973 SC 1461)]