A Constitutional Defence Of The Citizenship Amendment Bill 

The Citizenship Amendment Bill 2019 has received extremely bad reviews in the liberal press. One of the points repeatedly pressed is that it somehow strikes at the Constitutional value of a secular State (Read this piece here.)

This is putting a law’s wig on a political argument. The basic truth of the matter is that not only is the Citizenship Amendment Bill 2019 constitutionally valid, it is highly congruent with the evolution of the idea of citizenship in this country.

The Citizenship Amendment Bill 2019 (CAB) can be broadly considered to be an immigration amnesty scheme.

It does not confer citizenship upon anyone but merely removes the disability on Hindus, Jains, Christians, Sikhs, Buddhists and Parsis from Bangladesh, Pakistan and Afghanistan from acquisition of citizenship by “naturalization”, if they are illegal immigrants (those who have entered the country without valid travel documents or overstayed).

They, however, still have to satisfy the Third Schedule of the Citizenship Act 1955 to acquire citizenship.

Presently, there is no legal way for illegal immigrants from these countries to acquire Indian citizenship.

It is the identification of the communities by name that has created some questions on whether such a law passes the muster of our “secular” Constitution.

Here, we need to look into the scheme of citizenship in the Constitution.

In 1947, the Constitution makers had the unenviable task of putting a square peg in a round hole.

On one hand, they had to accept the cold hard fact of mass migration of Hindus from Pakistan (includes present Bangladesh), and on the other hand, ideologically, they were unwilling to accept the two-nation theory.

The compromise was five articles in the Constitution that accommodated these twin concerns (Articles 5 to 10).

The basic crux of these provisions was that anyone born in India and domiciled in India would be an Indian citizen (Article 5); if he has entered from the territory of Pakistan or Bangladesh, he has to register (Article 6).

Under Article 7, anyone migrating to Pakistan from India will lose Indian citizenship if they have migrated to the Islamic nation.

Thereafter, Article 8 extends citizenship to persons of Indian origin and Article 9 terminates Indian citizenship upon acquisition of foreign citizenship.

Finally. Article 10 seals it with the mandate that the citizenship of persons having acquired the same under these provisions cannot be taken away.

These provisions do not identify the communities by name but clearly creates a de-facto policy favouring the Hindu and Sikh immigrants from Pakistan over largely Muslim emigrants from India.

This is not occasioned by any malice towards the Muslims, but simply an acknowledgement of the fact that the erstwhile Pakistan (Pakistan + Bangladesh) is an Islamic country (as per 1949 Objectives Resolution and later the Constitution of Bangladesh), and given the nature of politics of these countries, the return of the Hindu/Sikh migrants would never be possible.

The liberals, in their desire to paint a secular Constitution, choose to ignore this policy.

Post commencement of the Constitution, the power to enact a law for acquisition and termination of citizenship was left to the Parliament (Article 11).

The Constitution offers no direction as to how this power is to be exercised.

However, since all laws in India have to be in accordance with provision of Part-III, (fundamental rights), the liberals argue that even acquisition of citizenship has to comply with a principle of “secularism”.

Secularism is a Constitutional value diffused throughout Part-III. The relevant Articles could be Article 14 (Equality before law), Article 21 (right to life and liberty), Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), Article 16 (Equality of opportunity in public employment), Article 25 (freedom of conscience), Article 26 (freedom to manage religious affairs), Article 27 (prohibition on religion specific tax), Article 28 (protection of minority script and culture) and finally Article 30 (rights of minorities to administer educational institutions).

Unfortunately, except for Articles 14 and 21, all these Articles apply to “citizens”, and thus the secularism of the Constitution seems to be a directed exclusively towards citizens and not foreigners yet to acquire citizenship.

The liberal opponents are aware of this lacunae in their argument and so, their last resort is a technical reading of Article 14. Article 14 requires equality before the law, but allows reasonable classification ((i) the classification is based on an intelligible differentia and (b) the differentia must have a rational relation with the object sought to be achieved.

Reasonable classification can suffer the sin of being under-inclusive (i.e. when all who are included in the class are tainted with the mischief, but there are others also tainted whom the classification does not include).

It is argued that CAB is under-inclusive.

This is because if the purpose of classification is “religious persecution” then it fails to bring Muslim communities like Rohingyas in Bangladesh and Ahmediyas in Pakistan within its ambit.

This is a rhetorically impressive argument. It also allows liberals to “virtue signal” their concerns for Indian Muslims (who are paradoxically not touched by the CAB at all).

However, is it legally tenable?

Sovereign space

To begin with, the justiciability of citizenship or laws that regulate the ingress of foreigners is often treated as a ‘sovereign space’ where the courts are reluctant to intervene.

Thus in Trump v Hawaii No. 17-965, 585 U.S. (2018), the US Supreme Court upheld travel ban from several Muslim countries holding that regulation of foreigners including ingress is “fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control.”

Indian courts have generally followed a similar reasoning. In David John Hopkins vs. Union of India (1997), the Madras High Court held that the right of the Union to refuse citizenship is absolute and not fettered by equal protection under Article 14.

Similarly in Louis De Raedt vs. Union of India (1991), the Supreme Court held that a right of a foreigner in India is confined to Article 21 and he cannot seek citizenship as a matter of right.

Even if the court enters into a review of the CAB 2019 on merits, the State can easily satisfy the technical test for reasonable classification.

Intelligible differentia

To get the “intelligible” differentia, we have to go back in time to partition.

The partition of Bengal and Punjab have been diametrically opposite historical experiences. In Punjab, partition was a jhatka — mass slaughter followed by population exchange. By 1949, the relative demographics of the communities have stabilised. Articles 5 to 10 of the Constitution more or less settled the question of citizenship in the west.

In Bengal, it was a “halal” — slow destruction of the Bengali Hindus in Bangladesh over a period of 70 years. The Hindu population in Bangladesh fell from 23 per cent in 1947 to about 9 per cent in 2011. Since the early 1980s, the eastern border also saw the proliferation of Muslim migrants. This migration created justified demographic anxieties in Assam and the North East, resulting in protracted insurgencies.

India has traditionally not been able to address this. In 1950, the Nehru-Liaquat Ali Treaty was entered into to ‘ensure to the minorities throughout its territory complete equality..’ which included ‘freedom of movement’.

It failed miserably. Thereafter, India maintained a policy of granting citizenship under registration under section 5(1) of the Act.

This was discontinued after the Bangladesh war through an executive order dated 29 November 1971, whereby the Government of India through its Under Secretary C.L. Goyal issued an express letter No. 26011/16/71-10 to the Chief Secretaries to all state governments and Union Territory Administrations.

The order reads:

This policy was solidified by the amendment of the Citizenship Act in 2004 that now requires a person not to be an “illegal immigrant” (i.e. someone who has entered India without valid papers) to be registered as citizens.

Thus, a vast number of Bengali Hindus from Bangladesh live and work in India and own properties and documents but have no locus standi for citizenship.

Now, the ‘liberals’ sought to bring a sense of ‘equivalence’ between the two communities by arguing that migration is largely driven by ‘climate vulnerabilities, economic opportunities, community networks et cetera’.

While these could indeed be ancillary reasons for migration, the prosecution of the Hindus and Buddhists in Bangladesh is a well-established fact.

This is acknowledged internationally, being part of the records of the United National High Commission for Refugees, Report of the US Commission on Religious Freedom and various international organisations.

The Muslim immigrants, all said and done, do not suffer from religious persecution.

The court can simply take judicial notice of it under section 57 of the Indian Evidence Act (IEA) thereby establishing the “intelligible differentia”.

The law, by taking note of the fact, has eliminated the need for every migrant to prove the fact of “persecution”.

Objects of the legislation

Now the objectives of the legislation are twofold, namely:

(a) Protection of the de-facto refugees (de-facto because in India refugee is an administrative rather than legal category)

(b) Protection of national security by regulating immigration in India

These objectives have been vetted by the Supreme Court itself. The court has considered refugee influx as external aggression under Article 355 (Sarbananda Sonowal (2005) 5SCC 655).

It was the Supreme Court which took the initiative on the NRC in Assam. (Assam Public Works v Union of India 2009).

At the same time, it has been proactive in protecting the rights of the de-facto refugees from Bangladesh (National Human Rights Commission v. State of Arunachal Pradesh (1996).

As for the Ahmediyas and Rohingyas, nothing prevents them from seeking Indian citizenship through naturalization (if they enter with valid travel documents).

In any case, since India follows the principle of non-refoulment (even without acceding to the Refugee Convention 1951), they would not be pushed back.

I would see the CAB, when it becomes an Act, as an evolution of Indian citizenship jurisprudence over a period of time rather than a sudden sharp move by the Bharatiya Janata Party. The law is constitutionally sound and historically prudent.