Introduction
In 2016, the Government proposed the Citizenship (Amendment) Bill.[1] Its most controversial aspects has been
its granting of preferential treatment to Hindus, Jains, Parsis, Sikhs, Buddhists and Christians (“the six communities”) hailing from Pakistan, Afghanistan and Bangladesh (“the three countries”), in two ways. First, it exempts them from being categorised as “illegal migrants” under Section 2(b). Resultantly, they cannot be deported/imprisoned under the Passports Act[2] or the Foreigners Act.[3] Further, the bar from applying for Indian citizenship shall not apply to them.[4] Second, the Bill reduces for them the period required to acquire Indian citizenship by naturalisation.[5] These twin amendments are collectively referred to as “the Bill” hereinafter.
Arguments have been advanced against the Bill and allegations have been raised against its legality.[6] I, while elaborating upon these contentions would counter them, while also unfolding my own constructive. The Bill has been critiqued “purely” from legal perspective.
II. Analysis of the debate
A. Whether proposed amendments contravene Article 14
Those arguing against the Bill’s constitutionality in light of Article 14 of the Constitution, firstly state that the Statement of Objects and Reasons under the Bill omits to provide concrete reasons for conferring privileges upon the six communities.[7] And, the Bill’s prima facie reading indicates that differential treatment will be met to these communities solely on religious grounds, thereby rendering the proposed amendments as unconstitutional.[8] Alternatively, even if the contention from the Government’s end is accepted that the basis for meeting differential treatment is to provide safeguard against religious persecution taking place in their Muslim dominated home countries, yet the Bill is unconstitutional.[9] This is because within these three countries, other religious communities[10] are also subjected to torture/ inhuman treatment. Therefore, pursuing positive actions in favour of only the six non-Muslim communities is discriminatory.[11] Further, there are other neighbouring countries such as China, Nepal, Myanmar and Sri Lanka# where people of different religions need refuge.[12] Therefore, the Bill cannot specifically target the three countries for that lays bare the Government’s ulterior motive to favour non-Muslim communities.
I propose numerous counter-arguments.
Firstly, under the Bill, religious persecution met by the six communities constitutes the basis for meeting differential treatment.[13] Among other sources, legislative intent can be gathered from other means (e.g., surrounding circumstances). In the present case, news reports, surveys from Pakistan, Afghanistan and Bangladesh, etc. exhibit that the six communities face religious persecution there.[14] Further, the government officials’ public statements indicate that the mischief behind the Bill is to remedy the situation of religious persecution. Furthermore, the Government Notifications issued in 2015 and 2016 preceded the Bill. Under them, people of the six communities who arrived in India on/before 31-12-2014 from three countries, were not to be deported/imprisoned even if these people met the definition requirements of “illegal migrants” under the Citizenship Act, 1955. Under these notifications, it was explicitly stated that the objective is to safeguard those who fled from religious persecution. Since, the Bill came post these notifications, therefore, the objects and reasons of the notifications can reveal the Bill’s objectives. Furthermore, under the Bill, the term used for six communities is “minority” communities. This also signifies the real legislative intent. Additionally, as response to the criticism advanced against the Bill’s seemingly communal nature, the Government is deliberating upon replacing the term “minority” communities under the Bill by “discriminated minority” communities to clear ambiguities.[15]
Therefore, it can be stated that the Bill’s objective lies in offering protection against religious persecution.
Religious persecution is a recognised ground in several countries for meeting special treatment, say by providing asylum, to aggrieved foreigners.[16] Within India, citizenship criteria for Pakistani Hindus, who fearing religious persecution migrated to Rajasthan and Gujarat, was relaxed.[17]
However, it may be objected that under the Bill, an individual is not required to establish that he faced or apprehends religious persecution to avail the statute’s protection which renders the protection granted as excessive and lacking the required nexus. However, I suggest that, at least presently, this absence of overt preconditions is non-problematic. This is because the experience of the other countries where religious persecution has been recognised as a ground to confer rights upon foreigners show that serious difficulties have been arisen regarding the practical application of the law requiring proving religious persecution/its apprehension on individual basis.[18] Secondly, at present, a grave threat shadows upon the six religious communities in their respective countries due to frequent and widespread instances of religious persecution met against them. Therefore, presently it is reasonable to presume that members of these religious communities in three countries are met with religious persecution when they enter India to seek shelter. Further, at the end of the day, with respect to an individual migrant’s application for citizenship by naturalisation, the government authorities enjoy the authority to reject an individual’s application if they can discern a prima facie case of misuse of the law under the Bill by any member of these religious communities.[19] However, it is advisable if the Government initiates consultations on formulations of such precondition of proving religious persecution for the “sustained existence” of the Bill.
1. Article 14 allows reasonable classification
Article 14 under Indian Constitution permits differential treatment if such classification is reasonable and if nexus exists between such differential treatment and the object sought to be achieved by such discriminating act.
The Bill stands the test of Article 14 despite its granting of special treatment to only the six non-Muslim communities from the three countries. This is because these communities form a separate class against other religious communities in these countries. Firstly, there are no credible data/reports to establish that, unlike these six religious communities, atrocities are met to other communities in these countries “purely” on religious grounds. Even if there may be a few instances of such violence being met to other religious communities in these countries, the number/instances are such that they do not formulate a separate class. Further, Article 14 does not insist that legislative classification should be scientifically perfect; and a legislative provision remains constitutional despite its turning out as disadvantageous to a small section of people. Furthermore, exclusion of Ahmadiyya and Shia Muslims from the Bill’s ambit is justified on diplomatic grounds as they constitute a separate class for they were at the forefront of partitioning India on religious lines.[20]
Alternatively, even if it assumed that other religious communities who are subjected to religious persecution in these three countries stay outside the Bill’s purview, they form a separate class for they have other nations to take shelter in, unlike in case of the minority communities included under the Bill.[21] Hence, given the paucity of resources and the apprehension of possibility of cultural chaos, exclusion of other religious communities from the Bill’s ambit stands justified.[22]
Additionally, the second precondition under Article 14 of the existence of “reasonable nexus” is also satisfied in the present case due to obvious reasons.
Furthermore, the Bill does not contravene Article 14 by excluding other countries’ migrants from its coverage because the popularly known cases of discrimination being met in other neighbouring countries to several communities residing therein are not those which happen solely on religious grounds. For instance, Rohingyas of Myanmar are subject to atrocities, not solely due to their religion, but due to their migrant/foreign attribute.[23] Therefore, in such cases, the common thread of “religious” persecution is not running. Hence, for according protection to the minority groups of such other neighbouring countries, we would need a law tailor made to suit the requirements of groups from each country. Further, formation/non-formation of these separate laws is a matter of legislative policy with which the court cannot interfere while exercising its writ jurisdiction.
2. Article 14 does not require uniform application of law to all in one go
In arguendo, I assert that even if the six communities who have been accorded special protection are similarly situated with the other religious communities of their countries which have been left uncovered by the Bill, then also the law remains constitutional. This is because under Article 14, all laws need not be made uniformly applicable to all people in one go. Therefore, even with respect to two similarly situated groups, legislature can as a matter of policy confer additional rights/benefits on only one group, provided the protection accorded to such group stands ipso facto and independently justified.[24]
In the present case, it remains largely uncontested that the six communities from the three countries have been subject to human rights violation due to which they are in dire need to be given refuge or other legal protection by other countries. Therefore, the protection accorded by the Bill to the six religious communities is justified on its own thereby rendering the Bill as constitutionally valid.
Further, due to all the abovestated reasons, the Bill does not attack the secular spirit of the Constitution. Instead, it strengthens the country’s secular stance. This is because by granting citizenship upon the victims of religious persecution from the neighbouring countries, India has spread the word that the world ought to show religious tolerance and that religious persecution should be condemned.
3. Whether the Bill violates India’s international law obligations or stands contrary to India’s past refugee policy
It is a customary international law obligation to grant shelter to refugees on humanitarian grounds without any discrimination. Critics of the Bill state that since it grants citizenship rights only to certain selected religious communities, therefore, the Bill shall make India violate its international law obligations.
Further, India is known for its generous refugee policy.[25] It is contended that the Bill will annihilate the all-encompassing refugee policy of India because it will selectively grant citizenship to few religious communities.
However, these arguments stem from the failure in appreciating the distinction between the terms citizen and refugee. Citizenship is the status of a person recognised under law as being a legal member of a sovereign State. However, refugee is a person who flees from his country due to serious abuses of human rights to seek refuge/protection.[26]
India neither has a law dealing separately with the issue of refugees’/migrants’/asylum seekers’ nor does it have a recognised refugee policy yet. Therefore, in India, the issue of granting of refugee status is analysed on ad hoc basis. Therefore, the Bill at hand providing to six religious communities the relaxation in seeking “citizenship” does not affect the stance that India can or will take towards its “refugees”. Resultantly, the Bill does not affect the “refugee” policy or India’s international law obligations towards “refugees”.
Instead, the Bill shall assist in honouring the customary international law obligations to reduce statelessness (both de jure or de facto) for instances of de jure and de facto statelessness are common for refugees.
4. Whether the Bill is a political gimmick
When critics assert that the Bill is a move adopted by the ruling party to fulfil its political agenda and communal ideology, they are committing the fallacies of (a) causation; and (b) poisoning the well. The former states that merely because two things happen together does not necessarily imply that one is the cause of the other. Therefore, introduction of the Bill during the time of elections does not necessarily imply that the cause for enacting the Bill is merely to gain political mileage. Fallacy of poisoning the well tries to discredit the person before he speaks. Therefore, by initiating the Bill’s criticism highlighting that the ruling party plays caste politics and has communal ideology, instead of critiquing the Bill on its merits, amounts to poisoning the well. Further, there exists difference between motive and intention under law. Intention is the purpose/objective sought to be achieved whereas motive is the incidence which stimulates/incites an act. Therefore, here the Bill’s motive, and not its intention or dominant intent, may be to gain political mileage.
Conclusion
If looked at from the lens of law, the Bill stands justified and critiquing the Bill’s underlying policy is beyond the scope of discussion here. Summarily stated, it is natural among the Governments to have policy bias and that is what makes one Government different from the other. Therefore, it is advisable that we instead shift the debate to carefully drafting the individual provisions of the Bill, such as making religious persecution as a precondition to usher benefits.
* BA LLB (Hons.), W.B. National University of Judicial Sciences, Kolkata.
[1] The Citizenship (Amendment) Bill, 2016, (172 of 2016); NDTV, Government to Refer Citizenship Amendment Bill to Panel, 11-8-2015, available at <http://www.ndtv.com/india-news/government-to-refer-citizenship-amendment-bill-to-panel-1442996>; PRS Legislative Research, Highlights of the Bill, available at <http://www.prsindia.org/billtrack/the-citizenship-amendment-bill-2016-4348/>.
[2] Passport (Entry into India) Act, 1920.
[3] The Foreigners Act, 1946; The Citizenship (Amendment) Bill, 2016, (172 of 2016), Cl. 2 (insertion of proviso).
[4] Statement of Object & Reasons of the Citizenship (Amendment) Bill, 2016, (172 of 2016).
[5] The Citizenship (Amendment) Bill, 2016, (172 of 2016), Cl. 4.
[6] E.g.,The Hindu, Citizenship Amendment Bill Communally Motivated: Activists, 30-9-2016, available at <http://www.thehindu.com/news/national%E2%80%98Citizenship-amendment-bill-communally-motivated%E2%80%99-Activists/article1500778.ece>; E.g., The Telegraph, Call to Oppose Citizen Bill, 28-1-2017, available at <https://www.telegraphindia.com /1170129/jsp/northeast/story_132811.jsp.WMEwfzuGPIU>.
[7] PRS Legislative Research, Legislative Brief the Citizenship (Amendment) Bill, 2016, available at <http://www.prsindia.org/uploads/media/Citizenship/Legislative%20Brief%20Citizenship%20Amendment%20Bill%202016.pdf>
[8] Ibid.
[9] Indian Citizenship to Hindu & Sikh Refugees: The Newshour Debate, 6-7-2016, available at <https://www.youtube.com/watch?v=OtSbGmwOrzU>.
[10] Examples are Shias and Ahmadiyyas of Pakistan, Muslims of Bangladesh, etc.
[11] Hindustan Times, Citizenship Bill: House Panel is Missing the Wood for the Trees, 17-10-2016, available at <http://www.hindustantimes.com/editorials/citizenship-bills-house-panel-is-missing-the-wood-for-the-trees/story-F9oEAtEJAGjy5ZT7Ulp1DJ.html>; The Wire, Modi’s Refugee Policy is a Case of Bigotry Grafted on to Expediency, 15-9-2015, available at <https://thewire.in/10755/modis-refugee-policy-is-a-case-of-bigotry-grafted-on-to-expediency/>.
[12] Indian Citizenship to Hindu & Sikh Refugees: The Newshour Debate, 6-7-2016, available at <https://www.youtube.com/watch?v=OtSbGmwOrzU>; Human Rights Law Network, Report of Refugee Populations in India, November 2007, available at <http://www.hrln.org/admin/issue/subpdf/Refugee_population_in_India.pdf> (last visited on 9-3-2017).
[13] UPSC Current Affairs 2016-Discussion on Amendment of Indian Citizenship Act, 14-9-2016, available at <https://www.youtube.com/watch?v=A7Xb2rrx5>; Law of the Land — The Citizenship (Amendment) Bill, 2016, 28-10-2016, available at <https://www.youtube.com/watch?v=_wLOaxQ3FNE>.
[14] E.g., The Economic Times, BJP Finds Ally in Taslima Nasreen to Build Support for Citizenship Bill, 19-7-2016, available at <http://economictimes.indiatimes.com/articleshow/ 53274554.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst>; Al Jazeera, The Decline of Afghanistan’s Hindu and Sikh Communities, 1-1-2017, available at <http://www.aljazeera.com/indept/features/2016/12/decline-afghanistan-hindu-sikh-communities-161225082540860.html>.
[15] The Hindu, Centre Addresses Fears on Citizenship Bill, 24-9-2016, available at <http://www.thehindu.com/news/national/Centre-addresses-fears-on-Citizenship-Bill/article 14995532.ece>.
[16] See Asylum Advocacy Group, Fleeing Persecution: Asylum Claims in the UK on Religious Freedom Grounds, available at <https://freedomdeclared.org/media/Fleeing-Persecution-Asylum-Claims-in-the-UK-on-Religious-Freedom-Grounds/pdf>; Political Asylum, Seeking Religious Asylum in the US, available at <http://www.politicalasylumusa.com/application-for-asylum/religion/>; Settlement.Org, How Does Canada’s Refugee System Work?, available at <http://settlement.org/ontario/immigration-citizenship/refugees/basic-information-for-refugees/how-does-canada-s-refugee-system-work/>.
[17] Rajya Sabha Debates, Facilities to Hindu Refugees from Pakistan, [R.S.US.Q.NO.693 FOR 2-3-2016, 2-3-2016], available at <http://mhal.nic.in/par2013/par2016-pdfs/rs-020316/693.pdf>; Citizenship Rules, 1956, Rule 8-A.
[18] The Guardian, Refugees Seeking Asylum on Religious Grounds Quizzed on Bible Trivia, 7-6-2016, available at <https://www.theguardian.com/uk-news/2016/jun/07/refugees-asylum-religios-grounds-quizzed-on-bible-trivia>.
[19] See The Citizenship Act, 1955, S. 14.
[20] Indian Citizenship to Hindu & Sikh Refugees: The Newshour Debate, 6-7-2016, available at <https://www.youtube.com/watch?v=OtSbGmwOrzU>.
[21] The Economic Times, Citizenship (Amendment) Bill brings back the Foreigner Debate in Assam, 28-9-2016, available at <https://economictimes.indiatimes.com/news/politics-and-nation/citizenship-amendment-bill-brings-back-the-foreigner-debate-in-assam/articleshow/54554329.cms>
[22] Indian Citizenship to Hindu & Sikh Refugees: The Newshour Debate, 6-7-2016, available at <https://www.youtube.com/watch?v=OtSbGmwOrzU>.
[23] Indian Citizenship to Hindu & Sikh Refugees: The Newshour Debate, 6-7-2016, available at <https://www.youtube.com/watch?v=OtSbGmwOrzU>; Rohingyas in India: Birth of a Stateless Community, available at <http://www.mcrg.ac.in/Rohingyas/Rohingyas _Concept.asp> (last visited on 9-3-2017); Indian Citizenship to Hindu & Sikh Refugees: The Newshour Debate, 6-7-2016, available at <https://www.youtube.com/watch?v= OtSbGmwOrzU>; Human Rights Law Network, Report of Refugee Populations in India, November 2007, available at <http://www.hrln.org/admin/issue/subpdf/Refugee_population _in_India.pdf> (last visited on 9-3-2017). (Similarly, the basis for discriminatory behaviour met to Tamilians in Sri Lanka is not solely on religious grounds, so is the case with Tibetians facing atrocities in China and Hindu Nepalis in Bhutan).
[24] See Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 : AIR 1979 SC 1628, Para 11; Kasturi Lal Lakshmi Reddy v. State of J&K, (1980) 4 SCC 1 : AIR 1980 SC 1992, Para 14; Compare Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673, Para 40, 47 & 49; Pannalal Bansilal Pitti v. State of A.P., (1996) 2 SCC 498, Para 12; Saraswat Cooperative Bank Ltd. v. State of Maharashtra, (2006) 8 SCC 520, Para 31.
[25] Indian Citizenship to Hindu & Sikh Refugees: The Newshour Debate, 6-7-2016, available at <https://www.youtube.com/watch?v=OtSbGmwOrzU>; Human Rights Law Network, Report of Refugee Populations in India, November 2007, available at <http://www.hrln.org/admin/issue/subpdf/Refugee_population_in_India.pdf> (last visited on 9-3-2017). (These include Tibetians from China, Buddhist Sinhalese and Tamil Hindus from Sri Lanka, Bhutanese refugees or the ethnic Nepalese people, Hindu Pakistani refugees, Afghan refugees, etc.).
[26] As per Amnesty International; United Nations, Treaty Series, 28-7-1951, 189 UNTS 137, Art. 1.
