CAB: Indefensible law

The Citizenship (Amendment) Bill fails the constitutional test of satisfying equality before the law or equal protection under the laws within the territory of India.

Published : Dec 18, 2019 07:00 IST

A protest against the CAB in Guwahati on December 13, 2019. The CAB does not clarify why December 31, 2014, was chosen as the cut-off date or why the condition of 12 years’ residence requirement was relaxed only in the case of immigrants belonging to specified communities.

A protest against the CAB in Guwahati on December 13, 2019. The CAB does not clarify why December 31, 2014, was chosen as the cut-off date or why the condition of 12 years’ residence requirement was relaxed only in the case of immigrants belonging to specified communities.

Textbooks on the Indian Constitution state that the crucial test to determine the constitutionality of any legal provision is that all persons subjected to it are treated alike under like circumstances and conditions. The corollary of this test is that equals have to be treated equally and unequals ought not to be treated equally. Thus, Article 14 of the Constitution, which states that the state shall not deny any person equality before the law or equal protection of the laws within the territory of India, forbids discrimination against any class of persons. But it does not bar classification of persons for the purposes of implementing the right of equality guaranteed by it.

For permissible classification, the Constitution lays down two conditions: one, it must be founded on an intelligible differentia, which distinguishes persons or things that are grouped together from those left out of the group; and two, that differentia must have a rational relation to the object sought to be achieved by the statute in question. In other words, there must be a connection between the basis of classification and the object of the Act under consideration.

The CAB seeks to turn this well-recognised principle of the Constitution upside down. Clause (b) under sub-section (1) of Section 2 of the Citizenship Act, 1955, defines an “illegal immigrant” as follows:

“‘Illegal immigrant’ means a foreigner who has entered into India (i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or (ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time.”

The CAB inserts a proviso to qualify this definition. The proviso says:

“Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920, or from the application of the provisions of the Foreigners Act, 1946, or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act.”

The proviso’s silence is eloquent. The Statement of Objects and Reasons (SOR) attached to the CAB states that trans-border migration of population has been happening continuously between the territories of India and the areas currently lying in Pakistan, Afghanistan and Bangladesh. The SOR further stated: “Millions of citizens of undivided India belonging to various faiths were staying in the said areas of Pakistan and Bangladesh when India was partitioned in 1947. The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries. Some of them also have fears about such persecution in their day-to-day life where right to practice, profess and propagate their religion has been obstructed and restricted. Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.”

Significant omissions

It is clear that the CAB assumes that Muslims of these three countries did not face “persecution on the grounds of religion” because Islam is recognised as a state religion there. But it does not openly admit it. The Bill also maintains a mysterious silence on whether those who have fled to India in the face of religious persecution include Muslims. The Bill and its proponents in the government and Parliament during the debate on it sought to maintain an inexplicable silence on why Ahmadis and Shias in Pakistan would not qualify as religiously persecuted minorities. The Bill again had no explanation to offer for the question why neighbouring Sri Lanka and Nepal, which had recognised state religions other than Islam and whose minorities too fled to India in the past were not brought within the ambit of the Bill. Bracketing Afghanistan with Pakistan and Bangladesh, which were part of undivided India, also has no justification. Another inexplicable and worrying aspect of the Bill is the omission of Rohingya Muslims, who fled to India in large numbers following religious persecution in Myanmar, and atheists from the neighbouring countries, who have sought asylum on the grounds of religious persecution.

The contention that the government may consider expanding the list by including other communities and their countries of origin later is also not convincing.

Even as the proponents of the Bill dismissed such concerns as a matter of policy choices of the government, which are not justiciable, it is the failure of the Bill to satisfy the crucial requirements of Article 14 that seemed disconcerting to many.

Under the existing provisions of the Act, Hindu, Sikh, Buddhist, Jain, Parsi or Christian immigrants from Afghanistan, Pakistan or Bangladesh who entered India without valid travel documents or whose travel permits have expired are regarded as illegal immigrants and ineligible to apply for Indian citizenship under Section 5 or Section 6 of the Act.

The Centre has exempted these immigrants from the adverse penal consequences of the Passport (Entry into India) Act, 1920, and the Foreigners Act, 1946, and rules or orders made thereunder vide notifications, dated September 7, 2015, and July 18, 2016. Subsequently, the Centre made them eligible for long-term visa to stay in India through its orders dated January 8, 2016, and September 14, 2016. The CAB proposed to make such migrants eligible for Indian citizenship by giving them the required legislative support.

The SOR reasoned: “The illegal immigrants who have entered into India up to the cut-off date of December 31, 2014 need a special regime to govern their citizenship matters. For this purpose, the Central government or an authority specified by it shall grant the certificate of registration or certificate of naturalisation subject to such conditions, restrictions and manner as may be prescribed. Since many of them have entered into India long back, they may be given the citizenship of India from the date of their entry in India if they fulfil conditions for Indian citizenship specified in Section 5 or the qualifications for the naturalisation under the provisions of the Third Schedule to the Act.”

Section 6 of the Act prescribes 12 years residence as a qualification for citizenship by naturalisation in terms of its Third Schedule. The CAB seeks to amend the Third Schedule to make applicants belonging to the specified communities from the three countries eligible for citizenship by naturalisation if they can establish their residency in India for five years instead of the existing 11 years.

Paragraph 7 of the SOR provided only a partial explanation for this relaxation: “Many persons of Indian origin, including persons belonging to the said minority communities from the aforesaid (three) countries, have been applying for citizenship under Section 5 [dealing with citizenship by registration] of the Citizenship Act, 1955, but they are unable to produce proof of their Indian origin. Hence, they are forced to apply for citizenship by naturalisation under Section 6 of the said Act, which inter alia , prescribe 12 years residency as a qualification for naturalisation in terms of the Third Schedule to the Act. This denies them many opportunities, and advantages that may accrue only to citizens of India, even though they are likely to stay in India permanently.”

The CAB does not clarify why December 31, 2014, was chosen as the cut-off date or why the condition of 12 years’ residence requirement was relaxed only in the case of immigrants belonging to specified communities.

The CAB sought to bestow further concessions on such immigrants as a consequence. Under sub-section (3) of the newly inserted Section 6B of the Act, any proceedings pending against a person in respect of illegal immigration or citizenship shall stand abated on conferment of citizenship to him or her.

Exemption for tribal areas

Sub-section (4) of Section 6B exempts the tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule of the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873, from the application of the Act. This exemption is justified in order to protect the constitutional guarantee given to indigenous populations of the north-eastern States covered under the Sixth Schedule and the statutory protection given to areas covered under the Inner Line Permit (ILP) system of the Bengal Eastern Frontier Regulation, 1873.

The Sixth Schedule was enacted to facilitate the progress of tribal areas through autonomous councils, while preserving the distinct social customs of the indigenous populations in these areas, and to protect the people living there from exploitation.

The ILP regulates the entry of persons, including Indian citizens, into Arunachal Pradesh, Mizoram and Nagaland. It is pointed out that once an illegal immigrant residing in these areas acquires citizenship, he or she would be subject to the same restrictions that are applicable to other Indian citizens. But the SOR does not explain why the CAB excludes illegal immigrants residing in these areas.

(On December 9, the Nagaland government extended the ILP regime to Dimapur, which was the only district that was not under the ILP in the State. On December 11, the President of India signed an order extending the ILP regime to cover Manipur.)

A foreigner may register as Overseas Citizen of India (OCI) under the Act if he or she is of Indian origin (that is, if the person was a former citizen of India or is a descendant of one) or the spouse of a person of Indian origin. This will entitle such foreigners to benefits such as the multiple-entry, multi-purpose lifelong visa to visit India, exemption from foreigner registration requirements for any length of stay in India, and parity with non-resident Indians in financial, economic and educational fields except in the acquisition of agricultural or plantation properties.

The Bill amends the Act to allow cancellation of the OCI registration if the person has violated any law notified by the Central government after giving the card holder a reasonable opportunity to be heard. The SOR does not explain why the government found it necessary to include this provision when the 1955 Act already provides for cancellation of the OCI registration on various grounds. It is feared that this may result in excessive delegation of powers by the legislature. The CAB does not provide any guidance on the nature of laws that the Centre may notify for this purpose of cancellation of the OCI registration.

The CAB’s differential treatment to certain sections of illegal immigrants on the basis of their country of origin, religion, date of entry into India and place of residence in India, is subject to serious constitutional challenge.

The first and foremost question that arises is whether these differentiating factors could serve a reasonable purpose, with a connection to the object sought to be achieved by the Bill. If the object of the Bill is to provide citizenship to the religiously persecuted minorities in the neighbouring countries, the CAB’s selective inclusion of certain countries and the communities, excluding others who might have qualified for inclusion keeping the same object in view, is unlikely to satisfy the principle of non-discrimination. Even the contention that the Centre has found only the inclusion of these communities and the three countries justified at present is not convincing to many and does not provide a valid reasoning on constitutional grounds.

Migrants belonging to the excluded communities from the three countries and other countries may well ask why they are not entitled to equality before the law or equal protection under the laws within the territory of India as guaranteed under Article 14 and how their exclusion helps the Centre achieve the avowed objects of the Bill, that is, to provide citizenship to those persecuted in the neighbouring countries on religious grounds. According to Anupama Roy, a distinguished scholar on citizenship in India, while religious persecution is a reasonable principle for differentiation, it cannot be articulated in a manner that dilutes the republican and secular foundations of citizenship in India, let alone constitutional morality, increasingly relied upon by the courts in recent times, to test constitutionality of laws.

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