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Explained: The Legality And The Terminology Of The Citizenship Amendment Bill, 2019

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The statement of objects and reasons contained in the Citizenship (Amendment Bill), 2019 (Bill Number 370 of 2019) shows that the same has been introduced to grant immunity to the persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities who have faced persecution on the grounds of religion in the countries Pakistan, Afghanistan and Bangladesh and migrated to India seeking shelter and continued to stay in India even after the travel documents expired or with no documents. A reading of the statement of objects and reasons of the bill shows that the same excludes the Muslim community.

The said bill contemplates amendments to Section 2, Section 7D and Section 18 and insertion of Section 6B and a proviso to Clause D of the III Schedule of The Citizenship Act, 1955.

In the course of debate before the Parliament, some of the Hon’ble members of the Parliament had raised an issue that the Amendment bill is in violation of Article 14 of the Constitution of India.

In Menaka Gandhi Vs. Union of India the Hon’ble Supreme Court has expanded the scope of Article 14 of the Constitution of India. It was held that Article 14 is a founding faith of the Constitution of India, “the pillar” on which rests securely the foundation of democratic republic. It also held that equality is a dynamic concept with many aspects and dimensions and cannot be imprisoned with traditional and doctrinaire limits.

A protest against the passing of the bill in New Delhi. (Photo: AISA Delhi University/Facebook)

The Hon’ble Supreme court also further held that reasonableness, legally as well as philosophically, is an essential element of equality or non-arbitrariness which pervades Article 14 like a brooding omnipresence.

Article 14 forbids class legislation but does not forbid reasonable classification for the purpose of legislation. The said principle has been repeatedly laid down by the Hon’ble Supreme Court. The class legislation is permissible only if the classification on which it is based is rational and has a nexus with the objects sought to be achieved. The Hon’ble Supreme Court held that class legislation is permissible when the subject matter of the legislation forms a class by itself.

Section 2(i)(b) of the Citizenship Act, 1955 defines an ‘illegal migrant.’ It states that an ‘illegal migrant’ means a foreigner entered India without a valid passport or other travel documents and such other documents or authority as may be prescribed by or under any law in that behalf or 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. A proviso has been inserted in Section 2 Sub Section 1 after Clause (b) by the Citizenship (Amendment Bill), 2019. The proviso reads as follows:

“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 order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;”

The proviso shows that any person belonging to the said communities entered into India on or before December 31, 2014, and exempted by the Central Government by or under 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 an illegal migrant for the purpose of the Act.

Section 6B contemplates grant of certificate of registration or certificate of naturalisation to a person who is entitled for the same as per Section 2(1) of the Act. The word “foreigner” defined under Section 2(a) of Foreigners Act, 1946, means a person who is not a citizen of India. Therefore, when the definition of ‘illegal migrant’ contained in Section 2(b) of The Citizenship Act, 1955 and Section 2(a) of The Foreigners Act, 1946 are read together, a foreigner if he continues to stay within territory of India he shall be an illegal migrant.

The III Schedule of The Citizenship Act, 1955 stipulates qualification for the naturalisation of a person. Section 6 of The Citizenship Act, 1955 specifically contemplates that any person not being an ‘illegal migrant’ can make application for naturalisation. Section 4 of the amendment bill inserts the names of the communities mentioned therein in the III Schedule.

Therefore, it shows that any person belonging to the said minority communities viz. Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan may make an application claiming naturalisation under Section 6 of the Act excluding the majority community/Muslims in the said countries.

Whether conferring such a benefit on particular communities in exclusion of other community would be in violation of Article 14 and 15 of the Constitution of India is the question that may arise for adjudication. A reading of Article 14 of the Constitution of India shows that the State shall not deny equality before law or equal protection of laws within the “territory” of India. Whereas, Article 15 of Constitution of India refers to prohibition of discrimination of ‘any citizen’ on the grounds of religion, race, caste, sex, place of birth or any of them. Article 15 specifically uses the word ‘any citizen,’ which means that the said right is available only to a person who is a ‘citizen’ within the meaning of The Citizenship Act, 1955.

The Hon’ble Supreme Court in Mr. Louis De Raedt & Ors Vs. Union of India And Ors (reported in 1991 AIR 1886) has specifically held that the fundamental right of the “foreigner” is confined only to Article 21 of the Constitution of India for life and liberty.

The Constitution bench in Hans Muller of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta & others (reported in 1955 (1) SCR 1284) had held that the power of the government in India to expel foreigners is absolute and unlimited and there is no provision in Constitution lettering this discretion. It was pointed out that the legal position on this aspect is not uniform in all the countries but so far the law which operates in India is concerned, the executive government has unrestricted right to expel a foreigner.

The Hon’ble Supreme Court while examining the contention that Section 3(i)(b) of The Foreigners Act,1956 offends Article 14 of the Constitution of India had held that the classification of foreigners into different groups does not offend Article 14 since there is no individual discrimination and there is a reasonable classification. Even under the amendment bill, the words ‘minority communities’ in the referred countries itself shows that they form into a separate group and therefore it may be said that there is a reasonable classification.

In the light of the law laid down by the Hon’ble Supreme Court that except the Article 21 of the Constitution of India a foreigner cannot claim any other right under the Constitution viz. Article 14 of the Constitution of India, even if the amendment legislation is challenged on the ground of violation of Article 14 of Constitution of India, it may not sustain unless the Supreme Court relooks into the scope of Article 14 of the Constitution of India vis-a-vis the illegal migrants.

A reading of statement of objects and reasons shows that the bill is treating the persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi, and Christian communities as one class since they are treated as minorities in the said countries viz. Pakistan, Afghanistan and Bangladesh and has excluded Muslims since they belong to majority community in the said countries and therefore, merely because the persons identifying with Islam also migrate along with the persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi, Chiristian communities from our Muslim majority neighbours, they cannot be treated as one class.

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