Citizenship Amendment Act, 2019

Byakmadmin December 31, 2019

Introduction

India which is one of the largest democracies in the world is now being acerbically questioned about its fundamental principles that are inscribed in the Preamble asserting that “We the people of India, having solemnly resolved to constitute India into a sovereign, secular, socialist, democratic, republic”. With the passing of the Citizenship Amendment Act, 2019, the doubts have been raised that, is India really a secular, democratic, and republic country? Unquestionably, the world is aware of the fact that the Indian war of freedom against British colonialism resulted in the partition of hearts as well as the partition of Bharat. On the lines of Islam, Pakistan was formed whereas India although a Hindu majority country chose to remain a secular nation consenting every individual equal right to profess their religion.

After the gruesome partition; on 26th November, 1949, the Constitution of India was adopted however it came into effect from 26th January 1950. The very second part of the Grundnorm i.e. the Constitution governs the subject of Citizenship. Articles 5-10 of the Constitution were incorporated to ensure that no individual shall be subjected to any discriminatory treatment based on the partition, albeit the right to citizenship was extended to include all those persons who have migrated to India from the territory of Pakistan or the persons of Indian origin who were residing outside. Article 11 is the parent Law from which the Citizenship Act, 1955 took the shape. The Citizenship act, 1955 is the Law made for the purpose to manage the acquisition and determination of Indian citizenship. Although the Act of 1955 is constitutionally valid, the recent amendment to this act has cast aspersions on its validity.

Why the Citizenship Amendment Act, 2019 is being termed as a Bad Law?

The Citizenship amendment act, 2019 modifies and relaxes the defined meaning of illegal immigrants for Hindu, Sikh, Parsi, Jain, Buddhist and Christian immigrants who are nationals of Pakistan, Afghanistan, and Bangladesh but are resettled in India without documentation. Earlier illegal migrants were not allowed to avail the citizenship of India but now those people who were forced or compelled to seek shelter in India due to persecution on the ground of religion in these countries are allowed to seek citizenship in India. The proviso to this amendment is that the applicant should have entered India on or before December 31, 2014. Prima facie if the amendment is seen, the object that is sought to be achieved has a reasonable nexus in the eyes of law but the problem is about the intelligible differentia. It has welcomed the refugees of all the religions but has created an exception that is non-inclusion of Muslims under the scope of the amendment even if the Muslims immigrants to minority and falls under the category of persecuted groups such as Ahmadis or Rohingyas. Such treatment of Muslim individuals violates the fundamental rights of an individual guaranteed under Article 14, 15, 19, 21 and 25 of the Constitution of India.

Democracy of a country stands on the pillars of justice, equality, fraternity, and liberty. Excluding one of the religions and including other religions shows us the fear of India as a state becoming an extreme rightist and a Hindu state religion country. The parliament has the job to represent the views of the population and thus, make laws according to the national interest. All the powers that are derived by the legislature finds its origin from the Constitution on the essentials of the doctrine of Rule of Law and undoubtedly, rule of Law is held to be the basic structure of the Indian Constitution much like Secularism. The essence of Rule of Law is that every person is equal before the law and no discrimination can be created by its furtherance.

Certainly, Law-makers are independent on the accounts of separation of powers but factually they are accountable to its citizens who have solemnly resolved to constitute India into a democratic republic. Parliamentary activism is acceptable by the nation but not its overreach. India after the celebrated judgment of Maneka Gandhi v. Union of India has now equated the term procedure established by Law with the due procedure of Law that vis-à-vis secures the protection from any arbitrary application and inherits the concept of fairness. By all means, it is manifestly projected that equality and arbitrariness are sworn enemies; as one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.

The Hinduism agenda of the political party has disturbed the collective peace and security of the nation. This national influx based on the ideology of majoritarianism has weakened the roots of Secularism that were stemmed from the time of Vedas. The revelations of Guru Nanak who himself was Sikh by religion proclaimed that there is no Hindu no Mussulman. The literal meaning of Secularism is equal status to all the religions and the object is that there shall be no added privileges to any of the religion which is professed in a secular state. The unprejudiced understanding of Secularism is a fact like water, which has no color and whatever color we mix it, water orientates itself accordingly. A similar analogy can be drawn when we talk about Secularism as Secularism being a philosophical neutral doctrine gets the color of the ruling political party and the party’s affection towards a particular religion. Likewise, the current amendment has strongly favoured the Hinduism in the country by overriding the interest of one of the most populated minorities. This powerful amendment has crushed the wall of separation between religion and politics and has challenged the humanity of India as a whole.

Why the Central Government is in Favour of the Legislation?

Nonetheless, as we know, nothing inopportune is ever completely one-sided and there is a pressing need to weight the other side as to understand how this legislation is not a colourable legislation and can soothe the national interest while protecting the interest of minorities who are the victims of religious persecution in these three Islamic state religion countries. The idea behind the amendment is to allow the illegal migrants to now have a citizenship which was earlier barred under the Citizenship act of 1955. Basically, Illegal migrant is a foreigner who enters the country without valid travel documents, like a passport and visa, or enters with valid documents, but stays beyond the permitted time period. As per the IB records, Hindus 25,447, Sikhs 5,807, Christians 55, Buddhists 2 and Parsis 2- these are the numbers of the illegal migrants who are living in India on the grounds of religious persecution and this act aims to give a new dawn to such people who have been persecuted on the religious lines.

Article 14 negates class legislation and not reasonable classification. The Home Minister of India Mr. Amit Shah in the Lok Sabha has stated that the amendment is entirely under the realm of reasonable classification because all the minorities that are included in the amendment act are also the minorities in these Islamic states and the reason to exclude Muslims is because they have the majority domination in these countries, henceforth, the act sounds reasonably classified. Further, the nexus sought to achieve from the legislation is to ensure human rights of the people who have been migrated here unlawfully to such an extent that individuals should not be deported back and rather permit them to stay here if they fulfil the object clause that is residing before December 2014, hence, the act is not void of reasonable nexus.

On top of that, the concept of liberty to profess religion is not absolute as the negative liberty is an exception to the concept of positive liberty. Negative liberty is primarily concerned with freedom from external restraint and the state has all the means and powers to protect the citizens from any outrageous action that can later result in a question mark on public safety and order. Also keeping this apart, the old citizenship clause regarding the naturalization or descent, etc. has not been altered and one can still apply for citizenship through legally accepted ways purpose of the amendment is to curb the illegal entrance of migrants in the state. Further adding one more merit, the period of residence which was required under the process of naturalization has been reduced to not less than 5 years from the earlier 11 year residence requirement. The act is at present criticised to a very large extent resulting in public outbursts and riots but at the same time before concluding and coming to a stage where we decide the constitutional validity of the act, it is necessary to analyse the pros and cons of the amendment act.

Demerits of the Amendment Act

It violates rule of Law as there is neither equality before law nor supremacy of law
It violates the basic Structure of the Constitution
It fails to show the intelligible differentia that is required to pass the test of Article 14
It discriminates amongst religions and incites feeling of hatred in one religion for the other religion
It infringes the fundamental rights of people that are guaranteed by the Constitution of India
It motivates extreme rightist philosophies in a secular country
It questions the security of life and liberty of minorities in India
It shows the lack of parliament accountability and thus allows totalitarian regime to flourish
It will aggravate the illegal migration from Bangladesh which might affect the demography of Assam
It is a difficult procedure to identify illegal migrant and legal migrant and thus lead to wide discretionary powers

Merits of the Amendments Act

It will give an identity to illegal migrants who were victim of religious persecution in states of Bangladesh, Pakistan, and Afghanistan
It ensures the right to life of specified religious minorities
It curbs the entry of illegal migrants in the country and set an example for the future
It has reasonable nexus to exclude Muslims from the amendment act while including others in its ambit
It is the duty of State to protect its citizen from any actions that raise a threat to national interest
It finds its validity under the concept of negative liberty and the concept of maintaining peace and security in the state
It relaxes the residence clause from not less than 11 years residence in India to not less than 5 years residence in India

Conclusion

In the meantime, several petitions have been filed in the Supreme court challenging the validity of the act and consequently, it is required that the test of Article 14 has to be passed and ascertained by the citizenship amendment act, 2019 in the apex court of India so as to upheld its constitutionality. In addition to that, if the act is held constitutionally valid, then the Supreme Court should prepare a guideline which shall detail and govern the procedure of application of the act so that it could be peacefully brought into force with minimum or negligible flaws. Likewise, the principle of natural justice should be the sole path while following the conduct by giving a fair hearing to every individual who has to face the repercussions of the act and who is blacklisted as a citizen of the country. The Courts should not act only as a watchdog but also safeguard that there are no unfettered discretionary powers in the hand of administration which might cause harm to the ethics of the country or become a matter of disadvantage to any individual or class.