Citizenship Bill upholds the sanctity of the reasonable Classification test under Article 14 of the Constitution

-Dharmananda Deb, Advocate-

Citizenship is normally an issue to be dealt with by legislation rather than being incorporated in the constitution. Articles 5 to 9 of the Constitution determine who are Indian citizens at the commencement of the constitution and Article 10 provides for their continuance as such citizens subject to the provisions of any law that may be made by Parliament. The Constitution does not; however make any provision with respect to the acquisition of citizenship after its commencement or the termination of citizenship or other matters relating to citizenship. Under Article 11, the Constitution expressly saves the power of Parliament to make a law provide for such matters. So, Article 11 serves the purpose of removing any doubts that could be entertained about the absolute and exclusive power of Parliament to deal with issues of citizenship in India.

If we trace back the history of Article 5, originally it formed part of the chapter on Fundamental Rights in the draft Constitution. While moving the Interim Report on Fundamental Rights in the constituent Assembly on 29^th April,1947, Sardar Vallabhai Patel had very famously stated that “ it is important to remember that the provision about Citizenship will be  scrutinized all over the world. They are watching what we are doing.” However, the proper consideration of this clause was postponed and finally shifted to Part II of the Constitution. So, it is not correct to consider right of citizenship to be a fundamental right to foreigners. Citizenship is an exceptional right or privilege, which cannot be claimed by any foreigner as a fundamental right.

The Citizenship Act, 1955, came into force on 30th December, 1955. It provides for the acquisition of citizenship after the commencement of the Constitution by birth, descent, registration, naturalisation and incorporation of territory and for termination and deprivation of citizenship under certain circumstances. On 19^th July 2016, the BJP led NDA Government introduced the Citizenship (Amendment) Bill, 2016 in the Loksabha with the intention to further amend the Citizenship Act, 1955 and thereafter referred to a Joint Parliamentary Committee on August 12, 2016 and is presently being examined by a joint parliamentary panel.

The Bill amends the Citizenship Act, 1955 to make illegal migrants who are Hindus,Sikhs,Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship. Under the Act, 1955, one of the requirements for citizenship by naturalisation is that the applicant must have resided in India during the last 12 months, and for 11 years of the previous 14 years. The Bill relaxes this 11years requirement to 6 years for person belonging to the same six religion and three countries. The Bill also provides that the registration of OCI cardholders may be cancelled if they violate any law.

The question is whether this provision violates the right to equality guaranteed under Article 14 of the Constitution because it provides differential treatment to illegal migrants on the basis of their religion. Considering the sad plight of these minority communities who have already crossed over due to religious persecution, from the neighbouring countries, the proposed Bill upholds the test of reasonable classification under Article 14 of the Constitution as propounded by a seven Judge Bench headed by the Sastri,M.Patanjali (CJ) of the Hon`ble Supreme Court in the State of West Bengal  vs Anwar Ali Sarkar on 11^th January, 1952, wherein the Court observed that Article 14 guarantees equality to all persons, citizens and foreigners. It only permits laws to differentiate between groups of people if the rationale for doing so serves a reasonable purpose. It is also observed that Article 14 of the Constitution does not mean that all laws must be general in character and universal in application. The state must possess the power of distinguishing and classifying persons or things to be subjected to particular laws and in making a classification the legislation. It is ample clear  from this Judgment that Article 14 permits classification but prohibits class legislation. The classification however, must not be “Arbitrary, artificial or evasive” but must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be achieved by the Legislation.

In D.C.Bhatia and Others versus Union of India, the hon`ble Supreme Court observed that the Legislature is competent to make classification. It is upon the Legislature to identify the class of people to be given protection and on what basis such protection is given. Court cannot interfere.

The following are the basis/rationale for different classification in the proposed Citizenship (Amendment) Bill,2016:-

(i) Nation was divided on two nation theory;

(ii) Persons belonging to certain minority communities from three neighbouring countries were forced to leave their countries because of religious persecution or fear of persecution;

(iii) The persons have entered into India on or before 31.12.2014 are only provided a facility to apply for naturalisation subject to the other laws for the time being in force and they are not given citizenship straightway;

(iv) Relief measures are provided as one-time amnesty and the

persons belonging to above communities and in the above countries entering into India even due to religious persecution after 31-12-2014 will not be considered for naturalisation.

(v) Humanitarian Consideration.

(vi)Persons who have already entered into India and living within the territory should not now be driven away from India as it would amount to gross violation of human rights. If they are driven away, no country would be ready and willing to take them back as those countries have not demonstrated any inclination to take them back and they would remain stateless refugees forever; and

(vii) No purpose would be served if the above persons are continued to be allowed to reside in India without having the necessary rights to live a decent life of recognition as lawful inhabitants within the territory of India; etc.

In view of the above, the Bill upholds the sanctity of the reasonable classification test under Article 14 of the Constitution since the classification attempted in the Bill is clear and substantial and there are sufficient reasons for making the distinction. Further, there is no element of arbitrariness in the classification proposed by virtue of these just reasons amongst with others.

But for the State of Assam, it necessary to make provisions in the proposed amendment bill for non-applicability  of Section 6A of the present Act 1955 to the intended class of migrants to India from Bangladesh, Pakistan & Afghanistan who are now proposed to be granted Citizenship by  “Naturalization” under Section 6 of the Act because, although in the proposed amendment this class has been exempted from the definition of  “Illegal Migrant” by proposing amendment of sub-section 1 of Section 2 after clause (b), yet the name of Bangladesh remains in this Act as a “specified territory” under sub-section 1(c) of Section 6-A of the present Act.  Further, Section 6A is a special provision about Citizenship of a class of persons from Assam and/or covered under Assam Accord, which describes and treats, at least after 24^th day of March,1971(mid-night), this intended class of migrants from Bangladesh to Assam/India on ground of religious persecution there, as illegal migrant ineligible for acquisition of citizenship.  Assam Accord being a political settlement, legislation is required to give effect to the relevant clauses of the Assam Accord relating to the foreigners issue. In line with this Accord ,on 7^th December,1985 a special provision only for the state of Assam is inserted in the citizenship Act,1955 i.e. Section 6-A defines various timelines for this intended class also, even prior to 24^th day of March,1971not to speak of post 1971, for being qualified to be a citizen of India. But nevertheless, as a serious problem of infiltration to Assam/India by illegal migrants has arisen over the years, hence for the National interest, the provisions of Section 6A should remain for appropriate cases of actual illegal and/or economic migrant. However, the presently intended class i.e. migrants from Bangladesh who entered India/Assam for religious persecution perpetuated on religious minorities there, should be totally excluded from the detrimental effect of Section 6-A of the Act, 1955.Moreover, Assam Accord is only an accord like the Liaquat-Nehru Pact. The Assam Accord is not an Act as per Article 13 of the Constitution and there may be mistakes in it. If there are any mistakes in the Assam Accord, the law-makers need to rectify it. As such, Citizenship (Amendment) Bill, 2016 is a need-of-the-hour Legislation. Besides these, there exists also a special modality/ requirement for inclusion of name of persons in the National Registrar of Citizens (NRC) in the state of Assam. This modality/requirement disqualifies a person from being included in the NRC if he is, broadly, unable to produce any record proving his/her and/or ancestors citizenship status prior to 24^th day of March,1971 in Assam. Thus, the applicants for citizenship by naturalisation  from Assam under the amendment Bill although granted Indian Citizenship, yet since they will not be able to produce any pre-1971 Citizenship record about them and/or about the ancestors, there cases for inclusion of their names in the NRC in the state of Assam will fail. So it is necessary to amend the Section 14A of the Act, 1955 and make an appropriate provision in the Bill that whereby the names of applicants from Assam, who will be granted Citizenship under the amendment Bill, shall automatically enter in the NRC of Assam.

The ‘STATEMENTS OF OBJECTS AND REASONS’ of the Bill, 2016 does not contain any statement on the line that the act is being intended to amend also for the intended class of migrant who entered into India for religious persecution or for fear of religious persecution in Bangladesh, Pakistan and Afghanistan. In view of decision by the Hon`ble Supreme Court cited in AIR 1957 SC 75(Para 39-41), it is better safer to insert the ground of religious persecution or for fear of persecution in the ‘STATEMENTS OF OBJECTS AND REASONS’ also other than in the main body of the Bill,2016  or in the Notifications mentioned and linked with the Bill so that the amendment can withstand any judicial review/negative criticism etc. and the intention of the Government to grant citizenship to this class can safely happen without any post-passage adverse judicial scrutiny.

That, Smti Sucheta Kripalini, the then Member of Parliament who proposed for adding the Provision Section 2 of the Immigrants (Expulsion from Assam) Act, 1950  and spoke, inter-alia that-

                 “…… we cannot deny our responsibility towards those people. They were citizens of India. They fought for the freedom of India. But today unfortunately they have been left beyond the limits of India. We know that Pakistan has been following a systematic policy by which Hindus have to be gradually pushed out. If Hindus of eastern Pakistan are pushed out, they will have to find shelter somewhere. We cannot close our eyes to that Section. Even if it is difficult for our economy to support it, we have to give shelter to those shelters less people. It is a moral responsibility”.

In conclusion, it is humbly appealed to our respected Parliamentarians to pass the Citizenship (Amendment) Bill, 2016 with necessary amendment in Section 6A of the Act, 1955  and to make a provision in the  amendment Bill so that they would be citizens from Assam can enroll their name in the NRC of Assam upon getting citizenship by naturalization certificate automatically and to insert the wordings of “religious persecution” and/or “for fear of religious persecution” in the ‘STATEMENTS OF OBJECTS AND REASONS’ of the Citizenship(Amendment) Bill,2016 after receipt of the report from Joint Parliamentary Select Committee, on humanitarian ground for migrants who are specially resided in the state of Assam, and also keeping in mind and considering the aspect of the partition of India on the basis of  “two nations theory” and these migrants are also the ‘victim of partition`.