The matters relating to citizenship of migrants is being dealt by Part-II of The Constitution of India & The Citizenship Act, 1955 until now. As per its provisions, an illegal migrant referred to a foreigner who has entered India either without valid documents or has stayed in India beyond the permitted time. Such a migrant was not entitled to citizenship irrespective of the reason of birth, descent, or naturalization. Moreover, such migrants may also be imprisoned as per the provisions Foreigners Act 1946& Passport (Entry into India) Act 1920.
Recently, in the year 2015-16 the Central Government exempted migrants belonging to certain religions, namely Hindu, Sikh, Jain, Parsi, Buddhists, Christians etc. from three countries, i.e. Afghanistan, Bangladesh, Pakistan (arrived before 31st December 2014), notably excluding Islamic community. Further, the registration of an OCI holder may be revoked for penalties even lesser than 2 years. This amendment has sparked a heated debated among national and international community. This article aims to put forth the legal arguments in favor and in contrast to the amendment.
Issues & Challenges
- Unreasonable Classification
The Hon’ble Supreme Court laid down the new doctrine under Article 14 which can be interpreted to the test of arbitrariness and direct nexus. That is to say, any classification made must be based on reasonable grounds and must have a direct nexus to the objective, the Act or law seeks to fulfill.
At the time of independence, a two-nation theory had evolved, thereby promoting partition of India on the basis of religion, i.e. Pakistan for Muslims and India for Hindus. However, the drafters of the Indian constitution rejected this idea, unlike Pakistan. Any classification, that is based on religion, if assumed but not conceded to be valid must be based on sound reasoning. The opposers of the bill argue that the approach of State is not only arbitrary but also fails to satisfy just-fair-reasonable test.It also relaxes the criteria for naturalization of such immigrants from 11 years to six years. The government has not only failed toexplain the rationale behind such relaxation for a particular class of people, but also not recognized other non-Muslim communities like Jews, Zoroastrians etc. The differential treatment towards persecuted immigrants belonging to the Hindu, Jain, Sikh, Parsi and Christian religion is unconstitutional because people belonging to other religions also face inhuman treatment and does not make the former more “Indian” than the latter.
In order to justify the steps taken, the State must furnish credible reports to support namely two facts:
- The immigrants of 6 religions face more persecution as compared to others.
- The instances of such acts is higher in 3 countries – Pakistan, Afghanistan and Bangladesh than countries like China, Sri Lanka, Myanmar etc.
Alternatively, the supporters of the policy argue that while atrocities may be committed towards other communities as well, they form a separate class. This is because, they are capable of seeking habitation in any other country, having similar religious majority, unlike Hindus and others. It still does not justify inclusion of Christians in the amendment. They also argue that as per Art. 14, the State is empowered to confer benefits, right or privileges to one group over another who are similarly situated. Finally, the fact of the matter is, that such a classification does not although discard immigrants from other religions, but certainly puts some religion in an advantageous position over others and makes an act which is illegal for others, legal for them.
- Nullification of National Register of Citizens
The protests from several organizations and political bodies of Assam have been in news recently. This is majorly because in the year 1971, after Bangladesh had been formed, Supreme Court had instituted it to certify bona-fide citizens. The population was recorded for the first time since 1951. Many political organizations believe that such a law may harm the identity of the indigenous community of Assam.Moreover, it will also nullify NRP and Assam Accord signed by the then Prime Minister Rajiv Gandhi and AASU. As per Assam Accord, any immigrant entering the state after 1971 was given the status of ‘illegal immigrant’. The local tribes and communities’ protest is regarding the permissibility to other communities who may dilute their identity and enjoy resources which are in the first place scarcely distributed.
- Immigrant or Refugee – Need for Clear Demarcation
While a refugee refers to a person who has been forced to migrate to another country due to situations such as human rights and safety, an immigrant refers to a person who migrates to seek economic or other form of advantage. The Bill fails to distinguish between both the terms and uses them thus failing to fulfill the purpose it seeks to achieve. While on one hand, refugees such as Rohingya Muslims were denied any protection having no obligation under 1951 Refugee Convention, it provides protection to migrants based on religion, irrespective of humanitarian considerations.
The Bill pending before Rajya Sabha therefore, must undergo a judicial scrutiny before coming into force, if cleared. The impact of such a policy will be multi-facet, including straining of bi-lateral relations, burden on the machinery for maintenance for now-legal migrants. The facts suggest that not only are they de-recognized as illegal immigrants, they are also provided services for faster clearance of their application. Any law can be best examined by studying it as a whole, in a holistic perspective and not in a restricted view. Therefore, in the interest of justice, it is essential to analyze the questions raised above in consonance with Constitution of India & other international norms and obligations.
E.P. Royappa v. State of Tamil Nadu, (l974) 4 SCC 3.
Statement of Object & Reasons of the Citizenship (Amendment) Bill, 2016, (172 of 2016). http://www.prsindia.org/uploads/media/Citizenship/Legislative%20Brief%20Citizenship%20Amendment%20Bill%202016.pdf Last visited Jan 15, 2019.
Cf. Prof. Willis, ‘CONSTITUTIONAL LIMITATIONS‘ (Istedn.) p. 579. 7.
Preetika Yadav, Citizenship an Attack on the Very Idea of India (Jan 14 2019) https://www.livemint.com/Politics/T6havyT7pf7WQiPANaNxZJ/Citizenship-bill-an-attack-on-the-very-idea-of-India-Yogend.html last visited Jan 15 2019.
State of W.B. v. Anwar Ali Sarkar AIR 1952 SC 75
PannalalBansilalSaraswat Cooperative Bank Ltd. v. State of Maharashtra, (2006) 8 SCC 520, Para 31.
 Apurva Thakur, Why The Citizenship Amendment goes Against the Basic Tenets of the Constitution (March 12, 2018)https://www.epw.in/engage/article/why-the-citizenship-amendment-goes-against-the-basic-tenets-of-the-constitution last visited 15/01/2019.
 Amnesty International; United Nations, Treaty Series, 28-7-1951, 189 UNTS 137, Art. 1.
Lovesh Garg, If India Wants To Remains Secular, Citizenship Bill is Not The Way to Go. https://thewire.in/communalism/citizenship-amendment-bill-2016 last visited 15/01/2019.