The Citizenship Amendment Bill, an instrument that allows the leaders to acclaim a position to question a person’s citizenship and it’s targeting of a certain community, namely the Muslim community who is the primary target of the NRC exercise that can be deemed as unconstitutional, unethical and manifestly arbitrary.
The Citizenship (Amendment) Act 2019 (CAB) is brazenly discriminatory and it is only a matter of time before its constitutionality is subjected to severe judicial scrutiny. In both its content and working, the proposed amendment singles out a community for hostile treatment. The act aims to ensure that Hindu, Sikhs, Buddhist, Jains, Parsis and Christians from Afghanistan, Pakistan and Bangladesh are no longer considered as illegal immigrants even if they enter the Indian premises without a valid visa/document before 2014 and fast track their citizenship for the same. This is done in accordance with the amendment of the Citizenship Act of 1995.
In 2016, a similar attempt was made by the BJP led NDA government, when it met with a opposition in the Rajya Sabha due to significant opposition in North East but on the 10th of December this year, the act was passed in the Lok Sabha with a vote favour of 311-80 and the following day in Rajya Sabha with a margin of 125-105. While, the Indian Muslim League has challenged the constitutionality of this Act, the suo moto interference of The Supreme Court of India seems like the only available option. If this act is not struck down by the Supreme Court, it will further dilute the secularism policy of the Constitution of India.
During the Rajya Sabha proceedings, AAP MP Sanjay Singh said that the bill is against the constitution made by Bhima Rao Ambedkar, preamble of the Constitution and the dreams of Mahatma Gandhi and Bhagat Singh.
What is the Constitutionality of the CAB???
The CAB is liable to be struck down by the Supreme Court as it is in direct violation of the Article 14 of the Indian Constitution which says that the state shall not deny any person equality before the law and the equal protection of the law within the territory of India.
Although there are more grounds but the Article 14 will be substantial enough to strike down the act, it is also in violation of the Article 15 (prohibition of discrimination), Article 21 (right to life and personal liberty) and Article 25 (right to practice one’s religion).
There are two broadways to argue that a law violates Article 14. Firstly, the law provides for differential treatment of a class of person but this classification is not reasonable. Secondly, the law is manifestly arbitrary.
While introducing and defending the Act, Home Minister Amit Shah, used the term reasonable classification several times to defend the content of the CAB. However, as per the law their reception of the reasonable classification is entirely flawed.
“A reasonable classification is when the object of the classification bears and access to the classification itself. Here we are looking at refugees on religious ground. If that is the object of the bill, then the all refugees who are fleeing religious persecution, irrespective of their religion or lack of religion should be allowed in.”
It is evident that the act is arbitrary on the ground that it considers Afghanistan, Bangladesh and Pakistan as neighboring countries but simultaneously fails to consider Tibet, Sri Lanka and Myanmar as same.
“Arbitrariness of a nature which is an outrageous defiance of logic will also come under judicial scrutiny… the Indian Constitution is religion blind.It provides equal weight for all religions.”
CAB as Anti-Muslim?
It is clear that the whole exercise of CAB is based on religious excuse and is flimsy with the probable inability to stand thereof when the matter goes up to the Supreme Court. It is explicitly clear that the CAB is demonstrably anti-Muslim, it is not even in hold when it is viewed in conjunction with the proposed National Register of Citizens or its implementation with regard to the entire nation.
India is a Secular country; our citizenship was never based on religious grounds but a collective commitment to equality liberty and justice to all. But, such religious persecutions seem to dwindle this significant aspect of our Constitution and move us away from the idea of Constitutional India.
What is the change?
Refugees running from religious persecution without documents from Pakistan, Bangladesh and Afghanistan will be granted Indian citizenship within 6 years of their living in India instead of the early bar of 12 years. The law is only applicable to those refugees who are Hindu, Sikh, Buddhist and Christians.
Hence, it can be said that this Act is targeting a community without naming it and the theory of two nation, which was propagated by Savarkar will be duly fulfilled through this Act.
B.A. LLB, Jamia Millia Islamia
The opinions expressed in this publication are those of the author. They do not purport to reflect the opinions or views of The Jamia Review or its members.