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Union Home Minister Amit Shah introduced Citizen Amendment Bill that was cleared by the Union Cabinet last week. However, once it came up for discussion in both the houses of parliament, it faced heated opposition on the grounds that the Bill is against the idea of secularism as enshrined within the Constitution and additionally Citizenship (Amendment) Act 2019 is violative of Article 14 of The Constitution of India. The Bill has been passed in both Houses of Parliament and received the assent of the President of India on 12th December 2019. Thereafter, The Citizenship Amendment Act of 2019 came into force once it was notified by the Government.
This article seeks to focus solely on the aspects of Article 14 and it’s relevance to Citizenship Amendment Act 2019 and doesn’t dwell into the question whether or not the 2019 Act is violative of Article 21, the basic structure and against the idea of secularism.
The Citizenship Amendment Act 2019 (“2019 Act”) has faced many controversies relating to its constitutionality especially on the ground that it is against the reasonable classification doctrine. Several arguments have been raised from both the sides about the Act being violative of Article 15, Article 21, Article 25 and especially Article 14 of the Constitution of India.
2019 Act has made one of the major changes to the grant of Indian citizenship by amending the definition of illegal migrants and amending Third Schedule. Prior to the 2019 Act, an illegal migrant was granted Indian citizenship by means of naturalisation, provided that he has been residing in India or has been in government service in India throughout the period of twelve months immediately preceding the application.
Another condition was that such an individual must have resided in India for eleven years out of the fourteen years preceding the application for naturalisation. In effect, a fresh applicant needs to wait for eleven years in order to become a citizen through the naturalisation route.
The 2019 Act inserts a proviso to the definition of “illegal migrant” under Section 2 of the Citizenship Act. The proviso states that:
“Provided that persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who have 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 migrants for the purposes of that Act.”
Thus, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan are not treated as illegal migrants under the Act if they fulfil the above conditions.
Another amendment is that the Act reduces the number of years required for naturalisation for the above-mentioned communities. Thus the requisite period of residence in India for eleven years will be cut down to five years for the abovementioned communities. The Third Schedule is amended with the following proviso:
“Provided that for the person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community in Afghanistan, Bangladesh or Pakistan, the aggregate period of residence or service of Government in India as required under this clause shall be read as “not less than five years” in place of “not less than eleven years”.”
Ineffect, the 2019 Act reduces the number of years for naturalisation and creates an exemption for certain communities known as illegal immigrants. However, it leaves out Muslim and other communities from enjoying the benefits granted to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan.
Such grant of benefit to certain minority communities and leaving out Muslim communities, who have illegally migrated from neighbouring countries due to religious persecution, has been termed as manifestly arbitrary and violative of Article 14 of the Constitution.
The question that has come up for consideration is that whether or not differentiating on the grounds of religious persecution is a violation of Article 14. In order to understand this question, it’s necessary to understand the rationale behind the 2019 Act and how citizenship law is understood from a constitutional perspective.
History of Citizenship through Constituent Assembly Debates vis-a-vis CAB
To the question of whether or not the parliament has jurisdiction to entertain matters relating to citizenship was answered in affirmative by Dr BR. Ambedkar on 10 August 1949 “Now, Sir, this article refers to, citizenship not in any general sense but to citizenship on the date of the commencement of this Constitution. It is not the object of this particular article to lay down a permanent law of citizenship for this country. The business of laying down a permanent law of citizenship has been left to Parliament,”
Furthermore, a similar question was raised in a recent session of Rajya Sabha questioning the power of parliament to make laws on citizenship. Article 246 of Constitution of India deals with subject matters of laws made by the parliament. Article 246 (1) states that Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List). Item No. 17 of List I in the Seventh Schedule incorporates laws relating to Citizenship, naturalisation and aliens.
The basis of the new Citizenship Amendment Act can be traced back to Constituent Assembly debates where PC Deshmukh passed an amendment stating “every person who is a Hindu or a Sikh and is not a citizen of any other State shall be entitled to be a citizen of India.”
“By the mere fact that he is a Hindu or a Sikh, he should get Indian citizenship because it is this one circumstance that makes him disliked by others.”
We are not debarring others from getting citizenship here. We merely say that we have no other country to look to for acquiring citizenship rights and therefore we the Hindus and the Sikhs, so long as we follow the respective religions, should have the right of citizenship in India and should be entitled to retain such citizenship so long as we acquire no other,” he said on August 11, 1949.
Thakur Das Bhargava, a member elected from East Punjab, argued for an extension in the number of years it must take for people to acquire citizenship through the naturalization process from five to ten years. Thus, the demand for a longer requirement of ten years of residency in India. However, all their amendments were rejected either by members withdrawing it or losing it via a vote, and the Constituent Assembly adopted the ‘jus soli’ principle for Article 5.
In the Constituent Assembly, there was heated deliberation on what doctrine of citizenship should India adopt – ’jus soli’ (citizenship by right of birth within the territory of the state) or ‘jus sanguins’ (citizenship by right of descent based on ethnicity or other communal markers). After much consideration, the Founding Fathers adopted the ‘jus soli’ approach.
However, the criteria for deciding citizenship shifted from jus soli to jus sanguins after the introduction of Citizenship Act 1955 and its subsequent amendments in 1986, 2003, 2005, 2015.
Legislative History of the Act
Section 2 (1) (b) of the Citizenship Act, 1955 defined illegal migrant as follows;
2(1) (b)illegal migrant means a foreigner who has entered into India-
- Without a valid passport or travel documents and such other documents or authority as may be prescribed by or under any law in that behalf; or
- (ii) 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;
On 07.09.2015, The Ministry Home Affairs, vide Notification dated 08.09.2015 bearing number GSR 685(E) and GSR 686(E) made an amendment in the Passport (Entry into India) Rules, 1950 and Foreigners Order, 1948 and allowed entry to persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution, who entered into India on or before the 31st December 2014 without valid documents.
Further on 18.07.2016, the Ministry of Home Affairs vide Notification number GSR 702 (E) and 703(E) dated 18.07.2016 published in Gazette No. 495 made an amendment in the Passport (Entry into India) Rules, 1950 and Foreigners Order, 1948 substituted the word “Bangladesh”, for words “Afghanistan, Bangladesh”.
On July 19 2016, Citizen Amendment Bill was introduced in Lok Sabha which seeks to amend Citizenship Act, 1955. On 8 January 2019, the Bill was passed by Lok Sabha and referred to Joint Parliamentary Committee. However, the Bill lapsed with the dissolution of the 16th Lok Sabha.
The Bill was introduced again on 9th December 2019 in 17th Lok Sabha and was passed on 10th December 2019 with 293 in favour of the Bill and 82 against the Bill. The Bill was subsequently passed by the Rajya Sabha on 11 December 2019 with 125 votes in favour and 99 votes against it.
On 12th December 2019, President assented to Citizen Amendment Act 2019 and the government notified it the official gazette and the Act has come into force.
Whether or not Citizen Amendment Bill 2019 violates Article 14
“14. Equality before law – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Equality before the law or equal protection of the laws doesn’t mean an identical treatment to everybody. As no two persons or class of persons are equal in all regards, an identical treatment to them in all regards would bring unequal treatment.
Equality isn’t similar treatment to everyone, but instead, equality is to give them similar treatment in those regards wherever they’re comparable and diverse treatment in those regards in which they are not alike. Equals are to be treated equally and unequal’s are to be treated unequally.
Thus Article 14 permits reasonable classification while restricting class legislation. The equality guaranteed under Article 14 does not mean that each law should be of a general character. It doesn’t mean that that same law ought to apply to all persons. It doesn’t mean that every law must have universal application for, all persons are not, by nature, attainment or circumstances in the same position. The varying need for different classes of persons often requires separate treatment.  In fact, Identical treatment in unequal circumstances would amount to inequality. 
It is however well settled that such classification should not be arbitrary, artificial or evasive but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation. 
Class legislation is that which makes improper discrimination by conferring special privileges upon a class of persons arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privilege granted. In class legislation, the persons granted privilege and the persons to whom such privilege is not granted have no reasonable distinction or no substantial difference can be found justifying the inclusions of one and the exclusion of the other from such privilege.
The essence of the reasonable classification test lies in the fact that it circumscribes the scope of permissible differentiation so as not to amount to discrimination or class legislation. In order to pass the test of ‘reasonable classification’, the following twin requirement must be fulfilled by the enactment in question:
- the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others left out of the group, and
- the differentia must have a rational relation to the objects sought to be achieved by the Act
The first question that arises under the 2019 Act is that whether the classification between the majority groups and minority groups of Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan is based upon intelligible differentia?
The communities of Hindus, Sikhs, Buddhists, Jains, Parsis and Christians under the 2019 Act will not be treated as illegal immigrants if they have 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 as per Section – 2 of the 2019 Act.
2019 Act reduces the number of years for naturalisation and creates an exemption for these communities being called as illegal immigrants. It thus leaves out Muslim and other communities from enjoying the benefits granted to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan.
Before the enactment of the 2019 Act none of the illegal immigrants were granted the privilege of exemption from being an illegal immigrant. The Act seeks to grant benefits to certain minority communities who have faced religious persecution in Afghanistan, Bangladesh and Pakistan. Thus creating an intelligible distinction between minority communities who have fled to India on the grounds of religious persecution and other majority communities.
Thus the 2019 Act creates a reasonable classification granting benefits to the minorities who faced religious persecution from countries which were intolerant towards those minorities.
In Parents’ Assn. v. Union of India, [(2000) 2 S.C.C 657], the Supreme Court upheld differential treatment of the pre-1942 settlers and the post-1942 settlers in Andaman & Nicobar Islands by the Central Government on consideration of the historical background of the Island.
Further, the importance of judicial review was explained in Parisons Agrotech (P) Ltd. v. Union of India, [(2015) 9 S.C.C. 157], wherein the Court held that if a policy decision was based on sufficient material, the Court does not have the power to examine its correctness.
The second question that arises for consideration is that whether or not such classification created has a rational relation to the objects sought to be achieved by the Act?
The statement of objects and reasons provide that the Constitution of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. The communities of Hindus, Sikhs, Buddhists, Jains, Parsis and Christians form minority communities in these countries. The minority communities have faced religious persecution in these countries. Furthermore, the minority communities have fled to India and continued to stay in India by the reason of religious persecution. Thus the object of the 2019 Act is to provide special regime to these minority communities.
Moreover, the communities protected under the 2019 Act who are also the victims in Afghanistan, Bangladesh and Pakistan form a reasonable distinction from the other communities who are not the victims on the ground of religious persecution. Therefore having nexus with the object of the Act.
Lastly, A law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself.
To conclude, in light of the above, the real object of the Act appears to be to provide a class of migrants the opportunity of local integration via expedited naturalization. The Act seeks to confer privileges upon certain communities which in no way means that the Act seeks to abrogate the rights of the communities left out of such privilege.
 Abdul Rehman vs. Pinto, AIR 1951 Hyd 11.