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Citizenship Amendment Act’ 2019- Unconstitutional- An analysis

The Citizenship Amendment Bill’ 2019 provides for grant of Indian citizenship to illegal immigrants belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities from Pakistan, Bangladesh and Afghanistan. The same is now an Act of Parliament after having been passed by both the houses of Parliament and further having received necessary Presidential assent.

The amendment Act provides for grant of citizenship to members of six religions from three Islamic countries to protect them from religious persecution. It has been assumed that Muslims in these countries will not face persecution and that there has been no case so far. The people belonging to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian faith from Afghanistan, Bangladesh or Pakistan will be granted Indian citizenship if they entered India on or before December 31’ 2014, even if they do not possess the required documents. Any person not belonging to these communities or countries will not be covered. The amendment Act also includes new provisions for cancellation of the registration of Overseas Citizenship of India (O.C.I) when it's a matter of India's sovereignty and security.

Since being introduced in the house, it has been a controversial subject and has been debated, deliberated and discussed on numerous platforms however most of the discussions have been more of political nature than legal or technical. This article seeks to analyse the Act legally, technically and constitutionally without any political angles to it.

It is clarified that this Article does not deliberate the issue of exemption of tribal areas of Assam, Meghalaya, Mizoram, and Tripura, included in the Sixth Schedule to the Constitution from its applicability which include Karbi Anglong in Assam, Garo Hills in Meghalaya, Chakma district in Mizoram, and Tribal Areas district in Tripura and also the areas regulated through the Inner Line Permit [Bengal Eastern Frontier Regulation, 1873] which includes Arunachal Pradesh, Mizoram and Nagaland and also vis a vis sanctity of the Assam Accord as far as the cut-off date of March 24, 1971.

The Act is prima facie unconstitutional and it is highly unlikely that it will pass the litmus twin tests of Articles 14 and 21 of the Constitution of India, 1950 by the Hon’ble Supreme Court of India besides other constitutional grounds which may be raised against it.

Before even coming to Articles 14 and 21, the Preamble of our Constitution is worth mentioning at the outset. The preamble clearly stipulates India to be ‘secular’ [added to the preamble vide 42nd Constitutional Amendment Act, 1976] and not per se a Hindu, Islamic, Christian, Sikh, Jain, Parsi, Buddhist or state of any one particular faith, religion, belief alone. So at the outset even before examining the amendment Act vis a vis Articles 14 and 21 and / or any other provisions of the Constitution, the Act fails the preamble itself after having specifically excluded ‘Muslims’ from the proviso added to Section 2 (1) (b) of the Citizenship Act, 1955 vide the amendment Act of 2019.

Under the Constitution, the right to equality provided for in Article 14 and the right to life and liberty [including right to live with dignity] provided for in Article 21 unlike other fundamental rights are available to all persons, regardless of citizenship. In National Human Rights Commission vs State of Arunachal Pradesh (1996) 1 SCC 742, the Hon’ble Supreme Court of India had held that the fundamental right to life and liberty guaranteed by Article 21 of the constitution is also available to non-Indian citizens. This proposition of law still holds the field.

Further, this amendment amounts to class legislation and is violative of Article 14 of the Constitution of Indi, 1950. Class legislation is impermissible, and reference is drawn to the landmark decision of the Constitution Bench of the Hon’ble Supreme Court of India in the case of D.S. Nakara and Others Vs. UOI 1983 (2) SCR 165. It was held by the Hon’ble Supreme Court of India as under: -

“….Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It is attracted where equals are treated differently without any reasonable basis. The principle underlying the guarantee is that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same. Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation.

The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. In other words, there ought to be causal connection between the basis of classification and the object of the statute. The doctrine of classification was evolved by the Court for the purpose of sustaining a legislation or State action designed to help weaker sections of the society. Legislative and executive action may accordingly be sustained by the court if the State satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. A discriminatory action is liable to be struck down unless it can be shown by the Government that the departure was not arbitrary but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory…..”

The Statement of Objects and Reasons of this amendment does not spell out anything which may warrant firstly the amendment in question particularly as to why a ‘class’ of persons have been specifically excluded from its beneficial purview.

The ‘Muslims’ have been excluded from the benefits of the amendment Act without any sound basis, ground, reasoning or logic. This exclusion, legally speaking, is outright arbitrary, discriminatory and moreover unconstitutional.

The Central Government must review and take a prudent stand before the Hon’ble Supreme Court of India when the clutch of petitions challenging the constitutional validity of the amendment Act of 2019 come up for hearing.


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