Citizenship (Amendment) Bill, 2016: A Breach of Indian Constitution

Citizenship (Amendment) Bill, 2016: A Breach of Indian Constitution

Law | Feb 6, 2019 / by Kunal Kashyap
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The legislature amended the Citizenship Act 1995 with the recent “The Citizenship (Amendment) Bill, 2016”, which was passed in Lok Sabha on Jan 08, 2019. 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 of the country. The Citizenship Act, 1955 states various grounds and requirements to acquire the citizenship of the country. It classifies as illegal migrants those who enter the country without valid travel documents, like a passport and visa or enters with valid documents but stays beyond the permitted time period.

The recent amendment bill has been accused of violating Article 14 of the Indian Constitution. Article 14 guarantees equality to all persons but the bill discriminates the immigrants on the basis of their religion for entitling them as a citizen of India.

‘The Passport (Entry into India) Act, 1920’ states that the Central Government may make rules requiring that person entering India shall be in possession of passports, and for all matters ancillary or incidental to that purpose and ‘The Foreigner Act, 1946’ extend certain powers to the Central Government in respect of the entry of foreigners in India, their presence therein and their departure. In 2015 and 2016, the central government issued two notifications exempting Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who arrived in India on or before December 31, 2014, from provisions of 1946 and 1920 acts. It implies that these groups of illegal migrants will not be deported or imprisoned for being in India without valid documents.

Article 14 of the Indian Constitution states that  “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”  The act prohibits the discrimination on the territory of the country on grounds of religion, race, caste or place of birth. However, the Bill states that illegal migrants belonging to specific minority communities from Afghanistan, Bangladesh or Pakistan will not be treated as illegal migrants under the Act, making them eligible for Indian citizenship. These specified communities will be Hindus, Sikhs, Buddhists, Jains, Parsis and Christians. It implies that people belonging to any other minority community like Muslims and Jews will not be eligible for the citizenship of India. Therefore, 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.

Moreover, the provision of relaxing of the criteria of 11 years to 6 years to gain citizenship by naturalisation, for the persons belonging to stated religious communities is also against the Article 14 of the Indian Constitution. The provision in the bill is providing differentiated treatment to the persons belonging to some specified classes, which strictly contradicts the Right to Equality identified by the Indian Constitution.

This also raises the question that the Indian Constitution permits laws to differentiate between groups of people if the rationale for doing so serves a reasonable purpose. The Statement of Objects and Reasons of the Bill does not explain the rationale behind differentiating between illegal migrants on the basis of the religion they belong to.

The concept of the basic structure of the constitution has also been violated by the bill. It states that there are certain characteristics that cannot be taken away by any legislation. These are the founding stones of the governance of our country. Differentiating immigrants on the basis of their religion can be considered as a non-secular gesture by the government.  Secularism is a basic structure, as has been reiterated by the Supreme Court in S R Bommai vs Union of India (1994). It has also been incorporated in the Preamble to the Constitution, which serves as the guiding light to interpreting the Constitution.

However, appreciating migration by making migrants eligible for citizenship of India on the basis of their religion is not judicious as Assam is already facing various problems due to illegal immigration. The bill will cause adverse effect on Assam as it is in the neighbourhood of Bangladesh. The bill already has triggered various protests in Assam as it is violating Assam Accord. According to the Section 5.8 of the Assam Accord, illegal migrants who had entered Assam after March 25, 1971, were to be deported, however, contradictory to the accords, the bill is extending citizenship to them. Urban Affairs Minister of Meghalaya Hamletson Dohling stated that "Northeastern states will burn if this Bill becomes a law." Urging the indigenous people of Meghalaya to stand united against the Bill, the North East Students' Organisation (NESO), said the Bill will jeopardize the identity of the local communities. All-Arunachal Pradesh Students’ Union protested against granting citizenship to Chakma and Hajong refugees, who are Buddhist and Hindu respectively.  

Criteria like religion should not be made a necessary condition for making someone eligible for the citizenship of the country as it is unethical and against the Indian Constitution. The government should initially pay heed towards the problems faced by the Indian citizens of Assam due to immigration rather than appreciating immigration from neighbourhood countries by extending citizenship to the illegal migrant. Illegal migration from Bangladesh in Assam is already causing a threat to national security and stealing employment opportunities of the local population.  Extending citizenship to the illegal migrants will give hope to potential migrants that they might also get the citizenship if they migrate to the country in future.

 

References-

Das, J. & Talukdar, D. (2016). Socio-Economic and Political Consequence of Illegal Migration into Assam from Bangladesh. Journal of Tourism & Hospitality. Retrieved from: https://www.omicsonline.org/open-access/socioeconomic-and-political-consequence-of-illegal-migration-into-assamfrom-bangladesh-2167-0269-1000202.php?aid=69610

PRS Legislative Research (n.d.). The Citizenship (Amendment) Bill, 2016. PRS India. Retrieved from: http://www.prsindia.org/billtrack/the-citizenship-amendment-bill-2016-4348/

Thakur, A. (2018). Why the citizenship amendment bill goes against the basic tenets of the constitution. Economic & Political Weekly.  Retrieved from: https://www.epw.in/engage/article/why-the-citizenship-amendment-goes-against-the-basic-tenets-of-the-constitution

THE CITIZENSHIP (AMENDMENT) BILL, 2019. Bill No. 172-C of 2016. Government of India (2018).

Image Courtesy: The New Republic

 

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Written By Kunal Kashyap

My name is Kunal Kashyap and basically i am from Jaipur. I am pursuing my graduation from Ramjas College of University of Delhi.

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