A patently unconstitutional piece of legislation

Context:

Citizenship amendment bill (CAB) is being criticized for its intent, lack of logic and for being unconstitutional.

Citizenship in India:

Citizenship is really the right to have rights.

• In 1950 when constitution was adopted, part 2 provided the citizenship based on domicile.
• Even migrants from Pakistani territory were also given citizenship rights.
• Constitution also vested the Parliament with powers to make provisions with respect to “acquisition and termination of citizenship”.
• Pursuant to this, Parliament had enacted the Citizenship Act, 1955.

What are the contentious provisions?

• In a country, which has adopted secular constitution, such as India, can certain religious groups be preferred in acquisition of citizenship?
• Besides that, there are many contentious issues.
• Classification of countries and communities is constitutionally suspect.

Country Classification:

• The clubbing of Afghanistan, Pakistan and Bangladesh together is unclear.
• Common history is not a ground as Afghanistan was never a part of British India.
• Why countries such as Nepal, Bhutan and Myanmar which share land border with India are excluded is not clear.
• ‘Statement of Objects and Reasons’ of the bill states that these three countries constitutionally provides for the state religion.
• Thus, the bill is to protect “religious minorities” in these theocratic states.
• But Bhutan which is constitutionally religious state (Vajrayana Buddhism)- is excluded from the list.
• Why Sri Lanka where Tamil Hindus have been persecuted and Myanmar where Muslim Rohingyas are persecuted have not been included?
• The CAB selection of these three countries is therefore arbitrary.

Community Classification:

• While classifying an individual the bill provide benefits to only one type of persecution- Religious persecution.
• This itself is suspect category, as there are ample examples of political persecution.
• Shias in Pakistan face the persecution but are missing from the list.
• Similarly, atheists are missing from the list of beneficiaries.
• Ahmadiyas in Pakistan are not recognised as Muslims in Pakistan but are not included in the list.

Article 14 and The provisions of the Bill:

• Article 14 prevents the state from denying any “person” (as opposed to citizen) “equality before the law” or “equal protection of the laws” within the territory of India.
• So, the provision of CAB will deny the equal protection to the similarly placed persons.
• But it may also end up giving citizenship to the less deserving person at the cost of more deserving.

Conclusion:

The arbitrary and discriminatory clauses of the bill is going to defeat the stated objects and reasons of the bill so it must be corrected accordingly to provide the relief to all the victims of persecution irrespective of the religion or the country of residence.

December 11, 2019 : The Hindu