Citizenship (Amendment) Bill passes in Lok Sabha: From Article 14 to Assam Accord, key legal issues related to proposed law

The contentious Citizenship (Amendment) Bill, which was passed in the Lok Sabha on Tuesday, has spawned wide-ranging debates on equality before law and the imperative to provide shelter to persecuted communities.

The following are some of the key legal provisions around which debates about the Bill revolve:

Article 14: The Bill allows religiously persecuted minorities (Hindus, Sikhs, Buddhists, Jains, Parsis and Christians) from Afghanistan, Bangladesh and Pakistan to take up Indian citizenship. As the Bill leaves out Muslims, critics have termed the proposed law as discriminatory and violative of the Constitution.

Article 14 of the Constitution states, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”

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The usage of the word “persons” rather than “citizens” is significant, as it means that this right is applicable to Indian nationals as well as foreigners, contrary to the argument made in this article that the provision applies only to citizens.

Principle of reasonable classification: The Supreme Court in Charanjit Lal Chowdhury vs Union of India held that the law would not fall foul of the equality principle in dealing in a similar way to “all of a certain class”, but such a classification should never be “arbitrary.”

It is arguable that the Bill makes an arbitrary classification based on religion (as some Muslim sects also face persecution in Pakistan, Afghanistan and Bangladesh due to their faith) and the countries listed in the Bill (some Tamils in Sri Lanka face persecution partly because they belong to minority religions, but the country is left out of the Bill.)

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Passport Act and Foreigners Act: The Citizenship (Amendment) Bill is not the first instance of the government extending protection to minorities from neighbouring countries. In 2015, the Centre issued two notifications in the Official Gazette under the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946. Through these, the government allowed Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Pakistan and Bangladesh entry into India even without valid documents.

It is important to note that these notifications only permitted such persons to enter and stay in India even if they did not have valid documents. In other words, the notifications did not deal with the issue of granting them citizenship.

Assam Accord: A significant official document dealing with refugees/illegal immigrants was the Assam Accord of 1985. According to the Central government, the National Register of Citizens is aimed at giving effect to the accord, which was signed by the Centre, Assam government, the All Assam Students Union (AASU) and All Assam Gan Sangram Parishad (AAGSP).

As per the Accord, it was decided that immigrants who came to Assam before 1 January, 1966, would be given citizenship. Those who entered Assam from 1 January, 1966, to 24 March, 1971, would be “detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order 1964.” They would remain disenfranchised for ten years. Lastly, those who came to Assam after 24 March, 1971, would be detected and expelled.