Citizenship Bill: JPC report shows how proposed law violates constitutional principles of equality before law

Editor's Note: The two-part series on the Joint Parliamentary Committee report on the Citizenship Amendment Bill is a detailed political-legal analysis of the report, the Bill, and the surrounding sociopolitical context around it. This is the first part of the series.

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On 8 January, the Lok Sabha passed the Citizenship Amendment Bill (CAB) 2019, which seeks to facilitate the granting of Indian citizenship to migrants of six religious denominations — Hindus, Buddhists, Jains, Sikhs, Christians and Parsis — who came to India from Pakistan, Bangladesh and Afghanistan on or before 31 December 2014. It further aims to shorten the naturalisation period for future immigrants belonging to these communities from eleven to six years.

Before the Bill was tabled in the Parliament, it was assessed by a Joint Parliamentary Committee (JPC) of both Houses formed in August 2016. The JPC, which undertook study visits to Jodhpur, Rajkot, Ahmedabad, Guwahati, Shillong and Silchar and held discussions with key stakeholder groups like government representatives, civil society members, public representatives and migrants, adopted its final report on 3 January 2019 in which it concluded that the CAB is fit to be tabled in Parliament.

File image of Assam chief minister Sarbananda Sonowal. PTI

File image of Assam chief minister Sarbananda Sonowal. PTI

The 437-page report, which largely concurs with the government’s position on citizenship and immigration, is a rare glimpse into the communally-vested political imagination that the current Bharatiya Janata Party (BJP)-led government at the Centre has been trying to institutionalise since it came to power four years back. In itself, the report is rife with startling contradictions and conclusions that belie not just ground realities, but also its own findings and premises.

According to the JPC report, the government’s intent behind the CAB is to exempt those who “were compelled to seek shelter in India due to religious persecution or fear of religious persecution” in Pakistan, Bangladesh, and Afghanistan from being flagged as "illegal immigrants" under the Foreigners Act 1946 [Clause 1.12, page 13]. The JPC further feels that the CAB’s aim is to “protect the interest of those migrants of Indian origin who are subjected to unfair treatment for no fault of theirs” [Clause 5.48, page 79].

But, there has been much criticism on how the CAB, by selectively picking six religious denominations, violates the core principles of equality before the law (Article 14) embedded in India’s Constitution.

The government, however, argues that the Bill doesn’t violate Article 14 because the latter encompasses the “positive concept of equality” that entails “equality of treatment in equal circumstances or to similarly situated persons [emphasis added by authors]”. According to the government, “[...] a legislature is entitled to make reasonable classification for purposes of legislation and treat all in one class on equal footing.” [Clause 2.33, page 43]

The assumption here is that the six religious communities together form a class of distinct people on equal footing. The JPC agrees with the government’s legal position on this, concluding that the CAB does not violate Article 14 of the Indian Constitution [Clause 2.43, page 51] and to justify its legal position, the Ministry of Law and Justice’s (MoLJ) Department of Legal Affairs (DoLA) cites the case of Ram Krishna Dalmia v. Justice S R Tendolkar (1959), which argued that while Article 14 forbids class legislation, it “does not forbid reasonable classification for the purposes of legislation” while laying down two necessary preconditions for a particular classification (in this case, the six communities) to pass the test of reasonability:

(i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and

(ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question.

The MoLJ’s Legislative Department further cites State of West Bengal Vs. Anwar Ali Sarkar (AIR 1952 SC 75) to argue that the classification in the Bill is “clear and substantial” [Clause 2.32, page 43].

However, on closer scrutiny of the complex ground realities of religious persecution in and migration thereof from Pakistan, Bangladesh and Afghanistan, it becomes clear that the first condition itself is not fulfilled by the CAB’s provisions.

If “religious persecution” or “fear of religious persecution” are the only parameters for differentiating these six communities from others, then even Muslim minority sects like Bohras, Ahmadis, Ismailis, Hazaras, and self-proclaimed atheists should be included in the cluster. Even they are routinely “subjected to unfair treatment for no fault of theirs” in the three Muslim-majority countries mentioned in the CAB. Two recent reports published in the Indian media - here and here - indicate this in Pakistan’s context. It is possible that some of them have already fled to India, or if not, may be “compelled to seek shelter in India” in the future.

What’s more, majority sects like Sunnis, too, have “been compelled to seek shelter in India” due to “religious persecution” in the hands of religious fundamentalists out to eliminate ‘heretics’. Stories of Afghan Muslim refugees in Delhi who fled the brutal Taliban regime, among others, prove this.

Why, then, did the government leave these groups out of its seemingly “reasonable classification”?

One possibility is that the current government believes that these persecuted Muslim denominations are not of “Indian origin”. However, the Citizenship Act 1955 defines an “Indian origin” person to be one who was herself or whose either parent was born in “undivided India”. Since that definition covers the population living in today’s Pakistan and Bangladesh, the CAB could technically cover persecuted Muslims born in unpartitioned India and living in these two countries today.

The other possibility is that the government has actually found solid evidence of widespread persecution of the six non-Muslim minorities in these three countries, and not found any evidence of persecution of Muslim minorities. In this regard, the Ministry of Home Affairs (MHA) said that religious persecution in the neighbouring countries was ascertained through "inputs from security agencies along with other corroborative evidence in the print/electronic media”.

But, this is a slippery argument for two reasons:

First, intelligence inputs from the agencies — given their inherently classified nature — operate in a grey area that doesn’t allow for scrutiny or verification by a third party, which in this case is the JPC. As a parliamentary body vested with the duty to test the CAB’s viability and basis, the JPC should ideally have probed deeper into the MHA’s evasive admission, which it failed to.

Second, if the MHA indeed consulted “corroborative evidence in the print/electronic media”, one wonders it missed mainstream press reports such as this, this or this that indicate widespread persecution of Muslim minorities in Pakistan, Bangladesh, and Afghanistan.

Further, the Supreme Court judgment of Sarbananda Sonowal vs Union of India (2005), which the JPC itself cites (Clause 1.8, page 12), quotes a government status report filed in 1998 to highlight three key push factors behind immigration from Bangladesh to India: steep and continuous increase in population; sharp deterioration in land-man ratio; and low rates of economic growth particularly poor performance in agriculture. There is no mention of “religious persecution”.

What is also odd is that in a separate section, the MHA agrees that Muslim minorities too have faced atrocities. When the JPC asked the government if it has brought up the issue of minority persecution with the governments of the three neighbouring countries, it says:

“[...] between mid 1990s and 2001, when the Taliban were in power in Afghanistan, the atrocities perpetrated by them against non-Muslim and Muslim minorities [emphasis added by authors] were not taken up since India did not recognise the Taliban "Government".” [Clause 2.16, page 38]

Hence, it is clear that there are other groups of people facing religious discrimination and persecution in the three countries “for no fault of theirs” who have been left out of the CAB. This renders the first precondition — “intelligible differentia” — moot.

Further, the fact that many of these persecuted Muslims have fled to India (like the Afghan Sunnis and Hazaras fleeing Taliban) also renders the second precondition of “reasonable classification” - rational relation to the statute’s intent - weak, if not moot.

It is also difficult to understand why on the one hand, the government believes that just a Standard Operating Procedure (SOP), which is in place since 2011, suffices in dealing with migrants facing persecution because of their sex, nationality, ethnic identity, membership of a particular social group or political opinion [Clause 2.27, page 41], but on the other, a "law" is seen to be of utmost necessity to deal with religious persecution.

This is even more so because the report concludes that the CAB is a "display of such supportive and humanitarian approach on the part of the Government” [Clause 5.48, page 79]. However, if indeed the concerns are purely humanitarian then the underlying criteria should not have been restricted to religion or, to be more specific, six religious communities alone.

It is, therefore, fair to conclude that the CAB’s classification is not “reasonable”.

In this regard, the MoLJ must also refer to the case of The Special Courts Bill vs Unknown (1958) where the Supreme Court explained that “the doctrine of classification is only a subsidiary rule evolved by the courts to give practical content to the doctrine of equality, over-emphasis on the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptibly erode the profound potency of the glorious content of equity enshrined in Article 14 of the Constitution.”

By deliberately overlooking persecuted minorities of denominations other than the ones mentioned in the Bill, the government is not just treading into the arbitrary, but also diluting Article 14 of the Constitution. This is a precarious position to take for any sitting government, and by endorsing its decision, further, the JPC has only abetted reckless decision-making on a core national issue.

Also Read: https://www.firstpost.com/india/citizenship-amendment-bill-fails-to-address-key-questions-on-section-6a-of-existing-act-sidelines-assam-accord-5961481.html

Angshuman Choudhury is a senior researcher at the Institute of Peace and Conflict Studies, New Delhi. and Jonmani Das is an MPhil student of History at Jawaharlal Nehru University, New Delhi.

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Updated Date: Jan 25, 2019 16:22:36 IST

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