Krishna Kumar

Dec 13, 2019, 05.17 PM (IST )

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With the passing of the Citizenship (Amendment) Act (CAB), 2019 from both
houses of Parliament and with the assent of the President yesterday, the much-
politicised bill has now become a law. The marathon debates in the Lok Sabha
and Rajya Sabha, had seen some passionate flow of emotions both in favour and
against the bill.

Before opening up the case for further analysis, it’s important to understand
who is a refugee and an illegal migrant?

The United Nations High Commission for Refugees (UNHCR) defines a refugee as
someone, “Who has been forced to flee his or her country because of
persecution, war or violence. A refugee has a well-founded fear of persecution
for reasons of race, religion, nationality, political opinion or membership in a
particular social group.” Such a refugee has a right to seek asylum in another
country in order to get lawful recognition, shelter, legal protection and
material assistance.

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The main framework document to deal with international refugees is the 1951
UN Refugee Convention and its 1967 protocol, ratified by 145 countries, of
which India is not a signatory. However, India respects the mandates of these
protocols and grants asylums to a large number of neighbouring and non-
neighbouring refugees as per ‘non-refoulment’ principle of the UNHCR,
meaning, India doesn’t force the refugees or asylum seekers to go back to their
respective countries from where they have emigrated and where they’re liable
to face persecution again.

India has been a centre of a consistent flow of migration of mixed nature that
has often created complexities of various natures. At the one side, there are
various minority groups coming from the neighbouring Muslim countries after
escaping religious persecution while at the other side are ‘economic migrants’
who infiltrate into India simply in search of better life opportunities.

While the first groups of refugees are the ones who come to India to save their
lives and honour, the second groups of migrants are nothing but opportunist
infiltrators who emigrate from their countries of nationalities looking for
better opportunities that, at times, also jeopardises the security interests of the
host nation. The first group consists mainly of those religious communities
who consider India as their natural home.

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The growing security concerns have forced India to shrink its asylum space and
adopt mixed policies to deal with different refugee groups, than to have one
universal policy paradigm as per the UNHCR framework. In accordance with
this, the central government decided to bring the Citizenship Amendment Bill
(CAB) - first in 2016 and again in 2019 – aimed to grant citizenship to the six
specific communities, Hindu, Sikh, Buddhist, Jains, Parsis and Christian
migrating in India from three countries - Pakistan, Bangladesh and Afghanistan.

These group of migrants settled mainly in the North-east and in other different
parts of the country, as per clause (c) of sub-section (2) of section 3 of the
passport (Entry into India) Act, 1920 and also of the provisions of the Foreigners
Act 1946, were declared ‘illegal migrants. As per the provisions of the two Acts,
anyone who: (i) enters the country without valid travel documents, like a
passport and visa, or (ii) enters with valid documents, but stays beyond the
permitted time period, is a foreigner and an illegal migrant. 

In normal conditions, such illegal migrants are liable to be imprisoned or

deported. However, the Central Government, through two separate
notifications in 2015 and 2016, had exempted these six specific religious
migrants from provisions of the 1946 and the 1920 Acts, thus, allowing them to
continue in India on long-term visas even without valid documents. However,
still they were not eligible to get Indian citizenship under the Citizenship Act,
1955. But, now, with the passing of the Citizenship (Amendment) Act, all such
illegal migrants from the six religious groups will become eligible to get Indian
citizenship.  

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The opponents of the CAB can be broadly divided into two groups - the first
having existential, while the other having ideological concerns.

Those with existential concerns are the residents of the North-East, who have a
genuine concern of loss of their identity as well as of various opportunities for
them in the new order. They, naturally, fear being overwhelmed by the new
immigrants - mostly settled around Assam, Tripura and nearby areas - who
will vie with them for the available resources and opportunities. The ones,
with ideological concerns, are people and groups - including most of the
political parties opposing it - who believe that the law would violate the basic
principles of the constitution and would run against the idea of India.

While the concerns of the first group are genuine, requiring some deft political
handling on the ground, the concerns of the ideological camp are more
phantasmagorical and motivated than having any real substantive value.

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With the bill becoming legislation, the same is all set to be challenged in the
courts. Badruddin Ajmal, the chief of All India United Democratic Front (AIUDF),
has already expressed his intention to move to the Supreme Court against the
proposed Act. Similarly, the Congress Party is also studying options to challenge
the Act in the Supreme Court, and so are many other small-big organizations
across the country. However, despite all their zealous intentions, the Supreme
Court is unlikely to quash the bill and reverse the position. Let’s examine how.

The opponents of the bill, the Congress, Trinamool Congress, CPI(M) and a few
other political parties, have based their arguments on the basic premise that
CAB is violative of Article 14 of the Constitution, asserting that India's
constitution "insists on the fundamentals of equality, regardless of gender,
caste, religion, class, community or language" - as elaborated by a group of 600
intellectuals from different fields. They believe that the bill, now the Act,
violates one’s constitutional Right to Equality as it intends to differentiate
among the refugees and that, it proposes to give citizenship on the basis of
religion. 

Apparently, the argument looks sound and plausible, though in reality, it is

hardly so. 

Despite all claims of the naysayers, who have been shouting from the rooftop
that the new Act violates basic frameworks of the Indian constitution, the fact
of the matter is that CAB is sound in constitutional legality, both in its letter
and spirit.

Article 14 of the Indian constitution says that State shall ensure equality before
the law for all citizens within the territory of India and each of them shall have
equal protection of the law. The article means that no one is above the law of
the land and thus, it goes to establishes the concept of 'Rule of the Law'.

However, one should not infer that under Article 14, all laws must be general
in character; it never means that the same laws should invariably apply to all
persons in all circumstances or that every law must have universal application

The concept of “Equal protection of the law”, enshrined in Article 14 of the

Indian constitution, has been taken from the constitution of the United States
from section 1 of the 14th amendment act, which elaborates the meaning of
equal protection of the law. It says that 'Equal Protection of law' means that
each person within the territory of the nation will get equal protection without
discrimination of age, sex, caste, religious status, ethnicity, language or
opinions. Equal law should be applied to all in the same situation and that,
there should be no discrimination between one person and another in a
similar circumstance, as equality can't be “cribbed, cabined or confined”. In
plain words, equals should be treated equally.

However, the concept of equals presupposes the existence of 'unequals' where

some may have distinct attributes from the rest, hence such people need to be
'classified' accordingly as distinct from the others.
The supreme court of India, over years of interpretation of Article 14, have
evolved a doctrine of 'classification' where citizens demonstrating distinct
attributes can be classified among the population on the basis of which the
State can make different laws for such classified groups of people. However, the
classification needs to be 'reasonable classification' where the test of
reasonableness will be to see (a) whether the classification so made is
'intelligible', meaning whether it is based on an objective and transparent
criteria, and (b) whether the law so applied on such classified group has a
rational relation with the objectives sought to be achieved by the legislation or
the executive action. If the above conditions are met, the courts are satisfied
with the reasonableness of the classification, else the classification is treated as
'arbitrary', breaching the premises of Art 14 and resulting into 'negation of
equality'.

In the historical case of Indra Sawhney (Indra Sawhney & Others Vs Union of
India, 1992), the Supreme Court recognized the right to equality as one of the
basic features of the Indian constitution. Article 14 applies to all persons and is
not limited to citizens only. Hence, Article 14 is applicable also to the refugees
and illegal migrants living within the territory of India, as recognized by the
government.

However, the six religious groups, namely, Hindu, Sikhs, Buddhist, Jains, Parsis
and Christians, have been classified by the Government of India in 2015 and
2016 as 'persecuted minorities' from the three neighbouring countries -
Pakistan, Bangladesh and Afghanistan, and on the same classification, such
groups were allowed to stay within India through exemptions underclause (c)
of sub-section (2) of section 3 of the passport (Entry into India) Act, 1920 and
also of the provisions of the Foreigners Act 1946. Hence, the Citizenship
Amendment Act, 2019 will be treated as a logical extension of that
classification, thus meeting the criteria of 'reasonableness' evolved under
Article 14.

The opponents of the Act emphasise that the Act intends to award citizenship
on the basis of religion, thus violating the provisions of Art 14. However, each
country may devise its own methodology for the classification of refugees and
for according reasonable treatment to them.

In the current Act, the basis of the classification of the 6 religious groups is not
religion per se, but 'religious persecution' in the three countries as explained in
the 'objects and reasons' of the original Bill - “Since the Constitutions of
Pakistan, Afghanistan and Bangladesh provide for a specific State religion, many
persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian
communities have faced persecution on the grounds of religion.”

Thus, by the above statement, religion alone becomes a basis of persecution for
the 6 minority communities in the said three countries, hence their
classification and resultant naturalization in India on the basis of religion
meets the essential test of 'reasonableness', as sought under Article 14 of the
constitution. Therefore, exceptions for religious groups in the matter of
granting citizenships can certainly be made without violating the provisions of
Article 14, as the same meets the criteria of 'reasonable classification' evolved
by the SC. A sound analogy can be inferred from the famous Indra Sawhney
case (1992), where 'caste' was accepted as basis of social backwardness during
the Mandal Commision hearing by the Supreme Court, and thus, despite the
equality criteria under Article 14, exception was made in favour of castes in the
matter of giving them reservation in government jobs and employments.

Going by the above, the Act giving citizenship to the refugees from the six
religious groups wouldn't be an outlandish proposition, impinging on the
secular credentials of India.

Further, as per the defined parameters, the Muslim settlers migrating in India
from any of those three countries will always remain 'illegal migrants', as
legally speaking they don't qualify to become a refugee by any global standards
that define the term.

In 2011, the UNHCR itself expanded the definition of the term 'refugee' as
mentioned in the 1951 UN Convention, by categorizing those as refugees, "Who
are outside their country of nationality or habitual residence and unable to
return there owing to serious and indiscriminate threats to life, physical
integrity or freedom resulting from generalized violence or events seriously
disturbing public order." Further, the minimum standards definition of refugee
by the European Union also reproduces the same definition of refugee offered
by the 1951 UN Convention.

Therefore, the Muslim migrants from Pakistan, Bangladesh and Afghanistan,

sadly, don't qualify to be recognized as a “refugee” as they're not migrating into
India as a result of any of the said conditions. Hence, they can't hope to be
eligible for any international protection, much less for citizenship. The
Supreme Court, going strictly by the legality and technicality of the
entanglement, wouldn't miss these essential facts.

The central government has made a sound case for implementation of the Act
by introduction of historical elements into the debate. The Home Minister Amit
Shah mentioned the 'Nehru-Liaquat Pact' of 1950, signed after the partition of
the subcontinent in 1947, and invoked the commitments given by the two
Prime Ministers in the pact to protect the rights, interests and lives of the
minorities in the respective countries.

As it's well known, the pact wasn't honoured in either of East or West Pakistan,
leading to continued exodus of the six minorities from Pakistan, and later,
Bangladesh. Hence, the Citizenship Amendment Act, 2019 positions itself as
India's sincere response to the complex historical legacy borne on account of
failures of its neighbours to protect the life and honour of their minorities. It
also gives India the moral high ground to own up those minorities who once
lived in the one undivided country prior to the partition.

Because of this very angle (Nehru-Liaquat Pact), the case of refugees from other
countries, such as that of Tamil refugees from Sri Lanka, can't be clubbed in the
present Act, as its specifically designed to set right a historical wrong, i.e.
partition of India, that was done on religious lines.

Further, the Indian constitution recognises the religious minorities as one

single religious group, without categorising them into sects, sub-sects and
other denomination, and extends all benefits and protections to them
accordingly. For this specific reason, the Ahmadiya community, as invoked by
some people, won't qualify for getting any kind of international protection as
refugees in India, as the constitution recognises all Muslims as one religious
community, 'Umma'.

Hence, in view of the above, one can understand that the Citizenship
(Amendment) Act, 2019 has, both on the substantive and procedural grounds, a
water-tight case in its favour and that's why the Supreme Court, even if the
matter is taken to its doorsteps, is unlikely to reverse the position.

(Views expressed above are the personal views of the author and do not reflect the
views of ZMCL)

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