Indian Law Review

ISSN: 2473-0580 (Print) 2473-0599 (Online) Journal homepage: https://www.tandfonline.com/loi/rilw20

The Citizenship (Amendment) Bill, 2016:

international law on religion-based discrimination
and naturalisation law

Mihika Poddar

To cite this article: Mihika Poddar (2018) The Citizenship (Amendment) Bill, 2016: international
law on religion-based discrimination and naturalisation law, Indian Law Review, 2:1, 108-118, DOI:
10.1080/24730580.2018.1512290

To link to this article: https://doi.org/10.1080/24730580.2018.1512290

Published online: 10 Sep 2018.

Submit your article to this journal

Article views: 1438

View related articles

View Crossmark data

Full Terms & Conditions of access and use can be found at

https://www.tandfonline.com/action/journalInformation?journalCode=rilw20
INDIAN LAW REVIEW
2018, VOL. 2, NO. 1, 108–118
https://doi.org/10.1080/24730580.2018.1512290

LEGISLATIVE NOTE

The Citizenship (Amendment) Bill, 2016: international law on

religion-based discrimination and naturalisation law
Mihika Poddar
West Bengal National University of Juridical Sciences, Kolkata, India

ABSTRACT ARTICLE HISTORY

The current Indian Government has been under the scanner for its Received 14 April 2018
non-secular agendas that often reeks of religion-based bias. The Revised 15 June 2018
apprehensions of critics and political opposition have found stron- Accepted 1 July 2018
ger basis in the proposed amendments to the Citizenship Act KEYWORDS
1955, introduced in Parliament in July 2016. Purportedly for the Citizenship; naturalisation;
protection of certain minority communities, the Act makes relaxa- religion; discrimination;
tions for naturalisation of undocumented migrants belonging to Parliament of India;
the identified groups. Seemingly laudable, a closer look at the immigration; international
provisions may reflect a partisan selection of beneficiaries on law
religious grounds. At a time when the Trump Administration is
causing stirs throughout the international community with its non-
secular agendas, and with several political and military distur-
bances that centre around ethnic and religious identity in different
parts of the globe, non-discrimination obligations under interna-
tional law gain prime importance. This legislative note attempts to
analyse the religion-based discrimination that the Citizenship
(Amendment) Bill, 2016, facilitates, in light of India’s obligations
under international law.

I. Introduction
The Trump Administration’s discriminatory immigration ban1 in January 2017 took
centre stage in secular debates worldwide, attracting major criticisms from the inter-
national polity.2 The Indian Government’s proposed amendments to the Citizenship
Act 1955 (“the Act”), introduced in Parliament in July 2016,3 almost equally discrimi-
natory, have, however, been subject to little debate.4 It is currently pending before a

CONTACT Mihika Poddar mihika96@gmail.com, mihikapoddar@nujs.edu West Bengal National University of

Juridical Sciences, Kolkata, India;110, Dr. Meghnad Saha Sarani, Kolkata - 700029, India.
1
Exec Order No. 13769, 82 Fed Reg 8977 (1 February 2017) (USA).
2
Maher Chmaytelli and Lin Noueihed, 'Global backlash grows against Trump’s immigration order' Reuters (Baghdad/
Cairo, 30 January 2017) <http://www.reuters.com/article/us-usa-trump-immigration-reaction-idUSKBN15D0QM>
accessed 30 January 2018.
3
The Citizenship (Amendment) Bill 2016 (pending) ('the Bill').
4
Amitabh Dubey, 'Trump’s visa ban is cruel, but India’s Citizenship Bill 2016 discriminates on religious grounds' Hindustan
Times (1 February 2017) <http://www.hindustantimes.com/analysis/india-s-citizenship-amendment-bill-discriminates-
amongst-migrants-on-religious-grounds/story-cWlkyJiIhWSUU0ZY5EscFI.html> accessed 30 January 2018; Ipsita
Chakravarty, 'Think Trump’s ‘Muslim ban’ is unacceptable? Here’s how India deals with refugees' (Scroll.in,
30 January 2017) <https://scroll.in/article/828093/think-trumps-immigration-ban-is-unacceptable-heres-how-india-deals-
with-refugees> accessed 30 January 2018.

© 2018 Informa UK Limited, trading as Taylor & Francis Group

 INDIAN LAW REVIEW 109

Joint Parliamentary Committee5 that had been given time up to the first day of the last
week of Budget Session, 2018.6 The Bill does two things:
First, it adds a proviso to the definition of “illegal immigrant” under the Act:
Provided that persons belonging to minority communities, namely, Hindus, Sikhs,
Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who
have been exempted by the Central Government by or under clause (c) of sub-section (2)
of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the
provisions of the Foreigners Act, 1946 or any order made thereunder, shall not be treated
as illegal migrants for the purposes of this Act.

To put this into context, illegal immigrants7 are not eligible to apply for citizenship by
naturalisation, being specifically excluded under s 6 of the Act. Further, the government
has already issued notifications exempting illegal migrants belonging to the identified
religious groups from the three countries, from provisions of the Foreigners Act 1946,
and the Passport (Entry into India) Act 1920, exempting them from imprisonment and
deportation thereunder.8
Second, the Bill also adds a proviso to the qualifications for naturalisation, that
requires a minimum of 11 years of residence in the country,9 which reads:
Provided that for the persons belonging to minority communities, namely, Hindus, Sikhs,
Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, the
aggregate period of residence or service of a Government in India as required under this
clause shall be read as “not less than six years” in place of “not less than eleven years”10

This will make otherwise illegal Hindu, Sikh, Buddhist, Jain, Parsi and Christian immigrants
from Afghanistan, Bangladesh and Pakistan eligible for citizenship by naturalisation, that too
after six years of residence; while similarly placed Muslim immigrants will not be eligible for
citizenship by naturalisation, and even if similarly exempted or otherwise eligible, will need to
wait the full 11 years.
The Government defends its stance as being aimed at extending protection to
minorities fleeing religious persecution in neighbouring Muslim-majority countries.11
The preamble of the Act itself states that it is meant for the benefit of “many persons of
Indian origin including persons belonging to the aforesaid minority communities…”,
indicating that it does not concern all religious minorities in all neighbouring countries.
This does not sit well with the government’s seemingly noble intent. It excludes multi-
ple communities that are similarly subjected to religious persecution in neighbouring
5
Joint Committee on Bill to amend the Citizenship Act 1955 <http://164.100.47.194/Loksabha/Committee/
CommitteeInformation.aspx?comm_code=71&tab=1> accessed 30 January 2017.
6
‘The Citizenship (Amendment) Bill, 2016’ (PRS Legislative Research) <http://www.prsindia.org/billtrack/the-citizenship-
amendment-bill-2016-4348/> accessed 30 January 2017.
7
The Citizenship Act 1955, s 2(b), defines an 'illegal migrant' as a foreigner who has 'entered into India –
(i) without a valid passport or other travel documents and such other document or authority as may be prescribed
by or under any law in that behalf; or
(ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by
or under any law in that behalf but remains therein beyond the permitted period of time'.
8
Passport (Entry into India) Amendment Rules 2015; Foreigners (Amendment) Order 2015; Passport (Entry into India)
Amendment Rules 2016; Foreigners (Amendment) Order 2016.
9
The Citizenship Act 1955, third schedule, cl (d).
10
The Citizenship (Amendment) Bill 2016 (pending), s 4.
11
Anita Joshua, “Trump order ‘parallel’ in Modi bill – Citizenship bill before House panel criticised for religious
discrimination' The Telegraph (New Delhi, 30 January 2017) <https://www.telegraphindia.com/1170131/jsp/nation/
story_133255.jsp#.WL-i8vmGPb0> accessed 30 January 2018.
110 M. PODDAR

states, such as Muslim Rohingyas in Buddhist-majority Myanmar,12 Buddhist Tibetans,

Muslim Uighurs in China,13 among others.
The Bill has faced criticism for being in violation of Article 14 of the Indian
Constitution that guarantees the right to equality to all “persons”, as it provides
differential treatment to illegal migrants based on their religion.14 Along similar lines,
the author aims to bring out how the proposed amendments also violate India’s non-
discrimination obligation under public international law, especially the International
Covenant on Civil and Political Rights (“ICCPR'). Thereby, these would also be incon-
sistent with Article 51(c) of the Constitution of India, that requires India to respect its
international obligations.
Part II gives an overview of the notions of naturalisation and citizenship in India, to
understand what such religion-based differentiation denotes. Part III first explores the
obligation of non-discrimination in issues of nationality and naturalisation in international
law, and then assesses how the Bill falls foul of such obligations. Part IV presents the
conclusions.

II. Naturalisation, citizenship and the Indian state

India’s contested citizenship regime was crafted in the aftermath of the subcontinent’s
partition. In a survey of 38 citizenship related cases decided by the High Courts and the
Supreme Court in India between 1951 and 2009, 32 were a result of the partition.15 The
partition took place along deeply religious lines, which coloured a lot of the discussion
on Indian citizenship that took place in the Constituent Assembly.16 Ultimately, how-
ever, Nehruvian universalism triumphed, and the framers adopted a “national-civic”
rather than a “national-ethnic” understanding of citizenship.17
The Constitution thus espoused a “secular” jus soli (citizenship by birthplace)
system,18 defined in Part II (Articles 5–11) of the Constitutional text. This was a
blueprint to determine citizenship of the thousands moving across the newly drawn
Indo-Pakistan border, and the task of establishing a permanent law governing citizen-
ship was left to be determined by future Parliaments.19 Accordingly, the Indian
Parliament enacted the Citizenship Act 1955. Taking from the secular and inclusive
12
MJ Toole and RJ Waldman, 'Refugees and displaced persons: war, hunger, and public health' (1993) 270(5) JAMA 600;
Thomas K Ragland, 'Burma’s Rohingyas in Crisis: Protection on Humanitarian Refugees under International Law' (1994)
14 BC Third World LJ 301; 'The most persecuted people on Earth?' The Economist (Kuala Lumpur, 13 June 2015)
<http://www.economist.com/news/asia/21654124-myanmars-muslim-minority-have-been-attacked-impunity-stripped
-vote-and-driven> accessed 30 January 2018.
13
Thomas F Farr, World of Faith and Freedom: Why International Religious Liberty Is Vital to American National Security
(Oxford University Press 2008); Bureau of Democracy, Human Rights and Labour, United States Department of State,
2014 Report on International Religious Freedom – China (includes Tibet, Hong Kong, and Macau) <https://www.state.
gov/j/drl/rls/irf/2014/eap/238288.htm> accessed 30 January 2018; Tenzin Saldon, ‘Tibetan Buddhism Most Repressed
Religion in China – Freedom House' (Central Tibetan Administration, 3 March 2017) <http://tibet.net/2017/03/
religious-controls-in-china-intensified-under-xi-jinping-freedom-house-report/> accessed 30 January 2018.
14
Anviti Chaturvedi, 'Legislative Brief: The Citizenship (Amendment) Bill, 2016' (PRS Legislative Research,
27 September 2016) <http://www.prsindia.org/uploads/media/Citizenship/Legislative%20Brief%20Citizenship%
20Amendment%20Bill%202016.pdf> accessed 30 January 2018.
15
Niraja Gopal Jayal, Citizenship and its Discontents (Harvard University Press 2013) 79.
16
Constituent Assembly of India Deb, vol IX, 10 August 1949–12 August 1949.
17
Ronald Beiner (ed), Theorizing Citizenship (Albany: State University of New York Press 1995) 8.
18
The Constitution of India 1950, art 5.
19
Constituent Assembly of India Deb, vol IX, 10 August 1949, para 9.115.177–8.
 INDIAN LAW REVIEW 111

conclusion of the Assembly, the Act incorporated conceptions both – jus soli as well as
jus sanguinis (citizenship by descent) systems.
However, the religion-based divide that had informed many of the submissions
before the Assembly,20 seem to be finding ground in recent changes to the citizenship
law. Several amendments to the citizenship law and political developments have started
to reflect a shift towards a more exclusionary jus sanguinis notion.21
First, in 1985, the naturalisation provisions were amended to give legal recognition
to the Assam Accord,22 in response to the protests against enfranchisement of
Bangladeshi migrants who had come in after the 1971 war, that had led to anti-
immigrant sentiments in Assam reaching an all-time high.23 This put in place categories
of eligibility for citizenship, as per the year a person migrated to India – all those that
migrated before 1966 would be citizens, those who migrated between 1966 and 1971
would have to wait for 10 years before becoming eligible for citizenship, and those
migrating after 1971 were simply deemed to be illegal immigrants. While seemingly
secular, this was in a backdrop where the common understanding was that Bangladeshi
migrants were mostly Muslim.24 The influx of Muslims from East Bengal was a
common concern even during the drafting of the Constitution.25
Next, in 2004, the Citizenship Rules were amended such that the terminology of illegal
immigrants was done away with for “minority Hindus with Pakistani citizenship”.26 This was
the first time that religion was made an explicit ground to grant citizenship, cementing the
move away from the religion-neutral constitutional provisions.27
Now, the proposed amendments to the Act squarely fall into this trajectory that seeks
to read religious divisions explicitly rejected by the framers of the Constitution into
citizenship law.
Determinants of citizenship are however a little different from the naturalisation process
that is applicable to persons who are non-citizens, i.e. those who do not meet these citizenship
criteria. It is defined as a process by which an “alien” is admitted to the position and rights of
citizen,28 and is different from the 'by birth' or 'by descent' criterion of citizenship. At this stage,
therefore, the naturalisation procedure determines who can be considered for citizenship like
20
PS Deshmukh, for instance, sought to add a residuary provision to Article 5, according to which every Hindu or Sikh
not being a citizen of any other State, irrespective of their residence, would be entitled to Indian Citizenship, ensuring
that every Hindu or Sikh would have a home in India similar to Muslims’ claim of establishing Pakistan. See,
Constituent Assembly of India Deb, vol IX, 10 August 1949, para 9.116.34.
21
Niraja Gopal Jayal, 'Legal Citizenship and the Long Shadow of the Partition' in Citizenship and its Discontents (Harvard
University Press 2013) 51–81; See also, Valerian Rodrigues, 'Citizenship and the Indian Constitution' in Rajeev
Bhargava (ed) Politics and Ethics of the Indian Constitution (Oxford University Press 2008); Kamal Sadiq, Paper
Citizens: How Illegal Immigrants Acquire Citizenship in Developing Countries (Oxford University Press 2009); Anupama
Roy, Mapping Citizenship in India (Oxford University Press 2010).
22
The Citizenship (Amendment) Bill 1985 (pending).
23
Dilip Gogoi (ed), Unheeded Hinterland: Identity and sovereignty in Northeast India (Routledge India 2016).
24
Niraja Gopal Jayal, 'The 2016 Citizenship Amendment Bill Consolidates a Trend Towards a Majoritarian and
Exclusionary Concept of Indian Citizenship' (The Caravan, 20 February 2017) <http://www.caravanmagazine.in/
vantage/2016-citizenship-amendment-bill-majoritarian-exclusionary> accessed 10 June 2018.
25
On RK Chaudhury’s insistence on establishing citizenship rights for people of East Bengal, NG Ayyangar responded
that after a series of conferences between Government of India and Assam, they decided to not set up a permit
system (like on the western border) due to several complications. At the same time, he gave assurance that other
methods would be adopted to check influx of 'Muslims' from East Bengal to Assam. See, Constituent Assembly of
India Deb, vol IX, 10 August 1949.
26
Citizenship (Amendment) Rules 2004, s 3(2); Citizenship Rules 1956, rule 8A.
27
See, Niraja Gopal Jayal, 'Citizenship' in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford
Handbook of the Indian Constitution (Oxford University Press 2016) 163–179.
28
The Shorter Oxford English Dictionary (3rd edn, Oxford University Press 1959) vol 2, 1312.
112 M. PODDAR

the 'natural' citizens. The proposed amendments to the Citizenship Act would make the
naturalisation process discriminatory, in as much as similarly placed non-Muslims will be
eligible for citizenship by naturalisation, and that too after 6 years of residence, compared to 11
years for other Muslims migrants.
A State’s naturalisation policy usually defines the requirements that need to be
fulfilled for an individual to become eligible for citizenship. While this is often
dependent upon the number of years of residence in a country, marking the trend of
countries increasingly imposing additional standards of eligibility,29 Liav Orgad
defines it as “the requirements that ‘they’ must fulfil in order to join ‘us’ – which
mirrors the qualities that ‘we’ value in others and reflects the essentials that define
‘us’ as a nation”.30 He explains how it is suggestive of the 'perceived character of the
community”, linked to “notions of nationhood” that forms the basis of political
citizenship.31 In other words, the naturalisation procedure and its requirements
would reflect attributes that the State espouses and understands to be reflective of
its citizenry.
In this backdrop, when the Indian state introduces a naturalisation process where
preference is given to non-Muslims, it is suggestive of a broader sectarian agenda.
Religion-based preference in naturalisation would tantamount to some religious iden-
tity being preferred by the State. In this context, this would be any non-Muslim
religious identity. This not only questions the basis of India’s proclaimed “secular”
status,32 it is also in violation of India’s obligations under international law, as discussed
in Part III.

III. A violation of non-discrimination obligation under international law –

an assessment
This part analyses how the proposed amendments violate India’s obligations under interna-
tional law. This is done at two levels – the first subpart explores how discrimination on
grounds of religion in granting citizenship is prohibited under international law; while
the second discusses how the discriminatory measure cannot be justified on grounds that it
is in furtherance of protection of religious minorities. This furthers the conclusion that the
proposed amendments fall foul of India’s international legal obligations.

A. Religion-based discrimination in granting citizenship

While a State’s right to determine its jurisdiction and who its nationals are, is a
recognized principle in public international law,33 the freedom to regulate nationality
is not without limitations. In addition to considerations of diplomatic protection,
29
For instance, the Citizenship Act 1955, third schedule, provides for a list of qualifications for naturalisation, including
language, good character, etc.
30
Liav Orgad, 'Naturalization' in Ayelet Shachar and others (eds), The Oxford Handbook of Citizenship (Oxford University Press
2017).
31
Ibid.
32
The Constitution of India 1950, preamble. The word 'secular' was inserted into the preamble by the Constitution
(Forty-second Amendment) Act 1976.
33
Ian Brownlie, Principles of Public International Law (6th edn, Oxford University Press 2003) 373; Nationality Decrees
Issued in Tunis and Morocco (France v United Kingdom), Advisory Opinion (1923) PCIJ Series B, No 4.
 INDIAN LAW REVIEW 113

international responsibility, personal sovereignty, and rights of other states, restric-

tions based on human rights also limit a State’s sovereign powers to regulate
nationality.34 Multiple human rights treaties provide for equal protection of laws
and prohibition against discrimination. Article 26 of the ICCPR, for instance, guar-
antees to all persons equal and effective protection against discrimination on multiple
grounds including religion.35 In the nature of an autonomous right, it prohibits
discrimination in any field regulated and protected by public authorities, requiring
all legislation adopted by a State party to comply with the non-discrimination
obligation thereunder.36 The UDHR in Article 7 similarly guarantees to everyone
equal protection of laws.37 In particular, the Declaration on the Elimination of All
Forms of Intolerance and Discrimination Based on Religion or Belief enshrines
religion-based non-discrimination obligations.38 While this essay focuses on Article
26 of the ICCPR, given the similar nature of obligations, the same arguments can be
extended to justify inconsistencies with the non-discrimination obligations under
other international instruments as well.
While it may be argued that applicability of Article 26 to nationality issues is not settled,
given that several treaties have specific provisions on nationality related concerns,39 there
exists no indication either in the travaux preparatoires40 of the convention or anything in the
legal text that could indicate otherwise. Rather, Article 26, unlike Article 2 of the ICCPR, or
even Article 2 of the ICSECR, is autonomous in nature, extending to rights beyond the
convention, protecting against discrimination with respect to social and economic as well as
civil and political rights.41 Further, the Human Rights Committee has often considered
allegations of an Article 26 violation concerning rights not guaranteed in the ICCPR.42 Any
legislation that a State party adopts thus has to be in compliance with Article 26.43 Further,
prohibition of discrimination in granting citizenship based on grounds such as religion is not

34
Kay Hailbronner, 'Nationality in Public International Law and European Law' in Rainer Bauböck and others (eds),
Acquisition and Loss of Nationality: Comparative Analyses – Policies and Trends in 15 European Countries (Amsterdam
University Press 2005) 35–104.
35
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976)
999 UNTS 171.
36
Human Rights Committee, General Comment 18 (Thirty-seventh session, 1989), Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev9 (Vol I) at 195
(2008).
37
Universal Declaration of Human Rights (adopted 10 December 1948), UNGA Res 217A (III).
38
Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief
(25 November 1981), UN Doc A/RES/36/55, art 2,3 and 4.
39
See, Kay Hailbronner, 'Nationality in Public International Law and European Law' in Rainer Bauböck and others (eds)
Acquisition and Loss of Nationality: Comparative Analyses – Policies and Trends in 15 European Countries (Amsterdam
University Press 2005) 43.
40
Preparatory work of the treaty or the drafting history is used as a supplementary means of treaty interpretation, as per art 32 of
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.
41
Li Weiwei, 'Equality and Non-Discrimination Under International Human Rights Law' (2004) Norwegian Centre for
Human Rights, Research Notes 03/2004 <http://www.corteidh.or.cr/tablas/r08121.pdf> accessed 30 January 2018.
42
Human Rights Committee, Allegations concerning employment in United Nations Human Rights Committee, Chiiko
Bwalya v Zambia (Communication No 314/1988, 27 July 1993) UN Doc CCPR/C/48/D/314/1988; Human Rights
Committee, Waldman v Canada (Communication No 694/1996, 3 November 1999) UN Doc CCPR/C/67/D/694/1996;
Human Rights Committee, Oulajin & Kaiss v The Netherlands (Communications Nos 406/1990 and 426/1990,
5 November 1992) UN Doc CCPR/C/46/D/406/1990 and 426/1990.
43
Human Rights Committee, S W M Brooks v The Netherlands (Communication No 172/1984, 9 April 1987) UN Doc Supp
No 40 (A/42/40).
114 M. PODDAR

unheard of – Article 5 of the European Convention on Nationality specifically prohibits such

differentiation.44 The Explanatory Report to the Convention further clarifies that not all
grounds of discrimination present under Article 14 of the ECHR were included, as they
were not considered as amounting to discrimination in the field of nationality.45 Religion,
being specifically included within the convention, therefore, indicates that it is clearly one of
the grounds that ought not to be the basis of discrimination even while granting nationality.
Even the Human Rights Committee has noted the applicability of the article to issues of
nationality and naturalisation, albeit in the context of sex-based discrimination.46 Article 26
would thus cover discrimination in the context of naturalisation and nationality.
Therefore, in granting citizenship by naturalisation, a State Party cannot discriminate on
grounds such as religion. India, having acceded to the ICCPR,47 is thus bound by the non-
discrimination obligation contained therein. The Citizenship Bill, 2016, if adopted, the author
argues, is a violation of the country’s obligations under international human rights law, as
codified by instruments like the ICCPR.
The Human Rights Committee notes that “discrimination” under the ICCPR
implies “any distinction, exclusion, restriction or preference” which is based on any
of the enumerated grounds (including religion) “which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise by all persons, on an
equal footing, of all rights and freedoms”.48 “Preference” entails actions that may not
be directed against a particular group, but involves at least an unreasonable promotion
of one group at the expense of others.49 Evidence of discrimination is thus seen on the
basis of preferences in favour of other groups, or the relative treatment of someone
else, and not necessarily as directed against the group allegedly discriminated
against.50 One way in which discrimination under such circumstances may be mea-
sured is in relation to the treatment of someone else.51 The Bill provides for easier
naturalisation for migrants belonging to particular religions, to the exclusion of a few
other equally placed religious groups. A preference in thus clearly granted in favour of
the six identified religious communities, meting out differential treatment based on
religious belief. While not all forms of differential treatment are prohibited, as dis-
cussed below, this Bill differentiates in a manner prohibited under law.

44
European Convention on Nationality (Strasbourg, 6 November 1997) ETS 166.
45
Council of Europe, Explanatory Report to the European Convention on Nationality (Strasbourg, 6 November 1997) ETS
166, para 43.
46
Human Rights Committee, General Comment 19, Art 23 (Thirty-ninth session, 1990), Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev1 at
28 (1994), para 7.
47
India acceded to the ICCPR on 10 April 1979. See, United Nations Treaty Collection, International Covenant on Civil
and Political Rights, Status as at: 17-03-2018 07:30:25 EDT, <https://treaties.un.org/Pages/ViewDetails.aspx?src=
IND&mtdsg_no=IV-4&chapter=4&clang=_en> accessed 14 March 2018.
48
Human Rights Committee, General Comment 18 (Thirty-seventh session, 1989), Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev9 (Vol I) at 195
(2008).
49
Stephanie Farrior (ed) Equality and Non-Discrimination under International Law (Vol 2, Routledge 2017) 116; Li Weiwei,
'Equality and Non-Discrimination Under International Human Rights Law' (2004) Norwegian Centre for Human Rights,
Research Notes 03/2004, 9 <http://www.corteidh.or.cr/tablas/r08121.pdf> accessed 30 January 2018.
50
Committee on Economic, Social and Cultural Rights, Concluding Observations on the Report of Vietnam, E/C 12/1993/8,
para 11; Yoram Dinstein, 'Discrimination and International Human Rights' (1985) 15 Israel Yearbook on Human Rights
11–27, as cited in Matthew CR Craven, The International Covenant on Economic, Social, and Cultural Rights: A
perspective on its development (Clarendon Press 1995) 164.
51
Dinstein (n 50).
 INDIAN LAW REVIEW 115

B. Protection of minorities – sufficient justification?

Under certain circumstances, even differentiation on prohibited grounds may be justi-
fied, the anti-discrimination provision thus applies only to unjustified discrimination.52
Thus, in order to establish a violation of the non-discrimination principle, the differ-
ential treatment should not have any 'sufficient justification' for the distinction made.53
Differentiation is permissible if – (i) it is aimed at achieving a legitimate purpose; and
(ii) the criteria for such differentiation is reasonable and objective.54 Therefore, a
reasonable justification may save a domestic action or legislation from falling foul of
the non-discrimination obligation.
Some grounds under Article 26 may justify discrimination in granting naturalisation by
nationality, to the extent they are used for discerning 'closer affinity' with the conferring state’s
value system, or closer historical, cultural and spiritual bonds with the people of the concerned
state.55 Given India’s syncretic past and large Muslim population,56 no particular claim of any
'closer” affinity or ties can be reasonably envisaged. The Explanatory Report to the European
Convention on Nationality, that prohibits discrimination in granting nationality, notes that
attributing nationality requires States to set some criteria for defining their nationals and that
some degree of preferential treatment would be permitted.57 It identifies common justified
grounds for such differentiation even in granting preferential treatment to nationals of certain
other states – such as requiring a shorter period of habitual residence for naturalisation of
nationals of other European Union States than is required as a general rule.58 This is justified
as amounting to preferential treatment based on nationality, and not discrimination based on
national origin.59 Earlier eligibility for naturalisation thus may not be per se discriminatory,
even under the ICCPR. However, there must exist an objective criterion, such as that of
nationals of other European Union States, and say, a sex-based discrimination as a qualifica-
tion for such preference would then fall foul of the provision.60 Therefore, if say, minorities
from all neighbouring countries or states of the Indian subcontinent were given preference for
naturalisation under the Bill, this would not be discrimination against nationals from other
states. However, the current provision cannot be similarly justified as preferential treatment
based on objective parameters, and thus will be inconsistent with Article 26.

52
See, Tarunabh Khaitan, 'Discrimination' in [2017] Max Planck Encyclopedia on Comparative Constitutional Law, para
30.
53
Human Rights Committee, Aumeeruddy-Cziffra v Mauritius (Communication No 35/1978, 9 April 1981) UN Doc A/36/40
at 134; Human Rights Committee, van Oord v Netherlands (Communication No 658/1995, 23 July 1997) UN Doc CCPR/
C/60/D/658/1995.
54
Human Rights Committee, General Comment 18 (Thirty-seventh session, 1989), Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev9 (Vol I) at 195
(2008).
55
S Hall, 'The European Convention on Nationality and the Right to have Rights' (1999) 24 European L R 586.
56
Census Organisation of India, All India Religion Census Data, 15th National Census 2011, <https://www.census2011.
co.in/religion.php> accessed 11 July 2018.
57
Council of Europe, Explanatory Report to the European Convention on Nationality (Strasbourg, 6 November 1997) ETS
166, para 43.
58
Ibid, para 41.
59
Ibid.
60
Abdulaziz, Cabales and Balkandali v UK App nos 9214/80, 9473/81, 9474/81 (ECHR, 28 May 1985). The ECHR opined
that although UK had the right to control immigration, its policy that treated husbands and wives differently was in
violation of its non-discrimination obligation.
116 M. PODDAR

Similar to the UDHR and the ICCPR, the American Convention on Human Rights
also guarantees the right to equal protection of law.61 The Inter-American Court of
Human Rights in its advisory opinion on the Costa Rica Naturalization case noted
that differentiation might be permissible if based on substantial factual differences,
but the aims cannot be 'arbitrary, capricious, despotic or in conflict with the essential
oneness and dignity of humankind'.62 Therefore, we see that the general requirement
for justified differentiation that is consistent with the right of equal protection of laws
should be based in objective factual differences, should be reasonable and non-
arbitrary.
The Objective of this Bill does not shed much light on its purpose, except for making
the process of acquiring citizenship for the identified minority communities easier in
light of the hardships they face. It is nothing but an attempt to write discrimination
into law, through exploitation of concerns over illegal immigration.63 Representations
have even been made to defend the Bill as being in furtherance of extending protection
to minority communities that face religious persecution in the neighbouring coun-
tries. However, this does not sit right with the selective identification of these parti-
cular communities, leaving out several other minority groups such as Muslim
Rohingyas in Myanmar,64 Muslim Tamils in Sri Lanka, Buddhist Tibetans, Muslim
Uighurs in China,65 among others, that are subjected to similar, if not much greater
oppression and persecution. No rational reasoning can justify the singling out of
specified religious denominations to the exclusion of others. The differentiation is
thus prima facie arbitrary, given that the underinclusive list questions the purported
objective of the differentiation.
This becomes evident as we contextualize the provisions of the Bill within the
broader governmental attitude, that reeks of sectarian politics. The Bill comes
after several government orders and acts that have identified illegal migrants from
Afghanistan, Bangladesh and Pakistan belonging to the six religious denomina-
tions as recipients of preferential treatment. There is now a graded application fee
to mark out undocumented migrants from particular communities, who have to
pay as much as 100 times less the amount levied on foreigners from other
countries and identifying with other religions, seeking Indian citizenship.66 As

61
American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 9 ILM 673
(1970).
62
Inter-American Court of Human Rights, Proposed Amendments to the Naturalization Provisions of the Constitution of
Costa Rica, Advisory Opinion OC-4/ 84 of 19 January 1984, Series A No 4, para 14, [57].
63
Mukul Kesavan, 'Arguing about India – Assam and citizenship' The Telegraph (25 February 2018) <https://www.
telegraphindia.com/opinion/arguing-about-india-211051> accessed 14 March 2018.
64
MJ Toole and RJ Waldman, 'Refugees and displaced persons: war, hunger, and public health' [1993] 270(5) JAMA 600;
Thomas K Ragland, 'Burma’s Rohingyas in Crisis: Protection on Humanitarian Refugees under International Law' (1994)
14 BC Third World LJ 301; 'The most persecuted people on Earth?' The Economist (Kuala Lumpur, 13 January 2015)
<http://www.economist.com/news/asia/21654124-myanmars-muslim-minority-have-been-attacked-impunity-stripped
-vote-and-driven> accessed 30 January 2018.
65
Thomas F Farr, World of Faith and Freedom: Why International Religious Liberty Is Vital to American National Security
(Oxford University Press 2008); Bureau of Democracy, Human Rights and Labour, United States Department of State,
2014 Report on International Religious Freedom – China (includes Tibet, Hong Kong, and Macau) <https://www.state.
gov/j/drl/rls/irf/2014/eap/238288.htm> accessed 30 January 2018; Tenzin Saldon, ‘Tibetan Buddhism Most Repressed
Religion in China – Freedom House' (Central Tibetan Administration, 3 March 2017) <http://tibet.net/2017/03/
religious-controls-in-china-intensified-under-xi-jinping-freedom-house-report/> accessed 30 January 2018.
66
Charu Sudan Kasturi, 'Unequal Fee for Citizenship' The Telegraph (28 December 2016) <https://www.telegraphindia.
com/1161228/jsp/nation/story_127237.jsp#.WMFMuPl97b0> accessed 30 January 2018.
 INDIAN LAW REVIEW 117

already noted above, the government has exempting illegal migrants belonging to
the identified religious groups from the three countries from imprisonment and
deportation under the Foreigners Act, 1946, and the Passport (Entry into India)
Act, 1920. The whole gamut of differential treatment accorded only selectively is
indicative of a broader anti-Muslim political objective that does not sit comfor-
tably with the Constitution’s portrayal of secularism and the egalitarian status
that the nation takes pride in.
Thus, in the absence of a uniform policy for all similarly placed minority
communities, it is difficult to attribute any legitimate objective that could be
served through such treatment, nor is the religion-based criteria for the differ-
entiation reasonable and objective. Therefore, in the absence of any sufficient
justification for the differentiation, the provision is violative of the right to equal
protection of laws under the ICCPR and other similar international conventions.

IV. Conclusion
We see that even a glance at the provisions of the Bill casts suspicion on the
motives of the government of an egalitarian state. This implicit move towards a
“Hindu homeland” can only be compared to Israel providing for a safe haven for
all Jews, and in the process meting out favourable treatment based on religion.67
Israel is evidently different from the Indian state, given the secular constitutional
identity of India, which precludes it from taking similar steps. The 2016 Bill not
only seems to have been tabled in blatant disregard of the principles of secularism
espoused in the Constitution, but its prima facie discriminatory nature brings it
in conflict with the right to equality under Article 14 of the Constitution of India,
as well as several international agreements that impose non-discrimination obli-
gations on the Indian state. The Bill privileges migrants belonging to some
religions from neighbouring countries over all other persecuted minorities, espe-
cially Muslim minorities, without any justification or reasoning. We see that the
arbitrary selection of the minority groups on religious lines, especially considering
the ruling party’s arguably colourable motives, does not satisfy any test of reason-
able classification. If the intent was to in fact extend protection against religious
persecution, not only should other similarly placed communities have been given
the benefit, rather, the government should have explored more concrete solutions
such as codification of a proper refugee law, still missing in India.68
What is surprising is that the only major opposition to the Bill came from
political groups in Assam, who contend that it goes against the Assam Accord of
1985, whereby illegal migrants who entered Assam from Bangladesh after
25 March 1971, were to be deported, irrespective of religious identity.69 The
Bill is only a part of a series of similar initiatives by the Government, none of
67
Raghav Katyal, ’Citizenship (Amendment) Bill: A positive step but BJP govt must justify religion-based provisions in
proposal' (Firstpost, 10 January 2018) <http://www.firstpost.com/india/citizenship-amendment-bill-a-positive-step-but
-bjp-govt-must-justify-religion-based-provisions-in-proposal-4296621.html> accessed 30 January 2018.
68
See generally, Saurabh Bhattacharjee, 'India Needs a Refugee Law' (2008) 43(9) EPW 71.
69
Shreya Biswas, 'What is the new Citizenship Amendment Bill? Why are people in Assam unhappy about it?' India
Today (25 October 2016) <http://indiatoday.intoday.in/story/citizenship-amendment-bill-2016-assam-illegal-migrants-
protests/1/794828.html> accessed 30 January 2018.
118 M. PODDAR

which have come under major public scrutiny. Hopefully, before the Bill sees the
light of day, the legislators become conscious of the possible inconsistencies with
not only the Constitutional text but also with international law.

Acknowledgment
Author would like to thank Prabha Kotiswaran and Tarunabh Khaitan for their editorial inputs.