The Citizenship Amendment Act, 2019 is legislation focused on granting Indian citizenship to religiously persecuted minorities in the neighborhood. With the passage of Citizenship Amendment Bill, 2019 by the Parliament, persecuted Hindu, Sikh, Jain, Buddhist, Christian, Jew and Parsi minorities from Pakistan, Bangladesh, and Afghanistan who had come to India till 31st December 2014 has been granted relaxation in the number of years required for applying for Citizenship through naturalization. The pre-requisite period has been reduced in Schedule III of Citizenship Act, 1955 from 11 years to 5 years for such minorities. There have been allegations leveled against the law of being unconstitutional and diluting the secularism. However, in order to appreciate the legality and necessity of the law, there should be a holistic analysis of the legal provisions, historical events, and situations behind the move.
During partition, many prominent political leaders were of the opinion that India should go for complete exchange of population; however, the leadership decided otherwise. Subsequently, amidst brutality unleashed on the Hindus & Sikhs in East & West Pakistan, the erstwhile Prime Minister Jawaharlal Nehru on behalf of Government of India decided to enter into an agreement with the Government of Pakistan. This Agreement is known as Nehru-Liaqat Pact (Delhi Agreement). This pact entrusted both these dominions to take care of their respective minorities and their rights of life, liberty & property. However, in an interesting turn of events, Dr. Shyama Prasad Mukherjee resigned from the Nehru cabinet against this agreement the very next morning, on 8th April 1950.
Most of us are aware that the first law minister of India was a Dalit, Dr. Bhim Rao Ramji Ambedkar, but very few of us know that the first law minister of Pakistan was also a Dalit, Shri Jogendra Nath Mandal. He was the person who openly supported the cause of Pakistan, helped them during the direct-action day in Kolkata and asked Schedule castes to vote in favor of League during a referendum on Sylhet district in Assam. It was exactly after 6 months from Delhi Agreement that Shri Jogendra Nath Mandal resigned from the Liyaqat Cabinet on 8th October 1950. His resignation letter is, in itself, an extensive account of extremely horrific violence and brutalities that the Non-Muslims in East & West Pakistan were facing. Unfortunately, Mandal had to come back to India & he died in the Indian state of West Bengal as a refugee. Now we can understand from the fact that a country whose first law minister died as a refugee in India, how it treats its minorities and how flagrant was the violation of Nehru-Liyaqat Pact!
When we look at the demography & census in Pakistan, the population of minorities has come down from 20% to 2% in West Pakistan and 27% to 8% in East Pakistan (now, Bangladesh). Pakistan has breached the Delhi Agreement and it is thus an obligation upon the Indian State to give protection to the victims of religious persecution. India has a long past of sheltering the persecuted coming from across the globe, be it the Jews, Parsis, Tibetans, Buddhists, etc. It is also a humanitarian obligation upon India to protect the religiously persecuted minorities coming to India as refugees.
Legally speaking, in order to understand the idea of Indian Citizenship we need to look into the Constituent Assembly Debates. It was a difficult task for the framers of the Constitution to draft provisions for Citizenship amidst the inflow of refugees from East & West Pakistan. The draft of Part II was deferred thrice before discussion on 10th, 11th & 12th August 1949. The Constitution mentions the specific date viz. 19th July 1948 as the cut-off date for migrants from divided parts of dominions. It is pertinent to mention here that the demand for citizenship for Hindus & Sikhs as their natural homeland was raised vociferously in the Assembly, however, it was vetoed by Pt. Nehru on secular credentials. Interestingly, stalwarts like Dr. Ambedkar refrained from outrightly rejecting this demand before Nehru took the floor. Amidst all this turmoil, the situation at that time was not ripe enough to give a finality to the Citizenship provisions. As a result, Article 11 in Part II of Constitution, specifically empowers the Parliament to frame a detailed framework for Indian Citizenship. With that mandate, Citizenship Act, 1955 saw the light of the day. Therefore, it is wrong to say that Parliament has no right to bring any fundamental change in the criteria of Citizenship which is contrary to the intention of Constitution makers. The truth is that Constituent Assembly never finalized the criteria for Citizenship, there is no constitutional vision of Citizenship, and actually Parliament has been empowered by the Constitution itself to take a final call as to the criteria of Indian Citizenship (Article 11). So as of now there is Part II of Constitution which deals with a broad framework of Citizenship and Citizenship Act, 1955 & subsequent rules thereof tackle it elaborately. Article 14 is the reservoir of Right to Equality enshrined in the Constitution. This does not mean that all general laws will be applicable to all sections of people. The provision as it stands today incorporates reasonable classification founded on an intelligible differentia and such classification must have a reasonable nexus with the object sought to be achieved. The classification in the Citizenship Amendment Bill, 2019 is based on two factors - Classification of countries i.e. from Afghanistan, Pakistan & Bangladesh versus rest of the countries; and Classification of people i.e. Hindu, Sikh, Jain, Buddhist, Parsis, Jews and Christians versus people belonging to other religions. The intelligible differentia for this classification is oppression & minorities. Since, these three countries have adopted Islam as their state religion & are not secular, this has resulted in oppression of minorities with different religious beliefs. Therefore oppression & minorities both are sufficient grounds of intelligible differentia and since Government wants to ensure the life and liberty of these oppressed minorities, therefore relaxing the criteria for citizenship acts as a reasonable nexus between the object which this classification wants to achieve. Thereby, the Act perfectly fits within the four corners of the permissible category of reasonable classification. Arbitrariness doctrine, as explained in the landmark decision of Hon’ble Supreme Court in Shayara Bano v. Union of India, lays down that there needs to be unfair, unreasonable, discriminatory, not transparent, capricious, biased, with favoritism or nepotism, for a legislation to be arbitrary and to be unconstitutional. In the instant case, arbitrariness is not at all applicable as there exists a well-defined criterion of people belonging to religious minorities and oppression for classification. Those who are neither minority nor oppressed clearly are not entitled to such a protection, and hence, no case as to discrimination and violation of Article 14 arises. Therefore, both the tests of reasonable classification & non-arbitrariness are fulfilled by this legislation. Regarding the question of challenge on the ground of violation of basic feature of secularism, whatever is contained in Article 25 to 30 constitutes Indian secularism. This portion of Part III is after all about minority rights and this bill is also a pro-minority measure. The very purpose of the bill is to ensure well-being of minorities who are suffering religious persecution in these three countries. Religious minorities who are victims of oppression just because of their religious identity, any action for them won’t dent or hamper Indian secularism but contrarily it will uphold and strengthen our secularism. Since the Muslims in these Islamic States, are neither minorities nor they face issues of persecution because of their religion they are obviously not included within the ambit of the Amednment. The case of Shia & Ahmadiya oppression in Pakistan is not religious persecution but a case of sectarian violence within a religion. Furthermore, the allegations of the legislation being anti-Muslim seem to be ill-founded and based on fear-mongering. This is also not the first time when such an action has been taken for granting citizenship to such refugees. It will be pertinent to go back to 1950 when Nehru ji was the Prime Minister and Dr. Ambedkar was the then Law Minister, it was their cabinet which passed a legislation called The Immigrants (Expulsion from Assam) Act, 1950. Proviso to Section 2 of this Act has two features, namely - 1) To expel all those who entered into Assam with ulterior motives; and 2) Excluding those who came to India due to civil disturbances i.e. practically the Hindus/Sikhs who came due to riots were allowed to stay back in India. Sovereign nation-states have every right to regulate and frame the criteria for their citizenship. The Parliament of India is in itself a sovereign authority and empowered by the Indian Constitution to make law regarding citizenship. Furthermore, the sons and daughters of mother India on the other side of the borders either on Radcliffe or Durand line, are the cultural progeny of this nation. This move by the Government is a welcome step, which is both legally and politically justified. This amendment, in fact, is a measure of empathy coming too late from the government, which was long due to these religiously persecuted minorities.