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The Legal Question: Oppn argues Citizenship Amendment Bill would fall foul of Constitution

Congress MP Manish Tewari said the proposed law violates Article 14 that guarantees the right to equality, Article 15 that prohibits discrimination in laws based on religion, race, caste, sex, place of birth or any of them and Article 21 that guarantees the right to life and liberty.

Written by Apurva Vishwanath | New Delhi | Updated: December 10, 2019 7:55:29 am
Congress MP Manish Tewari said the proposed law violates Article 14 that guarantees the right to equality, Article 15 that prohibits discrimination in laws based on religion, race, caste, sex, place of birth or any of them and Article 21 that guarantees the right to life and liberty. Congress’s Manish Tewari in House. (PTI Photo)

While Home Minister Amit Shah sought to suggest that the Citizenship (Amendment) Bill was an attempt to correct the impact of Partition, the Opposition faulted the legislation on various grounds and argued that it would fall foul of the Constitution.The question of whether the Bill would stand legal scrutiny holds significance as the Bill, when passed, could likely be challenged in courts.

Congress MP Manish Tewari said the proposed law violates Article 14 that guarantees the right to equality, Article 15 that prohibits discrimination in laws based on religion, race, caste, sex, place of birth or any of them and Article 21 that guarantees the right to life and liberty. “If you cannot discriminate among citizens, can you discriminate in giving citizenship?” Tewari asked.

“It is true that minorities were not treated well in those countries. But it is also true that the Indian Muslims who went there were called out as Mohazirs and not treated well,” BSP’s Afzal Ansari said.

AIMIM’s Asaduddin Owaisi hit out at the government, saying that the intent of the proposed legislation in to make Muslims stateless. “If this Bill is allowed, the Foreigners Tribunals will only deal with cases related to Muslims,” he said.

Shiv Sena MP Vinayak Raut questioned the exclusion of Tamil minorities of Sri Lanka while the Bill sought to protect minorities from Afghanistan. DMK’s Dayanidhi Maran questioned why the Bill does not include other neighbouring countries such as Sri Lanka and Maldives. NCP’s Supriya Sule, too, wondered about the plight of atheists who also face religious persecution.

“I am not convinced by the Home Minister. It will be struck down,” Sule said. RSP’s N K Premachandran also underlined how the legislation fell foul of the criteria of “reasonable classification” while excluding Muslims from among those eligible for citizenship.

Congress’s Adhir Ranjan Chowdhury argued that the Bill would fail the two-fold test required under Article 14. “There is no rational nexus unless the objective of the law is to project the nation as a Hindu Rashtra.”

Apart from national laws, Tewari highlighted that the Bill also violates customary international law on protection of refugees by discriminating against Muslim refugees from Pakistan, Bangladesh and Afghanistan.

Home Minister Amit Shah was quick to point out that India had not ratified the 1951 Geneva Convention on protection of refugees. “Non-refoulement- forcing refugees to return to their country where they are likely to face persecution is an integral part of the International Covenant for Civil and Political Rights, a multilateral treaty which India has signed and ratified,” Tewari clarified.

Replying to the debate, Shah rejected suggestions of the Bill being violative of Constitutional provisions. He defended the exclusion of Muslims, arguing that the six religious minorities constituted a “class” and formed a reasonable classification. On why only three countries — Pakistan, Bangladesh and Afghanistan were chosen, Shah said only these three countries were theocratic and have legally stated that Islam is their state religion.

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