The joyous birth of the Indian nation-state is co-terminus with the horrors of Partition in 1947. A natural consequence thereof was the influx of migrants due to the two-nation theory employed by West and East Pakistan. Many Indian states came to be affected by the process of immigration which challenged the demographic dimensions of the states as influx did not cease even after Partition. Conversely, many minorities found themselves at the mercy of nations which followed a state religion. At the time, the population of both Pakistan and Bangladesh comprised several non-Muslims. However, as opposed to India which is a secular nation, both Pakistan and Bangladesh are Islamic states. Being historically and geographically interlinked with both ancestral and spiritual ties, it falls as nothing short of an obligation for the Indian nation-state to provide refuge to non-muslim minorities who have been persecuted for their “otherness” in these countries over the past six decades.
This obligation is constitutional in nature and its genesis can be found in the Constituent Assembly debates. During the debate that took place on Articles 5 and 6 on August 10, 1949, in the constituent assembly, B R Ambedkar, the chairman of the drafting committee of the Constitution of India, had expressed hardship in drafting Article 5:
“This Article refers to, citizenship not in any general sense but to citizenship on the date of commencement of this Constitution. It is not the object of this particular Article to lay down a permanent law of citizenship for the country. The business of laying down a permanent law of citizenship has been left to Parliament, and as members will see from the wording of Article 6 (present day Article 11) as I have moved, the entire matter regarding citizenship has been left to Parliament to determine by any law it may deem fit”. He further stated: “… It is not possible to cover every kind of case for a limited purpose, namely, the purpose of conferring citizenship on the date of commencement of the constitution. If there is any category of people who are left out by the provisions contained in this amendment, we have given power to Parliament subsequently to make provision for them.”
In accordance with this constitutional obligation, the Union Government tabled the Citizenship (Amendment) Bill, 2019 in Parliament.
The Bill seeks to insert a new provision in Section 2(1)(b) dealing with definition of “illegal migrant” of the Citizenship Act, 1955, where the Bill states: “Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered India on or before the 31st day of December, 2014 and who has 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 rule or order made thereunder, shall not be treated as illegal migrant for the purpose of this Act.”
Other salient features of the Bill include the exemption granted to a large part of the North East region from applicability of the proposed law (except Manipur), cut-off dates for entry into India and a clause related to Overseas Citizen of India. The Bill is a manifestation of a constitutional promise made to those who have suffered in the aftermath of Partition and its consequences.
Many doubts have been cast on the legality of the Bill. However, the Bill does conform to India’s constitutional spirit. Here’s how:
Parliament’s power to enact the Bill. An examination of the text of Article 11 of the Indian Constitution reveals that Parliament is empowered to make any law relating to the acquisition or termination of citizenship and all other matters relating to citizenship. Further, it was the intent of the framers of the Constitution for Parliament to have the power to include those who, at the time of the Constitution coming into existence, were not included within the fold of the citizenship laws. It is therefore well within the rights of Parliament to enact this Bill and it stands the test of procedural due process.
Presumption of Legality. A basic rule of interpretation is always presumption in favour of the constitutionality of a statute. The burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles. The presumption may be rebutted in certain cases by showing that on the fact of the statute, there is no classification and no difference peculiar to any individual or class, and not applicable to any other individual or class — and yet, the law hits only a particular individual or class. It ought to be assumed that the legislature correctly understands and appreciates the needs of its own people, that its law are directed to problems made manifest by experience, and, that its discrimination is based on adequate grounds.
In order to sustain the presumption of constitutionality, the court may take into consideration matters of common knowledge, matters of report, the history of the times, and such facts which may exist at the time of the legislation. Thus, the legislation is free to recognise degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest. While good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances that is brought to the notice of the court, upon which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to an extent that there must be some undisclosed and unknown reason for subjecting certain individuals or corporation to be hostile or discriminating legislation.
The Bill fulfils the challenge posed by Article 14 of the Indian Constitution. At the outset, Article 14 states that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth” Article 14 has both a positive and a negative aspect. It provides for equal protection of the law in its positive aspect. In the negative aspect of “equality before law”, what necessarily follows is that those in unequal positions ought not to be treated equally.
In the case of Ram Krishna Dalmia vs Justice S R Tendolkar, the true meaning and scope of Article 14 was reiterated as follows; “It is now well-established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled. (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 classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decision of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.”
The exception to Article 14 is broadly the test of reasonable classification and intelligible differentia. The Bill stands the test of reasonable classification as propounded by the seven-judge Bench of the Hon’ble Supreme Court of India in the case of State of West Bengal vs. Anwar Ali Sarkar. In this case, the Hon’ble apex Court stated that intelligible differentia means there ought to be a yardstick to differentiate between those included and those excluded from a group. In the case of Navtej Singh Johar vs. Union of India, Hon’ble Justice Indu Malhotra further propounded the test of “intelligible differentia” to mean ‘reasonable differentia’. This means that even the yardstick for inclusion or exclusion ought to be reasonable in itself. Further, Justice Malhotra states that no legislation can differentiate on the basis of a trait intrinsic to a person. The classification adopted in the Bill, is clear and substantial, and there are sufficient reasons for making the distinction.
In the case of Parisons Agrotech (P) Ltd. vs Union of India, the apex Court held that once sufficient material is found for taking a particular policy decision, bringing it within the four corners of Article 14 of the Constitution, power of judicial review would not extend to determine the correctness of such a policy decision or to indulge into the exercise of finding out whether there could be more appropriate alternatives. It was held that “the equality clause does not forbid geographical classification, provided the difference between the geographical units has a reasonable relation to the object sought to be achieved.” It is therefore pertinent to note that the legislature is within its rights to enact the Bill. Merely because there is a distinction does not prima facie constitute a challenge to Article 14 of the Constitution.
Even the JPC for the Bill had invited all stakeholders/ interested parties to make its representations. The government also dealt with the reason as to the exclusion of other neighbouring countries like Sri Lanka and Myanmar as follows: “Government of India has issued a Standard Operating Procedure (SOP) vide letter dated 29.12.2011 for dealing with foreign nationals in India who claim to be refugees. These guidelines are applicable to refugees from various countries including Sri Lanka, Myanmar etc.
The Courts allow permissible classification, which includes selective application of a law according to the exigencies where it is sanctioned. The provisions of the Bill appear to have made a classification based on the fact of minority communities being persecuted in the specified countries on the basis of their religion and leaving their country without valid travel documents. By introducing this Bill the Indian state is enforcing a positive discrimination which is necessary, expedient and legally and constitutionally permissible.
This article first appeared in the print edition on December 13, 2019 under the title ‘A constitutional obligation’. The writer is a senior lawyer based in Mumbai, managing partner at Parinam Law Associates and director, Bluekraft digital foundation.
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