The Divider in Chief’s team with its unabated endeavor to transform secular India into a Hindu Rashtra (read ‘Aryavarta’) has been given a brand new momentum with the enactment of Citizenship (Amendment) Act,2019 which discriminates against illegal Muslim immigrants over their rights to citizenship, while favoring the people of other religious communities namely Hindus ,Jains. Buddhists, Sikhs, Parsis and Christians. This highly shismatic Act (coupled with the proposed pan India NRC) is creating vexation into Indian muslims about their fate is the material manifestation of the long lasting ideological goals of the ruling dispensation which seeks to reduce them to the status of second class citizens. This Act comes after the despotic action taken in August in Muslim dominated Indian administered Kashmir where abrogation of the special status provided under article 370 of Indian constitution was accompanied by a massive communication blackout that is still mostly operative and Indian apex court has failed in its duty to enforce fundamental rights by giving a reprehensible judgement on internet blackout imposed in the state of Kashmir after stripping it of its special status wherein it merely gave a lip service to the fundamental rights without providing any immediate relief to the people living in predicament there. It also follows another hindu nationalist “judicial’ triumph when the Supreme Court in November rewarded the “egregious violation of the rule of law, and paved the way for the construction of a grand Ram Mandir on a 16th century mosque which was demolished by the right wing hindu nationalists at Ayodhya in Uttar Pradesh in 1992. These recent political developments in India are exposing the tyrannical and abominable side of India, which is certainly losing its image globally as a secular and all welcoming society. Now this Act will herald a dark dawn of oppression to its most marginalized religious minority.
What this act is all about:
The statement of object and reasons of this act stipulates that it will grant amnesty to the afformentioned persecuted minorities by providing them fast track citizenship but this term “persecuted minorities’ finds no mention in the act itself. The question arises whether this impugned act (which has been challenged in the apex court through numerous writ petitions) will sustain the test of constitutionality. The authors here are trying to explain all the legal nuances of this impugned act and its betrayal to the Northeastern States.
Determining the constitutionality of this Act
Citizenship Amendment Act is a sheer violation of article 14 which provides equality before law and equal protection of law. This article contemplates two tests: An act that is enacted by the parliament should be based on an intelligible diiferentia. This term has been explained by the apex court in Anwar Ali Sarkar case in which the court said that there should be a yardstick to classify people and such classification should be intelligible. There must be a yardstick to differentiate between those which have been included in and those who have been excluded from. Justice Indu Malhotra further glossed the explanation of this term in Navtej Singh Johar case wherein she infused the grounds of article 15(Prohibition of discrimination on grounds of religion , race, caste, sex or place of birth) into article 14 and opined that no doubt there should be an intelligible differentia while classifying the people for providing them benefit but such classification must be a reasonable one. She further expounded that this classification should not be based on an intrinsic and core traits of an individual. If any law differentiates on the basis of these core traits then such law would not be able to pass the test of constitutional principles, and accordingly it would be declared unconstitutional. Religion is one of the basic traits of an individual which is a personal choice of an individual therefore no law can accord citizenship on the basis of an individual’s religion. Therefore, contrary to Article 15, the test for Article 14 violation is based on impermissible classification. Impermissible classification means that a particular principle cannot be used to classify because it is constitutionally irrelevant. Religion is a facet of personal autonomy, and a classification based on it is an impermissible classification.
Not based on any determining principle
Nariman J in Shayara Bano case has noted, “manifest arbitrariness, is something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.” There is no watertight separation between all fundamental rights as propounded by J. Fazl Ali in AK Gopalan v. State of Madras case which was further bolstered by the Supreme Court in Bank Nationalisation case by opining that all fundamental rights have to be read together while testing the constitutionality of a law enacted by the parliament thereby overruled the silos theory of AK Gopalan case. No doubt parliament has unfettered power of enacting a law related to citizenship by virtue of article 11 of Indian constitution but it has been inhibited from enacting a law (like this impugned act) which discriminates on the ground of religion by excluding a particular section of the society.
The second thing where this bill fails to pass the test of article 14 is that its main objective is to protect the religious persecuted minorities but here they have assumed that only these people are being persecuted in these countries without recognizing the ordeal of those who are being bludgeoned within a religion on sectarian ground. Therefore, it contradicts itself in two ways: firstly, it wants to protect all those who are living in quandary and being forced to flee from their countries by providing them citizenship on humanitarian ground but on the other side it fails to recognize the persecution of other people within a particular religion. It is quite apparent that other people within a religion like Ahmadiyas, Shias and Hazaras are often being forced to live in predicament and without accepting this fact, this classification based on the majority and minority will have no nexus with the object of protecting religious persecuted minorities and is bound be struck down by the Court on ground of violating article 14.
This act unnecessarily encompasses the name of those communities of which it is going to protect from religious persecution which they have been endured to face in their own country of origin. However, if intention was to salvage the persecuted people then why have other people, who are also being humiliated and demeaned in the same manner, been excluded from getting the benefit of this act. This makes this Act manifestly arbitrary and seems to have been made with the intention of providing benefit to the certain sections of the society because it creates differences among equally footing people who have been forced to flee from their countries. If you see the Ahmediyas who are not considered as the muslims and have been ostracized from practicing and professing Islam overtly. Why these people have not been included in the bill is devoid of any logic which renders this impugned act again something that is fraught with prejudices and proclivities that again points towards vindicating the point of manifest arbitrariness which is an anathema to article 14.
The country-based classification is manifestly arbitrary also and violative of Article 14, it is not based on a plausible determining principle because three countries have been identified to provide citizenship to the resident of these countries who are being persecuted in these countries. If the classification is based on the assumption that they were the part of undivided India then such classification is destined to fail because Afghanistan was not the part of undivided India. If the classification is premised on this ground that these countries which have been selected have a state religion i.e. Islam but Srilanka and Bhutan have not been incorporated that have a state religion too that is Buddhism wherein the Tamil and the Christian are persecuted too respectively. Even Christians in Bhutan are not allowed to pray in church therefore they have to make prayer in their own houses or sometimes they cross over the border of their own country for getting shelter in India so that they could perform their prayer without any apprehension of being harrased. If the classification is based on the ground that these communities that have been enlisted into this Act are facing persecution because they belong to a particular religion but again this is idiocy to say that Rohingyas are not being persecuted because of their religion but they have not been incorporated into this act. Therefore, it is evident that the exclusion of the other neighboring countries where people face religious persecution is not justified, because the inclusion of these three countries is not based on any determining principle be it Indian origin, state religion, or of persecuted minorities. Thus, the country based classification is violative of Article 14 as it suffers from the vice of manifest arbitrariness.
Direct and inevitable consequence of a statute
It is now a well settled law that the violation of fundamental rights are considered on the basis of inevitable and and direct consequence of an act. The apex Court in Bacchan Singh case held “that in order to locate the fundamental right violated by a statute, the court must consider what is the direct and inevitable consequence of the statute. The impugned statute may in its direct and inevitable effect invade more than one fundamental right and merely because it satisfies the requirement of one fundamental right, it is not freed from the obligation to meet the challenge of another applicable fundamental right.” That, the direct and inevitable consequence of promulgating the Citizenship Amendment Act 2019 would be that the Hindu migrants excluded from the final list of NRC for the residents in Assam published on 31.08.2019, would be entitled to get benefit of naturalization under Section 6B of Citizenship Act. However, the Muslim migrants who stand in equal footing with the Hindu migrants, are nevertheless denied the same legal protection. Therefore, the Citizenship Amendment Act, 2019 ensures that the proceedings before the Foreigner Tribunal and detention would be directly targeted against the Muslims alone. As the Home Minister has announced in the parliament that they will be implementing pan India NRC (National Register of Indian Citizens) in upcoming days to identify people who have entered India illegally and the consequence of the same would be the exclusion of only persons belonging to a particular religion that is Islam because other communities will be protected through this impugned act therefore it is direct and inevitable consequence of this impugned act which clearly violates article 14.
Flouting the International Conventions
This Act is also not in tune with plethora of international conventions to which India is a signatory. India is obligated to protect and preserve the basic human rights of every individual irrespective of his race, caste, sex, place of birth, political opinion and religion as per article 26 of International Covenants on Civil and Political Rights[ICCPR]. Article 6 of Universal Declaration of Human Rights [UDHR] and Article 26 of ICCPR, however do not recognise the distinction between citizens and non citizens but they prohibit state from discriminating on the ground of religion. This Act providing fast track citizenship to non muslim illegal immigrants by way of naturalization and excluding the Muslims from acquiring the citizenship through same process is flagrant violation of article 26 and 6 of ICCPR and UDHR respectively.
Relief but no relief for the North Eastern States
The impugned act is facing intense opposition in the North Eastern states of India especially in Assam because of the fears that the indigenous communities could get culturally and physically soaked by the illegal migrants (both Hindus and Muslims).The Assam Accord was signed in 1985 to assuage the festering feelings of the indigenous people of Assam because illegal immigrants were thronging the streets of the same therefore they had been given the assurance by the government to protect and preserve the local culture of the region by updating a National Register of Citizens to identify illegal immigrants and finally to deport them from where they came. But they have been betrayed by the government when this impugned act was passed which seeks to grant fast track citizenship to all those who have been persecuted in their home country irrespective of whether they have entered legally or illegally which is contrary to what was promised to them. The government also tried its best to appease the North Eastern states by exempting the region from the impugned act by invoking the provisions of Inner Line Permit and Sixth Schedule(Protected Tribal Areas) of the Indian Constitution.
Deciphering the Inner Line Permit and Sixth Schedule
Inner Line Permit is an official paper which stems from the Bengal Eastern Frontier Regulation which was put in place in 1873 by British Government and is required by the Indian citizens of other states to enter Arunachal Pradesh, Mizoram, and most of Nagaland. Manipur was also brought under Inner Line Permit with the passage of this impugned act to evade any kind of dissent.
The Sixth Schedule of the Indian Constitution envisages for autonomous decentralized self governance in certain tribal areas of Assam, Meghalaya and Tripura. In these areas communities not considered local are prohibited from owning land and doing any commercial businesses. Like the inner line permit in the post colonial era, the Sixth Schedule aims to protect the local tribal way of life.
But the so called exemption provided to the North Eastern states under Inner Line Permit is ineffective. It is quite obvious under ILP that anybody who is not indigenous can’t settle down or buy any property in these regions. But The ‘outsiders’ have always resided there by owning long term permits (by any means). This act also does not provide any provisions to abstain those people who have been naturalized by it from acquiring these inner line permits. Therefore, the exemption under ILP from the impugned Act are no concession but face saving devices for the BJP.
Unlike the Inner Line Permit, the areas under Sixth schedule are not clearly demarcated. The Sixth Schedule is a political project accompanied with the politics of identity and precious ideals of ethno-territoriality. These political considerations apparently override the realities. It is quiet easier to find out roads from one village which is outside the purview of Sixth Schedule into another village which is under the domain of the concerned Schedule .There are such numerous examples where this Schedule applies to only one side of the road and excludes the other side of the road which may further incentivize people to flock from one region to another region because there is no hindrance of plunging into those areas which fall outside the ambit of this schedule for getting the benefit of the impugned act. It is merely a charade of mitigating the simmering discontentment towards this act by giving them a placebo hope.
This act is another step for accomplishing the long lasting aspirations of the right wing hindu nationalists which is to make this country a ‘Hindu Rashtra’ and this impugned act is one of these several nefarious attempts which this country is seeing from the past several decades because this act gives precedence to other communities while at the same time excluding only one community from getting the benefit of the impugned act. It is the first attempt in the history of India when an act has been enacted to dismantle the secular fabric by granting citizenship on the basis of religion. It is bereft of any sound and plausible logic which vindicates that something sinister is going to be achieved through this impugned act. It also betrays the historical struggle and ambitions of the northeastern states. Now, it is on the Supreme Court (read executive court) to declare this legislation what it is that is patently unconstitutional.
Mohd Malik Chauhan and Osama Noor.
B.A. LL.B 2nd year, Faculty of Law, Jamia Millia Islamia.