Why Citizenship Amendment Bill needs to pass Article 14 test

Prabhash K Dutta
India recognises a person as its citizen on the basis of birth, descent, registration and naturalisation in accordance with the Citizenship Act of 1955 that draws validity from Part-II of the Constitution, namely, Articles 5-9.
The Citizenship Act has been amended five times before (1986, 1992, 2003, 2005 and 2015) - three times under the Congress-led governments and twice under the BJP-led governments.
Another amendment to the Citizenship Act has now been mooted by the Narendra Modi government. And, the new Citizenship Amendment Bill 2019 has run into a controversy.
IN FOCUS, THE CITIZEN OF INDIA
Under the existing laws, an illegal migrant is not eligible to apply for acquiring citizenship - that is, barred from becoming an Indian citizen through registration or naturalisation. The Foreigners Act and the Passport Act debar such a person and provide for putting an illegal migrant into jail or deportation.
A person can become an Indian citizen through registration if she has ordinarily lived in the country for six of last eight years in India and continuously for 12 months before submitting an application for citizenship.
In the case of acquiring citizenship through naturalisation, the person should be living in India for 14 years, 12 years of which should have been her cumulative stay in the country.
NON-MUSLIM MIGRANTS NOT ILLEGAL?
The Citizenship Amendment Bill 2019 aims to make changes in the Citizenship Act, the Passport Act and the Foreigners Act if the illegal migrants belong to religious minority communities from three neighbouring countries of Bangladesh, Pakistan and Afghanistan.
The Citizenship Amendment Bill, if and when passed by Parliament, will neutralise the provisions that call for jailing and deporting illegal migrants provided they are Hindus, Sikhs, Buddhists, Jains, Parsis or Christians from Bangladesh, Pakistan and Afghanistan - all three Muslim majority countries.
Simply put, the Citizenship Amendment Bill will grant the illegal non-Muslims migrants the status of legal migrants despite them having come to India without valid documents and permission.
However, this provision is applicable if these people left their parent country following religious persecution.
Another key change that the Citizenship Amendment Bill seeks to make is to reduce the period of stay in India before illegal non-Muslim immigrants from Bangladesh, Pakistan and Afghanistan from 14 years to six years.
THE OPPOSITION
The Citizenship Amendment Bill is being opposed by Opposition parties and many civil rights activists on the ground that it discriminates against Muslims. They say that such discrimination is unconstitutional under Article 14.
Article 14 is one of the cornerstones of the Constitution. It states, "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
Equality before law means the State will treat every class of persons without discrimination. The equal protection of law means the State will not frame laws or rules that discriminate between two persons.
Rights under Article 14 are absolute. These two fundamental rights are not exclusive to the citizens of India but to "any person". In this backdrop, the Opposition parties and activists have accused the BJP of signaling out the Muslims to further its "hidden agenda".
WHAT EXPERTS SAY?
"The migrants or refugees from these countries may be of any religion. Once they have come to India by whichever means then excluding Muslims refugees from the benefit of CAB 2019 would prima facie violate Articles 14," Atul Kumar, a Supreme Court advocate-on-record told Indiatoday.in
"Article 14 is not confined to the citizens. It gives benefits of equality to any person within the territory of India even to a foreigner," he said adding, "The Bill wants to create a class of refugees. In order to pass the test of permissible classification two conditions must be satisfied:
the classification must be founded on an intelligible differentia which distinguishes person or thing that are grouped together from other left out the differentia must have a direct nexus to the object sought to be achieved by the statute in question."
Kumar said, "The implementation of law would have wider ramifications and it would be very difficult to implement as anybody who has been here for five years may claim for citizenship by changing or manipulating his name."
THE OTHER ARGUMENT
There is another argument. The Citizenship Amendment Bill follows the line of argument that Muhammad Ali Jinnah put forth leading to the Partition of India in 1947.
Jinnah had led a massive campaign in 1940s arguing that the Muslims and the Hindus were separate nations living in one country of India. He demanded and secured a separate country for Muslims. However, the Indian leadership of the time and the Constitution declared India a secular country without "automatically" making it a Hindu nation.
This was the reason why the Constitution chose to accord the fundamental right of equality to every person not just the Indian citizens under Article 14, and also declared the freedom of religion a key fundamental right in India.
AND, IS THERE AN NRC LINK?
In Assam, the Citizenship Amendment Bill has raised another concern. Many feel that this is a way to bring the 19 lakh Hindus left out of the National Register of Citizens (NRC) list.
The NRC list was finalised earlier this year under the supervision of the Supreme Court. The BJP had claimed earlier that several lakhs of Bangladeshis (read Muslims) were illegally living in Assam.
But when the exercise was completed, more than 19 lakh Hindus found themselves excluded from the NRC. Some argue that the Citizenship Amendment Bill is a route for these 19 lakh Hindus living in Assam to acquire citizenship.
The government has, however, maintained that the Citizenship Amendment Bill is aimed at addressing the human rights of the people belonging to minority communities who faced persecution for their belief and religious practices.
Union Home Minister Amit Shah has made forceful argument on many occasions in his interviews saying India cannot shut its doors to people who have been persecuted by religious fanatics. He defended exclusion of Muslim migrants from Bangladesh, Pakistan and Afghanistan saying Muslims are not likely to face religious persecution in a country where they are in majority.
Courtesy India Today