Citizenship Amendment Act — A Critique

There has been much ado about the 2019 Amendment to the Citizenship Act. It has been attacked as being unconstitutional — falling foul of the constitutional guarantee of equality, the principles of secularism and the Constitution’s basic structure. The law covers three aspects — one, facilitating persons of religious minorities who suffered persecution in Afghanistan, Bangladesh, Pakistan to acquire Indian citizenship, secondly, the law is inapplicable to certain areas and thirdly cancellation of registration as overseas citizen of India cardholder.

The amendment, as is clear from the statement of objects and reasons as also the provisions, is a law seeking to facilitate religious minorities in the named countries which have a State religion acquire Indian citizenship as a one-time measure. It is unambiguous and does not adversely affect any Indian or the pluralistic, secular character of our polity or the Constitution. However, there appears to be a lot of misinformation engendering apprehension, opposition and protests. There is the imperative need to allay all fears and reassure the people.

The amendment does not even remotely touch in any manner any Indian of whatever faith. Nor does the amendment deny Indian citizenship to any person. Articles 5 to 10 of the Constitution govern citizenship at the commencement of the Constitution. Article 11 empowers Parliament to enact law regulating the right of citizenship. The Citizenship Act, 1955 is such a law providing for the acquisition, determination and termination of citizenship subsequent to the commencement of the Constitution. Foreigners who enter India without valid documents are illegal migrants and are not entitled to stay in India.

Any person of any nationality and faith is entitled to apply for Indian citizenship and to be granted that under the Citizenship Act. An illegal migrant is defined there under Section 2(b). There is no change in the law except that the amendment has carved out an exception by adding a proviso to Section 2(b). It is this — the first aspect of the amendment which has generated widespread, though misplaced, criticism and protest. It provides that  Hindus, Sikhs, Buddhists, Jains, Parsis or Christians from Afghanistan, Bangladesh, Pakistan (religious minorities who suffered persecution there) who entered India on or before 31-12-2014 and who are exempted from the adverse, penal consequences of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946 shall not be treated as illegal migrants. Such exemption notifications were already issued in 2015 and 2016 and such exempted persons were also made eligible for long-term visa. The present amendment is only a normal sequel to all this and makes such persons eligible for citizenship. It is also a natural follow up to the partition and the events of 1947 and the fulfillment of the promises since then over the years. The exemption notifications and the orders regarding long-term visa have been in place for some years now. There has not been any objection or challenge to all this, and rightly so. This has now become plenary law and such persons as mentioned in the proviso are made eligible for being granted citizenship, subject to the prescribed statutory conditions.

At first blush, the law may appear to be discriminatory and unconstitutional, but such charge does not stand closer scrutiny. The gravamen is that the law singles out and excludes Muslims, that there is hostile discrimination against them rendering the law ultra vires Article 14 and unconstitutional. These apprehensions and contentions, it is submitted, are misconceived.

Article 14 guarantees equality before law and equal protection of the laws. This has been the subject-matter of constitutional interpretation and exposition over the decades and its scope and ambit are well settled. The amendment does not violate Article 14. The equal protection of the laws is a pledge of the protection of equal laws. But laws may classify. In addressing this problem the courts have neither abandoned the demand for equality nor denied the legislative right to classify. The seemingly contradictory demands of legislative specialisation and constitutional generality have been resolved by the doctrine of reasonable classification. It is one which includes all persons who are similarly situated with respect to the purpose of the law which may be the elimination of a public mischief or the achievement of some positive public good. In the present case there is a reasonable, valid classification of persons of religious minorities in the three-named theocratic States who came to India before a cut-off date. Such persons are not treated as illegal migrants and special provisions are made as to their citizenship.

The law is criticised for not including Muslims from the named countries as also persons suffering persecution in other neighbouring countries. Classification is permissible; even if it is taken to be an under-inclusive classification, the courts have held that it would be justified considering that legislative dealing with such matters is usually experimental. The amendment would help 31,313 persons who belong to this category as per figures furnished by the Intelligence Bureau to the Joint Parliamentary Committee. It is said as a fact that no Muslim from any of these or other countries has come to India seeking refuge. Classification is dependent upon the peculiar needs and specific difficulties of the community which are constituted out of facts and opinions beyond the easy ken of the courts. It is largely dependent on the assessment of the ground realities which the legislature is best, and perhaps exclusively, equipped to make.

Certain constitutional fundamentals are well established.

There is always a presumption in favour of the constitutionality of a statute. It is presumed that the legislature understands and correctly appreciates the needs of its people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. And in order to sustain this presumption, the courts may take into account matters of common knowledge and report and history and assume every state of facts which can be conceived existing at the time of the legislation. A law need not be all-embracing. A legislature acting within its domain is not bound to extend laws to all cases which it might possibly reach. The legislature is free to recognise degrees of harm and confine its laws to those classes of cases where the need seemed to be clearest; and that is a matter of legislative judgment. If the law presumably hits the evil where it is most felt it is not to be overthrown because there are other instances to which it might have been applied. Therefore the grievance and argument that others in the three-named countries and those persecuted in other neighbouring countries should have been included and meted out the same treatment does not avail.

The great divide in the area of whether classification is reasonable or not lies in the difference between highlighting the actualities or the abstractions of legislation. As society becomes more complicated, the greater is the diversity of its problems and more does legislation direct itself to such diversities. “Statutes are directed to less than universal situations. Law reflects distinctions that exist in fact or at least appear to exist in the judgment of the legislature which has the responsibility of   making the law fit fact.” The legislature, for dealing with complex problems that arise out of an infinite variety of human relations, cannot but proceed upon some sort of selection or classification of persons upon whom the legislation is to operate. As Justice Frankfurter observed, “Laws are not abstract propositions but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies.”

Therefore when there is a classification the courts will not hold it invalid merely because the law might have been extended to other persons who might resemble the class for which the law is made. For, the legislature is the best judge of the needs of the particular classes and to estimate the degree of evil so as to adjust the law according to the exigencies. Article 14 does not require that legislative classification should be scientifically perfect or logically complete.

The aforesaid settled legal position leads to the inevitable conclusion that the law does not fall foul of Article 14. Otherwise, we would be proving Anatole France right that the law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread. “Bare equality of treatment regardless the inequality of realities is neither justice nor homage to the constitutional principle.” All apprehensions and contentions in that behalf are baseless and imaginary. Appeal to Article 15 or Article 25 as a ground of attack is equally misconceived and puerile. Article 15 is available only to citizens; no citizens have been discriminated or denied any right. Further, no one’s freedom of religion or conscience is interfered with or curtailed. Locus is not simply technical. No rights of those who assail the law have been violated. No foreigner has a right to claim Indian citizenship or an easier means of acquiring it.

There is more rhetoric than legal reasoning in the contention that the law is opposed to the principles of secularism and infringes the Constitution’s basic structure. A law can be invalidated only on the ground of lack of legislative competence or violation of any constitutional provision. Neither ground is present here. Any law regarding citizenship is within the exclusive domain of Parliament and this parliamentary enactment does not infringe any constitutional provision. The basic structure doctrine is a ground and the only ground to challenge a constitutional amendment. It is unavailing in the case of ordinary legislation though there may be some judicial gratis dicta to the contrary stated with flourish which do not represent the correct and settled legal position. Justice Cardozo’s remarks come home with a strange poignancy: “The half-truths of one generation tend at times to perpetuate themselves in law as the whole truths of another, when constant repetition brings it about that qualifications taken once for granted are disregarded or forgotten.”

It is to be remembered and reiterated that the amendment does not take away citizenship of any Indian, the law does not exclude anyone, but it does not include some within its ken. Whether this is the best or wisest law is a matter for Parliament, not for the courts. The courts are concerned only with the constitutionality of a law, not its wisdom, desirability or expediency. We ought not to confuse constitutionality with wisdom, desirability or morality.

It is to be emphasised that every other person of whatever nationality or faith is entitled to apply for and seek Indian citizenship like those persons mentioned in the proviso to Section 2(b). It is only that for that class mentioned in the proviso there is a fast-tracking in the matter of granting citizenship; nothing more. This has nothing to do with NCR and NPR and does not affect any Indian. Linking CAA with NCR or NPR is quite far-fetched. 

The concept of NCR is, however, not anything new. The Citizenship Act in Section 14-A provides for registration of every Indian citizen and issue of national identity card to him. It also provides for maintaining a National Register of Indian citizens and establishment of a National Registration Authority for that purpose. This provision has been in force since December 2004 and significantly there has been no objection or challenge to this for all these 15 years. Indeed there can be no objection. Every country maintains a register of its citizens. This is nothing unknown to civilised polities. The National Population Register is equally unexceptionable. Deficiency, if any, in the working of the system is an independent issue that would have to be addressed. The concept per se cannot be faulted. The grievance of most of the critics and agitators appears to be not so much against the law but more of an antipathy to the present Government and expression of the wish of what the law should be.

The protests are a result of a wrong impression and apprehension that the law may be used to deprive some citizens of their citizenship or drive them out of India. This is totally baseless. The law is clear and deals with conferring citizenship on a class of persons more easily. It does not preclude persons outside the class from applying for and getting Indian citizenship in the regular course. It certainly does not deprive any citizen of his rights nor can it be used for such ends.

It is accepted constitutional jurisprudence that individuals have rights against the State that are prior to rights created by explicit legislation. This is also the philosophy and purport of the US Constitution Ninth Amendment. More significantly Article 19 confers on the citizens the fundamental rights to move freely throughout the territory of India and to reside and settle in any part of India. Article 19 refers to natural or common law rights as distinguished from rights created by a statute. As the Supreme Court has held Article 19(1) guarantees those great basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free country. They inhere in the person and are not the gift of any law or the Constitution. They cannot be taken away even by a constitutional amendment. Therefore all fears about depriving citizens of their rights are a result of misinformation and require to be set at naught.

While this is the legal position and people should not be misled or misinformed, it is wrong to describe those who oppose this measure as anti-national. A democratic society lives and grows by accepting ideas, experimenting with them and if necessary rejecting them. The right to dissent is conferred by the Constitution and is implicit in a democracy. Discussion and dissent are the very life breath of democracy. But no democracy can afford or support violence. Violent protests as well as putting down dissent — both are a negation of democracy. The right to protest entails the duty to listen to other voices and shun any rigidity or intolerance. Or else democracy will degenerate into mobocracy which gives the crown to the mob with the loudest voices, the biggest sticks and the readiest fists.

Government has to be responsible and responsive. Law must reflect the “general will” — public opinion which is evolved as a consensus through informed debates and discussion. Law is not an end in itself but only a means of achieving social good. The power of the State to implement and enforce obedience to the law carries with it the duty and responsibility of making the law known and understood in the right perspective. Government, it is said, is a potent, omnipresent teacher. It is the duty of every good, civilised government to promote the intelligence of its people, to discuss, inform and educate the nation. Government should embark upon an exercise to educate the people on the nuances of the law with patience and understanding. The amount of time that people spend in hearing each other talk is said to be an important constituent of political life. Enduring institutions depend upon the enduring support of ordinary people. To a query as to what kind of Government the Constitutional Convention of 1787 had created in USA, Benjamin Franklin replied, “A republic, Madam, if you can keep it.” The most effectual means of preventing perversion of power and preserving the democratic republic “is to illuminate the minds of the people at large.” This is what is of utmost need and urgency today.

The amendment does not require the approval of any of the States. They have no role and some Chief Ministers opposing it is wholly irrelevant. While one may criticise and oppose a law, as long as the law stands one is bound to obey and abide by it. Persons occupying constitutional positions protesting against the law, passing resolutions in the State Legislature and threatening not to obey and implement it, is very disturbing. It amounts to a breach of the constitutional oath of office which would render them unworthy and ineligible for public office. It also amounts to failure of the constitutional machinery inviting remedial action under the Constitution. Worse and more misconceived is the filing of suits under Article 131 challenging the law.

We would do well to recall Rousseau’s admonition: The first of all laws is to respect the laws.


† Advocate. He can be reached at vsudhishpai@gmail.com.

 

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