Citizenship (Amendment) Bill, 2019 – An Analysis

Written by Kaushal B. Shah of Lords Universal College of Law.

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Facts:

The bill amends the Citizenship Act, 1955 to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship.

Under the Act, one of the requirements for citizenship by naturalization is that the applicant must have resided in India during the last 12 months, and for 11 of the previous 14 years. The bill relaxes this 11year requirement to six years for persons belonging to the same six religions and three countries.

The bill provides that the registration of Overseas Citizen of India (OCI) cardholders may be canceled if they violate any law.

Issues involved:

  • What significant changes do the Citizenship (Amendment) Bill, 2019 proposes?
  • Does the Bill violate any of the Articles of the Constitution of India?
  • Which amendment has been proposed in the bill in relation to acquiring citizenship by naturalisation?
  • Have any amendments been brought in the provisions related to Overseas Citizen of India (OCI) cardholders?

Analysis:

In ordinary parlance, the term “citizenship” can be defined as a membership acquired in a governed country. It can also be acquired by “blood”-born to parents who are already citizens of a nation, by “soil”-if born within legal borders of a nation, through naturalisation, through naturalisation of parents. Part II of the Constitution of India (Article 5-11) deals with the Citizenship of India. Article 5 speaks about the citizenship of India at the commencement of the Constitution (Nov 26, 1949). Article 11 gave powers to the Parliament of India to regulate the rights of citizenship by law. Thus, it has been stated under the amendment bill that Hindus, Sikhs, Buddhist, Jains, Parsis, Christians, (hereinafter referred to as ‘minority communities’) from Afghanistan, Bangladesh, and Pakistan are no longer ‘illegal’ immigrants, and they can obtain Indian citizenship through naturalization if they have resided in India for six years. This provision enacted under the draft amendment bill is contrary to what has been stated under Article 5-11 of the Constitution of India. This proviso must be somewhat altered and modified as per the principles stated under the Articles of the Constitution. So in order to become a citizen of India, a person must satisfy the constitutionality test rather than just fulfilling the naturalization test. It was made clear by the Supreme court in Pradeep Jain v/s. Union of India where the court observed: “It is clear on a reading of the Constitution that it recognizes only one domicile, namely, domicile in India. Article 5 of the Constitution is clear and explicit on this point and it refers only one domicile, that is domiciled in the territory of India. India has one single unified legal system and only one citizenship, namely, the citizenship of India”.

The amendment makes two classifications: first, a classification based on religion by excluding Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from the ambit of illegal immigrants and secondly, a classification based on country, by restricting the benefit of acquiring citizenship through naturalization to minority immigrants only from Afghanistan, Pakistan and Bangladesh. But it must be noted that there has been no reasonable justification given as to such classification based on religion and country, so the effect must be null and void. The recent amendment bill has been accused of violating Article 14 and Article 15 of the Indian Constitution. Article 14 guarantees equality to all persons but the bill discriminates the immigrants on the basis of their religion for entitling them as a citizen of India.

Article 14 of the Indian Constitution states that “The state shall not deny to any person equality before the law or the equal protection of laws within the territory of India”. The act prohibits the discrimination on the territory of the country on grounds of religion, race, caste, creed or place of birth. However, the bill states that illegal migrants belonging to specific minority communities from Afghanistan, Bangladesh or Pakistan will not be treated as illegal migrants under the Act, making them eligible for Indian citizenship. These specify communities will be Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians. It implies that people belonging to any other minority community like Muslims and Jews will not be eligible for the citizenship of India. Restrictions of entry into the territory of India should not be placed on the ‘illegal immigrants’ belonging to religious minority communities like Muslims and Jews as it is on the basis of orthodox lines and contrary to the provisions of Article 26 to 29 of the Constitution of India. Therefore, this provision violates the right to equality guaranteed under Article 14 of the Constitution because it provides differential treatment to illegal migrants on the basis of their religion.

Differentiating immigrants on the basis of their religion can be considered as a non-secular gesture by the government. Secularism, Integrity is a basic structure of the Indian Constitution and has also been violated by the bill. The Supreme court of India has reiterated this in SR Bommai v/s. Union of India. It has also been incorporated in the Preamble to the Constitution, which serves as the guiding light to interpreting the constitution.

Moreover, the provision of relaxing of the criteria of 11 years to 6 years to gain citizenship by naturalisation, for the persons belonging to stated religious communities is also against Article 14 of the Indian Constitution. It means that citizenship by naturalization will be given only on the basis of superiority and not on the basis of the merits of a person belonging to any religious community.

The Overseas Citizen of India(OCI) should know the national language of India and it is an assumption that the OCI knows the provisions of law as enshrined under the Constitution of India. The government may cancel the registration of OCIs on certain grounds (i) if the OCI had registered through fraud, (ii) if the charges of corruption have been leveled against him, (iii) The OCI was sentenced to imprisonment for two years or more for committing any heinous crimes.

Conclusion:

As all the cabinet ministers have arrived on a particular consensus, the BJP-led union government is determined to table the Citizenship (Amendment) Bill,2019 in this parliament session, after it lapsed earlier in the year. If the majority of members from amongst the total number of members present and voting in the Parliament accepts the bill, then it is said to be passed in both the Houses of Parliament. If the assent of the President is obtained, then it becomes an Act. If such an Act is effectively implemented by the Central government then there can be strong opposition by the people residing in such state, as it would force them to migrate in various territories of India, it can also affect their livelihood, employment opportunities, it can have vast impact on the economy of India as a whole.

Not only up to this but the introduction of the draft Amendment bill led the political parties like Congress, TMC, Samajwadi Party, etc. to oppose this bill as it is indeterminate and evasive according to them. The opposition parties have also filed their petition in the Apex court against such an introduction of the bill. If the matter is brought before it then the Supreme court should interfere as to the number of ‘illegal immigrants’ acquired Indian citizenship during some years ago, name of the person appeared in the list that has illegally immigrated, any identity proof of being a citizen of India allotted to such minority community by the government of India.

References:

  • Pradeep Jain v/s. Union of India.
  • S R Bommai v/s. Union of India.

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