Citizenship Amendment Bill, 2019: Will It Pass The Test Of Constitutionality?

The bill grants certain protection to the minorities (including Christians) in three Islamic countries, where there is a manifest arbitrary discrimination to these minorites. Pakistan’s constitution is not secular. The state religion of Bangladesh is Islam. Afghanistan is a hardcore Islamic country where apostasy from Islam is punishable by death. Their treatment of minorities is abhorrent. US based Hudson Institute reveal that at time of Pakistan’s birth, the non-Muslims comprised 25 % of the total population. Today it is below 5% (Home Minister Mr. Amit Shah quoted it 3.7% today in the the Parliament today). As a matter of fact, in India, the population of Muslims has gone up from 9.9%to 14.2% in the past 60 years.

We could not turn a blind eye to the religious persecution of minorities in these Islamic countries because it is not suiting with the literal interpretation of the word ‘secularism’. To call this bill pro-Hindu is not reasonable as it is also seeking to protect other communities, including Christians, who form minorities in these countries.

STATUS OF RELIGIOUS MINORITIES IN ISLAMIC COUNTRIES

There is a series of gross human rights violation against religious minorities ongoing in these Islamic countries. Asian Human Rights Watch, a Human rights organization, published a report where 20-25 kidnappings and forced conversions of Hindu girls takes place every month in Sindh[1]. Pakistan Blasphemy Law has targeted religious minorities on a regular basis. In 2010, 7 Chrisitians were burnt alive in Gojra Punjab by a mob that accused the victims of blasphemy. The mob set fire of atleast 50 houses which injured 18 people and killed seven. Asia Bibi, a poor Christian woman from Punjab, was the first woman from Punjab to be charged with blasphemy and sentenced to death.

In India, you would never hear death sentence (i.e. by a judicially thought procedure by courts of Pakistan) to a Muslim for blasphemy because there is none. True there have taken certain incidents of mob-violence on cow lynchings but it cannot be, by any stretch of imagination, be compared to the horrific condition of minorities in these ‘islamic’ countries. Imagine sentencing Amir Khan to death for making a movie like P.K. We cannot, right? That is the level of religious persecution of the religious minorities in these three Islamic countries.

ARTICLE 14 AND THE DOCTRINE OF REASONABLE CLASSIFICATION

Legally speaking, Article 14 of the Indian Constitution is allegedly violated by the amendment. A proper scrutiny of the judicial interpretation of same would require the study of the concept of reasonable classification. It essentially means that if there is a classification of subjects based on the ‘reason’ and if as a consequence, an ‘unequal’ law would be made for similarly situated persons, it is a valid law. On the same basis, reservations are provided to the weaker sections of society.

For making such a law:

 1. The classification should be based on an intelligible differentia i.e. it should be reasonable
 2. There should be a nexus between the classification and the object which the legislation is trying to achieve

The object is to protect religious minorities from religious persecution of the three neighbouring Islamic nations. The classification is simple i.e. a person who belong to the state religion i.e. Islam and a person who does not belong to the state religion. Why the object is only to protect religious minorities and not economic/climatic/political minorities? Well, that is entirely upon the legislature to decide what should be the object of any Bill unless it is not patently illegal.  And the object to protect religious minorities in  neighbouring islamic countries is not at all patently illegal. 

Further why is the scope limited to three countries? Is it arbitrary? Can we not make country specific laws? The entire practice of International relations and foreign policy works on exigencies of realism, leading to different policies for different nations. The selection of the countries which Indian Parliament has decided to give benefit of legislation is entirely upon the Parliament to decide. Courts cannot and should not intervene in foreign policy. It cannot be argued as why the state is ‘discriminating’ against other states because all states are free to give favourable treatment to countries they like. That is how international diplomacy works.  Further, the selection of these countries is not the classification to be scrutinised under Article 14 but the classification is between a person who belongs to the state religion and the person who is not, is.

Renowned Advocate Mr. Harish Salve righfully remarked that a law which address one evil could not be challenged on the basis that it does not address other evils.

In the present case, there is a manifest human rights violation of religious minorities by the ‘Islamic’ countries, which necessitates some relaxation to them by the Indian state for acquiring Indian citizenship. If argued well, the bill should stand the test of constitutionality in the Indian courts in my opinion.

MUSLIM MIGRANTS AND THE PANDORA BOX

In addition to this, if India allows Muslims the same relaxation, it may open a Pandora box of applications from the poor, under-privileged Muslims from the lesser developed countries of the world where the state religion is already islam. The object of the bill is not to provide for the economic migration of the less privileged( A lot of Bangladeshi Muslims infilterate into India in search of economic opportunities rather than religious persecution). India cannot become the refugee capital of the world (i.e. due to lack of resources) but being the only capable state in the world with a minority of non-Muslims and non-Christians, it has a moral responsibility to give some relaxation to the Hindus, Parisis and other communities who do not have a home state in the world and when there is such a vile operation going on against minorities in the select countries.

The bill has already ignited protests in North Eastern States; protestors fearing that it will change the demography of the areas. Giving the same relaxation for Muslims from the Muslim majority countries will enormously add to the burden.

Also, contrary to the popular perception, the Bills does not automatically make Hindus of Pakistan citizens of India but it relaxes the period of naturalization from 11 years to 5 years to become a citizen. The minorities still have to wait for five long years.

Further, this Bill does not bar Muslims outside the state to acquire citizenship but only does not give them the relaxation what is given to the select communities.

NO HOME STATE OF SELECT COMMUNITIES AND INDIA'S MORAL RESPONSIBILITY IN REFUGEE CRISIS

I do not fully appreciate the governance and working of the ruling party but I support its position for the aforesaid bill for which the Congress had neither political will nor moral strength (read ‘spine’) for it would offend their ‘minorities’. There is a huge refugee crisis in the world and in the light of the fact that Hindus, Parsis, Jains have no home state in the world, this bill will ensure that India will do its part.

Finally, though I understand the National Registry of Citizens is a manifestly arbitrary procedure which needs to be reviewed urgently, I do not believe that the Citizenship Amendment Bill could degrade the status of Indian Muslims. Any kind of law which would discriminate against Indian Muslims (who are citizens) would and should fall flat on the test of constitutionality in Indian courts.

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[1] https://www.hudson.org/research/9781-cleansing-pakistan-of-minorities