Prime Minister Narendra Modi has accused Congress of engineering riots over the Citizenship (Amendment) Act, 2019. His government aims to legitimize the citizenship status of minority Hindus resident in Afghanistan, Bangladesh and Pakistan who seek asylum in India through this legislative move. Till now, these Hindu refugees who entered the country lived here on long-term visas because there was no legislative provision to grant them citizenship.
Till now, successive governments have failed to provide a coherent policy and comprehensive legislation towards refugees, despite the presence of Tibetan, Bengali, Sri Lankan and Rohingya refugees in the country since independence. The government, to its credit, now attempts to correct this lacuna and enacted the law to this effect. However, the government fails to do so keeping in mind the letter and spirit of the Constitution, which respects all religions and favours none.
Also, Article 11 of the Constitution empowers Parliament to regulate the right to citizenship within the constitutional framework but does not confer the power to tamper with any of the provisions or its foundational ideas. Secularism is one such foundational idea. The Christians and Muslims who inhabit the country have also shed their blood in post-independence wars for India. As a result, religious pluralism is a strength of Indian society and defines it.
Can the government override the principle of secularism, which is a basic feature of the Constitution? It cannot do so as the executive and the legislature are creatures of the Constitution. The fact that the government has distinguished between Muslim and non-Muslim refugees itself goes against the constitutional principle of equality of all religions before the law.
This legislation is full of serious defects from a constitutional perspective, like arbitrariness in selection of date for entry of Hindus, Sikhs, Buddhists, Jains, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan into the country. The legislation can be challenged on grounds of unreasonable classification, violation of human rights and that it goes against the spirit of secularism. The distinction between refugees on the basis of religion affects their dignity and rights promised in the Constitution. While Article 14 permits reasonable classification of refugees as a group, it prohibits creation of sub-groups within them on religious grounds.
In 2002, the apex court said that secularism in Sanskrit translates into Sarva Dharma Samabhava or, that all religions are equal in the eyes of law in Aruna Roy vs Union of India.
In 1996, the National Human Rights Commission filed a petition under Article 32, for enforcement of the right to life of 65,000 Chakma tribals. The Supreme Court held that the State is bound to protect the life and liberty of every human being regardless of citizenship status. The apex court directed the state of Andhra Pradesh to take all possible measures for their liberty and safety to guard against any kind of forcible eviction.
In 1978, the Supreme Court, in Francis Coreli vs UT of Delhi, held the right to live with human dignity as a fundamental right under Article 21, and it includes all necessities of life, such as adequate nutrition, clothing and shelter, etc. This is applicable to all persons resident within Indian territory regardless of citizenship status.
The Modi government’s legislative move essentially distinguishes between Muslim and non-Muslim refugees, which creates fear psychosis among the former. The Muslim refugees refers to migrants from Bangladesh who have over several decades entered the country through the 4,000-km India-Bangladesh border. This porous border is difficult to police and has seen an increasing number of illegal Bangladeshi immigrants come into the border states, which the central government plans to regulate through this legislative move.
To determine citizenship of refugees from the Muslim majority neighbouring countries who entered India on or before December 31, 2014, is patently arbitrary. The logic underlying this date is unknown in a democracy and hence violates Article 14 of the Constitution. The Supreme Court held in the International Airports Authority case (1979) that an action of the government is unconstitutional and violates the right to equality if it is unreasonable and arbitrary.
The Citizenship (Amendment) Act, 2019, contradicts the Constitution, which is based on the principle of secularism. The Preamble to the Constitution illustrates the solemn resolve of the people to establish, among other things, a secular democracy. Scholars of constitutional law conversant with the idea of the secular nature of the Indian State say that it implies neutrality of the State towards one’s religion. The Supreme Court has declared secularism as a basic feature of the Constitution. The CAA 2019 offers Hindu and other non-Muslim refugees from neighbouring Muslim-majority countries citizenship on religious grounds, which amounts to mixing religion and State.
(The writer is Associate Professor, School of Law, Christ Deemed to be University, Bengaluru)