Here's why Supreme Court is not likely to quash Citizenship Amendment Act

With the passing of the Citizenship (Amendment) Act (CAB), 2019 from both houses of Parliament and with the assent of the President yesterday, the much-politicised bill has now become a law. The marathon debates in the Lok Sabha and Rajya Sabha, had seen some passionate flow of emotions both in favour and against the bill.

Before opening up the case for further analysis, it’s important to understand who is a refugee and an illegal migrant?

The United Nations High Commission for Refugees (UNHCR) defines a refugee as someone, “Who has been forced to flee his or her country because of persecution, war or violence. A refugee has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group.” Such a refugee has a right to seek asylum in another country in order to get lawful recognition, shelter, legal protection and material assistance.

The main framework document to deal with international refugees is the 1951 UN Refugee Convention and its 1967 protocol, ratified by 145 countries, of which India is not a signatory. However, India respects the mandates of these protocols and grants asylums to a large number of neighbouring and non-neighbouring refugees as per ‘non-refoulment’ principle of the UNHCR, meaning, India doesn’t force the refugees or asylum seekers to go back to their respective countries from where they have emigrated and where they’re liable to face persecution again.

India has been a centre of a consistent flow of migration of mixed nature that has often created complexities of various natures. At the one side, there are various minority groups coming from the neighbouring Muslim countries after escaping religious persecution while at the other side are ‘economic migrants’ who infiltrate into India simply in search of better life opportunities.

While the first groups of refugees are the ones who come to India to save their lives and honour, the second groups of migrants are nothing but opportunist infiltrators who emigrate from their countries of nationalities looking for better opportunities that, at times, also jeopardises the security interests of the host nation. The first group consists mainly of those religious communities who consider India as their natural home.

The growing security concerns have forced India to shrink its asylum space and adopt mixed policies to deal with different refugee groups, than to have one universal policy paradigm as per the UNHCR framework. In accordance with this, the central government decided to bring the Citizenship Amendment Bill (CAB) - first in 2016 and again in 2019 – aimed to grant citizenship to the six specific communities, Hindu, Sikh, Buddhist, Jains, Parsis and Christian migrating in India from three countries - Pakistan, Bangladesh and Afghanistan.

These group of migrants settled mainly in the North-east and in other different parts of the country, as per clause (c) of sub-section (2) of section 3 of the passport (Entry into India) Act, 1920 and also of the provisions of the Foreigners Act 1946, were declared ‘illegal migrants. As per the provisions of the two Acts, anyone who: (i) enters the country without valid travel documents, like a passport and visa, or (ii) enters with valid documents, but stays beyond the permitted time period, is a foreigner and an illegal migrant. 

In normal conditions, such illegal migrants are liable to be imprisoned or deported. However, the Central Government, through two separate notifications in 2015 and 2016, had exempted these six specific religious migrants from provisions of the 1946 and the 1920 Acts, thus, allowing them to continue in India on long-term visas even without valid documents. However, still they were not eligible to get Indian citizenship under the Citizenship Act, 1955. But, now, with the passing of the Citizenship (Amendment) Act, all such illegal migrants from the six religious groups will become eligible to get Indian citizenship.  

The opponents of the CAB can be broadly divided into two groups - the first having existential, while the other having ideological concerns.

Those with existential concerns are the residents of the North-East, who have a genuine concern of loss of their identity as well as of various opportunities for them in the new order. They, naturally, fear being overwhelmed by the new immigrants - mostly settled around Assam, Tripura and nearby areas - who will vie with them for the available resources and opportunities. The ones, with ideological concerns, are people and groups - including most of the political parties opposing it - who believe that the law would violate the basic principles of the constitution and would run against the idea of India.

While the concerns of the first group are genuine, requiring some deft political handling on the ground, the concerns of the ideological camp are more phantasmagorical and motivated than having any real substantive value.

With the bill becoming legislation, the same is all set to be challenged in the courts. Badruddin Ajmal, the chief of All India United Democratic Front (AIUDF), has already expressed his intention to move to the Supreme Court against the proposed Act. Similarly, the Congress Party is also studying options to challenge the Act in the Supreme Court, and so are many other small-big organizations across the country. However, despite all their zealous intentions, the Supreme Court is unlikely to quash the bill and reverse the position. Let’s examine how.

The opponents of the bill, the Congress, Trinamool Congress, CPI(M) and a few other political parties, have based their arguments on the basic premise that CAB is violative of Article 14 of the Constitution, asserting that India's constitution "insists on the fundamentals of equality, regardless of gender, caste, religion, class, community or language" - as elaborated by a group of 600 intellectuals from different fields. They believe that the bill, now the Act, violates one’s constitutional Right to Equality as it intends to differentiate among the refugees and that, it proposes to give citizenship on the basis of religion. 

Apparently, the argument looks sound and plausible, though in reality, it is hardly so. 

Despite all claims of the naysayers, who have been shouting from the rooftop that the new Act violates basic frameworks of the Indian constitution, the fact of the matter is that CAB is sound in constitutional legality, both in its letter and spirit.

Article 14 of the Indian constitution says that State shall ensure equality before the law for all citizens within the territory of India and each of them shall have equal protection of the law. The article means that no one is above the law of the land and thus, it goes to establishes the concept of 'Rule of the Law'.

However, one should not infer that under Article 14, all laws must be general in character; it never means that the same laws should invariably apply to all persons in all circumstances or that every law must have universal application

The concept of “Equal protection of the law”, enshrined in Article 14 of the Indian constitution, has been taken from the constitution of the United States from section 1 of the 14th amendment act, which elaborates the meaning of equal protection of the law. It says that 'Equal Protection of law' means that each person within the territory of the nation will get equal protection without discrimination of age, sex, caste, religious status, ethnicity, language or opinions. Equal law should be applied to all in the same situation and that, there should be no discrimination between one person and another in a similar circumstance, as equality can't be “cribbed, cabined or confined”. In plain words, equals should be treated equally.

However, the concept of equals presupposes the existence of 'unequals' where some may have distinct attributes from the rest, hence such people need to be 'classified' accordingly as distinct from the others.

The supreme court of India, over years of interpretation of Article 14, have evolved a doctrine of 'classification' where citizens demonstrating distinct attributes can be classified among the population on the basis of which the State can make different laws for such classified groups of people. However, the classification needs to be 'reasonable classification' where the test of reasonableness will be to see (a) whether the classification so made is 'intelligible', meaning whether it is based on an objective and transparent criteria, and (b) whether the law so applied on such classified group has a rational relation with the objectives sought to be achieved by the legislation or the executive action. If the above conditions are met, the courts are satisfied with the reasonableness of the classification, else the classification is treated as 'arbitrary', breaching the premises of Art 14 and resulting into 'negation of equality'.

In the historical case of Indra Sawhney (Indra Sawhney & Others Vs Union of India, 1992), the Supreme Court recognized the right to equality as one of the basic features of the Indian constitution. Article 14 applies to all persons and is not limited to citizens only. Hence, Article 14 is applicable also to the refugees and illegal migrants living within the territory of India, as recognized by the government.

However, the six religious groups, namely, Hindu, Sikhs, Buddhist, Jains, Parsis and Christians, have been classified by the Government of India in 2015 and 2016 as 'persecuted minorities' from the three neighbouring countries - Pakistan, Bangladesh and Afghanistan, and on the same classification, such groups were allowed to stay within India through exemptions underclause (c) of sub-section (2) of section 3 of the passport (Entry into India) Act, 1920 and also of the provisions of the Foreigners Act 1946. Hence, the Citizenship Amendment Act, 2019 will be treated as a logical extension of that classification, thus meeting the criteria of 'reasonableness' evolved under Article 14.

The opponents of the Act emphasise that the Act intends to award citizenship on the basis of religion, thus violating the provisions of Art 14. However, each country may devise its own methodology for the classification of refugees and for according reasonable treatment to them.

In the current Act, the basis of the classification of the 6 religious groups is not religion per se, but 'religious persecution' in the three countries as explained in the 'objects and reasons' of the original Bill - “Since the Constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific State religion, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on the grounds of religion.”

Thus, by the above statement, religion alone becomes a basis of persecution for the 6 minority communities in the said three countries, hence their classification and resultant naturalization in India on the basis of religion meets the essential test of 'reasonableness', as sought under Article 14 of the constitution. Therefore, exceptions for religious groups in the matter of granting citizenships can certainly be made without violating the provisions of Article 14, as the same meets the criteria of 'reasonable classification' evolved by the SC. A sound analogy can be inferred from the famous Indra Sawhney case (1992), where 'caste' was accepted as basis of social backwardness during the Mandal Commision hearing by the Supreme Court, and thus, despite the equality criteria under Article 14, exception was made in favour of castes in the matter of giving them reservation in government jobs and employments.

Going by the above, the Act giving citizenship to the refugees from the six religious groups wouldn't be an outlandish proposition, impinging on the secular credentials of India.

Further, as per the defined parameters, the Muslim settlers migrating in India from any of those three countries will always remain 'illegal migrants', as legally speaking they don't qualify to become a refugee by any global standards that define the term.

In 2011, the UNHCR itself expanded the definition of the term 'refugee' as mentioned in the 1951 UN Convention, by categorizing those as refugees, "Who are outside their country of nationality or habitual residence and unable to return there owing to serious and indiscriminate threats to life, physical integrity or freedom resulting from generalized violence or events seriously disturbing public order." Further, the minimum standards definition of refugee by the European Union also reproduces the same definition of refugee offered by the 1951 UN Convention.

Therefore, the Muslim migrants from Pakistan, Bangladesh and Afghanistan, sadly, don't qualify to be recognized as a “refugee” as they're not migrating into India as a result of any of the said conditions. Hence, they can't hope to be eligible for any international protection, much less for citizenship. The Supreme Court, going strictly by the legality and technicality of the entanglement, wouldn't miss these essential facts.

The central government has made a sound case for implementation of the Act by introduction of historical elements into the debate. The Home Minister Amit Shah mentioned the 'Nehru-Liaquat Pact' of 1950, signed after the partition of the subcontinent in 1947, and invoked the commitments given by the two Prime Ministers in the pact to protect the rights, interests and lives of the minorities in the respective countries.

As it's well known, the pact wasn't honoured in either of East or West Pakistan, leading to continued exodus of the six minorities from Pakistan, and later, Bangladesh. Hence, the Citizenship Amendment Act, 2019 positions itself as India's sincere response to the complex historical legacy borne on account of failures of its neighbours to protect the life and honour of their minorities. It also gives India the moral high ground to own up those minorities who once lived in the one undivided country prior to the partition.

Because of this very angle (Nehru-Liaquat Pact), the case of refugees from other countries, such as that of Tamil refugees from Sri Lanka, can't be clubbed in the present Act, as its specifically designed to set right a historical wrong, i.e. partition of India, that was done on religious lines.

Further, the Indian constitution recognises the religious minorities as one single religious group, without categorising them into sects, sub-sects and other denomination, and extends all benefits and protections to them accordingly. For this specific reason, the Ahmadiya community, as invoked by some people, won't qualify for getting any kind of international protection as refugees in India, as the constitution recognises all Muslims as one religious community, 'Umma'.

Hence, in view of the above, one can understand that the Citizenship (Amendment) Act, 2019 has, both on the substantive and procedural grounds, a water-tight case in its favour and that's why the Supreme Court, even if the matter is taken to its doorsteps, is unlikely to reverse the position.
 

(Views expressed above are the personal views of the author and do not reflect the views of ZMCL)