Citizenship Amendment Act: A Free Pass to a select few?

By Pallav Gupta and Shivaang Maheshwari

The contentious Citizenship Amendment Act, 2019 received the assent of the President of India and was made law earlier this month, sparking protests across the country. The Amendment Bill was introduced in Parliament by Home Minister Amit Shah on the premise that the specified religious minorities in the countries of Pakistan, Bangladesh and Afghanistan have faced religious persecution, forcing people to flee those countries and take refuge in India.

However, the words "religious persecution" or "persecution" does not find mention in the bare text of the amended Act. It merely provides that “...any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014…”, and satisfies the conditions as specified in the Act, would be eligible to get Indian citizenship.

The Amendment Act nowhere makes religious persecution a condition precedent for qualifying to get Indian citizenship by naturalisation within five years.

The manner in which the Amendment has been worded leads to a gray area in the law and may end up empowering the Executive to go beyond the stated purpose of the Act. It may become a tool of giving fast-track citizenship to any non-Muslim person who entered India before December 31, 2014 irrespective of whether the person sought refuge on account of facing religious persecution in his home country or not.

When the Bill was introduced in Parliament, an amendment was moved to include the words "religious persecution" as a condition precedent for seeking citizenship in the bare text of the Act itself. However, the government opposed the proposed amendment on the ground that the said words were already mentioned in the Statement of Objects and Reasons of the Bill, and that there was no need of including them in the Bill again. The proposed amendment was thus rejected.

Statement of Objects and Reasons as a tool of Interpretation of Statue

It is pertinent to note that the Statement of Object and Reasons appended to the Act, as introduced in the Parliament, makes only a passing reference to the religious persecution faced by the minorities It states as follows:

“…Millions of citizens of undivided India belonging to various faiths were staying in the said areas of Pakistan and Bangladesh when India was partitioned in 1947. The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries….Many such persons have fled to India to seek shelter…”

It can be argued that by not including the words "religious persecution" in the Act, the Executive has kept with itself very wide powers, authorising it to give citizenship to any non-Muslim person who entered India before the cut-off date. The government tried to justify the non-exclusion of the words ‘persecution’ in the Act itself by saying that the reasons of the amendment can be drawn from the Statement of Objects and Reasons.

However, it is a settled principle that the Statement of Objects and Reasons annexed to any Bill seeks only to explain what reasons induced the mover to introduce the Bill in the House and what objects were sought to be achieved through the Bill. It is only logical to say that those objects and reasons may or may not correspond to the objective which the majority of the members had in view when they passed it into law. The Statement of Objects and Reasons do not form part of the Bill and are not voted on by the members. It cannot be used as a substantive aid to interpretation or construction of a statute.

In Ashwini Kumar Ghose v. Arabinda Ghose, the Supreme Court expounded that though the Statement of Objects and Reasons are a useful guide in the construction of a statute, the interpretation and the legislative intent of the statute have to be derived from the entirety of the statute. Further, in Gurudevdatta Vksss Maryadit v. State of Maharashtra, the Apex the Court held that the statement of objects and reasons appended to the Bill should be ruled out as an aid to the construction of a statute.

The Supreme Court, in Devadoss (Dead) By Lrs. v. Veera Makali Amman Koli Athalur has held that the Statement of Objects and Reasons cannot be used to ascertain the true meaning and effect of a substantive provision of the statute. Further, in Tata Engineering and Locomotive Co. Ltd. v. State of Maharashtra, the Bombay High Court has explicitly stated that the Statement of Objects and Reasons cannot be read for interpreting the unambiguous words of a section.

However, as held in Babur Ram v. State of UP, the Statement of Objects and Reasons can always be referred to ascertain mischief sought to be remedied by the statute. Social, legal, economic and political conditions can always be analyzed by using the Statement of Objects and Reasons of an Act, as was done by the Supreme Court in State of West Bengal v. Subodh Gopal Bose.

Conclusion

The Citizenship Amendment Act, 2019 nowhere mentions religious persecution as a prerequisite for seeking Indian Citizenship. Therefore, the Amendment Act either outrightly assumes that all non-Muslim immigrants from Pakistan, Afghanistan and Bangladesh have faced religious persecution, or is an attempt to give the Executive wide discretion to grant citizenship to any non-Muslim person, and religious persecution has no role to play in exercise of this discretion.

Since the Statement of Objects and Reasons of a statute is not binding, the government cannot justify its action by referring to a provision not mentioned in the Act. Therefore, the Legislature must have mentioned “religious persecution” in the Act itself so as to keep a check on the power of the Executive to give citizenship to any non-Muslim person.

If the Act is upheld to be constitutionally valid, the Supreme Court must read into it the Statement of Objects and Reasons so as to ensure that the Act does not become a contrivance to give citizenship to any person irrespective of whether refuge was sought due to religious persecution or not.

The Supreme Court, as held in State of West Bengal v. Kesoram Industries, can refer to the Statement of Objects and Reasons to find out the true intent of the Act and hence it would be well within the authority of the Court to either frame guidelines for determining whether a person has been religiously persecuted or direct the Executive or the Legislature to do so. This would go a long way in keeping a check on any extraneous or arbitrary considerations that might come in during the implementation of the Act.

The authors are students of Gujarat National Law University (GNLU), Gandhinagar.