- Apprentice Lawyer
- Legal Jobs
Whereas questions of classification of religions included in the Citizenship (Amendment) Act, 2019 vis-a-vis their countries of origin are placed before the Supreme Court for determination and have been the subject matter of a plethora of opinions, the issues pertaining to the legal position of religious converts in the new scheme of the Act remains to be scrutinized.
Generally speaking, the questions of interpretation of laws relating to citizenship are subject to a literal interpretation of the text. It is primarily because the underlying essence of such laws lies in governmental policy and courts are left with little space to accommodate their legal creativity. However, this Act, as it stands today, seems to be deviating from this general standard of interpretation as far as the position of converts is concerned. Let us understand how.
Section 2(1)(b) of the amended Act states thus:
"Provided 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 who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act";
A bare perusal of the above provision makes it clear that the sole requirement for eligibility under the Act is that the persons must belong to the specified communities of their respective countries before entering India. The expression “person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan”, literally construed, refers to the original religious identity of the people before they entered India. The requirement of their belonging to the specified religions is followed by their countries of origin in the text. Therefore, the text of the amended legislation does not offer any guidance as regards the present religious identity of its subjects, that is, their identity when this Act comes into force. Some crucial issues arise here.
Where do religious converts fit into the new scheme?
In order to understand the scope of this query, it is prudent to bifurcate it into two different classes - first, persons who got converted after their entry into India but before the cutoff date and second, persons who will get converted after the grant of citizenship under the amended Act.
Conversion after grant of citizenship
As far as the persons falling in the latter classification are concerned, the Act offers guidance under Section 6B. Under this provision, the central government is empowered to subject the grant of citizenship to some "conditions" and thus, conditions to this effect could also be imposed by the government. However, such conditions, if they seek to prohibit any conversion post the grant of citizenship under the Act, would have to face Part III of the Constitution, and any such condition will have to satisfy the test of Article 25 separately. Article 25 secures freedom of religion, which includes the right to convert, to all "persons" as a fundamental right.
Though it is true that grant of citizenship to a non-citizen is a prerogative of the state, if such grant requires a surrender of the fundamental right of religion under Article 25, it assumes constitutional importance. It is more so because religion being a matter of individual conscience, any blanket curb on the same could also fall foul in the eyes of Article 21.
Conversion after entry into India and before the cutoff date under the Act
A legitimate legal issue arises as regards the persons falling under this classification. Let us understand the issue with an illustration:
If X followed Hindu faith in her original country and converted to Islam after entering, would she continue to be treated as 'persecuted' for being a part of the Hindu community in her original country, or be 'deemed' to be 'incapable of persecution' by some legal fiction as she stands as a Muslim in the eyes of this Amendment today, since the sole criteria of choosing these religions is the factum of persecution on religious lines?
The aforementioned question opens a Pandora's box. If the underlying criterion of choosing non-Muslim religions is the factum of persecution, then the Act should be neutral with respect to the existing religion of such illegal migrants, because the factum of persecution in their country of origin is not going to change with any subsequent deviation in their religious orientation.
Therefore, as a corollary to this, even Muslims who were Hindus or Parsis or Jains or Sikhs or Christians at the time of fleeing their original country, would qualify for citizenship under the amended Act. I argue this because it becomes a question of legal construction as the text and its silences fail to guide us. Thus, tools of interpretation come into play. Purposive interpretation, however, leads us to this conclusion as the stated purpose of the legislation is to provide shelter to those who "need" it and this "need" has been determined by virtue of persecution in their countries of origin.
But, what if a different interpretation is adopted?
As and when this question arises, if a different interpretation is adopted, that is, if citizenship is refused to minorities of the specified countries because of conversion subsequent to their entry into India, it would lead to two major anomalies:
Such interpretation would defeat the purpose of the law, as argued above, as it would leave out persecuted minorities out of its sweep because of a subsequent alteration in their religious orientation.
Such interpretation would be violative of the freedom of religion under Article 25, as argued thus.
Bearing on Article 25
The question of conversion and its bearing upon the rights of a person mandates an inevitable query into Article 25. The right to free conversion from one religion to another is a matter personal to individuals and its origin is not confined to the freedom of religion under Article 25 but is also squarely surrounded by the right to life under Article 21 of the Constitution. Therefore, any covert or overt restrictions on such right ought to be tested on the anvil of Part III.
If the state adopts a contrary interpretation on the question whether a migrant belonging to the Hindu community in her original country would still qualify as a beneficiary under the amended Act after conversion to Islam, it would amount to a direct surrender of a primary facet of freedom of religion, that is, the right to convert.
No law could effectuate into a trade-off between two rights. Such curb would be tantamount to a trade-off between the freedom of religion and grant of citizenship. It would not only fall foul of Article 25, but also Article 14 and 15 for being discriminatory on the sole ground of religion.
It is a settled principle of interpretation that the courts must adopt that interpretation which infuses meaning into a statute and protects it from becoming self-defeating and arbitrary. The principle of presumption of constitutionality also incorporates within its fold a construction that tilts towards the preservation of such constitutionality. Daniel Latifi v. Union of India offers guidance on the point.
Since Article 25 applies to "persons" and not just citizens, a deviation from the proposed purposive interpretation argued above would open a Pandora's box in the area of constitutional law.
The author is a Delhi-based lawyer currently working as a judicial clerk at the Supreme Court of India.