[Breaking] Citizenship Amendment Bill, 2019 explicitly discriminates against Muslims: IUML, 4 MPs move challenge in Supreme Court
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[Breaking] Citizenship Amendment Bill, 2019 explicitly discriminates against Muslims: IUML, 4 MPs move challenge in Supreme Court

Meera Emmanuel

The first challenge to the recently passed Citizenship Amendment Bill, 2019 has been mounted in the Supreme Court  by the Indian Union of Muslim League, along with four other Members of Parliament, i.e. PK Kunhalikutty (Lok Sabha MP representing Kerala), ET Mohammed Basheer (Lok Sabha MP representing Kerala), Abdul Wahab (Rajya Sabha MP from Kerala) and K Navas Kani (Lok Sabha MP from Tamil Nadu).

The Bill has been challenged as unconstitutional on grounds that it violates the Right to Equality under Article 14 of the Constitution. The petition highlights,

“… benefits of naturalization to the illegal migrants is being extended to certain a class of illegal migrant belonging to the religion of Hindus, Sikhs, Buddhists, Jains, Parsis and Christians coming from Afghanistan, Bangladesh and Pakistan. Such classification on the basis of religious identity of the individual clearly violates Article 14 and 21 of the Constitution. Moreover, the classification based on the religious identity of the individual offends the fundamental principle of ‘Secularism’, which is enshrined as basic structure of the Constitution…”

Moreover, it is contended that such an unreasonable classification, on the basis of the intrinsic and core identity of the individual i.e religious identity, entails explicit discrimination against Muslims.

“…CA, Act 2019 explicitly discriminates against the Muslims. The Act extends the benefit to individuals belonging Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, but excludes the same benefit to the individuals belonging to the Islam religion. Since, CA, Act 2019 discriminates on the basis of core and intrinsic trait of the individual i.e religion of the individual, it cannot form a reasonable classification based on intelligible differentia.

No explanation for exclusion of Muslim minorities 

The petitioners go on to elaborate that the 2019 Citizenship Amendment entails an impermissible classification of migrants which has no relation to the yardstick used for classification, against the scheme of Article 14. Inter alia, the petition raises the following arguments.

  • Unreasonable classification of persecuted religious minorities: The class of migrants sought to be covered by the 2019 Amendment are “religiously persecuted minorities”  from Afghanistan, Pakistan and Bangladesh. However, Muslim minorities such as Ahmaddiyya and Shia Sect, the Hazaras, Rohingya Muslims who have also faced discrimination and persecution have been excluded without explanation.
  • Unreasonable classification of countries from where the migrants originate: The petition questions why persecuted minorities from countries such as Sri Lanka, Nepal, Bhutan, Myanmar and China have been excluded from the ambit of the Bill. Non-Muslim migrants from Afghanistan, Pakistan and Bangladesh have been included citing shared boundary, historic trans-border movement and there being a state religion in these countries. In this backdrop, the petitioners highlight that that SriLanka, Bhutan and Nepal have State religions. Further, it is pointed out that Afghanistan was never a part of undivided India, making the reasons for their inclusion unclear. Objection has also been raised to the exclusion of Tamil linguistic minorities from SriLanka.

In this backdrop, the petitioners have also argued that illegal migrants are class by itself and therefore any law which is applicable to them should be irrespective of any religion, caste or nationality basis.

Mala Fide Intent behind the Amendment 

The petitioners go on to argue that the controversial amendment has been introduced with mala fide intent, in response to the backlash followed after it was discovered that more Hindus than Muslims had been excluded from the National Register of Citizens (NRC).

“… the majority of these people who were declared as Illegal Migrants under the NRC were Hindus and not Muslims, contrary to the expectations and claims of the BJP. This had created a political backlash for the BJP in the Northeast States and the Ruling Party thereafter claimed to conduct another exercise to be carried out for NRC. 

So therefore, to save these Hindus, which are approximately 14-15 lakhs, who have been found as Illegal Migrants under the NRC exercise, the present Amendment has been brought about. So that all these illegal Migrants who are Hindus, which come up to about 14-15 lakhs will be given citizenship under the new law. Whereas only those Illegal Migrants who are Muslims will either be deported or kept in Detention Centres/ Concentration Camps.”

The petitioners further raise apprehensions that when the proposed pan-India NRC exercise is carried out, the Citizenship Amendment Act will cause widespread discrimination against Muslims. As contended in the petition,

The Direct and Inevitable consequence of CA, Act 2019 shall be that the Pan-India NRC and proceeding before Foreigner Tribunal would be exclusively reserved to the Muslims and [it] thereby violates Article 14 of the Indian Constitution.”

The petition, thus, prays that the Court declare the Citizenship Act Amendment of 2019 as unconstitutional. The petitioners have also sought for a stay on the effect of the Act, until the petition is decided. The petition has been filed by Advocate Pallavi Pratap and drawn by Advocate Haris Beeran.

Two days after the Citizenship Amendment Bill 2019 received assent in the Lok Sabha, the Rajya Sabha has also signed off on the proposed legislation yesterday. The Bill seeks to add a proviso to the definition of “illegal migrant” under Section 2 of the Citizenship Act. The proposed proviso states thus:

“Provided that persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who have 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 order made thereunder, shall not be treated as illegal migrants for the purposes of that Act.”

In effect, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan will not be treated as illegal migrants under the Act. Another change is that the Bill seeks to reduce the number of years required for citizenship by naturalisation for the above mentioned communities. The current requisite period of residence in India for eleven years will be cut down to five years.

[Read the Petition]

Citizenship-Bill-Challenge-Petition.pdf
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