Will citizenshipbill withstand legalscrutiny?expertsweighin Opposition readies 2-way strategy to counter CAB in RS
Exclusion of a certain section violates Constitution: Experts
NEW DELHI: Does the Citizenship Amendment Bill (CAB) violate the spirit of the Constitution, a secular document that prohibits classification on the ground of religion?
That is likely to be at the core of the legal challenge the proposed legislation will almost definitely face, with many political parties already indicating that they will take the matter to court.
CAB amends the Citizenship Act, 1955 to allow Hindus, Sikhs, Buddhists, Jains, Parsis or Christians from Afghanistan, Bangladesh or Pakistan, who entered India before December 31, 2014, to apply for Indian citizenship. In the debate over the bill in the Lok Sabha on Monday, some opposition leaders expressed concerns that CAB violates Article 14 of the Constitution, which guarantees equality before law and says the State “shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.
Some legal practitioners in the field of Constitutional law disputed Home minister Amit Shah’s argument that the bill allowed “reasonable classification” — the Supreme Court says reasonable classification must bear a reasonable and just relation to the sought object which is to be achieved by the legislation.
Senior advocate Upamanyu Hazarika said CAB, as a stated act of legislative policy, was in breach of Article 14. “The government may justify it to say that Article 21 (right to life and liberty) is available to even those belonging to foreign lands but as a legislative policy it is an act of discrimination. Article 14 allows reasonable classification but not class legislation.”
CAB excludes a class of people, basically Muslims, said Supreme Court advocate Gopal Sankaranarayanan. “It is patently in violation of Article 14 of the Constitution as it discriminates on the ground of religion. It also violates the right to belong to India as a citizen with dignity protected by Article 21.”
Former Lok Sabha secretary general PDT Achary, too, was of the view that CAB is against the Constitution, which provides for citizenship not on the basis of any religious consideration. He said that it keeps out “one set of people in the name of religion”. “You are keeping Muslims out, but bring
ARTICLE 13 The State shall not make any law that takes away or abridges fundamental rights.
The bill violates the fundamental right to freedom of religion and equality before law.
The bill discriminates against Muslims and therefore denies them equality before law.
The bill singles out some communities for granting citizenship, and therefore violates Article 15.
The bill deprives Muslim immigrants of the right to life and liberty.
By excluding Muslims from the bill, it infringes on the right to freedom of religion.
The bill doesn’t infringe on any fundamental rights, so the question of Article 13 doesn’t arise
ARTICLE 14 The state shall not deny to any person equality before law or equal protection of laws within Indian territory. Article 14 does not come in the way of framing laws. In 1971, Indira Gandhi decided to give citizenship to those from Bangladesh. She did not extend the same to Pakistanis. ARTICLE 15 No person shall be discriminated on the basis of religion, race, caste, sex or place of birth.
ARTICLE 21 No person shall be deprived of his life or personal liberty except according to a procedure established by law.
The bill is not aimed at any community and doesn’t snatch anyone’s rights. The provision does not entitle a foreigner the right to reside settle in India. ARTICLE 24 All are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion ing in other religious groups. Citizenship law under the Constitution is secular,” said Achary.
However, advocate Sai Deepak Iyer said he finds “no infirmities” with CAB and added that it neither suffers from any unconstitutionality, nor violates Article 14.
The big legal debate is over reasonable classification. ”When you classify a certain group and favour them then you have to find a rationale basis for it, such as how that segment is different from the rest,” said Achary. “Here you are keeping the Muslims out, but how is the government justifying including the other religious groups? ?”
“In specifically referring to Muslim majority Nations such as Afghanistan, Pakistan and Bangladesh, the provision [introduced through CAB] makes it clear that all other type of refugees are permitted to take citizenship in India except the Mulsims. But there is no rationale basis to carve out such an exception,” echoed Sankaranarayanan.
Iyer said the government has been able to justify that the migrants, other than Muslims, were persecuted groups in the neighbourhood where they were religious minorities and “persecuted for their religious affiliation”. “This satisfies the requirement of intelligible criteria, assuming that Article 14 can indeed be applied to someone who seeks to enter India for the purposes of grant of refugee status or citizenship,” he argued.
Another legal argument is likely to be about whether CAB violates the basic structure of the Constitution.
Sankaranarayanan said the provision sough to be included in the Citizenship Act, 1955 is blatantly communal. “[The] basic structure doctrine is the fundamental test to weigh a constitutional amendment. This bill goes to the core of constitutional values of equality and secularism. To withdraw the fundamental civil rights of citizenship in a different manner to those belonging to one community alone is completely rebel against the constitutional ethos,” he said.
Achary, too, claimed that secularism is part of the Constitution’s basic structure – a doctrine propounded by the Supreme Court in 1973 in the Keshavanand Bharti case, which held while “Parliament has “wide” powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the Constitution.”
Clearly, one way or the other, the court will have the last word .
NEW DELHI: The Opposition will work on a two-pronged strategy in the Rajya Sabha against the proposed amendments to the Citizenship Act, which was passed in the Lok Sabha.
According to people familiar with the matter, it will try to stop the passage of the bill, but in the likely situation of their numbers falling short of a majority, it will press for its review by a Select Committee.
The Congress, the Dravida Munnetra Kazhagam (DMK), and the Left parties have prepared drafts of their individual motions, the people added.
The likely arguments put forward by the four opposition parties will contend that since the bill drastically changes the foundation of India’s citizenship laws, it must be referred to a select panel for further review. A Select Committee is a panel comprising members of a House where it is formed and deals with a specific subject.
While the Biju Janata Dal (BJD) supported the bill in the Lok Sabha, the Bahujan Samaj Party (BSP) and the Shiv Sena opposed the introduction of the bill in the Lok Sabha. The opposition parties have also managed to secure the support of Telangana Rashtra Samithi (TRS).
Though there are departmentrelated standing committees in place, the chances are thin that the government will agree to send it to the Standing Committee on Home Affairs, a Congress MP said. The committee is led by Congress leader Anand Sharma.
Earlier in this session of Parliament, the bill to regulate surrogacy was referred to a Select Committee after several members pointed out inadequacies in its provisions.
“We have prepared their motion for sending the bill to a select committee. The bill should not be passed hastily,” Communist Party of India (Marxist) leader Elamaram Kareem said.
While the Congress and the Left parties have strong objections on the grounds that the bill violates the fundamental tenets of the Constitution, the DMK will oppose the bill in the Rajya Sabha over the government’s silence on issue of Tamil refugees from Sri Lanka. On Monday, DMK leader Dayanidhi Maran said, “Amit Shah is the home minister for north India. He is not the home minister for the country because he is not bothered about Tamil Nadu. There are thousands of Sri Lankan Tamils living in refugee camps for almost 30 years. But they have not got Indian citizenship. What is the government going to do for them?”
Congress strategist in the Rajya Sabha, Jairam Ramesh, justified that the demand to send the bill to a select panel. “The bill is changing the basic structure of the Constitution,” he said.
He also posted a statement of eminent scientists and scholars on Twitter and tweeted, “While the blatantly & brazenly unconstitutional Citizenship Amendment Bill will be bulldozed by the Home Minister in Parliament, this statement by scientists & scholars gives hope that the flame of Gandhi’s India still flickers & will not be extinguished.”
The bill is aimed at ensuring protection for persecuted minorities from neighbours. If caste-based reservation doesn’t violate this clause, then neither will CAB
The bill isn’t infringing on anyone’s religion, or taking away their rights. It only seeks to give rights to persecuted minorities from other countries.