The Citizenship (Amendment) Act 2019
Background:
The Citizenship (Amendment) Act 2019 passed the Rajya Sabha – the upper house of the Indian Parliament – in December and has since amassed significant criticism domestically and internationally. Before 2019, India did not have a national policy on refugees. Resultantly, individuals in India without the requisite visa documentation or whose stay exceeded expiry of their visa documentation were classed illegal immigrants and were liable to detention or deportation. India was also not a signatory to the 1951 UN Refugee Convention, so it had undertaken no commitments to protecting the rights of refugees in the area. In 2014, the BJP’s manifesto declared that they would alter this position, hence serving the political impetus for the 2019 amendment to the Citizenship Act 1955.
Unfortunately, the amendment takes a narrow approach to mending India’s protection of the rights of refugees. Further, the government seems to be treading on thin ice with respect to upholding some of the country’s fundamental constitutional principles. After a brief summary of the Act, this article will provide an insight into the government’s position on the issue as well as an assessment on the Amendment’s legal validity.
What does the Act purport to do?
Section 2(1)(b) of The Citizenship (Amendment) Act 2019 in tandem with the Foreigners Amendment Order 2015 provides leave to remain in India to minority religious groups who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before 31 December 2014. The religious minorities must have boded from Afghanistan, Bangladesh, and Pakistan and must be Hindus, Sikhs, Buddhists, Jains, Parsis or Christians. Further, Section 6 amends the Third Schedule of the Citizenship Act 1955 by stipulating that the religious minorities being persecuted in the abovementioned countries must have access to naturalisation after 5 years of residence instead of 11 years.
Therefore, the Act purports to extend citizenship rights to religious minorities who have been forced to leave their country after facing or fearing religious persecution. Though this seems like a positive development, by making religion a criterion for India’s tolerance towards refugees, the amendment takes a precarious stance. It seems to pose a threat to the secularism that underpins Article 15 of the Indian Constitution, which prohibits the State from discriminating on grounds of religion, race, caste, sex, or place of birth.
Could the Act be constitutionally valid?
Many Indian politicians, including Harish Salve, former Solicitor General of India, have commented that Article 14, 15, and 21 only apply to Indian citizens. However, the validity of this statement is questionable. Firstly, how can a constitution that prohibits religious discrimination permit a law that makes religion a criterion for citizenship? The Office of the United Nations High Commissioner for Human Rights took a similar stance, criticising the act for having a “discriminatory effect on people’s access to nationality”. Further, the US House Committee on Foreign Affairs opined that “any religious tests for citizenship undermines the most basic democratic tenet”.
Secondly, though it is true Article 15 only applies to “citizens”, Articles 14 and 21 apply to all natural persons, including every person, citizen, or alien, and constitute the right to life (Article 21) and equality (Article 14). Article 19(1)(e) prohibits foreigners from using Article 21 to claim the right to reside and settle in India, however the right otherwise applies to them in full force. Therefore, these three provisions lay down the position that the Indian state cannot deny any person the right to life, including the right to livelihood, and the right to be treated as equal before the law.
These constitutional principles, though vaguely articulated, are indicative of the country’s constitutional sentiment towards equality and the right to life, which, in Sunil Batra v Delhi Administration, was interpreted by the Supreme Court to mean more than mere animal existence and included the right to live in peace. A similarly broad definition has been attributed to the right to life by the Supreme Court in Olga Tellis v Bombay Municipal Corporation where it was asserted “what makes life liveable, must be deemed to be an integral part of the right to life”. The idea that an Act of Parliament can obstruct certain religious groups from accessing refuge within India seems to contradict the obligations that the Indian Constitution seems to place on the state. The lives of the refugees facing religious persecution are filled with disruption and struggle. There is no peace there. An Act of Parliament that denies individuals the right to live in peace and permits their entry and leave to remain in India on the basis of their religion, is one that seems out of place with a constitution that places obligations on Indian government to respect, protect and fulfill the rights of persons to whom the country’s laws apply.
Many desperately await a ruling by the Supreme Court of India on the constitutionality of the Citizenship (Amendment) Act 2019. The verdict will hopefully repair a suspected violation of the Constitution in regards to important civil, political and social rights of refugees, which are currently being undermined. In addition, it will help in repairing a long-standing political drift between Hindus and Muslims in India and mend the path towards a more sustainable and harmonious future.
