Challenge the NDA’s citizenship bill

The last few days have seen protests break out in the Northeastern states, in response to the Lok Sabha’s decision to pass the Citizenship Amendment Bill of 2016. While the protests are centred on the fear that the bill will enable a dilution of local and indigenous identity by accelerating demographic changes, there are other, constitutional reasons to oppose it, and urge the Rajya Sabha to reject it.

The Citizenship Amendment Bill provides that “persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan”, shall not be considered illegal migrants. It also provides an accelerated path to citizenship, lowering the residence requirement from 11 years to six years.

The government has publicly defended the bill by arguing that it provides a sanctuary for religious minorities facing persecution in their homelands. While that is a laudable goal, the text of the bill adopts an unconstitutional method to achieve it: it singles out religion as the basis for distinguishing between people who are treated as illegal migrants, and those who are not. This goes against our constitutional ethos: during the time of the framing of the Constitution, there was a strong debate about which concept of citizenship the new Indian State would commit to: citizenship based on a physical connection with the territory of the State, or citizenship based on ethnicity or other communal markers.

After deliberation, the constitutional framers adopted the first approach, noting that this was the direction that all progressive nations were taking — and that ethnicity-based citizenship was a relic of the past, and a recipe for communal division. While there have been departures from this principle during the last 70 years, the Citizenship Bill represents the first instance of a communal basis explicitly being coded into the law. Under the bill, the question of whether an individual from Afghanistan, Bangladesh or Pakistan is an illegal migrant or not, will be determined by virtue of her religion — i.e., whether she is a Muslim or not.

Even if we were to take the government’s claims at face value — that the purpose of the bill is to offer sanctuary to religious minorities — it fails on its own terms. In recent times, the religious minority that has been subjected to the most vivid and stark persecution — bordering on genocide — has been the Rohingya Muslim community of Myanmar. In the Supreme Court, however, the government explicitly disclaimed responsibility for Rohingya Muslims who were present in India, and — after sanction from the court — deported some of them. While, as a matter of law, the State has the power to police its borders as it sees fit (subject to principles of international law), what it cannot do is discriminate in how it carries out that policing, and, in particular, whom it treats as an illegal migrant, and whom it doesn’t.

Perhaps recognising the illogicality of this position, the Citizenship Amendment Bill makes no mention of protecting religious minorities from persecution; rather, the Statement of Objects and Reasons stipulates that “many persons of Indian origin including persons belonging to the aforesaid minority communities from the aforesaid countries have been applying for citizenship ... but are unable to produce proof of their Indian origin ... this denies them many opportunities and advantages that may accrue only to the citizens of India, even though they are likely to stay in India permanently”.

This, however, is even more insidious, because it explicitly suggests that the bill is concerned only with the travails of the non-Muslim persons “of Indian origin” who may want to settle in India permanently. There is no warrant for making a distinction between “persons of Indian origin ... likely to stay in India permanently”, on religious lines. Rather, it reveals even more starkly the communal slant of the bill, and why it is imperative that it is challenged, both in the Rajya Sabha, and — if it passes — in the Supreme Court.

Gautam Bhatia is an advocate in the Supreme Court

The views expressed are personal