Why the Citizenship Amendment Bill Goes Against the Basic Tenets of the Constitution

In the present form, the Citizenship Amendment Bill 2016 is unworthy of becoming an Act because there should be no politics in the passing of legislations that bypass the democratic ideals of India. 

One of the recent bills to have joined the pool of regressive legislations is the Citizenship Amendment Bill, 2016. Introduced in the Lok Sabha by the Minister of Home Affairs, Rajnath Singh, its primary objective is to update the current Citizenship Act 1955 to provide for the acquisition and determination of Indian citizenship for a certain category of illegal immigrants. Additionally, this bill relaxes the citizenship criteria for such immigrants and merges the categories of Persons of Indian Origin (PIO) and Overseas Citizen of India (OCI) together.

However, there are several gaping holes, in this proposal. The illegal immigrants who are to be granted the benefit of this legislation are to qualify for citizenship only on the basis of religion; a requirement that goes against one of the basic tenets of the Indian Constitution, secularism. Moreover, the OCI and PIO categories have been merged haphazardly, leaving loopholes in the definition of their position as citizens of India. 

The 2016 Bill proposes three changes:

(i) Persons belonging to minority communities, that is, Hindus, Jains, Sikhs, Buddhists, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan shall not be treated as illegal immigrants.

(ii) The third schedule of the 1955 Act is proposed to be amended to decrease the residence requirement from 11 years to six years.

(iii) OCI card holders are susceptible to lose their status if they violate any laws of the country.

The Concept of Citizenship

Citizenship in India is currently covered under two legislations: Part II of the Constitution of India, 1950 and the Citizenship Act, 1955. However, neither of these legislations have defined citizenship clearly and only provide the prerequisites for a “natural” person to acquire Indian citizenship.

Citizenship traverses the unclear boundaries of domicile and nationality, and thus, poses a problem of definition: Are citizenship and nationality the same concept? Or are the ideas of citizenship and domicile similar? Many jurists and sociologists feel that nationality and citizenship convey the same meaning; yet others feel that citizenship pertains to a domestic concept, while nationality is an international model.

Nationality determines the civil rights of a person, natural or artificial, particularly in reference to international law, whereas citizenship is intimately connected with civic rights under municipal law. Hence, all citizens are nationals of a particular state, but all nationals may not be citizens of the state (Weiss 2006).

Citizenship is a complex term, enshrined within which are the ideas of nationality, assumed as ethnicity; and domicile is understood as permanent residence. In India, however, the courts are inclined towards pegging citizenship as an extended arm of domiciliation. The Supreme Court of India, in Star Trading Corporation v Commercial Tax Officer (1963), has stated, in no uncertain terms, that nationality and citizenship are not interchangeable terms.

Domicile is, essentially, the legal relationship between an individual and a territory with a distinctive legal system which invokes that system as their personal law (Halsbury 1974). There are three ways of acquiring domicile in India: by birth, by choice and by operation of law.

Domicile is a tricky term in India, that is, the statute has two connotations: as permanent residence for the state to make laws, and as conforming to the law of the land. Nevertheless, the position regarding the idea of domicile, as is accepted, was made clear by the Supreme Court in Pradeep Jain v Union of India (1984) where the court observed:

“It is clear on a reading of the Constitution that it recognizes only one domicile, namely, domicile in India. Article 5 of the Constitution is clear and explicit on this point and it refers only to one domicile, that is, domicile in the territory of India. India has one single unified legal system and only one citizenship, namely, the citizenship of India.”

The objective of the Citizenship Act, 1955 is to provide for acquisition and determination of Indian citizenship. It contains definitions of illegal immigrants and prescribes the four main methods of acquiring citizenship, that is, by birth, by descent, by registration and by naturalisation. Additionally, to accommodate the growing overseas Indian population, at the turn of the millennium, Parliament introduced the concepts of PIO and OCI and granted them certain limited citizenship rights through an amendment made in 2005.

Drawbacks of the Bill

Unreasonable classification: The relaxation criteria for eligibility of illegal migrants to gain citizenship is unreasonable. With no explanation given as to the inclusion of this clause, it is prima facie unconstitutional, failing the test of reasonability contained in Article 14 (Right to Equality) of the Constitution and corrupting the “basic structure doctrine” (Kesavananda Bharati v State of Kerala 1973).

The most glaring discrepancy in the bill is that it categorically states that religious minorities from Afghanistan, Pakistan and Bangladesh will no longer be treated as illegal immigrants. It specifically names six religions, that is, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians. Muslims and Jews have been deliberately kept out of the ambit of this bill. Even though some of these religions are also religious minorities in India, it is notable that four of these six religions fall under the ambit of Hindu personal law.

This kind of religious outlook is antithetical to the concept of secularism espoused in the Constitution. Moreover, the provision of relaxing of the criteria of 11 years to six years to gain citizenship by naturalisation, for the persons belonging to these religious communities, is on similarly orthodox lines. Such a condition makes it tough for persons of other religions, most notably, Islam and Judaism, to enter the fold of Indian citizenship, making it seem like a targeted ousting practice of these religions.

As of today, the largest religious minority in India is that of Muslims[1]; it makes little sense to deliberately keep them out of the ambit of this bill. Individuals like Taslima Nasrin, for example, who has been living in exile in India since 2005 have been ousted from the ambit of this Bill. Nasrin asserts that she is an Indian, but the Bill could make it nearly impossible for her to gain Indian citizenship on the basis of her religion.

In order to test the validity of any proposed legislation, it has to be interpreted harmoniously. This means that no law can be read in isolation and can be subject to various tests in order to justify its purpose. Although the provisions of the bill may not prima facie be unconstitutional, it can be deemed so if on reading it alongside other statutes, it becomes redundant, illegal, inoperable or immoral.

This bill fails the test of reasonable classification as set out in Article 14 of the Constitution. The twofold test relies on two principles, that is, reasonable classification and nexus between the object sought to be achieved and the legislation (State of Madras v V G Row 1952). If we test this bill on reasonable classification, it fails, as the classification sought is to differentiate between persons who will be granted relaxation in the domiciliary requirement and those who will not. Since, at present, it excludes illegal immigrants only on religious grounds, with no reasonable explanation. The next test is on object sought to be achieved. Putting a qualification based on religion has no rational nexus to achieve that object; unless the object is to project India as a Hindu state.

The theory of “basic structure” states that the Constitution contains certain characteristics that cannot be taken away by any legislation; for example, judicial review, free and fair elections, welfare state. These form the cornerstone of the governance of a country. Therefore, any legislation that fails the test of “basic structure” is unconstitutional. Secularism is a basic structure, as has been reiterated by the Supreme Court in S R Bommai v Union of India (1994). It has also been incorporated in the Preamble to the Constitution, which serves as the guiding light to interpreting the Constitution.

As understood in the Indian context, secularism means “sarvra dharma sambhava.” This means that all religions are equal in the eyes of law and that the State shall not propagate or endorse one particular religion. This philosophy is also enshrined in the Preamble and in Articles 26 to 29 of the Constitution.

Citizenship not defined: This bill has come at a time when the entire world is plagued by ideas of nationality and ethnicity. Parliament could have introduced a bill that could remove doubts and bring clarity on the abstractions of citizenship, nationality and domiciliation. Unfortunately, the bill makes no attempt to define any of these terms, leaving scope for ambiguity in interpretation. One of the main functions of the legislature is to codify laws to remove ambiguity. However, this bill misses on an opportunity to do so.

Passed as an ordinance: The power to promulgate ordinances has been given to the President under Art 123. It has two conditions, that is, when either house of Parliament is not in session or such circumstances exist that require immediate action. In my opinion, the substantive part of the article is “immediate action required,” and the “parliament not in session” is a procedural portion. The primary function of the legislature is to make laws. An ordinance is also a law as contemplated under Article 13. This power, as given under Article 123 is an extraordinary power of lawmaking given to the President in his executive capacity.

Considering that this bill was not of pressing concern, there was no need to pass it by way of ordinance. Moreover, it is mandatory for an ordinance that hass been passed to be discussed in the legislature on its resumption. This manner of issuing ordinances seems like a way to bypass the usual procedure ofthe  tabling and discussing of a bill. This process, although not illegal, is unethical and amounts to skipping the line; which may be permissible in certain urgent matters, but definitely not in such ordinary ones.

Appeasement politics: Perhaps, the ordinance was passed in order to keep up a promise that Prime Minister Narendra Modi made during his visit to the United States (US) in November 2014, that the OCI and PIO cards will be merged into a single entity by 7 January 2015. Such prompt action is seldom seen by any government. Take, for example, the Women’s Reservation Bill, which has been making rounds of Parliament for the last 22 years and has still not seen light of day.

OCIs are entitled to a multipurpose, multiple entry, and lifelong visa, allowing them to visit India at any time, for any length of time, and for any purpose. They are exempted from police reporting for any length of stay in the country. They have been granted all rights in the economic, financial and education fields on par with Non-Residental Indians except for the right to acquisition of agricultural or plantation properties. OCIs are persons who are given a lifetime visa status. This is the closest thing that India offers to a dual citizenship.

A PIO means a foreign citizen (except a national of Pakistan, Afghanistan Bangladesh, China, Iran, Bhutan, Sri Lanka and Nepal) who at any time held an Indian passport; or whose  parents/ grandparents/ great grandparents was born and permanently resided in India as defined in Government of India Act, 1935 and other territories that became part of India thereafter, provided neither was at any time a citizen of any of the aforesaid countries; or who is a spouse of a citizen of India or a PIO. A PIO card used to be a 15-year-long visa for non-citizens.

Table 1 brings out the differences between the two types of cards.

Table 1 | Source: Ministry of External Affairs

 

PIO CARD

OCI CARD

Fees

$388

$275

Validity of Visa

15 years from date of issue

For life

Registration at FRRO/FRO (Foreign Registration Offices)

After 180 days, within next 30 days

Not Required

Obtaining of Indian Citizenship

After regularly staying in India for a minimum of seven years

After five years of issue of OCI, one can apply after residing in India for a minimum of one year

Visit to restricted area

Prior permission required

Permission not required

As on 9 January 2015, through a government notification, this status has changed and all PIO card holders are deemed to be OCI card holders. This move may be favourable, definitely in terms of economy. However, this seems like the appeasement of the Pravasi Bharatiyas, that is, Indians living in foreign countries, which reeks of votebank politics. It is one thing to keep up poll promises, which is in no way a bad practice, and it is yet another to bypass graver issues of national importance, and trivialise matters like citizenship in a rushed manner to appeal to a certain section of voters.

Cancellation of OCI status: The Citizenship Act, 1955 states that the central government may by order cancel the registration granted to the OCI, if such a person has show disaffection towards the Constitution. Raised as an argument in the Lok Sabha, time and again, this is a clause that gives wide powers to the centre, since there are no guidelines as to what counts as “disaffection” towards the Constitution, leaving scope for misuse.

In the proposed amendment of 2016, an additional, poorly worded qualification has been included, which threatens to take away OCI status at the slightest probability of misconduct.

The bill reads thus:

“If the OCI cardholder has violated any of the provisions of this Act or provisions of any other law for the time being in force. The words, “any other law” give this provision a sweeping ambit. Something as trivial as a traffic violation could make OCIs liable to losing their status.”

Proposed Suggestions

The Citizenship Bill, 2016 was introduced in the Lok Sabha following an ordinance that was passed in 2015. If passed, it would amend the already existing Citizenship Act of 1955.

The following suggestions may be incorporated in order to create a bill that delivers what it promises:

Define citizenship: What it is, and what it is not conforming to as regards international principles of law and politics.

Checks and balances: Curtail the wide powers given to the central government to rescind the OCI card status or at least put checks and balances in place by appointing a committee or an ombudsman.

Remove religion as basis: Remove the concession of six to 12 years of residence to immigrants based only the religion of the migrants, as it is inimical to the idea of secularism.

Refugees: Look into the status of refugees and under what conditions they can obtain citizenship of India, bearing in mind the international migrant crisis. Draw a clear demarcation between a refugee and an immigrant.

The amendment to the 1955 act, made in 2005, denies the registration of a person as an OCI if they have been a citizen of Pakistan or Bangladesh. In this day and age, where global peace is being impressed upon, it is important to create a sense of harmony and togetherness. Creating such targeted legislation will be detrimental to such objective. Since the central government holds the final decision on whether the status can be granted in such cases, it is unnecessary to keep this exclusion.

Legislature is an inclusive body, and is representative of the will of the people. It should have no biases and try its utmost to provide justice and liberty to all. Although the legislature consists of political parties, there should be no politics in the passing of legislations that bypass the democratic ideals of India. In the present form, the bill is unworthy of becoming an Act. It is rushed, ill-conceived and ambiguous and in its present form it will do more harm than good.

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