Citizenship Bill passes in Parliament. But, a sterner test may await in Supreme Court

The Rajya Sabha, on Wednesday, passed the contentious Citizenship (Amendment) Bill, completing the legislative process for giving Indian citizenship to non-Muslim migrants from Pakistan, Afghanistan and Bangladesh. Prime Minister Narendra Modi described it as a "landmark day" for India and its ethos of compassion and brotherhood, while the opposition termed the bill, which is key part of the BJP's ideological agenda, as "unconstitutional", "divisive" and "an assault on the democratic and secular fabric of the nation".

In a strongly-worded statement issued immediately after the bill was passed, Congress president Sonia Gandhi said it marks a "dark day" in the constitutional history of India and is a "victory of narrow-minded and bigoted forces" over the country's pluralism.

The bill may have passed the legislative formalities, but a sterner test may await it in the Supreme Court. 

Political challenges

The All Assam Students Union (AASU), which is spearheading the anti-CAB protests in the state, said that it will move the apex court against the Citizenship Amendment Bill, 2019. AASU chief advisor Samujjal Bhattacharya, slamming the BJP-led government at the Centre for thrusting the contentious piece of legislation on the people of the northeast, said it will not be accepted "under any circumstance". "We will take legal recourse to fight the CAB. We have talked to our lawyers, and we will move forward in moving the Supreme Court as per their advice," Bhattacharya said.

Several senior Congress leaders on Wednesday indicated that the party may move court against the Citizenship (Amendment) Bill. Soon after the bill was passed in Rajya Sabha, senior Congress leader and senior lawyer Kapil Sibal told PTI that the party should move court against it. Asked if the Congress will move the Supreme Court, Abhishek Manu Singhvi told PTI, "It is certainly a legislation highly suspect in constitutionality in terms of basic structure and legal validity. I have no doubt that it deserves to be challenged and will in the near future be challenged [in court]." Senior Congress leader and lawyer P. Chidambaram also said that the bill was a "brazen assault" on the fundamental ideas enshrined in the Constitution and the fate of the law will be decided in the Supreme Court. Another Congress leader Manish Tewari said that the bill was "unconstitutional" and is going to be challenged in the apex court.

Asserting that the Citizenship (Amendment) Bill is against the basic structure of the Constitution, the Jamiat Ulema-e-Hind on Wednesday said it will challenge the legislation in the Supreme Court. Terming the passing of the Bill in Rajya Sabha and Lok Sabha a "tragedy", Jamiat-Ulema-e-Hind president Maulana Arshad Madani said the bill is against the basic structure of the Indian Constitution and the Jamiat will move legally against it. 

Legal challenges

The bill seeks to amend the Citizenship Act, 1955, in order to grant Indian nationality to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who come to India after facing religious persecution in Bangladesh, Pakistan and Afghanistan even if they don't possess proper documents. This was an election promise of the BJP in the 2014 and the 2019 Lok Sabha polls.

The bill, in essence, adds a proviso to Section 2 of the Citizenship Act, removing the above-mentioned communities from under the definition of "illegal migrants"; they can apply for naturalisation of citizenship. 

"Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has 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 rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act"

For even the groups mentioned in the bill, there were conditions imposed. It applies only to those who were already in India on or before December 31, 2014. The requirements under the Citizenship Act—"testification of character", a mandatory time period of residence—still applied, the government said. Earlier, a candidate applying for naturalisation would have had to reside in India for a period of 11 years (or been in a government job); this amendment cuts the requirement down to five years. 

No Indian Muslims will be affected by the law, the BJP assured. Those outside the ambit of the amendment can still apply for citizenship via the legal route. What does happen is that they remain "illegal migrants", while the rest of the groups mentioned in the amendment—subject to fulfilment of conditions—can apply for naturalisation of citizenship.

Questions were raised why the bill did not include provisions for persecuted minorities like Rohingya Muslims from Myanmar—with whom India shares a border. And, what of persecuted Muslim sects like Ahmediyas and groups like Muhajirs, Balochis—a community for whom Modi had spoken out in 2016—in Pakistan, who might be Muslims in faith.

There are also questions why there were no provisions even for Tamil Hindus from Buddhist-majority Sri Lanka. And, the opposition questioned, why was it that only the Muslim-majority states of Pakistan, Afghanistan and Bangladesh find inclusion in the bill? Sri Lanka is a country still reeling under the fissures of its civil war, and Myanmar is currently facing a UN hearing for "genocide of Rohingya minorities". 

Would this form a sort of discrimination which would run directly against Article 14 of the Constitution, which, in its very wide scope, assures equality for all under the law?

-Inputs from PTI