OPINION: Citizenship bill violates articles 14, 21 of Constitution

The Citizenship (Amendment) Bill (CAB) has been passed by both Houses of Parliament, and has received assent of the president, making it an act.

Since a lot of controversy has been raised over the Citizenship (Amendment) Bill, it needs a dispassionate analysis.

Assam has had an influx of a large number of Bangladeshi immigrants who came after the Partition of 1947. Some of them (Hindus, Buddhists, etc.) came due to religious persecution by the Muslim majority. But many poor Muslims also came for a better life.

Such ‘economic refugees’—those who migrate not due to religious persecution but to seek a better life—are not, strictly speaking, refugees as defined in the UN Refugee Convention, 1951. But the fact is that worldwide, there are a large number of economic refugees. For example, the US has about 11 million illegal immigrants from Mexico who migrated to have a better life. Many of them have been living there for decades, and currently have little by way of roots in Mexico. What is to be done to them? President Donald Trump wants them deported to Mexico, but that is easier said than done.

In India, under the Assam Accord, only those Bangladeshi refugees who came into Assam before March 1971 would be granted citizenship under the Citizenship Act. But the CAB will make people of six religions—Hindus, Sikhs, Christians, Parsis, Buddhists and Jains—who came from three countries (Pakistan, Afghanistan and Bangladesh) Indian citizens, provided they have lived in India for five years.

The CAB omits mention of Muslims, and this is where the controversy lies.

The BJP government at the Centre justifies this discrimination by saying that Muslims did not come into India due to persecution, whereas people of other religions did. But this is only a pretext. The real reason is that the BJP knows that Muslims will vote against the party in elections, and so wishes to deny them citizenship (which carries voting rights).

Also, what is overlooked is that many Muslims in Pakistan—for example, Shias and Ahmadis—are persecuted there and may come to India to avoid persecution. Whereas by a constitutional amendment, Pakistan had declared Ahmadis non-Muslims, the Kerala High Court had declared them Muslims and Ahmadis regard themselves as Muslims. However, they are treated barbarically in Pakistan (see online article Barbaric persecution of Ahmadis in Pakistan by justice Katju).

Many Assamese are protesting because they do not want any immigrants into Assam, whether Muslim or non-Muslim, and object to citizenship being given to any immigrants. Others are objecting to CAB for other reasons. The whole of Assam is in flames, and in many places, the Army has been called out.

The truth is that many Bangladeshi Muslims have been living in Assam for decades, though they may not have come here legally. Many were even born in Assam. They have no roots now in Bangladesh.

Where are they to go if deported? Bangladesh has said it will not accept them. So should they be dumped into the Bay of Bengal? It is a humanitarian problem, not just a legal one.

One of us (justice Katju) remembers once when he was sitting in a bench of the Supreme Court, a case came regarding illegal squatters in the 'jhuggi jhopdis' in Mumbai. The senior judge on the bench shouted that these illegal squatters have no legal right to remain where they were living, and must be thrown out, to which justice Katju coolly retorted, “But brother, where are they to go? Should they be dumped into the Arabian Sea? It is not just a legal problem; it also has a humanitarian aspect.”

Under the Indian Constitution whereas certain rights—like those mentioned in Article 19—are available only to citizens, others like the right to equality mentioned in Article 14 and the right to life and liberty mentioned in Article 21 (which has been interpreted by the Supreme Court to mean the right to live with dignity) are available to all persons. A non-citizen is certainly a person, and hence is also entitled to those rights.

In National Human Rights Commission vs State of Arunachal Pradesh, 1996, the question was about the Chakma refugees, who were illegal immigrants from Bangladesh. The Supreme Court observed that the fundamental right of life and liberty guaranteed by Article 21 of the Indian Constitution is also available to Chakmas, though they were not Indian citizens.

Therefore, it is submitted that the Citizenship (Amendment) Bill is unconstitutional as it violates Articles 14 and 21 of the Indian Constitution.

Justice Markandey Katju retired from the Supreme Court in 2011 and Dhruti Kapadia is advocate on record, Supreme Court, and solicitor, Bombay High Court.

The opinions expressed in this article are those of the authors and do not purport to reflect the opinions or views of THE WEEK.