The Citizenship Amendment Bill, 2019, bulldozed by the Narendra Modi government in the Lok Sabha on Monday, violates the basic tenets of India’s Constitution and therefore can hardly stand the judicial scrutiny even if the government manages to whisk it through Rajya Sabha as well, some of the leading jurists of the country have said.
"The Bill will not pass the test of constitutionality. It is divisive and against equality, which forms the basis of our Constitution,” said former Attorney General Soli Sorabjee.
Former Supreme Court judge Madan B. Lokur agreed. “The Citizenship Amendment Bill violates Article 14 of the Constitution. Everybody is entitled to the protection under Article 14. I don’t think the ‘reasonable classification’ offered by the Home Minister is valid,” Lokur said.
The contentious Citizenship Amendment Bill, 2019, (CAB) was presented in the Lok Sabha by Union Home Minister Amit Shah in the Lok Sabha on Monday.
The Bill seeks to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan and who arrived in India prior to January 1, 2105, eligible for Indian citizenship.
After around 7 hours of debate during which all the Opposition parties unanimously rejected the proposed legislation, the government got the Bill passed at midnight, after rejecting all the amendments moved by Opposition members.
There was no proposal to send the Bill to a parliamentary committee for scrutiny as the Opposition termed the Bill as against Constitution from the very beginning.
However, Union Home Minister Amit Shah – maybe deft at realpolitik but certainly not one with even fleeting knowledge of law -- insisted that the Bill did not contradict any article of the Constitution.
He asserted that Article 14 doesn’t stop the government from making laws based on “reasonable classification” (a legal doctrine where inclusion or exclusion of certain persons/groups/transactions from a set of beneficiaries is justified by ‘reasonable’ parameters and must justify the objective of such differentiation).
However, jurists believe that Shah’s understanding of the Constitution is flawed, or at least, limited.
Article 14 of the Constitution states that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
Senior Supreme Court lawyer Sanjay Hegde said: “The object of this Bill is to ostensibly to provide for religiously persecuted persons from neighbouring countries, who want to seek citizenship in India. If the object is only religious persecution, then this case will not stand in court as there are also Muslim communities such as Shias and Ahmadiyas who are persecuted.”
“This Bill is unconstitutional and violates the basic structure of the Constitution because it denies equal protection of the law to all people irrespective of their religious faith,” asserted Mohan Gopal, a leading voice on judicial reform and justice in India and the former head of the National Judicial Academy of the Supreme Court of India.
The “basic structure of Constitution” is a doctrine that the Supreme Court laid down in the Keshavanda Bharti vs State of Kerala (1973) case wherein the apex court held that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution”. This judgment is used as the litmus test for any Constitutional amendment ever since.
Notably, Soli Sorabjee was also a part of the Keshavanda Bharti case along with Fali S. Nariman.
Another reasoning offered by Shah in Lok Sabha was: “In 1971 (in the wake of Bangladesh’s creation), a decision was taken that all those coming from Bangladesh will be given citizenship. Why were those coming from Pakistan not taken? At that time too, Article 14 was there, then why only Bangladesh?”
However, Mohan Gopal has a question for the Home Minister here.
“The strong concerns expressed by the government in Parliament against persecution of minorities in neighbouring countries should, in all fairness and as required by the Constitutional principle of equality, be extended to protect minorities in India facing majoritarian persecution, as well as the silent majority of India, SCs, STs and MBCs, who are facing daily persecution at the hands of forward caste Hindus,” Gopal pointed out.
“If the Bill is challenged, I doubt the Supreme Court will uphold it in its entirety. The Supreme Court can use the same ground that it used to strike down triple talaq that it is ‘manifestly arbitrary’,” Hegde added.