Citizenship (Amendment) Act, 2019 miserably fails the test of equality: Another plea moved in Karnataka HC

The Karnataka High Court directs for the continuation of counselling for five rescued minor girls who underwent physical and sexual abuse at an Ashram in Bangalore last year

Ever since the enactment of Citizenship (Amendment) Act, 2019, numerous petitions are being filed before the Supreme Court and High Courts pleading to declare the act as unconstitutional. Janaadhikara Sangharsha Parishath, a Non-Governmental Organisation has also filed a Public Interest Litigation before the Karnataka High Court with a plea to declare the Citizenship Amendment Act, 2019 as discriminatory, arbitrary, unreasonable and hence unconstitutional.

Brief Facts:

The Citizenship (Amendment) Bill, 2019 was duly passed by both Lok Sabha and Rajya Sabha after extensive discussions and heated debates on 9.12.2019 and 11.12.2019. The bill was presented for the approval of President of India who gave his assent on 12.12.2019 following which the Citizenship (Amendment) Bill, 2019 became an Act. Subsequent to the enactment of Citizenship (Amendment) Act, 2019, many protests broke out in different parts of the nation against the act stating that the said act is discriminatory and against the constitution of India which propagates secularism, as the act does not include Muslims who suffered religious persecution in the stated countries. Despite the protest the Act was notified on 10/01/2020.

The Citizenship (Amendment) Act, 2019 was passed with a view to provide Indian Citizenship to the persecuted minorities namely Hindus, Christians, Jains, Sikhs, Parsis and Buddhists from Pakistan, Afghanistan and Bangladesh who migrated to India on or before 31st December, 2014 due to the religious persecution. However the term ‘persecuted minorities’ does not include Muslims. The act sought to amend the definition of illegal migrants provided in the section 2 of the principal act by adding the proviso clause stating that the said persecuted minorities migrated to India due to religious persecution on or before the cutoff date shall not be called as “Illegal migrants”.

The act further amends the Third schedule of the principal act providing that Indian citizenship shall be granted to the ‘persecuted minorities’ who are residing in India for not less than 5 years which was 11 years earlier, there by relaxing the aggregate period of residence in the territory of India.

Janaadhikara Sangharsha Parishath is a Non-Governmental Organisation which works relentlessly against corruption prevailing in India. Its main objective is to uphold and secure the fundamental Rights and legal rights of citizens of India. The said NGO has filed Public interest litigation opposing the Citizenship (Amendment) Act, 2019 on various grounds and has sought to declare the act as unconstitutional.

The petition states that the act does not provide for the definition of ‘Persecuted Minorities’. It states that the objects of Citizenship (Amendment) Act, 2019 is to provide Indian Citizenship to the ‘Persecuted minorities’. Hence ‘persecuted minorities’ being the basis of providing citizenship, the term ‘persecuted minorities’ ought to have been defined. The absence of definition of the said term would cause confusion during the implementation of the act thereby defeating the objectives of the act.

The main contention in the PIL is that the act violates Article 14, 24 and 25 of the Indian Constitution. The petition states that the act does not qualify the twin test of equality under Article 14 which provides for right to equality. Article 14 states that all persons are equal before law and are entitled for equal protection of law within the territory of India. However it permits reasonable classification found on the basis of intelligible differentia and that such classification should possess direct nexus with the objects of the act.

The petition states that citizenship is granted under the said act to such persons belonging to Hindus, Sikhs, Jains, Parsis and Christians who are minorities in Pakistan, Afghanistan and Bangladesh. Thus the classification made by the state under the amendment act is based on countries and religion which is discriminatory in nature as act because it excludes Tamil people of Sri lanka and Rohingyas from Myanmmar who also faced religious persecution in the respective countries. Further the act also excludes Hindus who are classified as minorities in neighboring countries such as Nepal, Bhutan and Myanmmar. Hence the classification made by the state on the basis of countries and religion is unreasonable and does not amount to intelligible differentia. Hence the act clearly violates the right to equality as provided under article 14 of Indian Constitution.

The petition also raises concerns over the status of Hindus who were forcibly converted to Islam during the religious persecution in the said countries. Since the act excludes Muslims from the said countries, the act is not applicable to Hindus who converted into Islam by force in order to save their lives. The Act is silent about the status of such Hindus who were the real victims of religious persecution. The act also excludes the minorities’ sects of Muslims such as Ahmaddiyas and shias from Pakistan and Hazaras of Afghanistan who are also being subjected to persecution and hence the classification under the act is untenable and arbitrary.

The petition further stated that the proposed National register of Citizens and National Population Register infringes Article 25 of the constitution which provides for Right to freedom of Religion to Indian Citizens. The petition reasons that the implementation of NRC and NPR would cause large number of Muslims to lose their citizenship than the number of Non-Muslims as it would be based on Citizenship (Amendment) act which excludes Muslims and hence it creates a great apprehension of fear among the Muslim community that they would lose their citizenship if they are unable to prove their Indian citizenship thereby landing them in detention centres. The petition also states Muslims having no options left would be forced to convert their religion if they fail to prove themselves as Indian Citizens.

Key features:

1. The petition seeks to declare the act unconstitutional as it violates right to equality as provided under article 14.

2. It states that the classification provided under the act on the basis of religion and countries is not found on the basis of intelligible differentia hence fails the twin-test of equality.

3. It further states that the act is silent about the status of Hindus forcibly converted into Muslims during the religious persecution.

4. The petition remarked that the act excludes the minorities from neighboring countries such as Nepal, Bhutan and Myanmar who are also being subjected to religious persecution.

Earlier in this month Karnataka High Court has agreed to hear the pleas against the Citizenship (Amendment) Act stating that the Supreme Court has not specifically barred the high court from hearing the same. The PIL has prayed for declaring the Citizenship (Amendment) Act, 2019 as ultra vires the constitution and has also prayed to pass such other reliefs that the court may deem fit, As an interim relief the petition seeks ex-parte ad interim injunction directing the government of Karnataka not to implement the Citizenship Amendment Act in the state of Karnataka until the disposal of this PIL.

Edited by J. Madonna Jephi

Approved & Published – Sakshi Raje

End Notes:

1. Writ Petition filed by Janaadhikaara Sanharsha Parishath, High Court of Karnataka, (last Visited on 24th January, 2020)

2. Citizenship (Amendment) Act, 2019 (last Visited on 24th January, 2020)

3. Bar and Bench, Citizenship (Amendment) Act, 2019 miserably fails the test of equality: Another plea moved in Karnataka HC, (last Visited on 24th January, 2020)

Lavanya Narayanan
I am Lavanya Narayanan, pursuing a master's in international law. With three years into the profession, I am currently reviving my long-forgotten passion for writing. As and when I find a time I watch debates and interviews on the current affairs of our nation. My areas of interest are criminal law, women and child rights especially toddlers. I love listening to puranic stories. I believe accepting things you don’t know as you don’t know leads you to the path of growth. Happy reading!