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March 31, 2020
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The Citizenship Amendment Act of 2019, which welcomes “illegal migrants” into India selectively on the basis of their religion and pointedly excludes Muslims, has an “unholy nexus” with the National Register of Citizens (NRC) exercise, Asaduddin Owaisi, the parliamentarian who tore a copy of the Bill in the Lok Sabha, warned the Supreme Court on Saturday.In his petition, Mr. Owaisi said a nationwide NRC has already been proposed by the government and is aimed at identifying “illegal migrants” residing in the country.“While the NRC exercise would result in identification of persons as ‘illegal migrants’, the Amendment Act seeks to simultaneously offer illegal migrants who are Hindu, Sikh, Buddhist, Jain, Parsi or Christian, citizenship on the presumed ground of persecution,” the petition, filed through advocate Nizam Pasha, said.Mr. Owaisi argued that the Amendment Act and the NRC are part of “one seamless chain.”The new citizenship law fast-tracks citizenship by naturalisation for minority Hindu, Sikh, Buddhist, Jain, Parsi or Christian migrants from Pakistan, Afghanistan and Bangladesh who enter India illegally, claiming religious persecution in their native countries.But it does not impose any requirement on illegal migrants from the six religions to prove their claim of religious persecution or even a reasonable fear of it.It just “presumes that all illegal migrants from the six religious minorities of the three neighbouring nations were persecuted in their countries and have entered the territory of India to escape religious persecution, without calling upon them to establish or even claim that fact.”The legislation effectuates discrimination on the basis of the intrinsic and core identity of an individual, that is, his religious identity as a Muslim.The Act ensures that only an illegal immigrant who is Muslim would be singled out and prosecuted under the Passports (Entry into India) Act, 1920 or the Foreigners Order 1949 and deprived of his personal liberty. On the other hand, illegal migrants from the protected six religions would be entitled with Indian citizenship and the benefits that come with it.While Muslim migrants would have to show their proof of residency in India for at least 11 years, the new law allows illegal migrants from the six communities to be naturalised in five years’ time.Mr. Owaisi quoted Dr. B.R. Ambedkar, “in the name of democracy there must be no tyranny of the majority over the minority.”“In these times of absolute majorities in Parliament, the Supreme Court, as the sentinel of our Constitution, has a burden higher than ever before to satisfy its conscience that the actions of the government and of Parliament are in keeping with this guiding spirit and soul of our Constitution,” the petition said.The Act follows a religion-based classification which is violative of Articles 14, 21 and 25 of the Constitution. In fact, it explicitly discriminates against Muslims as it assumes they do not experience persecution in these countries, the petition said.According to the petition, each stage of this classification and sub-classification violates even the classical twin tests of classification under Article 14 evolved by this court in the Anwar Ali Sarkar case (AIR 1952 SC 75), which require that (i) there should be a reasonable classification based on intelligible differentia; and (ii) this classification should have a rational nexus with the objective sought to be achieved.The classification in the Act is not founded on the basis of intelligible differentia, it said. The yardstick for the purpose of differentiation in the Act is the alleged persecution of religious minorities belonging to Afghanistan, Pakistan and Bangladesh. But this is not based on reason; it includes Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, but at the same time excludes other minorities facing discrimination or persecution on the basis of their religious/sectarian belief, such as Shia sects in Pakistan and the Hazaras in Afghanistan.The petition said it is well-documented that sect-based discrimination within religion exists in Pakistan and Afghanistan. The denial of similarly placed individuals belonging to minority communities, who face persecution just like the enumerated religious minorities, clearly constitutes an unreasonable classification and violates Article 14 of the Constitution. The extension of benefit to one set of religious minorities but denying it to others fleeing persecution from the same countries is without nexus with the purported object sought to be achieved, it said.The petition said secularism is part of the basic structure of our Constitution. Under the definition adopted by this court in the S.R. Bommai vs. Union of India case, this principle prevents the state from favouring any particular religion and enjoins on it the positive duty to accord equal treatment to all religions.The Impugned Notifications and the Amendment Act basing its purported intelligible differentia on religion is flagrantly violative of the sacrosanct basic structure of the Constitution, particularly the principle of secularism, the petition said.The right to life and personal liberty, which has been held by this court to include a right to live with dignity, is available to every “person” under Article 21 of the Constitution, and not just to citizens. Thus, the Amendment Act neither imposes any requirement to prove religious persecution or a reasonable fear of religious persecution, nor prescribe a standard for the same.According to the petition, the Act, particularly Section 6, offers an incentive to persons from Afghanistan, Bangladesh and Pakistan to change their faith so as to avail the relaxed requirement of only five years of residence for obtaining Indian citizenship, down from 11 years prescribed under the Third Schedule to the Citizenship Act, 1955.“Forcible conversion” has been defined in law as the offering of any allurement for converting from one religion to another, and its prohibition has been upheld by this Hon’ble Court as constitutional. in Rev Stainislaus v. State of Madhya Pradesh, (1977) 1 SCC 677Further, it is highly suspect how a person who has been granted citizenship under the amended provisions of the Citizenship Act, 1955 on the sole basis of belonging to a particular religion, and presumably upon making a binding statement on oath or giving an undertaking that he/she belongs to that particular religion, will be able to exercise his/her right to convert, if he/she so desires, to a religion of his/her choice after obtaining citizenship. The right to choose a faith has been held by this court in Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368 to “be the substratum of individuality and sans it, the right of choice becomes a shadow.” The persons obtaining citizenship under the amended provisions will effectively be deprived of their freedom to choose their religion in future.The petition said the new law violates Article 51 of the Constitution, which requires the state to endeavor to promote international peace and order, by alienating all Islamic countries. It further violates international law, including the principle enunciated in Article 2 of the International Covenant on Civil and Political Rights, which India has ratified, and which obligates State Parties to respect and to ensure to all individuals within their territory the recognised human rights without discrimination on the basis, inter alia, of religion.

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