The Citizenship (Amendment) Bill fails the constitutional test of satisfying equality before the law or equal protection under the laws within the territory of India.
Textbooks on the Indian Constitution state that the crucial test to determine the constitutionality of any legal procedure is that all persons subjected to it are treated alike under like circumstances and conditions. The aftereffect of this test is that equals have to be treated equally and unequals ought not to be treated equally. Thus, article 14 of the Constitution, which states that the state shall not deny any person equality before the law or equal protection of the laws within the territory of India, forbids discrimination against any class of persons. Bit it does not bar classification of persons for the purpose of implementing the right of equality guaranteed by it.
For admissible classification, the Constitution lays down two conditions: one it must be founded on an intelligible affection which distinguishes persons or things that are grouped together from those left out of the group; and two, that affection must have a rational relation to the object sought to be achieved by the statute in question. In other words, there must be a connection between the basis of classification and the object of the act under consideration.
The CAB seeks to turn this well recognises principle of the Constitution upside down. Clause(b) under subsection(1) of section 2 of the citizenship act, 1955, defines an “illegal immigrant” as follows:
“Illegal immigrant” means a foreigner who has entered into India(1) without a valid passport or other travel documents or such other documents or authority as maybe prescribed by or under any law in that behalf; or (2) with a valid passports and other documents and such other document or authority as may be prescribed by or under any law on that behalf but remains therein beyond the permitted period of time.”
The CAB inserts a provision to qualify this definition. The provision says:
“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 foreigner act of 1946, or any rule or order made thereunder, shall not be treated as illegal migrants for the purposes of this act.”
The provision’s silence is fluent. The statement of Object and Reason attached to the CAB states that trans-border migration of population has been happening continuously between the territories of India and the areas currently lying in Pakistan, Afghanistan, and Bangladesh.