The Citizenship Amendment Bill clearly violates Article 14 of the Indian Constitution as it guarantees equality not only to its citizens but also for the non-citizens. Then there are two facets of Article 14: one is it prohibits positive discrimination on the grounds of religion and the second is that it provides equal protection to all before the law.
If this Bill, which proposes to provide protection to certain people who are mentioned in the Bill on the grounds of religious persecution, then it has to also grant protection to those who have been left out. There is completely irrational discrimination.
Muslims are also part of the same regime. To say that they were not persecuted by Pakistan because the country was made for them is to forget that there is extensive persecution of Ahmadias and Shias there while there is active discrimination against Rohingyas in Myanmar. There is discrimination against Hindus and Christians by Sri Lanka, but it has not been mentioned in the Bill.
The Supreme Court has time and again held that Article 14 is the basic structure of the Constitution and Parliament cannot amend that. In this case, even if it is deemed to be a new provision which describes a different procedure for conferring citizenship, reducing the period of residency from 12 years to six years is discriminatory and Parliament cannot make a law which is violative of Article 14, nor can it amend or abridge Article 14 as it is the basic structure.
I think this Bill will not pass the test in the Supreme Court when it is challenged. It is actually like putting a fence around Muslim residents of India and reducing them to the category of second-class citizens.
The argument that Partition was done on the basis of religion is fallacious because India was not created on the basis of religion. India adopted a Constitution which was secular and therefore the founders were committed to secular states where all citizens, irrespective of their religion, were given full voting rights and now we can’t create an invidious discrimination.
The CAB brings further complexity to the colonial law. The law which has been made now will have to satisfy all the points enshrined in the Constitution.
Senior advocate and Rajya Sabha member