A constitutional obligation(Indian
Express)
Mains Paper 2:Polity
Prelims level: Citizenship (Amendment) Bill, 2019
Mains level:Indian Constitution- historical underpinnings, evolution, features,
amendments, significantprovisions and basic structure
Context:
- The joyous birth of the Indian nation-state is co-terminus with the
horrors of Partition in 1947.
- A natural consequence thereof was the influx of migrants due to the
two-nation theory employed by West and East Pakistan.
- Many Indian states came to be affected by the process of immigration
which challenged the demographic dimensions of the states as influx did not
cease even after Partition.
Background:
- Many minorities found themselves at the mercy of nations which followed
a state religion. At the time, the population of both Pakistan and
Bangladesh comprised several non-Muslims.
- However, as opposed to India which is a secular nation, both Pakistan
and Bangladesh are Islamic states.
- Being historically and geographically interlinked with both ancestral
and spiritual ties, it falls as nothing short of an obligation for the
Indian nation-state to provide refuge to non-muslim minorities who have been
persecuted for their “otherness” in these countries over the past six
decades.
Nature of obligation:
- This obligation is constitutional in nature and its genesis can be found
in the Constituent Assembly debates.
- During the debate that took place on Articles 5 and 6 on August 10,
1949, in the constituent assembly, B R Ambedkar, the chairman of the
drafting committee of the Constitution of
- India, had expressed hardship in........................................
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Other features:
- Other salient features of the Bill include the exemption granted to a
large part of the North East region from applicability of the proposed law
(except Manipur), cut-off dates for entry into India and a clause related to
Overseas Citizen of India.
- The Bill is a manifestation of a constitutional promise made to those
who have suffered in the aftermath of Partition and its consequences.
- Many doubts have been cast on the legality of the Bill. However, the
Bill does conform to India’s constitutional spirit. Here’s how:
Parliament’s power to enact the Bill:
- An examination of the text of Article 11 of the Indian Constitution
reveals that Parliament is empowered to make any law relating to the
acquisition or termination of citizenship and all other matters relating to
citizenship.
- Further, it was the intent of the framers of the Constitution for
Parliament to have the power to include those who, at the time of the
Constitution coming into existence, were not included within the fold of the
citizenship laws.
- It is therefore well within the rights of Parliament to enact this Bill
and it stands the test of procedural due process.
Presumption of Legality:
- A basic rule of interpretation is always presumption in favour of the
constitutionality of a statute. The burden is upon him who attacks it to
show that there has been a clear transgression of constitutional principles.
- The presumption may be rebutted in certain cases by showing that on the
fact of the statute, there is no classification and no difference peculiar
to any individual or class, and not applicable to any other individual or
class — and yet, the law hits only a particular individual or class.
- It ought to be assumed that the legislature correctly understands and
appreciates the needs of its own people, that its law are directed to
problems made manifest by experience, and, that its discrimination is based
on adequate grounds.
Presumption of constitutionality:
- In order to sustain the presumption of constitutionality, the court may
take into consideration matters of common knowledge, matters of report, the
history of the times, and such facts which may exist at the time of the
legislation.
- Thus, the legislation is free to recognise degrees of harm and may
confine its restriction to those cases where the need is deemed to be the
clearest.
- While good faith and knowledge ..................................
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Test of reasonable classification and intelligible differentia:
- The exception to Article 14 is broadly the test of reasonable
classification and intelligible differentia.
- The Bill stands the test of reasonable
..................................
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Way forward:
- The Courts allow permissible classification, which includes selective
application of a law according to the exigencies where it is sanctioned.
- The provisions of the Bill appear to have made a classification based on
the fact of minority communities being persecuted in the specified countries
on the basis of their religion and leaving their country without valid
travel documents.
- By introducing this Bill the Indian state is enforcing a positive
discrimination which is necessary, expedient and legally and
constitutionally permissible.
