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THE GIST of Editorial for UPSC Exams : 19 March 2020 (A constitutional obligation(Indian Express))

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.
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General Studies Pre. Cum Mains Study Materials

Prelims Questions:

Q.1)With reference to the Cinematograph (Amendment) Bill, 2019, consider the following statements:
1. The Cinematograph Amendment Bill, 2019, is a measure by the government to tackle the issue of piracy.
2. The Bill only tackles illegal recording at cinema halls.

Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2