Does the Citizenship Amendment Bill (CAB) violate the spirit of the Constitution, a secular document that prohibits classification on the ground of religion?
That is likely to be at the core of the legal challenge the proposed legislation will almost definitely face, with many political parties already indicating that they will take the matter to court.
CAB amends the Citizenship Act, 1955 to allow Hindus, Sikhs, Buddhists, Jains, Parsis or Christians from Afghanistan, Bangladesh or Pakistan, who entered India before December 31, 2014, to apply for Indian citizenship. In the debate over the bill in the Lok Sabha on Monday, some opposition leaders expressed concerns that CAB violates Article 14 of the Constitution, which guarantees equality before law and says the State "shall not deny to any person equality before the law or the equal protection of the laws within the territory of India".
Some legal practitioners in the field of Constitutional law disputed Home minister Amit Shah's argument that the bill allowed "reasonable classification" — the Supreme Court says reasonable classification must bear a reasonable and just relation to the sought object which is to be achieved by the legislation.
Senior advocate Upamanyu Hazarika said CAB, as a stated act of legislative policy, was in breach of Article 14. "The government may justify it to say that Article 21 (right to life and liberty) is available to even those belonging to foreign lands but as a legislative policy it is an act of discrimination. Article 14 allows reasonable classification but not class legislation."
CAB excludes a class of people, basically Muslims, said Supreme Court advocate Gopal Sankaranarayanan. "It is patently in violation of Article 14 of the Constitution as it discriminates on the ground of religion. It also violates the right to belong to India as a citizen with dignity protected by Article 21."
Former Lok Sabha secretary general PDT Achary, too, was of the view that CAB is against the Constitution, which provides for citizenship not on the basis of any religious consideration. He said that it keeps out "one set of people in the name of religion". "You are keeping Muslims out, but bringing in other religious groups. Citizenship law under the Constitution is secular," said Achary.
However, advocate Sai Deepak Iyer said he finds "no infirmities" with CAB and added that it neither suffers from any unconstitutionality, nor violates Article 14.
The big legal debate is over reasonable classification. "When you classify a certain group and favour them then you have to find a rationale basis for it, such as how that segment is different from the rest," said Achary. "Here you are keeping the Muslims out, but how is the government justifying including the other religious groups? ?"
"In specifically referring to Muslim majority Nations such as Afghanistan, Pakistan and Bangladesh, the provision [introduced through CAB] makes it clear that all other type of refugees are permitted to take citizenship in India except the Mulsims. But there is no rationale basis to carve out such an exception," echoed Sankaranarayanan.
Iyer said the government has been able to justify that the migrants, other than Muslims, were persecuted groups in the neighbourhood where they were religious minorities and "persecuted for their religious affiliation". "This satisfies the requirement of intelligible criteria, assuming that Article 14 can indeed be applied to someone who seeks to enter India for the purposes of grant of refugee status or citizenship," he argued.
Another legal argument is likely to be about whether CAB violates the basic structure of the Constitution.
Sankaranarayanan said the provision sough to be included in the Citizenship Act, 1955 is blatantly communal. "[The] basic structure doctrine is the fundamental test to weigh a constitutional amendment. This bill goes to the core of constitutional values of equality and secularism. To withdraw the fundamental civil rights of citizenship in a different manner to those belonging to one community alone is completely rebel against the constitutional ethos," he said.
Achary, too, claimed that secularism is part of the Constitution's basic structure – a doctrine propounded by the Supreme Court in 1973 in the Keshavanand Bharti case, which held while "Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the Constitution."
Clearly, one way or the other, the court will have the last word.