Authored by Sanu Ranjan, LLM Candidate at National Law School, Banglore & Research Assistant to Professor Upendra Baxi.
Abstract
This piece of legal literature delves into the constitutional validity of the Citizenship Amendment Act, focusing on three key aspects: the original understanding of citizenship by the constitutional framers, Parliament’s plenary power of legislation, and the act’s compatibility with the basic structure of the Constitution.
Firstly, it discusses the original intent of citizenship, stressing the imperative of interpreting the Constitution in line with the framers’ intent for legal legitimacy. Dr. B.R. Ambedkar’s perspective on parliamentary authority regarding citizenship underscores Parliament’s competency to amend citizenship laws under Article 6 of the Constitution.
Secondly, the concept of plenary legislative power is explored, elucidating Parliament’s prerogative to legislate on citizenship matters, including incorporating new principles like granting citizenship to religiously persecuted minorities. This plenary authority, however, is circumscribed by constitutional fundamentals and express provisions within.
Thirdly, the analysis delves into these limitations, contending that the Citizenship Amendment Act doesn’t contravene the Constitution’s basic structure or fundamental rights. It underscores citizenship’s pivotal role in differentiating citizens from non-citizens and assesses the act’s alignment with secular and democratic values, underscoring Parliament’s sovereign authority in citizenship-related legislation. In summation, the argument posits the constitutional validity of the Citizenship Amendment Act, affirming the principles of sovereignty, democratic governance, and secularism while upholding Parliament’s plenary legislative authority in citizenship matters
Beginning of the literature
The Constitutionality of an act is a matter of utmost importance, as it not only confers legality but also legitimacy to the act passed by the parliament constituted under the Constitution. The Legality, Legitimacy, and Constitutionality of an act, are not dependent upon the political interpretation of the act but in its legal interpretation. The Legal Interpretation of any act in order to be constitutional must be in accordance with the values set out in the Preamble and powers given by the Constitution to the Parliament as well as in affirmance of the Basic Structure of the Constitution.
This piece of literature deals with the Constitutionality of Citizenship Amendment Act, which has been passed by the Parliament. The piece will deal firstly with the original understandings of the constitutional provision that deals with citizenship and will illuminate the understanding of our constitutional makers. Secondly, it will discuss the bestowal of constitutional power to the legislature for making the Citizenship Amendment Act and thereafter, thirdly it will deal with the arguments with respect to the basic structure of the constitution and how the Citizenship Act is in accordance with its basic structure, and at last end with the values given in the preamble of the Constitution.
Citizenship: Original Understandings, a faithful reading
Before I tend to discuss the original understanding of our constitutional framers with respect to citizenship, we need to understand the essence of the original understanding of the Constitution. The most important interpretive question that why we should understand the original understanding of our Constitution. There lies a very subtle answer to the Constitution apart from its juridical importance, which is that we become faithful to the Constitution as its Citizens. It helps us in understanding the Constitution as it was made and the normative value which is established by enacting the Constitution. The matter of faith does not give it legality but something more important, which is legitimacy to our interpretation. If we came to know the original understanding, we would be more faithful to our Constitutional Text and its Structure. This is not to say that we must restrict the livingness of the constitution frozen to its original understanding. In this light, we must understand the original understanding of Citizenship.
Dr. B.R. Ambedkar, one of the foremost architects of the Constitution, explained the importance of parliamentary powers with respect to Citizenship. As he remarked,
“The Honourable Dr. B. R. Ambedkar: Now, Sir, this article refers to citizenship not in any general sense but to citizenship on the date of the commencement of this Constitution. It is not the object of this particular article to lay down a permanent law of citizenship for this country. The business of laying down a permanent law of citizenship has been left to Parliament, and as Members will see from the wording of article 6 as I have moved, the entire matter regarding citizenship has been left to Parliament to determine by any law that it may deem fit. The article reads— “Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.” The effect of article 6 is this, that Parliament may not only take away citizenship from those who are declared to be citizens on the date of the commencement of this Constitution by the provisions of article 5 and those that follow, but Parliament may ma ke altogether a new law embodying new principles. That is the first proposition that has to be borne in mind by those who will participate in the debate on these articles. They must not understand that the provisions that we are making for citizenship on the date of the commencement of this Constitution are going to be permanent or unalterable. All that we are doing is to decide ad hoc for the time being”
Dr. B.R. Ambedkar emphasized the significance of parliamentary powers concerning citizenship in the Constitution. He clarified that the Constitution’s Article on citizenship was specific to the time of its commencement and did not establish a permanent citizenship law. Instead, the responsibility of formulating a lasting citizenship law was delegated to Parliament. Dr. Ambedkar highlighted that Parliament had the authority to amend citizenship provisions, including acquisition, termination, and other related matters, as per Article 6. Therefore, the citizenship provisions in the Constitution were not final or unchangeable but subject to parliamentary discretion and future amendments as necessary.
Thus, on the reading of the intent of the Constitution Framers, it is sufficiently clear that Parliament has been given the Plenary Power to make law with respect to citizenship and to enact law embodying new principles within its legislative power. Hence, the parliament has plenary power to make legislation with respect to citizenship and to embody different principles from time to time as it deems fit.
“Citizenship and the Plenary Power of Legislation”
What is the meaning of the term plenary power of legislation? The Hon’ble Supreme Court in Re Delhi Laws Act case described the understanding of Plenary powers as it stated,
“The possession of plenary powers within the ambit laid down only means that within that particular field it can make any laws on those subjects..”
The term subject here means the subject on which the legislature has the power to legislate. Apart from Article 11 of the present constitution, Article 245 read with entry no. 17 in the Union List of 7th Schedule confers the power to parliament to make any law on those subjects. The term “any laws” must be understood in a ‘material sense’ i.e. it allows the parliament to make laws of different kinds with respect to the same subject matter. While exercising the plenary power of legislation, it can embody new principles for granting citizenship. In this sense, parliament has the power to make law in regard to citizenship for “religious persecuted minorities”.
It is also within the plenary power to choose which religiously persecuted minorities the Parliament intends to confer the protection of Citizenship. This argument will be made more clear in the forthcoming arguments. Therefore, the act is a manifestation of the plenary power of legislation which is also a representation of the preambular value of constituting a “sovereign nation”. But this plenary power though not subject to limitation within its field is subject to two important limitations, first, it is to the basic structure of the constitution and second is the express provision of the constitution.
The Constitutional Court in A.K. Roy v. Union of India, explained the concept of limitation on plenary power as:-
“…The power of amendment is conferred upon the Parliament by Article 368 (1), which provides that the Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in that article. The power thus conferred on the Parliament is plenary subject to the limitation that it cannot be exercised so as to alter the basic structure or framework of the Constitution. It is well-settled that the power conferred upon the Parliament by Article 245 to make laws is plenary within the field of legislation upon which that power can operate. That power, by the terms of Article 245, is subject only to the provisions of the Constitution… In either event, it is plenary, subject in one case to the constraints of the basic structure of the Constitution and in the other, to the provisions of the Constitution”.
“Limitation of Plenary Power with respect to the express provision of the Constitution”
In this part, I will deal with the limitation of the express provision of the Constitution. Before, I deal with the limitation I shall define the nature of “Citizenship”. What is Citizenship? Is it a right or is it a privilege? If we see the jurisprudence of Citizenship, the United States Supreme Court in United States v. Wong Kim Ark, observed that,
“The Supreme Judicial Court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was “to be governed altogether by the principles of the common law,” and that it was established, with few exceptions, “that a man, born within the jurisdiction of the common law, is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land; and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term ‘ citizenship.'” Gardner v. Ward, (1805) 2 Mass. 244, note. And again: “The doctrine of the common law is, that every man born within its jurisdiction is a subject of the sovereign of’ the country where he is born ; and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance was born.” Zilhan v. Ward, (1806) 2 Mass. 236, 265.”
Thus, the basic principle to which Citizenship can be demanded as a right in a natural sense is by having birth in the Country, apart from that no kind of right as far as citizenship is concerned exists until and unless it is conferred by the Competent Legislature. Citizenship as defined by the German Constitutional Court in Foreign Voters I Case (1990) wherein the court agreed that giving the voting rights to resident aliens would undermine the democratic right of German People to self-determination. The Court observed that,
“There can be no democratic state without a body politic that is both subject to and the object of the state authority vested in it and exercised through its organs. This body politic consists of the people, from whom all state authority emanates… Membership in this body politic is determined by citizenship. Citizenship is both the legal precondition for the equal status of individuals and the foundation for equal rights and duties; exercise of legal rights and duties legitimates democratic state authority”.
In the Czech Constitutional Court Judgment in Pl. ÚS 9/94: Citizenship Case, the Court observed that,
“ It is the sovereign prerogative of the state to determine the conditions under which its citizenship is acquired and lost.”
Therefore, we must understand that Citizenship is the first point of accepted differentiation between a Citizen and a Non-Citizen. This discrimination is not legal but Pre-Legal. For all the legal rights, most importantly political rights, depend upon the grant of citizenship. If we tend to see the structure of our Indian Constitution, we can see that there is a separate part that is given to Citizenship and there is a separate part for the fundamental rights. Within the fundamental rights, there is not a single constitutional provision that talks about the fundamental right of citizenship.
Further, the fundamental right provision is subject to the normative principle of citizenship. I mean to say that the rights in the fundamental rights part are clearly defined in the sense, that right is only conferred to the citizen and thus thereby excluding non-citizen from its ambit of protection.
Furthermore, this constitutional differentiation accepts that rights that form the necessary, integral, incidental, and consequential part of citizenship will always be conferred to citizens and not to non-citizens. The rights which are given to persons, submit or yields to the differentiation on the point of citizenship and it shall be read subject to the criteria of citizenship, for the very reason that within the structure of fundamental rights, the basic differentiation among the rights is of ‘citizenship’.
The equal protection of law and equality before the law does not consist of the protection from discrimination on grounds only of religion, race, caste, sex, place of birth, or any of them, as it is conferred only to the citizen and not to a non-citizen. If by any legal interpretation, the discrimination between persons on such grounds is not allowed then it will make Article 15 a redundant article which has given protection only to its citizens and not to non-citizens.
In this sense, Citizenship becomes the starting point of both the rights, rights which are conferred to citizens only and rights which are conferred to citizens as well as non-citizens Thus, the law of equality before the law and equal protection of the law is subject the very principle of citizenship and accept the principle of citizenship not as a reasonable classification but a separate principle, because the law relating to citizenship does not come within the terminology of ‘law’ mentioned in equal protection of law and equality before law. The Constitutional Structure speaks it out in greater words when it confers certain rights to citizens only and not to persons, as a legitimate constitutional differentiation. Further, the constitutionality of differentiation could not be challenged, as it is pre-constitutional i.e. it remains in the foundation of the structure of the fundamental rights enacted by the constituent assembly.
Apart from the fundamental rights, there is no express provision of the constitution that tends to deny the parliament the legislative power to make law with respect to citizenship relating to religious persecuted minorities.
The Citizenship Amendment Act and the Basic Structure of the Constitution
The Basic Structure of the Constitution is one of the most important parts of the Constitutional Structure. The Honb’le Supreme Court in Keshvananda Bharati v State of Kerala illuminating the meaning of the Basic Structure observed that
“The elements of the basic structure are indicated in the preamble and translated in the various provisions of the Constitution. The edifice of our Constitution is built upon and stands on several props, remove any of them, the Constitution collapses.”
The Court highlighted the basic structure of the Constitution as
“If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the Constitutional structure. (These cannot be catalogued but can only be illustrated).
The supremacy of the Constitution.
Republican and Democratic form of Government and Sovereignty of the country.
Secular and federal character of the Constitution…”
Now, the question before us is whether the Law for citizenship violates the basic structure of the Constitution. The values of the preamble form part of the basic structure of the Constitution and in them, Sovereign, Democratic, and Secular, {which was added by the 42nd Amendment Act} are those values that constitute the nation. Before delving into the values of the democratic and sovereign character of the nation, I will address the argument relating to secular values. Whether the Citizenship Act is against the secular values spelled out in the Constitution.
The very essence of a Secular State lies in its non-identification of the state with a religion, in order that it does not become a theocratic state. The moment the state identifies itself with the values of any particular religion, it will be against its secular values. If the citizenship is granted only to the member of a particular religious community within the term of “persecuted religious minorities” then it would have been considered as an act antithetical to the secular value. If the state has given citizen to different religious communities with a proven fact of their persecution due to religion, then it could not be said to be a theocratic state for a theocratic state is a “singular religious state”, be it a Muslim state, Jew state, Christian state etc.
Further, if the State provides citizenship on the condition that a person changes his religion to the religion of state then it will again be antithetical to the value of secularism. Now, legislation can provide citizenship to members of different communities within the term of religious persecuted minorities and if it does not provide citizenship to certain communities then it does not mean it is discriminatory as the subject matter of legislation does not contemplate these minority to provide citizenship. It may happen that the parliament in the future intends to confer the rights of citizenship to the other minorities then it could do so by amendment to the present statute or bringing altogether another statute to grant citizenship to remaining minorities. Further the amendment act does not bar the parliament in any statutory manner to not to give citizenship to any other persecuted religious minorites in future when parliament felt the necessity to do so. Further, by giving citizenship to different religious communities, it does not identify itself with any particular religion, as in the case of a theocratic state. Hence, it is not against the secular values of the constitution. Furthermore, it is in the nature of legislation, that while at once it seeks to protect one particular group of persons it will not confer such protection on another group of persons but such non-conference of protection shall not be interpreted to be discrimination.
The democratic value is spelt out in the preamble of our Constitution and in the constitution of Czech Republic. The value was interpreted by the Czech Constitutional Court in its judgment Pl. ÚS 19/93: Lawlessness, as it observed that
“The constitutional foundation of a democratic state does not deny the Parliament the right to express its will as well as its moral and political viewpoint by means which it considers suitable and reasonable within the confines of general legal principles – and possibly in the form of a statute, if it considers it suitable and expedient to stress its significance in the society and the scope of its declaration in the legal form of a statute…”
The parliament has expressed it moral and political will by granting citizenship to particular religious persecuted minorities in the form of a statute namely the Citizenship Amendment Act. The object for giving citizenship lies in the statement of object and reasons,
“It is a historical fact that trans-border migration of population has been happening continuously between the territories of India and the areas presently comprised in Pakistan, Afghanistan and Bangladesh. Millions of citizens of undivided India belonging to various faiths were staying in the said areas of Pakistan and Bangladesh when India was partitioned in 1947. The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries. Some of them also have fears about such persecution in their day-to-day life where right to practice, profess and propagate their religion has been obstructed and restricted. Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.”
It is this specific reason that tempted the parliament to express its moral and political will to grant citizenship to the Hindu, Sikh, Buddhist, Jain, Parsi, and Christian communities under the present amendment act. The parliament cannot be directed to give citizenship to all the communities, for it lies within the “sovereign prerogative of the parliament”.
The preambular value of the Sovereignty grants the parliament the power to confer citizenship to certain communities by exercise of its political and moral will. According to Blacks’ Legal Dictionary, the legal conception of “sovereignty” is stated thus:
“The supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority, paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent.”
With respect to legal sovereignty in citizenship is the power to determine the conditions under which individuals can become citizens, without any external interference and limits that has not been explicitly stated in the Constitution. Therefore, the sovereign character of the state allows the parliament to choose communities within the religious persecuted minorities to confer the ‘rights of citizenship’. Therefore, the Citizenship Amendment is not against the secular values and it is an affirmance of the values of sovereignty and democratic form of government.