Relevance: Mains: G.S paper II: Polity: Constitution
The Bill provides that illegal migrants who fulfil four conditions will not be treated as illegal migrants under the Act. The conditions are:
(a) they are Hindus, Sikhs, Buddhists, Jains, Parsis or Christians;
(b) they are from Afghanistan, Bangladesh or Pakistan;
(c) they entered India on or before December 31, 2014;
(d) they are not in certain tribal areas of Assam, Meghalaya, Mizoram, or Tripura included in the Sixth Schedule to the Constitution, or areas under the “Inner Line” permit, i.e., Arunachal Pradesh, Mizoram, and Nagaland.
Article 14 guarantees equality to all persons, including citizens and foreigners. It only permits laws to differentiate between groups of people if the rationale for doing so serves a reasonable purpose.
The question is whether this provision violates the right to equality under Article 14 of the Constitution as it provides differential treatment to illegal migrants on the basis of
(a) their country of origin,
(b) religion,
(c) date of entry into India, and
(d) place of residence in India.
Whether these differentiating factors could serve a reasonable purpose, is examined below
First, the Bill classifies migrants based on their country of origin to include only Afghanistan, Pakistan and Bangladesh. The Statement of Objects and Reasons in the Bill (SoR) states that India has had historic migration of people with Afghanistan, Pakistan and Bangladesh, and these countries have a state religion, which has resulted in religious persecution of minority groups.
While the SoR reasons that millions of citizens of undivided India were living in Pakistan and Bangladesh, no reason has been provided to explain the inclusion of Afghanistan.
Further, it is not clear why migrants from these countries are differentiated from migrants from other neighbouring countries such as Sri Lanka (Buddhist state religion) and Myanmar (primacy to Buddhism). Sri Lanka has had a history of persecution of a linguistic minority in the country, the Tamil Eelams. Similarly, India shares a border with Myanmar, which has had a history of persecution of a religious minority, the Rohingya Muslims.
Over the years, there have been reports of both Tamil Eelams and Rohingya Muslims fleeing persecution from their respective countries and seeking refuge in India.
Given that the objective of the Bill is to provide citizenship to migrants escaping from religious persecution, it is not clear why illegal migrants belonging to religious minorities from these countries have been excluded from the Bill.
Second, with respect to classification based on religious persecution of certain minorities in Pakistan, Afghanistan and Bangladesh, it may be argued that there are other religious minorities in these countries, who face religious persecution and may have illegally migrated to India.
For example, over the years, there have been reports of persecution of Ahmadiyya Muslims in Pakistan (who are considered non-Muslims in that country), and the murder of atheists in Bangladesh.
It is unclear why illegal migrants from only six specified religious minorities have been included in the Bill.
Third, it is also unclear why there is a differential treatment of migrants based on their date of entry into India, i.e., whether they entered India before or after December 31, 2014.
Fourth, the Bill also excludes illegal migrants residing in areas covered by the Sixth Schedule, that is, notified tribal areas in Assam, Meghalaya, Mizoram and Tripura.
The purpose behind the enactment of the Sixth Schedule of the Constitution was to aid in the development of tribal areas through autonomous councils, while protecting the indigenous population in these areas from exploitation and preserving their distinct social customs.
The Bill also excludes the Inner Line Permit areas. Inner Line regulates the entry of persons, including Indian citizens, into Arunachal Pradesh, Mizoram and Nagaland.
Once an illegal migrant residing in these areas acquires citizenship, he would be subject to the same restrictions in these areas, as are applicable to other Indian citizens. Therefore, it is unclear why the Bill excludes illegal migrants residing in these areas.
Wide discretion to government to cancel OCI registration
The 1955 Act provides that the central government may cancel the registration of OCIs on various grounds.
The Bill adds one more ground for cancelling registration, that is, if the OCI has violated any law notified by the central government. It further states that orders for cancellation of OCI should not be passed till the cardholder is given an opportunity to be heard.
It may be argued that giving the central government the power to prescribe the list of laws whose violation result in cancellation of OCI registration, may amount to an excessive delegation of powers by the legislature.
The Supreme Court has held that while delegating powers to an executive authority, the legislature must prescribe a policy, standard, or rule for their guidance, which will set limits on the authority’s powers and not give them arbitrary discretion to decide how to frame the rules.
The Bill does not provide any guidance on the nature of laws which the central government may notify. Therefore, in the absence of standards, criteria or principles on the types of laws which may be notified by the government, it may be argued that the powers given to the executive may go beyond the permissible limits of valid delegation.