No, Amit Shah, Citizenship Amendment Bill Isn't Based on 'Reasonable Classification'

Lawyers ask why Muslim sects like Shias, Ahmadiyas and Bahaiis, who are more persecuted in Pakistan and Bangladesh than Hindus, have been left out of the Bill's purview.

New Delhi: When the opposition raised serious concerns about the Citizenship (Amendment) Bill, 2019 in the Lok Sabha, including calling it “unconstitutional”, Union home minister Amit Shah took it upon himself to justify the Bill.

“I should explain the reasonable classification in this Bill,” he declared, recalling what he called similar instances from the past including Indira Gandhi allowing refugees from East Pakistan (now Bangladesh) to enter India in 1971, to buttress his argument. Senior lawyers, however, insist that the home minister “was less than economical with the truth”.

What Shah said

The Bill covers non-Muslim communities coming from three countries close to India – Afghanistan, Pakistan and Bangladesh. As some MPs asked “why not Nepal”, he said that “106 km of India’s border is with Afghanistan”. When opposition members continued to question this, his retort was, “Perhaps they do not consider Pakistan-occupied Kashmir to be part of India.”

Shah went on to say, “Afghanistan is an Islamic state, and so are Pakistan and Bangladesh.” He stated that the Nehru-Liaquat agreement of 1950 provided for security of minorities in East and West Pakistan and India. While “we implemented it properly, in these other countries there were atrocities on minorities – Hindus, Sikhs, Buddhists, Jains, Parsis and Christians were discriminated against”.

When some MPs asked if there were no atrocities against Muslims in these countries, Shah’s counter query was, “Will there be atrocities on Muslims in these countries?” He said the Bill was to give citizenship rights to people who are discriminated against.

Article 14 and reasonable classification

According to the home minister, “This Bill does not contradict any article of the constitution.” Stating that “everyone spoke about Article 14 as they felt the Bill violates equality”, he insisted that “Article 14 cannot stop us from making law due to reasonable classification”.

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Then he added, “In 1971, a decision was taken that all those coming from Bangladesh will be given citizenship. Why were those coming from Pakistan not taken? At that time too, Article 14 was there, then why only Bangladesh?”

Shah insisted that “this Bill is also for people from Bangladesh. The carnage has not stopped. Even after 1971 minorities there have been picked and killed.” He said the refugees from there were allowed in on the basis of reasonable classification. “World over such laws exist…If this yardstick of Article 14 applies, then how would you give special facilities to minorities,” he added.

Lawyers unconvinced

However, leading lawyers have said Shah’s reading of ‘reasonable classification’ is flawed.

Senior advocate Sanjay Hegde said, “Reasonable classification has to do with the nexus of the classification. He (Shah) has only got one part of the phrase right. If the nexus of the classification is fleeing religion persecution, then all kinds of people can be fleeing religious persecution. It cannot mean that only people of certain faiths can be religiously persecuted and not others. An Ahmadiya or a Shia Muslim fleeing religious persecution from Pakistan or Afghanistan should be as entitled to ask for Indian citizenship as any Hindu, Buddhist, Sikh, Parsi or Christian.”

On Shah comparing the Citizenship (Amendment) Bill with the situation in Bangladesh in 1971, Hegde said, “Indira Gandhi never said ‘only Hindus from East Pakistan would be welcome’. Anybody from East Pakistan who was fleeing the Pakistan Army was allowed to come into India.” There was no distinction on the basis of religion then. Shah, he argued, has been “less than economical with the truth”.

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Responding to the Amit Shah’s claim that benefits are also provided to minorities in accordance with ‘reasonable classification’, Hegde said, “If you determine within India that some communities need more help, then that is a different thing altogether. So nexus is the object; you can’t have reasonable classification in the air.”

Hegde also wondered if the Bill would stand legal scrutiny, saying, “I would expect the Supreme Court to be provided with very strong reasons before it comes anywhere close to upholding it.”

`In Islamic nations, worst persecuted are minority sects’

Another senior advocate, C.U. Singh, said he had not heard Shah’s speech but in general averred. “I do not buy this argument of drawing a parallel with 1971. Reasonable classification has to be in the context of the purpose of the law or the classification. If the purpose is to give refuge to persecuted minorities, then in any case the problem with these Islamic nations is that the worst persecuted minorities are sects within the majority community.”

Singh too gave the examples of Ahmadiyas and Bahaiis in this context. “For example in Pakistan, the Shia mosques are bombed on practically a monthly basis and Ahmadiyas and Bahaiis are completely persecuted. So the amount of persecution against Shias, Ahmadiyas and Bahaiis is much more than against Hindus or Sikhs or any other minorities.” He thus questioned Shah for not extending the Bill to these communities.

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With Bangladesh, he said, “Even though Bangladesh is technically an Islamic nation, the Constitution there guarantees equal right to all religions. In 2010 there was a judgment of their Supreme Court which reiterated the 1972 constitution and struck down laws made in between to uphold equality and protection of all religions.”

 “Also,” he said, “90% of the Bangladeshi population is Sunni, 9% is Hindu and others like Bahaiis, Ahmadiyas, Christians and Buddhists comprise the rest. So Hindus enjoy a greater degree of equality in Bangladesh than Ahmadiyas and others. This whole argument of reasonable classification does not wash at all with me.”

Singh said, “Here the purpose is quite apparently is to segregate Muslims as a class and to give protection to everyone except Muslims. This is also why Sri Lanka, Myanmar and some neighbouring countries are left out of the Bill altogether.”