THE CITIZENSHIP

(AMENDMENT) BILL, 2016:

THE CONFLICT BETWEEN
CONSTITUTIONAL MORALITY AND
MORALITY OF THE PUBLIC MAJORITY

By:
Pranay Jalan,
Student of Law,
Gujarat National Law University
40,07,707
Is this just a figure or something
more?
 TRACING PUBLIC SENTIMENT
BEHIND UPHOLDING ETHNICITY
 A STATE OF CRISIS

• Post Independence, the State of Assam

witnessed a massive influx of illegal immigrants
through the borders of present day Bangladesh,
which posed a threat to the ethnicity of the
original inhabitants.
• The issue further aggravated in the wake of the
1971 Liberation War. There was a surge in
prospective voters, thus, instilling a sense of
apprehension towards the issue of illegal influx. .
 ETHNIC STATUS

ETHNICITY

A CLAIM TO
A SENSE OF
STATUS AND
IDENTITY
RECOGNITION
 THE ASSAM AGITATION
• After the culmination of the Liberation War, the
demands of the Assamese community to attain
parity with other nationalities took the form of the
Assam Movement.
• The movement that lasted for six years between
1979-85 was brought to an end through a
bilateral agreement between the protestants and
the Central Government. This agreement came
to be known as the Assam Accord, 1985.
 The Assam Accord,
1985

Constitutional &
Administrative
safeguards

Genuine
apprehensions of the
Assamese community
 The Amendment of 1986

• Paying due heed to the constitutional and

administrative safeguards in the Assam
Accord, the Amendment contained special
provisions in S.6A as to citizenship of
persons covered by the Assam Accord.
• S.6A(3): The Amendment conferred a
deferred citizenship to those who arrived
between 1st January 1966 and the
midnight of 25th March 1971 leaving their
legality at the discretion of the Tribunal set
up under the Foreigners Act, 1946.
• The notion of migration, for the first time,
came to be explicitly associated with
illegality.
 STATUTORY PROVISIONS
PROPOSING A DIFFERENTIATED
CITIZENSHIP
• The Illegal Migrants (Determination by Tribunal)
(IMDT) Act, 1983 contained procedures to detect
illegal immigrants (from Bangladesh) and expel
them from Assam. It ensured protection to the
minorities who were affected by the Assam
Agitation.
• Although, the Act was struck down failing the
test of constitutionality, the legislative intent
extended a differential treatment to deal with the
apprehensions of the Assamese community.
 CONFLICT BETWEEN
CONSTITUTIONAL MORALITY
AND PUBLIC MORALITY?
 THE PRINCIPLE OF
CONSTITUTIONAL MORALITY

CONSTITUTIONAL
MORALITY

BALANCE RESPECT TOWARDS

BETWEEN MULTICULTURAL
RULE OF LAW FUNDAMENTAL SECULARISM
VALUES AND
RIGHTS & DPSP OPINIONS
 THE PROPOSED AMENDMENT TO
S.2 OF THE CITZENSHIP ACT, 1955

• “Provided that persons belonging to

minority communities, namely, Hindus,
Sikhs, Buddhists, Jains, Parsis and
Christians from Afghanistan, Bangladesh
and Pakistan……..shall not be treated as
illegal migrants for the purposes of this
Act.”.
 IMPEDIMENTS TO THE NRC
PROCESS

• The Aims & Objectives of the

process.
• How is the purpose of NRC defeated?
THE AMENDMENT IN VIOLATION OF
RIGHTS OF THE ASSAMESE
CITIZENS
• Art. 325 of the Constitution: ”No person to be
ineligible for inclusion...or to be included in a special,
electoral roll on grounds of religion, race, caste or
sex.
• Article 21 is wide enough to include the right to
protection of a person’s tradition, culture, heritage
and all that gives meaning to a man’s life.
• Article 29(1) of the constitution ensures the citizens
residing in the territory of India the right to preserve
and conserve their own distinct language and script
of culture.
 OPPOSED TO SECULARISM

• The proposed enactment creates a

communal divide.
• Secularism, being of the tenets of the
Basic Structure cannot be undermined.
• The proposed Bill in out rightly rejecting
the Muslim community as the absolute
other and the acceptance of a multi-
diverse community is constitutionally
immoral.
 Rule of
Law

Supremacy
BASIC
Secularism STRUCTURE of the
Constitution

Division
of Power
 CONCLUSION
The far-reaching implications of the proposed
enactment shall render the concept of India as
welfare-state to be dysfunctional. Thus, the
transition of the Bill into an Act shall prove to be a
constant source of conflict as it imbalances the
relationship between the diverse perspectives of
public and constitutional morality which would
otherwise be in harmony if the Bill was to be
enacted while incorporating these moral
considerations.
THANK YOU!

Questions?