Anant Sangal: The Unlawfulness of Delegated Citizenship Legislation in India

In December 2019, the Parliament of India passed legislation which amended the Indian Citizenship Act, 1955 to provide for citizenship to the people belonging to Hindu, Sikh, Christian, Jain, Buddhist, and Parsee community from three neighboring countries, Bangladesh, Afghanistan, and Pakistan. In short, people belonging to all major religious communities except Muslim communities will be eligible for Indian citizenship if they came to India from any of these three countries before 31st December 2014. This lead to widespread nationwide protests and marches against the discriminatory aspects of the legislation.

Through a notification issued by the Union Ministry of Home Affairs, the Citizenship (Amendment) Act, 2019 (“Amendment”, hereinafter) came into force on the 10th January 2020. As the demonstrations and resolutions by various state assemblies against the Amendment continue to mount, the crisis around the Amendment is yet to come to a standstill. However, the rules governing the implementation of the Amendment have not been made public yet.

This article will outline the limitations posed by the Indian administrative law regime to the government’s rule-making authority in India as well as the grounds on which rules can be judicially reviewed. In so doing, I will first outline the limitations on delegated legislation and the conditions of their judicial review in India. This will include exploring some of the seminal judgments of the Supreme Court, followed by various grounds evolved over the years. Using these limitations, I will then analyze the structure of the rule making provisions contained in the three principal legislations which deal with the entire gamut of citizenship.

Limitations on Delegated Legislation in India

Indian jurisprudence emphasizes the importance of Parliamentary control of delegated legislation. As MP Jain and SN Jain, an authoritative text on the Indian administrative law notes:

It is the function of the legislature to legislate in a parliamentary democracy. If it seeks to delegate its legislative powers to the government due to a few motives, it is not the right of the legislature, but additionally its duty, as predominant, to look how its agent i.e. the executive carries out or maintain the company entrusted to it. Since it is the legislature which grants legislative power to the administration, it is primarily its responsibility to ensure the proper exercise of delegated legislative power, to supervise and control the actual exercise of this power, and ensure the danger of its objectionable, abusive and unwarranted use by the administration.

Judges also exercise control over delegated legislation through a variety of doctrines.

1. Excessive Delegation

Justice V.R. Krishna Iyer, in Paragraph 11 of his judgment in Avinder Singh, laid down the guiding principles for the parliamentary control over delegated legislations in India. For the Court –

(a) the legislature’s delegative action cannot be ‘self-effacing’, that is, it cannot delegate excessively and delegate its core essential functions;

(b) the legislature may delegate all the non-essential functions, even if they are significant, to the relevant agencies; and

(c) even if functions are delegated, Parliament will continue to exercise its control over such delegated legislation.

In the same judgment, the Court determined hat would amount to ‘core legislative functions’ of the legislature. The Court said:

While what constitutes an essential feature cannot be delineated in detail it certainly cannot include a change of policy. The legislature is the master of legislative policy and if the delegate is free to switch policy it may be usurpation of legislative power itself. So, we have to investigate whether the policy of legislation has been indicated sufficiently or even change of policy has been left to the sweet will and pleasure of the delegate in this case. [17]

Similarly, in Harishankar Bagla, where the Court held that the function of laying down the legislative policy cannot be delegated by the legislature.

2. Ultra vires delegated legislation

For subordinate delegation to be ultra vires the delegating legislation, it should either be (a) in excess of power delegated by the legislature, or (b) must go contrary to what has been stipulated in the legislation. In such a case, the subordinate legislation will be struck down as being ultra vires.

3. Unconstitutional delegated legislation

In those cases where subordinate legislation violates the Constitution, Article 13 read with Article 32 of the Indian Constitution provides for setting aside of such rule, order, bye-law, notification, etc. For example, in Chintamanrao v. State of Madhya Pradesh, legislation empowered the Deputy Commissioner to prohibit manufacture of a country-made, local cigarettes. In a notification that the Dy. Commissioner issued, he prohibited all persons in a particular village from manufacturing of such cigarettes. This notification was challenged as violating constitutional provisions which guaranteed freedom of trade, profession, and business to citizens. The Supreme Court held that the action of the Dy. Commissioner was violative of the fundamental right to trade.

4. Unreasonable, arbitrary or unfair delegated legislation

The rules framed under a legislation must also not be ‘unreasonable’, ‘arbitrary’, and ‘unfair’. In State of Maharashtra v. Chandrabhan Tale, the Supreme Court of India struck down a rule for being unreasonable. Similarly, in Indian Express Newspaper v. Union of India, the Supreme Court held that a subordinate legislation may be struck down for being arbitrary as well.     

Rule-making Framework under Citizenship Legislation

Having discussed the limitations on delegated legislation in India, in the second part of this commentary, I will now reflect upon the three principal statutes which deal with various aspects of citizenship law in India viz. – the Citizenship Act, 1955, the Passport (Entry into India) Act, 1920, and the Foreigners Act, 1946.

In September 2015, the Union Ministry for Home Affairs issued a notification, which could be considered as an interim measure for the present day Citizenship Amendment Act 2019. Through this notification, the central government exercised sweeping powers by exempting the same category of people which are covered by the Citizenship Amendment Act 2019, coming from Pakistan and Bangladesh, from the application of Rule 3 of the Passport (Entry Into India) Rules, 1920, which mandates that every person coming to India must possess a valid passport. Secondly, it exempted the same class of people from the ambit of Paragraph 3 of the Foreigners Order, 1948, which prohibits entry of foreigners into India.

            The basis for creating such drastic exemptions was that the people belonging to these religions had sought shelter in India to flee ‘religious persecution’ in these two nations. In a subsequent notification issued in 2016, what was termed at the Foreigners (Amendment) Order, 2016, the earlier 2015 notification was amended to add the word Afghanistan, along with Pakistan and Bangladesh. The most basic irregularity with these two subordinate legislations is that they ‘legislate’ without any authority to do so. The purpose of a delegated legislation is to further the objective of the parent legislation. The objective of the parent legislation, that is the Foreigners Act, 1946 is to determine who would be a foreigner for the purposes of the Passport (Entry Into India) Act, 1920. However, this objective cannot be discriminatory. The said Order of 2015 singles out only people belonging to the Muslim community. As I argued using the case of Chintamanrao earlier, if the subordinate legislation offends Part III of the Constitution, it is liable to be set aside.

            The two Orders (of 2015 and 2016) offend the provision of equality (for the Amendment’s invalidity, see this) guaranteed by Article 14 of the Constitution and the matter relating to their validity is sub judice in the Indian Supreme Court.

That said, the real problem with these Orders is that they have the character of primary and not delegated legislation. While rules are drafted to give effect to primary legislation, these Orders (which were drafted exercising the rule-making power in the Foreigners Act, 1946) did not define the mode and manner of their implementation. Rather their sole purpose was to allow a certain class of people to stay legally in India. The executive, therefore, legislated. Interestingly, to implement these Orders (i.e., delegated legislation), the central government relied on another set of rules (known as the Standard Operating Procedure ‘SOP’) which were issued by the Union Ministry of Home Affairs in 2011.

            The SOP legitimizes the residence in India of people belonging to certain communities from Pakistan, Bangladesh, and Afghanistan, by providing them with Long Term Visas (LTVs). Is the provision for the LTV for a purpose like this even distantly envisaged by the Passport Rules, 1920 or the Foreigners Order, 1948? There is nothing in the rules which may suggest as such. This makes a clear case of delegation being ultra vires the parent legislation.  Since the primary legislation did not envisage the provision of LTVs to such migrant or for any rule close to those created by the delegated legislation, this is a case of ultra vires delegated legislation.

I will now turn to Section 18 of the Citizenship Act, 1955, which confers rule-making power on the central government, [in addition to, as Talha Rahman rightly argues, under Section 14A of the Citizenship Act, 1955]. The 2019 Amendment adds a new provision [under Section 18 (2)] giving the central government the power to make rules providing for the ‘conditions’ for “granting certificate of registration or certificate of naturalization” under Section 6B (1) of the Citizenship (Amendment) Act, 2019.

The language of section 18 (2) (eei) and section 6B (1) of the Citizenship (Amendment) Act, 2019 are overly broad. In their current form, the rules will have the power to lay down the entire spectrum of operation of the new citizenship law and will give immense power to the executive. Unlike other rule-making powers under the legislation, such as those providing for forms, giving of notice, etc., which are certain and do not result in excessive delegation, Section 18 (2) (eei) causes delegation of ‘essential legislative functions’ of the legislature to the executive.

While it is acceptable that the manner of granting a certificate be left to the executive to decide, empowering the executive to frame even the ‘conditions’ of granting such certificate is both excessive delegation as well as delegating matters which are of core legislative competence. Since the Amendment already provides that the ‘condition’ to apply for citizenship should be that people should belong to any of these six communities from any of these three nations, asking the executive to draft such ‘conditions’ vests it with unfettered powers. These conditions, as we saw with the case of the 2015 and 2016 Orders, may provide for something which the legislation does not envisage – such as making the procedure inordinately difficult for every community, except Hindus. This would result in yet another layer of discrimination with Hindus being preferred over the other communities. In addition to being fanciful and arbitrary, the rules of this nature may increase the potential to cause unjustifiable discrimination at the hands of the executive and hence, are liable to be set-aside.

 Further, the Statement of Objects and Reasons to the Citizenship (Amendment) Act, 2019 provides for ‘religious persecution’ only as the reason underlying the Amendment, even though the main provision of the Act does not mention ‘religious persecution’. Therefore, it is assumed that the rules will be providing for communities who faced religious persecution to be entitled to apply for citizenship. By excluding only the Muslim community, the legislation and these are arbitrary and discriminatory.

 The rules would have to address two important issues – (a) what would amount to religious persecution; and (b) what threshold of persecution would result in protection?

The rules cannot determine either of these questions with exactitude and will therefore, have to rely on affidavit (which was used in the SOP regime). If a sworn affidavit is the be all and end all for a permanent citizenship, the influx of population from any of these countries can be inmeasurable. More than that, the executive will have unbridled power to exclude people only on the basis of their understanding of whether someone has actually faced religious persecution or not. In addition, even if we go with the documents required by the 2011 SOP, the tougher question to ask is – whether someone fleeing persecution will have her documents in the first place or if the same were washed away in the floods, a frequent case in Bangladesh? If the rules tend to create any exception to the requirement for documentation, again, what will be the guiding factor for not demanding such documents from some and demanding them from the rest?

These are some of the pressing questions which will truly render the rules framed under the legislation completely arbitrary and unfair, and therefore, liable to be set-aside.

The Way Forward

Delegated legislation on citizenship in India that predates the Citizenship (Amendment) Act, 2019 breaches many rules that govern delegated legislation. The central government appears to be resolute on its commitment to the implementation of the Citizenship (Amendment) Act, 2019, however, the mechanism for its effective implementation is infested with legal shortcomings. While the Citizenship (Amendment) Rules are likely to be published anytime soon, the shortcomings I argue above make the delegated legislation open to judicial scrutiny with severe uncertainty about its future as well.

Anant Sangal is currently an undergraduate student of law at the National Law University, Delhi, New Delhi, India. He is indebted to Dr. Farrah Ahmed for her comments on earlier drafts of this article.