The Citizenship (Amendment) Act does not apply to tribal areas of Assam, Meghalaya, and Tripura. It will also not apply to areas covered under the Inner Line Permit (ILP). Presently, Arunachal Pradesh, Mizoram and Nagaland fall under the Inner Line Permit.
The ILP is a system introduced for border areas by the Bengal Eastern Frontier Regulation, 1873. Indian citizens outside such declared areas can visit the places only if they have a permit. They cannot settle in such areas even with the ILP.
Muslims from Pakistan, Bangladesh and Afghanistan are not offered citizenship under the new Act. Critics have questioned the exclusion. The Amendment limits itself to the Muslim-majority neighbours of India and, secondly, takes no cognizance of the persecuted Muslims of those countries. According to The Economist, if the Indian government was concerned about religious persecution, it should have included Ahmadiyyas – a Muslim sect who have been "viciously hounded in Pakistan as heretics", and the Hazaras – another Muslim sect who have been murdered by the Taliban in Afghanistan. They should be treated as minorities.
Pakistan, Afghanistan, and Bangladesh are Muslim-majority countries that have modified their Constitutions in recent decades to declare Islam their official state religion. Therefore, according to the Indian government, Muslims in these Islamic countries are "unlikely to face religious persecution". The government states that Muslims cannot be "treated as persecuted minorities" in these Muslim-majority countries. The BBC states that while these countries have provisions in their constitution guaranteeing non-Muslims rights, including the freedom to practice their religion, in practice non-Muslim populations have experienced discrimination and persecution.
Some similar acts for persecuted religious minorities, excluding the majority religion, have been introduced in other secular countries such as United States, case in point being the "Religious Persecution Relief Act, 2016", which has a similar approach "this bill declares that Syrian nationals who are religious minorities in their country of origin: shall be classified as refugees of special humanitarian concern, shall be eligible for priority two processing under the refugee resettlement priority system".
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The government clarifies that Pakistan, Afghanistan and Bangladesh are Islamic countries where Muslims are in majority hence they cannot be treated as persecuted minorities. It also assures that the application from any other community will be examined on a case-to-case basis.
The argument made by the Union government is that this is a ‘reasonable classification’ permissible under the Constitution. Although the Constitution does not use these words, the test goes back to the State of West Bengal vs Anwar Ali Sarkar (1952), in which the Supreme Court was interpreting the scope of Article 14, which guarantees equality before the law.
However, this argument of the government goes against the grain of constitutional law developed by the Supreme Court since the 1950s and fundamentally misunderstands what the court said in Anwar Ali Sarkar. What the court actually said was (in the words of Justice SR Das): “Article 14 does not insist that every piece of legislation must have universal application and it does not take away from the State the power to classify persons for the purposes of legislation, but the classification must be rational, and in order to satisfy this test (i) the classification must be founded on an intelligible differential which distinguished those that are grouped together from others, and (ii) that differential must have a rational relation to the object sought to be achieved by the Act.”
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