Amit Kumar and Kumar Mangalam
Multiple petitions have been filed in the Supreme Court challenging the Citizenship (Amendment) Act, 2019. Would these be successful? What does precedent say?
Citizenship (Amendment) Act, 2019 (CAA) amends the Citizenship Act, 1955 to relax the conditions for granting of citizenship by way of naturalization, to persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan. This Act has attracted severe criticism ever since it was first tabled in the Lok Sabha. Later on, presidential assent to the Bill has triggered protests across the country. Major criticisms against the Act is, that it discriminates among individuals on the ground of their religious affiliations and that in the larger scheme of things, CAA coupled with the National Register of Citizens (NRC), will become a handy tool to invalidate the citizenship of the Muslim population of the country. So far, more than sixty petitions have been filed in the Supreme Court challenging the constitutionality of CAA. This article analyses the constitutional jurisprudence of the Supreme Court and tries to find out the factors which blur the prospect of success for these petitions. Should NRC be carried out at national level; if carried out as proposed, will it result in the exclusion of Muslims; will it be feasible enough; and above all, is it even necessary to undertake such an exercise? All these questions are crucial and demand an extensive discussion, but here we will limit ourselves only to the question of the validity of the CAA from the lens of Constitutional Law.
Before getting into the discussion, let us understand the position of migrants of other states under Indian laws. The Foreigners Act, 1946 states that anyone who is not a citizen of India is a “foreigner”. Further, the Citizenship Act, 1955 states that foreigners entering into India without requisite documents or staying in India beyond the permitted period, are “illegal migrants”. Till date, India has no specified immigration policy, and the regime is entirely dependent on executive discretion. Under the amended Act, a particular class of persons who migrate to India from three specified countries of South Asia shall not be treated as illegal migrants. It makes it possible for any person belonging to six specified communities (i.e., Hindu, Sikh, Buddhist, Jain, Parsi or Christian) of three countries (i.e. Afghanistan, Bangladesh and Pakistan) to apply for Indian citizenship, if he/she arrived in India before the cut-off date (i.e., December 31, 2014). Now we will analyze the criticisms one by one.
Does CAA violate Article 14 of the Constitution of India?
Article 14 of the Constitution of India reads as follows:
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”
This provision prohibits class legislation, but it does not rule out a reasonable classification for legislation. To satisfy the test of Article 14, a law needs to have an intelligible differentia which differentiates persons or things who have been grouped from the ones who have been left out, and classification so made must have a nexus to the object sought to be achieved by the Act.[i] The object, as clearly set out in the Act, is to grant citizenship to the persecuted religious minorities of Afghanistan, Bangladesh and Pakistan. It mentions that these three countries have a constitutionally recognized state religion, which results in the exclusion and persecution of religious minorities. The six religious communities selected for this Act are religious minorities in the three Islamic countries. Classification done in the case of this Act appears to be aptly in nexus with the objects sought to be achieved. In the case of Navtej Singh Johar vs. Union of India, intelligible differentia has been interpreted to mean “reasonable differentia”. Afghanistan, Bangladesh and Pakistan share a land boundary with India. Bangladesh and Pakistan were a part of undivided British India until it was partitioned in 1947 on the religious grounds. While lakhs of people of minority communities living in areas assigned to Pakistan, travelled across the partition line to get into India, a lot of them chose to stay back in Pakistan (and Bangladesh), buying into Jinnah’s promise of establishing a secular nation. Now it is very pertinent that India provides shelter to such people who are victims of religious persecution in the theocratic states that Pakistan and Bangladesh have come to be. This explains the reasonableness of the differentia created.
Laws related to citizenship are considered a matter of ‘sovereign or legislative wisdom’ where courts usually don’t intervene. In Trump vs. Hawaii, Supreme Court of USA refused to strike down notification of banning travel to the USA from several countries stating matters of regulation of foreigners is “fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control”. Similarly in India, Madras High Court has stated in its judgement in the case of David John Hopkins vs. Union of India that Centre’s right to refuse citizenship is absolute and it is not hindered by the right to equality guaranteed under Article 14 of the Constitution of India.
Additionally, the amended citizenship Act does not suffer from over/under inclusion because it addresses a set target audience (i.e. the victims of religious persecution) which has been selected on basis of an identifying metric (i.e. the communities which form the religious minority in the three specified countries). This accounts for non-inclusion of sectarian minorities of the three countries. For these reasons, it is unlikely that any claim of violation of article 14 will stand in court.
Does CAA violate Article 21 of the Constitution of India?
Article 21 of the constitution of India reads as follows:
“No person shall be deprived of his life or personal liberty except according to the procedure established by law.”
After the interpretation of the article in Maneka Gandhi vs. Union of India, it is an established position that the procedure envisaged by Article 21 must be just and fair, and it must not be arbitrary, fanciful or oppressive. Thus, if any law which constrains the life and personal liberty of people fails the test of Article 14, it also contravenes Article 21. But as already discussed, it is possible to justify the Act under article 14.
A study of the jurisprudence of the Supreme Court on the question of citizenship to migrated foreigners indicates that the court has consistently upheld the unrestricted authority of the government in such cases. In 2005 the judgement of Supreme Court in Sarbanand Sonowal vs. Union of India reiterated the principle laid down by a constitutional bench of the court in Hans Muller of Nurenburg vs. Superintendent, Presidency Jail, Calcutta, that the executive government has absolute and unlimited power to expel foreigners and there is no constitutional provision which restrains this discretion. In the 1991 case of Louis Readit vs. Union of India, a divisional bench of the apex court observed that right to life and liberty under article 21 does not include the right to reside and settle in this country. This particular right is covered under article 19 (1) (e) and applies only to the citizens of the country. Therefore, any claim of violation of Article 21 is unlikely to succeed in the court.
It is important to note that Article 11 of the Constitution of India empowers the Parliament to make any law to regulate the provisions of citizenship. Furthermore, there is always a presumption in the favour of the constitutionality of legislation and the burden is upon the one who challenges it to prove that it violates the provisions of the constitution. The Citizenship (Amendment) Act, 2019 makes a classification based on religion but the classification appears to fulfil the criteria of intelligible differentia and rational nexus for validity under Article 14. Contrary to popular misconception, the Act does not change the rules for citizenship of India. What it does is positive discrimination to relax the conditions for citizenship for the persecuted religious minorities of three neighbouring countries. The Act stands the test of Article 14 and Article 21. Claims of violation of Article 15 are not sustainable as it applies only to the citizens of India. Considering all these factors, it is very difficult to challenge the constitutional validity of the CAA, and it is highly unlikely that the petitions challenging its validity will succeed.
 See also, ‘Supreme Court issues notice to Centre on fresh pleas against CAA, tags them with pending ones for hearing’ (Northeast Today, 21 Feb 2020) https://www.northeasttoday.in/supreme-court-issues-notice-to-centre-on-fresh-pleas-against-caa-tags-them-with-pending-ones-for-hearing/ accessed on 04 April 2020.
[i] State of W.B. v Anwar Ali Sarkar  SCR 284; Budhan Choudhary v State of Bihar  1 SCR 1045.
The authors are students at the National Law University, Odisha.
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