CAA: CONSTITUTIONAL BUT STILL NOT JUSTIFIABLE

Author: Jyotshna Yashaswi Shrivastava

3rd year, BBALLB,

Chanakya National Law University

In India, citizenship laws have been provided under part II of the Constitution as well as the Citizenship Act, 1955. The Citizenship Act has been subject to several amendments in 1986, 1992, 2003, 2005 and the latest one in 2019. There are various ways of acquiring citizenship of India. These ways include by birth, registration, descent, and naturalization. The Citizenship Amendment Act 2019 makes significant changes to the citizenship law. This amendment makes it possible for illegal migrants to obtain citizenship which was previously not possible. The most important change that has been brought about is that an easier path has been provided to illegal migrants belonging to Hindu, Parsi, Christian, Jain and Sikh communities who have come from the neighboring countries of Pakistan, Bangladesh, and Afghanistan. The only condition that it lays down that such illegal migrant must have entered into India before 31st December 2014.

The Indian Parliament passed the Citizenship (Amendment) Act, 2019 (CAA 2019) recently which has become one of the most debated legislation in recent times. It is being opposed by a large section of society on the ground that the legislation is violative of Article 14 of the Constitution, which is one of the core principles of the Indian Constitution i.e., right to equality. In this piece, we shall argue that CAA 2019 is an epitome of legislations good in law but bad in the policy.

For uninitiated, Article 14 enunciates the right to equality before the law or equal protection of the laws. This right is available to foreigners also as the Article states “The State shall not deny to any person”[1] This is a negative right which casts a duty on the state to not infringe such right to equality. It has been purported that the CAA violates this right granted by the Constitution.

In India, citizenship can be acquired in several ways, and naturalization is one such process. CAA 2019 changes the law in respect of citizenship acquired by way of naturalization. The grant of citizenship by naturalization has been provided by the Citizenship Act 1955 under section 6.[2] Until now any non-citizen was entitled to become Indian citizen by naturalization subsequent to the fulfillment of conditions laid down in the third schedule of the 1955 Act. However, the CAA amends the citizenship law in two ways. Firstly, it prevents certain communities from being declared ‘illegal immigrants’[3] and secondly, it reduces the time of residence required to apply for citizenship by naturalization.[4]

This law is being criticized as it changes the law of citizenship by naturalization only for certain communities. The determination of such communities has been done on three grounds, which are nationality, religion, and a cut-off date. The benefit that this law brings upon is available only to persons from Pakistan, Afghanistan and Bangladesh belonging to Hindu, Sikh, Jain, Buddhist and Parsi religions who have entered India before 31st December 2014.

Before this Act, in order to acquire citizenship by naturalization, a person must have lived in India for a total of eleven years out of fourteen years immediately preceding the period of twelve months before the application date. The new law reduces this period of eleven years to five years just forthe communities discussed above. This law leaves certain communities, namely Muslims from out of its ambit and thus being challenged as discriminatory.

The law is being challenged arguing the infringement of Article 14 which provides for the right to equal protection of the law. However, it should be noted that the right to equality under Article 14 does allow the state to make certain discrimination if it is done on grounds of reasonable classification.[5] Reasonable classification means that equals must be treated equally and unequal can be treated unequally. Therefore, the parliament is allowed to make laws that may seem to be discriminatory against certain people as long as it makes a reasonable classification between people to whom benefits are granted and people who are not provided with such benefits. If a law satisfies the test of reasonable classification the legislature is allowed to determine the category of people to whom the law will benefit, and its constitutionality under article 14 cannot be challenged just because certain categories who stand on the same footing as the benefited community.[6] This is the policy prerogative of the government and can be exercised by the government as has been upheld by the judiciary in various cases. The Supreme Court in 2011 held that “the Courts do not substitute its views in the decision of the State Government with regard to policy matters. In fact, the Court must refuse to sit as the appellate authority or super legislature to weigh the wisdom of legislation or policy decision of the Government unless it runs counter to the mandate of the Constitution.”[7]

The test for classification permitted under Article 14 has been provided by the Supreme Court in the case of State of West Bengal v Anwar Ali Sarkar.[8] It states that such classification must be based on intelligible differentia which separates two kinds of people, and such differentia needs to have a nexus with the objective aimed to be achieved by the law.

The aim of the CAA, as stated by the government is to protect the religious minorities from three neighboring countries who have been persecuted there. There is a reasonable classification because the subjects so chosen are persons who do not follow state religion in a non-secular state. Three concerned countries have adopted Islam as the state religion. The communities selected for benefit of this Act are major non-Muslim communities in those countries. Thus, there is an intelligible differentia. The nexus between the classification and the aim of the law is that by way of this Act the escape of religiously persecuted communities is facilitated by making it easier for them to get citizenship of a secular state. Therefore, the reasonable classification test under Article 14 is passed by the law.

Now, it might be argued that the object of the law is in violation of the Article 14and hence even if there is a reasonable classification, the law is invalid. It might be said that the Act indirectly discriminates against Muslims living in these three countries. According to the statement of the government, the three countries have been selected as they are non-secular countries having Islam as the state religion, and thus it perceived discrimination against minorities on religious grounds in these countries[9]. The religion here is a dichotomy and distinguishing factors, as two communities are ‘Muslims in an Islamic state, and ‘non-Muslims in an Islamic state’. Therefore, the objective of the law is not discriminatory but is on the lines of governmental policy. As discussed previously, the policy prerogative of the government cannot be questioned[10], the object of the law is not violative of Article 14.

The next challenge to the law is on the ground that this law does exclude certain groups out of its ambit, which is similarly persecuted against and thus the classification made hereby is under-inclusive. As we have discussed earlier, this might be defended stating that such a question is a part of the policy prerogative of the state as having been held by the judiciary in various cases. An under-inclusive legislation cannot be declared unconstitutional as observed by the Supreme Court that if it hits the evil at the most affected point, then the law cannot be challenged because it has left out similarly affected points.[11] Similarly, in Sakhawat Ali the Court held that the legislature can determine the groups for purpose of legislations with a special objective and if it leaves out certain similarly situated groups, the law cannot be declared discriminatory or violative of the Article 14 of the Constitution. [12]Clearly, a law cannot be challenged on the grounds of under-inclusivity, as it falls within the ambit of policy prerogative of the government, and keeping in mind the doctrine of separation of power the judiciary cannot rule in this aspect.

In the previous part, we have discussed how the CAA 2019 would pass the test of constitutionality. However, the analysis is about CAA as a law in isolation and does not take into account factors like NRC, vote bank politics, etc. As we know, the law is not just law in isolation, but it a tool of regulating the society, and thus its social impact must be analyzed.

CAA 2019 should not be seen in isolation but together with NRC, to which the government is very determined to implement in the whole country. Among the people left out of NRC in Assam, there are a large number of Hindus and this law might help them regain citizenship but not the Muslims. The most problematic thing about this law is that it indirectly discriminates against the Muslims residing in Pakistan, Afghanistan, and Bangladesh. The most worrying part is that such discrimination is being meted out by a secular state merely on grounds of religion. Clearly, it goes against the principle of freedom[13] of religion granted by the Constitution. However, due to the presumption of Constitutionality, the interpretation in its favor would be adopted by the Court.

However, just because the law is valid does not mean, it is just. In Nazi Germany, all the ethnic cleansing and persecution of Jews happened under the sanction of posited law passed by the legislature. Clearly, CAA 2019 is problematic from a policy perspective as it goes against the basic ethos of Indian society. This will increase the fear in the minds of the minorities, which is already skeptical of the current political dispensation and will increase the divide in society. In this piece, we discussed how CAA can be held Constitutional while be very bad in policy at the same time. To summarize CAA can be defended legally but cannot be justified.

[1] INDIA CONST. art. 14. [2]The Citizenship Act, 1955, sec 6 (India). [3] The Citizenship (Amendment) Act, 2019No.47 of 2019, sec 2. [4]Id. sec 3. [5]Sakhawat Ali vs The State of Orissa1955 AIR SC 166. [6]Id. [7]State Of Himachal Pradesh v. H.P.Nizi Vyavsayik Prishikshan2011 SCC 6 597. [8]State of West Bengal v Anwar Ali Sarkar1952 AIR SC 75. [9]The Hindu Centre for Politics and Public Policy, The Citizenship (Amendment) Act, 2019 Statement of Objects and Reasons, The Hindu, (Dec 19, 2019). [10] State of Himachal Pradesh,supra note 7. [11]State of Gujrat v. Shri Ambica Mills Ltd. 1974 SCR 3 760. [12] Sakhwat Ali, supra note 5. [13]INDIA CONST. art 25-28.