The Citizenship Act, 1955 outlines how one may acquire Indian citizenship. Naturalization, subject to residency requirements, is one such path. To qualify, amongst other requirements, one should not be an “illegal migrant” and is typically required to be a resident of India for an aggregate period of at least 11 years, with some exceptions. The CA Act was amended by Citizenship (Amendment) Act, 2019 in December 2019.
The CAA 2019, inserted a proviso in the definition of “illegal migrant”, pursuant to which Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians (“Identified Communities”) from Bangladesh, Pakistan, and Afghanistan (“Identified Countries”) entering India on or before December 31, 2014 (“Cut-Off Date”), are no longer considered illegal migrants. Furthermore, such individuals will be entitled to an accelerated path to citizenship after only 5 years of Indian residency, rather than the standard 11 years. Additionally, the CAA 2019, abates all proceedings pending against such persons, under the provisions of the CA Act or any other law in respect of illegal migration on grant of citizenship, and removes any disqualification from applying for citizenship on account of any such proceedings.
Also read: Citizenship Amendment Act Is an Assault on Muslims, but It Will Come for Hindus Too
The Government of India, no doubt, has brought in this beneficial legislation to alleviate the agony of millions of people who suffer on account of religious persecution in Identified Countries, however, a sincere evaluation of the CAA 2019 on the constitutional touchstone is equally important.
Article 14 of the Constitution provides for equality before the law and equal protection of the laws, however, it may be impossible to read Article 14 literally in a diverse country like India, and the creation of exceptions and sub-groups is necessary. The courts have agreed that legislations can potentially create classes and accord differential rights, however, such legislations would need to pass the ‘twin test’ of reasonable classification (“Reasonable Classification Test”). This means that a legislation is valid only if (a) it differentiates or classifies on the basis of a clear criteria (“Intelligible Differentia”); and (b) this differentiation has a reasonable connection to the objective sought to be achieved by the legislation.
Representative image. Photo: DTM – Own work, CC BY-SA 4.0
In the celebrated case of Navtej Singh Johar v. Union of India, the Supreme Court said Intelligible Differentia will only be satisfied if, firstly, there is a benchmark to differentiate between those included in and excluded from a group and secondly, that benchmark must itself be reasonable and “where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia”. Unfortunately, CAA 2019 does not meet the Reasonable Classification Test as: –
- It bases its classification of persons only on the basis of religion without reference to any other criteria.
- The object of the CAA 2019 as per the object clause is to “protect those who have faced religious persecutions in Afghanistan, Pakistan, and Bangladesh” which proceeds on the incorrect premise that only Identified Communities face ‘religious persecution’ in the Identified Ahmadiyyas are not even considered as “Muslims” as per Article 260 (3) (b) of the Pakistani constitution and their discrimination/persecution is widely documented. In Afghanistan, Hazara and Shia communities also face similar persecution. The classification therefore has no nexus to the object, i.e., protection against “religious persecution”.
- It is not clear as to why other religious minorities such as ‘Tamil Hindus’ of Sri Lanka, ‘Jews’, ‘Bahaai’s’, ‘Rohingya Muslims’ from Myanmar are excluded.
- It creates two classes, i.e., Illegal migrants who entered India before the Cut-Off and who entered after the Cut-Off Date, without any rationale as to why the latter are not accorded the same rights as the former.
The creation of Identified Communities as a class which is only based on religion, seems to be an “impermissible classification” failing the equality test enshrined in our constitution. It could also be construed as being “under-inclusive” as it does not protect everyone who are there to be potentially protected in light of the objects of CAA 2019 itself. The Supreme Court in the case of The State of West Bengal v. Anwar Ali clearly held that if the law discriminates against one class which is similarly placed as the other classes which is accorded with favourable rights, such legislation falls foul of the constitution.
Apart from the Reasonable Classification Test, pursuant to the Shayara Bano v. Union of India, a legislation can be struck down on account of ‘manifest arbitrariness’ or being ‘excessive or disproportionate’ and when a legislation is brought in ‘capriciously’, ‘irrationally’ and/or without adequate ‘determining principle’. The CAA 2019 may be seen arbitrary in any of these ways-
- There are persecuted minorities in Sri Lanka (Sri Lanka also has a state religion) (Eelam Tamils) and Myanmar (Rohingya Muslims) as well. So, including only the Identified Communities in the Identified Countries or on the basis that these countries have a state religion cannot be the principles behind the classification as there are other examples as
- The object clause claims that it wants to protect persons from religious persecution in undivided India. Pakistan and Bangladesh were part of the undivided India. However, with the inclusion of Afghanistan, it is evident that the classification is not based on the principle of undivided India
- There is the exclusion of other persecuted minorities such as Jews, Bahaai’s, Ahmadiyyas, Hazaras or Shias
While some have raised a technical question on whether the excluded communities, being non-citizens, have any rights under the constitution of India, it is clear from many precedents such as the landmark case of The State Trading Corporation of India Ltd. & Others v. The Commercial Tax Officer, Visakhapatnam and Det Norske Veritas v. Reserve Bank of India, that the protection under Article 14 is available to ‘all persons’ and is not limited to ‘citizens’.
The right of “citizenship” is termed as the “right to receive all rights” and is the fountainhead of all important rights in India. There is no denying that the decision to grant citizenship is the sovereign prerogative of the state, but India being a constitutional democracy and a country governed by the rule of law, such prerogative has to be tested against the constitutional mandates of equality. Religion being the reason for persecution should not become the basis for legislation which endeavours to protect against such religious persecution. The protection should be extended to everyone who is facing religious persecution. The distinction should have ideally been based on “persecuted minorities”, as suggested by Dr. Subhash Kashyap, one of the leading jurists on constitutional law. To quote Thomas Jefferson, “The hole and the patch should be commensurate.” India’s elevated position on the world stage as the largest democracy beckons it to take a lead in such issues.
Vineetha MG, Pratik Patnaik and Manan Sheth are practising lawyers.
