(Siddharth Shivakumar is a Founding Core Committee Member of Progressive Constitutional Law Society. He graduated from Hidayatullah National Law University in 2020.)
Featured illustration- Emperor Akbar’s court by Nandalal Bose (As illustrated in the Constitution of India)
During a heated debate on citizenship, P.S.Deshmukh, member of the Constituent assembly of India, introduced an amendment to draft Article 5 of the Constitution. Mr. Deshmukh suggested that the Constitution must explicitly state that ‘every person who is a Hindu or a Sikh by religion and is not a citizen of any other State, wherever he resides shall be entitled to be a citizen of India’. He went on to rely on the argument that India is the natural home of Hindus and Sikhs, just as Pakistan is for the Muslims. In response, Pandit Nehru, among others declared that when it comes to citizenship, ‘all these rules naturally apply to Hindus, Muslims and Sikhs or Christians or anybody else. You cannot have rules for Hindus, for Muslims or for Christians only. It is absurd on the face of it…’
Nearly 70 years down the line, the Indian Parliament debated a bill, along the lines of the amendment introduced by Deshmukh that seeks to set different rules based on religion. However unlike the Constituent assembly, that vehemently rejected a religion based determination of citizenship, the Indian Parliament passed the Citizenship Amendment Bill on the 11th of December,2019.
This legislation seeks to amend the definition of ‘illegal migrant’ under Section 2(1)(b) of the Citizenship Act, 1955. According to the Citizenship Act, an illegal migrant can neither claim citizenship by registration, nor by naturalization. However, due to the effect of the amending legislation, any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 shall not be treated as an illegal migrant even though such a person does not have a valid passport or travel documents or has such documents but stays beyond the permitted time.
The argument put forward by Mr. Deshmukh was that India is the natural homeland of the Hindus. Muslims and Christians, who are not already Indians, would not be granted such a privilege because they form the majority population in other countries, which would be their natural home. This argument attempts to identify a State using religion. It does not directly define India as home only to Hindus; rather it declares that Hindus can at any time choose to make India, their home. This argument flows from the flawed binary that was created during partition. While Pakistan was born out of the idea that it would be the home to Muslims, India withstood the temptation of saffronising its birth. India’s founding fathers were ardent defenders of a secular India that did not reduce nationality to religion or elevate religion to nationhood. Yet, the two nation theory created this binary in the heads of leaders such as Deshmukh that Pakistan is for Muslims and Hindustan is for Hindus. This idea of defining citizenship based on religion and identifying the State as a natural home to a particular religion is not new. The law of return in Israel, is extremely similar to the argument that was vehemently rejected by the Constituent Assembly of India.
However, the current Act in question is different from Deshmukh’s suggestion and far from Israel’s law of return. Yet, the thought process behind it seems similar. However, credit must be given where it is due, as the Home minister is far more generous than Deshmukh in granting the privilege of citizenship to most religions barring Islam, while also exercising greater prudence by granting the privilege only to Hindus from three States and not to all of them, worldwide.
Unfortunately for the minister, former Supreme Court Judges such as Justice Madan Lokur and Justice Hegde believe that this law is unconstitutional. The Supreme Court of India has on multiple times held that secularism is part of the basic structure of the Constitution. Therefore, no ordinary law or a constitutional amendment can offend this basic feature. In the landmark S.R.Bommai case, that recognised secularism as a basic feature, the Court defined Secularism from the perspective of the citizen as well as from the perspective of the State. According to the Court, “While the citizens of this country are free to profess, practice and propagate such religion, faith or belief as they choose, so far as the State is concerned, i.e., from the point of view of the State, the religion, faith or belief of a person is immaterial. To it, all are equal and all are entitled to be treated equally.”
In other words, religion must be divorced from Statehood. Therefore, India cannot be secular while being the homeland for a person only based on his religion. Even if the basis of the CAA is not the ‘homeland’ argument, it would still offend the basic structure. This is because; a secular state cannot factor in religious considerations while determining citizenship. A secular State must be indifferent to the religion of a person.
It is also the opinion of many renowned jurists that the amendment Act violates Article 14 of the Constitution. However, noted jurist and renowned lawyer, Mr. Harish Salve contends that the Act is completely within the legal boundaries set by the Constitution, while Advocate J. Sai Deepak dismisses any possibility of a violation of Article 14.
THE EXAMINATION OF THE EQUALITY PROVISION UNDER ARTICLE 14
In this context, it is extremely important to understand the contours of Article 14. Article 14 ensures that the State cannot deny equality before the law or equal protection of the laws within the territory of India. The right to equality exists to every person and not just to citizens.
Equality before the law is a negative concept that reaffirms the ‘rule of law’. According to this principle, nobody is above the law. On the other hand, equal protection of laws, guarantees equal opportunity to all those in similar situations or circumstances. Article 14 does not prevent classification of groups and individuals. It only provides for equality among equals. In this context, the Supreme Court has evolved a simple mechanism to decipher if a classification is violative of Article 14.
The legislature may make any law that seeks to achieve a reasonable objective. This law can make a classification that treats a certain group differently from the other. However, this classification must be based on some intelligible differentia. Lastly, there must be a reasonable nexus between this classification and the object sought to be achieved by the law.
According to Mr.Salve these conditions have been met by the Citizenship Amendment Act. He argues that choosing the ethnic minorities of three neighboring countries- Afghanistan, Pakistan and Bangladesh, which are all Islamic theocracies that have a large population of persecuted religious minorities, is a classification that is based on the principle of intelligible differentia. This classification does sound like a noble initiative aimed at welcoming persecuted minorities into the country.
He fleshes out the object sought to be achieved by the legislation through the ‘Statement of objects and reasons’ and through the Speech of the Home Minister, on the floor of the Parliament. He identifies the object of the legislation as ‘protection of persecuted minorities’. He claims that there is reasonable nexus between the object and the classification. Furthermore, he emphasizes on the argument that if a legislation seeks to provide certain exemption or redress certain wrongs, it cannot be struck down as violative of Article 14 on the basis that not all wrongs have been redressed or not all groups have been exempted. In other words, extending the exemption to other persecuted communities from different countries would fulfill the objective of the Act, yet not extending the exemption would not be violative of Article 14. Therefore, India’s lack of generosity to Srilankan Tamils, or Rohingya Muslims is an issue of policy that is to be decided by the Sovereign Government and not by Courts of Law.
This does sound like a convincing argument, yet it is my contention that Mr.Salve is wrong in his examination of Article 14. In the instant case, the legislation makes the Hindus, Sikhs, Buddhists, Jains, Parsis or Christians from Afghanistan, Bangladesh or Pakistan a separate class. This class is not in the abstract, but it is carved out of the larger section of ‘illegal migrants’. Therefore, the distinction between this class that has been carved out and the other illegal migrants must be based on some intelligible differentia. This would mean that the State must necessarily prove that there was a need to draw a line of division within this pool of illegal migrants. Secondly, that this line was drawn at the right place. Unfortunately for the State, the separate class created by this law, is extremely specific. It is not on the basis of religion or origin of such migrants alone, but a mix of both factors targeting specific communities only from the three countries.
The State has the burden to satisfy the Court as to why only Hindus, Sikhs, Buddhists, Jains, Parsis or Christians only from Afghanistan, Bangladesh and Pakistan have been considered. The State cannot hide behind the excuse that this is a question of policy. This is because, if this classification is based on a particular intelligible differentiation, then it would be unequal treatment of equals, if those classes of people who fit the differentiation are deliberately excluded and only one section of the many that fit the differentiation is favoured. It is a question of policy, if the differentiation is based on grounds such as friendly relations with these three States, consistency of foreign policy, executing valid agreement with foreign State, etc. However, it is an arbitrary exercise of power when the basis of such classification is ‘persecution of minorities by neighboring States’ and only certain minorities and certain States are chosen without any reasonable justification.
Moreover, I am being generous to the State when I choose to pick ‘persecution of minorities’ as the basis of classification. This is because the ‘statement of objects and reasons’ of the Amendment Act reflects an extremely confused mind that seems to find artificial reasons to fulfill its objective of passing the provisions of the law. For instance, if partition was the historical reason to differentiate between countries, then Afghanistan cannot be validly considered to be part of the group. Further, according to the objects and reasons of the Bill, “Millions of citizens of undivided India belonging to various faiths were staying in the said areas of Pakistan and Bangladesh when India was partitioned in 1947.” If undivided India was a factor for classification, why exclude Bhutan and Myanmar?
The objects and reasons further read, “The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries.” Bhutan, a neighboring State has Buddhism as its State religion, yet is not covered under the ambit of the Act. According to a few concerned citizens, the larger problem is that the Act points to a single shared state religion between the 3 selected countries. And, even worse, the Act suggests that the persecution of minorities is a result of these States being Islamic republics. It deliberately chooses to ignore that freedom to profess, propagate and practice Christianity has been stifled by law in Bhutan. One can only wonder if this ignorance is because Bhutan is a Buddhist state and does not have the ‘specific’ State religion as Pakistan,Afghanistan and Bangladesh.
While granting the benefit of doubt to the State and assuming, persecution of minorities is the object of the law even then it is still absurd that Srilankan Tamils have missed the bus. Further, if it is solely religious persecution of minorities, it is surprising that Rohingyas are still being treated as illegal migrants. Therefore, the State must prove that it was on reasonable and intelligible grounds that a differentiation is being made by the legislation.
Therefore, in this kind of examination of Article 14, it is imperative for the State to prove not just the need for the differentiation but also that the line of division has been drawn at the right place to achieve and accommodate all individuals and groups that require to be accommodated by the object of the law. In other words the legislature does not make a separate class to achieve an objective; rather, to achieve an object, they make a reasonable classification. However, the Salve approach seems to be that the State can make any classification and then find some reason to back up the division that has been made. While commenting on the Act to the Hindustan Times, Former Supreme Court Judge, Justice Lokur reminded that this method of defending constitutionality of legislations has been decried by the Supreme Court in the Anwar Ali Sarkar case, where Justice Das held that “The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation.”
The object of the law is to protect persecuted minorities. This classification does have a nexus with the objective of the law, yet the classification itself is arbitrary and discriminatory. Therefore its contribution to achieving the object is not just insignificant, but it is irrelevant. It must also be acknowledged that at times there is no contribution to achieving the objective as even those non-Muslims from these three States who have not faced persecution but have crossed borders for economic gains would also be granted citizenship. This is because the rationale for division is not checked on a case to case basis.
Lastly the Act perpetuates unequal treatment between a set of individuals, both of whom have faced similar circumstances when they fled States that actively clamped down and persecuted them based on their identity. One set of these individuals, just got lucky that they were persecuted in one of the three States on the basis of a religion mentioned in the Amendment Act. Under our Constitution, the inalienable right of equality cannot be based on such luck. All these arguments however become relevant only if the Court finds that such a religion based determination of citizenship is possible under a Secular constitution. Nearly 70 years ago, long before the word ‘secularism’ was added to our Preamble and long before, the Court recognised secularism as a basic feature of the Constitution, the founders and makers of this republic, vehemently rejected the idea of religion based determination of citizenship. It is now up to the Supreme Court, to either emulate the members of the Constituent assembly or side with the members of the Parliament.
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