Keywords: Citizenship amendment Act, Article 14, intelligible differentia basic structure, Hindu Rashtra, minority rights
The Citizenship Amendment Act of 2019 (CAA) has been at the forefront of controversy, intense public debate, demonstrations and has undoubtedly disrupted communal fault lines of contemporary India. Two of the concerns raised by certain sections of the civil society, notably academics and scholars are pertaining to the constitutionality of the Act itself. The prominent questions raised are as such: First, does the Act violate the basic structure doctrine of the Indian Constitution in general and Article 14 or Right to Equality in particular? Second, is the act a precursor to a Hindu theocratic State or Hindu Rashtra thus subverting the secular credo of Indian constitution? The author of the write up is not a constitutional law expert and therefore refers to various arguments put forth by constitutional law experts on the same.
Before devolving into the arguments put forth by various experts, it is imperative to understand what the Article 14 of the Constitution of India reads: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. The corollary held in this article would be that “treating equals equally, treating unequal unequally”.
DOES CAA VIOLATE ARTICLE 14?
To understand the criticism that the Act does violate Article 14 of the Constitution, let us look at the amendments made to the Citizenship Act of 1955 and 2004. First, the amendment of Part-II, section (2), sub-section (1) in clause (b) inserts the following: “Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community… ”. A second criterion introduced is the nations of Afghanistan, Bangladesh and Pakistan. Third criteria being the cut-off date of 31st of December, 2014. Fourth being the secondary qualification through exemption under clause (c) of sub-section (2) of section (3) of the Passport entry Act of 1920 or from Foreigners Act of 1946.
Therefore, as mentioned, there are three primary qualifications an illegal immigrant defined as per Foreigners Act of 1946, must undergo in order to be qualified as a refugee and therefore be eligible to undergo process of naturalization to become citizen of India.
The criticism therefore is that none of the alterations made to the statute for conferring citizenship have encroached on the idea that citizenship will not be premised on a person’s faith (Parthasarathy, 2020). That, the reasonable classification as claimed by the Ministry of Home Affairs to ease the path for naturalization stands in violation of all three counts of reasonable classification, arbitrariness in State action and treating unequally without reason because one, CAA is not reasonable because it does not include Muslim sect minorities, two, it is arbitrary because it applies only to three Islamic countries and three, it prioritizes religion. The Act makes a classification based on flawed rationale (Hegde, 2019).
On Prima Facie judgment of the Act, one can derive “fundamentally discriminatory” character of the Act because one, it explicitly mentions the religious communities who are eligible for naturalization process and two, members from Muslim community are not treated as equals. However, the Act exemplifies what is called “positive discrimination” which is one of the accepted methods across the world to guarantee equality (Sathyajith, 2019). On the other hand, there is always a presumption in favour of the constitutionality of a statute – that the legislature understands and correctly appreciates the need of its people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds (Pai, 2019). In other words, presumed validity of the claim by the State is constitutional as exemplified by the Supreme Court judgment in Clarence Pais V. Union of India where the court states thus: “historical reasons may justify differential treatment of separate geological regions provided it bears a reason and just relation to the matter in respect of which differential treatment is accorded” (A.I.R 2001 SC 1151 @ 1152).
To hold a constitutional validity under Article 14, an Act passed by a competent authority, in this regard; the Parliament of India must meet two conditions: first, those who are grouped together should be distinguished from others. Second, the distinction must have a rational relation to the object sought to be achieved by the Act. To apply these conditions onto CAA, let us look at the Statements of Objects and Reasons submitted to the houses of Parliament. It reads thus: “2. it is a historical fact that trans-border migration of population has been happening continuously between the territories of India and the areas presently comprised in Pakistan, Afghanistan and Bangladesh. 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. 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. Some of them also have fears about such persecution in their day-to-day life where right to practice, profess and propagate their religion has been obstructed and restricted. Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents”.
“5. The illegal migrants who have entered into India up to the cut of date of 31.12.2014 need a special regime to govern their citizenship matters. For this purpose the Central Government or an authority specified by it, shall grant the certificate of registration or certificate of naturalisation subject to such conditions, restrictions and manner as may be prescribed. Since many of them have entered into India long back, they may be given the citizenship of India from the date of their entry in India if they fulfil conditions for Indian citizenship specified in section 5 or the qualifications for the naturalisation under the provisions of the Third Schedule to the Act”.
Therefore there exists an objective to provide citizenship to the categorized religious minorities based on certain grounds aforementioned: The class is of people, one, belonging to minorities, two, coming to India on or before 31 Dec 2014, three, persecuted in their country on the basis of religion, four, coming from the countries that have a specific official state religion and that share borders with India (Gune, 2019).
IS DIFFERENTIAL TREATMENT NEW TO INDIA?
The differential treatment provision under Article 14 or Intelligible Differentia has been applied in India to one, sect minorities and two, religious minorities through various policies to “facilitate” upliftment of marginalized communities. When Article 14 is viewed from the lens of Article 15 and Article 16, in G.M. Southern Railways v. Rangachari, the Supreme Court held Article 15(4) of the Constitution of India to be an exception to Article 15(1). The relevant portion is reproduced hereunder: “Article 15(4) which provides, inter alia, for an exception to the prohibition of discrimination on grounds specified in Article 15(1) lays down that nothing contained in the said Article shall prevent the State 2 from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes” (AIR 1962 SC 36). Subsequently, in State of Kerala v. N.M. Thomas, [(1976) 2 SCC 310] and Indra Sawhney v. Union of India, [1992 (Supp) 3 SCC 217], the Supreme Court asserted the same judgment as earlier pronounced.
The reservation facilities for Scheduled Caste, Scheduled Tribe and later other backward castes (OBC) were provided. Following SC judgement in 1993, Article 16 was amended to extend the reservations in promotions and through 85th amendment to give the benefit of consequential seniority to SC/ST candidates promoted under reservation.
Religious minorities, through Article 29 and Article 30 which states: I). “Protection of interests of minorities:
(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
II). Right of minorities to establish and administer educational institutions:
(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(2) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
Therefore, a question to raise is on what grounds does CAA be regarded unconstitutional? An illustration of a hypothetical scenario would be as such: Illegal immigrants of two classes namely Class ‘A’ consisting of Hindus and Class ‘B’ consisting of Muslims are residing in the territory of India. The CAA, in a different scenario is drafted to facilitate naturalization process solely on the basis of their religious identities. By the sole virtue of belonging to a religious community enables acquisition of citizenship, then the Act undoubtedly violates the basic structure of the constitution as there exists no rational nexus between the objective and the Act.
Any procedure put in place requires Muslims alone all over India to prove their citizenship in a manner more onerous than that applicable to any other community; such a procedure would be unconstitutional (Salve, 2020).
IS THE ACT PRECURSOR TO A HINDU RASHTRA?
The Act establishes legal ranking of refugees on the basis of religion and this Act is a route to the imagined Akhand Hindustan or to “establish” a Hindu Rashtra. The aim is to establish a nation for Hindus (Nair, 2019). Through this Act, the secular nature of India will be shed and redefine the narrative around Indian identity. It enables a consciousness that India is a holy land for all the Hindus throughout the world, and that Muslims have been benevolently sheltered within a predominantly Hindu Nation (Badri, 2020). The implicit assumption in these arguments is that the ruling dispensation heralds India as Hindu theocratic majoritarian State where religious minorities in general and Muslim community in particular are reduced to second class citizens depriving them of equal status as that of Hindus. Therefore, CAA serves the purpose of “disenfranchisement” of Muslims by stripping them of their citizenship.
There are two observations in this homogenous argument: one, Hindu Rashtra is a religious theocratic State solely for the Hindus as a religious majority, two, the CAA is a precursor to such a leviathan religious State and not just an amendment to an Act.
Hindu Rashtra as it is understood in contemporary academic terms are reflective of European epistemological influence on Indian academia. There exists no equivalence with Dhamma or Dharma to the European sense of the term “religion”. The idea of Rashtra is a cultural connotation to the geography of India in combination with culture. Rajya on the other hand is the term used to denote the State. The ideas of modern India do in fact converge with the idea of Hindu Rashtra. For, Hindu Rashtra is an expression of the cultural identity of the subcontinent and not remotely in religious terms. Hindu Rashtravaad is the expression of a certain socio-political thought, based on the indigenous cultural traditions and spiritual experiences of the larger geography of the Orient (Chari, 2019).
Nation or Rashtra is a unified mass of humanity assuming the nomenclature of Nation inspired by the notion of “we-ness”. A nation is a reflection of common historical, cultural past transcending tribalism (Sudarshan, 2001).
This contrary articulation thus leads us to ask whether CAA can be a precursor to Hindu Rashtra or the domination of Hindus over religious minorities. Understanding the objective of the CAA and the Act in actuality would provide contrary answer. Considering the legislative intent of the Act as established above does not violate the basic structure doctrine of the Constitution and therefore makes it clear that there exists no mala fide intent towards subordination of religious minorities or establishment of a Hindu Rashtra.
- Nikhil Jois K.S.
- Student of History, Economics and Political Science at Christ (Deemed to be University).