CAA: CONSTITUTIONAL OR NOT? BY - CHIRANJEEV DUBEY & YASHRAJ SINGH
CAA:
CONSTITUTIONAL OR NOT?
AUTHORED BY - CHIRANJEEV DUBEY &
YASHRAJ SINGH
Introduction
"In a
jurisdiction where the constitutional framework neglects the principle of
secularism, the essence of democracy becomes interwoven with strands of
inequality and discord.” The Indian Constitution, consisting of 395 articles
spanning 4 parts, is meticulously crafted to address the nation's diversity,
thereby emphasizing inclusion for its legitimacy. Nevertheless, this utopian
vision of inclusion was not a by-product of actions like general public
representation which were taken by the nation instead it finally led to the
creation of a constitution whose faultiness manifested even its theoretical
underpinnings, for any form of classification among citizens within such an
assorted nation inherently results in discrimination. Discrimination has
tainted not only the constitution but also several other successive
legislations including the contentious Citizenship Amendment Act 2019.
The Citizenship Amendment Act, 2019
The
Citizenship Amendment Act of 2019 (CAA), was an awaited amendment adopted by
the Parliament on December 11, 2019, which aimed at a simplification of the
process for the grant of citizenship to the nation through the amendment of the
Citizenship Act, 1955. Its motive was to speed up the process of naturalization
for persecuted minorities from selected countries, who, because of their
religious affiliation, were traditionally at risk of a much more complex path
to citizenship. This particular legislative step through the Amendment Act was
made to recover from shortcomings of the original act, especially those
embedded in religious denominations. The Citizenship Amendment Act of 2019
addresses these lacunae through its provisions for the acquisition of
citizenship by Hindus, Sikhs, Jains, Buddhists, Parsis, and Christians
belonging to Afghanistan, Pakistan, and Bangladesh. There is a relevant point
that the religion-based schemes that should be established for some other
communities come up because of it. In this regard, other well-known
constitutional rights are contradicted, especially Article 14 of the
Constitution of India which guarantees equal treatment before the law to all
individuals. Besides questioning the status of citizenship in India, these
inquiries conflate the notion of secularism, but this paper aims to address
them widely.
Secularism and its violation
Secularism
is one of the most fundamental principles intricately carved in the preamble of
the Indian constitution. In India, secularism refers to the state’s neutrality
on any specific religion and its commitment to not discriminate against any
religious community. Secularism which was seen as the foundation of the Indian
constitution, was missed in the picture of its utopian prediction and it could
be seen through its preferential treatment towards specific religious beliefs
in the country. In short, some sectors of people gained benefits purely due to
the fact of being born into an advantageous religion. One such example of
differential treatment can be found in the citizenship procedure.
Post-partition India had witnessed two waves of partition. In the first wave,
which started on 1 March 1947, many Hindus and Sikhs arrived from West Pakistan
in India. In the second wave in 1948, many Indian Muslims who had migrated to
West Pakistan sought to return to India. This second wave of immigration
created troubles like hostility for the Indian government. The homes of Indian
Muslims who had migrated to West Pakistan were being used to house Hindu and
Sikh refugees who had arrived in India from West Pakistan. This return of
Muslims would wreak havoc due to lack of residence and thus cause chaos.
As a
consequence of this, Sardar Vallabhbhai Patel communicated with Jawaharlal
Nehru that the general public and other ad hoc individuals were expressing
their frustration and dissatisfaction with the inability of the Indian
government to cope with the inflow of Muslims from Pakistan. Patel, by
reporting to Nehru's office, raised the question of whether Indian Muslims
going back to their houses would augment social tensions, escalating the
activities of RSS as well as other organizations, and providing a peril to the
emotional well-being of Delhi. To avoid such future concerns, the Indian
Government implemented a permit system for the issuance of papers for allowing
the return of the Muslim community from West Pakistan. The framework
implemented by the government of India resulted in the establishment of a policy
for issuing permits on July 19, 1948, specifically targeting immigration from
West Pakistan to India. This permit system was not extended to East Pakistan, a
discriminatory decision driven by the predominant migration of Hindus and Sikhs
from that region. To prevent potential chaos associated with their migration,
the permit system was selectively enforced, revealing its clear discriminatory
intent and purpose.
Even as
Abhinav Chandrachud noted in his well-crafted masterpiece these arguments, he
also mentions that this scheme made it possible for earlier applicants for
citizenship from Pakistan to India, mostly Hindu and Sikh Religion people, to
become naturalized if they had resided in India since the end of their
migration to that country before the permit system was enacted. On the other
hand, those arriving post permit station implementation among other groups of
Muslims had to register for their citizenship.
Only Indian
Muslims returning from Pakistan encountered difficulties in obtaining
citizenship due to these stringent permit requirements. This disparate
treatment of Muslims based on the timing of migration serves as a testament to
the lack of secularism in India from the inception of its legal foundation,
i.e., the Constitution. Similar grounds of discrimination can be found in CAA
2019, we see that the act by not including Muslims, clearly depicts that the
act itself is very exclusionary as it violates the secular principles enshrined
in the Indian Constitution.
Article 14
Another step
taken by the government to be inclusive was Article 14. Article 14 states that
“Equality before law - 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”. Article 14 prohibits class legislation, but it does not prohibit
legislative classification. The principle of equality does not require every
law to apply universally to all individuals who are not in an identical
situation due to nature, achievement, or circumstances. Article 14 allows for
reasonable classification of persons, objects and transactions by the
Legislature to achieve specific ends. Classification to be reasonable should
fulfil the following two tests –
1.
It should not be arbitrary, artificial or evasive.
It should be based on an intelligible differentia, some real and substantial
distinction, which distinguishes persons or things grouped in the class from
others left out of it. It has been established in the case of Ajay Hasia v.
Khalid Mujib where the Court broadened the interpretation of Article 14.
They said that fairness and avoiding arbitrariness are crucial elements of
equality. Since then, the idea of protection against arbitrariness has become a
fundamental part of the equality concept under Article 14.
2.
The differentia adopted as the basis of
classification must have a rational or reasonable nexus with the object sought
to be achieved by the statute in question. A classification need not be scientifically
perfect or logically complete. The person who pleads Article 14’s violation,
must not only prove that he has been treated differently from others, but he
has also been treated differently from persons similarly circumstanced. This
“classification test” was found in the case of the State of West Bengal v.
Anwar Ali Sarkar. In this case, the Supreme Court explained that to
determine if a classification in a law is reasonable, two things need to be
considered. Firstly, there must be a specific standard or clear difference that
separates the affected party from not affected ones. Secondly, there should be
a logical connection between this difference and the purpose the law is aiming
at. Abhinav Chandrachud highlights these cases as well and states how they
aided in founding and establishing the intricacies of the nexus test.
Both of
these tests have been applied and enhanced in court under various cases. One
such case mentioned in the piece of Jaideep Singh Lalli is the Nagpur
Improvement Trust where the Supreme Court said that even if a law seems to have
a logical connection between its purpose and the groups it affects, it won't be
accepted unless the purpose itself is discriminatory. This means the court can
now question the fairness behind a law. It has specified the nexus test and
aided in defining it more intricately.
Considering
the same rationale as used in the judgment above, the CAA's objective was to
protect religious minorities from being persecuted in neighboring nations. Thus,
their objective is that Muslims are a majority in these theocratic nations thus
they won't be persecuted. But in Pakistan, laws like the Second Amendment to
the Constitution and Ordinance XX declare Ahmadis as non-Muslims and restrict
their religious freedoms. This means they can't even identify themselves as
Muslims or practice their religion freely. This shows that persecution isn't
limited to just non-Muslims in these countries. Hence the CAA does have a
logical connection between purpose and the group it affects. However, its
object is discriminatory as Muslims are still excluded and yet being persecuted
in a theocratic nation i.e. Pakistan itself. (OHCHR 2020)
After
understanding the two tests of Article 14, the discrimination in the roots of
this article becomes quite prevalent. The religion-specific classification
refers to the amended section 2(1) (b) which excludes 6 religions (Hindus,
Sikhs, Christians, Jains, Parsis and Buddhists) from the definition of illegal migrants.
On the other hand, the country-specific classification refers to limiting the
scope of the citizenship being acquired by migrants belonging to minorities
from 3 nations (Afghanistan, Pakistan and Bangladesh). These classifications in
the CAA are arbitrary and in contradiction with Article 14 of the constitution.
Since they leave out minority groups which are the majority in these selected
nations, thus proven to be unconstitutional. Furthermore, they have excluded
minorities belonging to neighboring countries for example Myanmar and Sri Lanka
which were a part of British India and British Empire respectively. As even
stated by Abhinav Chandrachud it is a very persuasive argument due to the
arbitrary nature of these elements of the section which supports CAA’s
unconstitutionality.
Furthering
to country-specific classification where the only criteria for selecting a
nation was that they should be neighboring yet they excluded Sri Lanka and
Myanmar which do neighbor India. This exclusion played a vital role during the
British rule era and seemed arbitrary and unreasonable if the criteria were
just that people of undivided Indian origin should be included then only
Pakistan, Bangladesh and Myanmar could have been included. However, by
including Afghanistan and not Myanmar the criteria seem to differ, thus
applying the intelligible differentia which is an important factor in the
rational nexus test one can see that there is no nexus with the motive that is
sought to be achieved which to reprieve from persecution for the minority
communities in the above-mentioned nations. Rohingyas in Myanmar and Tamil
refugees in Sri Lanka both have yet faced religious persecution further
asserting the argument.
CONCLUSION
To summarize, it is undeniably evident that the
government’s alleged claim of an altruistic purpose behind the Citizenship
Amendment Act (CAA) can only be considered as a facade; this claim does not
stand scrutiny when one analyzes it on grounds of constitutional morality. As
highlighted in the work of Jaideep Singh Lalli, the CAA’s rationale for
safeguarding particular religious groups is ambiguous due to the absence of
clear guidelines on how membership within these groups should be determined,
leaving room for uncertainties about who can be identified as Hindu, Jain,
Sikh, or any other mentioned category according to the Act. In addition, the
Act's exclusion of other religious minority communities from neighboring
countries, as well as its arbitrary cut-off date for persecution being December
31, 2014, lacks a cogent nexus between its objects and the stated exclusions.
Hence, it is clear that the CAA's selective inclusivity and omissions do not
meet the constitutional validity test, illustrating where political wars are fought
behind the veil of religious hatred.