The notification of implementation of the Citizenship Amendment Act 2019, which amends the Citizenship Act of 1955, has once again ignited the debate on its discriminatory nature. While it has the provision to grant citizenship to Hindus, Jains, Parsis, Sikhs, Buddhists and Christians from Pakistan, Bangladesh, and Afghanistan who entered India before 31 December 2014, it leaves out Muslims. But the CAA, which is being regarded as ‘unconstitutional’, might pass constitutional scrutiny.
On demand of religious neutrality of CAA
The argument that Parliament cannot enact laws such as CAA, which exclude any religion, is fallacious because the Indian Constitution per se provides scope for the enactment of laws excluding religions. Article 25 guarantees religious freedom subject to health, public order, and morality.
The sub-clause 2 (b) of Article 25 allows state intervention for social welfare and reform in Hindu religious institutions of a public character. The Explanation-II of this Article specifies that ‘the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina, or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.’ However, no provision in the Constitution explicitly mentions Muslims and Christians; hence, the argument has been made that the Constitution adopts two approaches when dealing with religions—interventionist and non-interventionist. The former is adopted when it comes to Hindus, Sikh, Jain, and Buddhists, whereas the latter is adopted while dealing with the remaining religions—Islam, Christianity, and Judaism.
Political scientist Rajeev Bhargava refines this distinction by arguing that instead of keeping equal distance from all religions, the Constitution advocates the policy of principled distance, which ensures the State’s intervention in religious matters upon demand for the same within the religion itself. In a nutshell, our Constitution provides scope for enacting religious non-neutral laws provided such laws have reasonable justification. The social reform laws are examples of this.
The Constituent Assembly also envisioned that rules/laws may not always be religion-neutral. The roots of such provision can be found in the discussion on the Scheduled Castes list, where the Constituent Assembly Member Muniswamy Pillai explicitly stated that only Hindus shall be part of it. Since the inception of the SC list, it has never been religion-neutral. The Constituent Assembly proposed the same for future India. Therefore, the principle of religious neutrality cannot always be used to test the constitutional validity of laws; reasonableness is the real criterion.
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CAA and religious discrimination
The CAA excludes Muslims, and therefore it is argued to be violative of Article 15, which prevents discrimination based on race, religion, caste, sex, and place of birth. The Article states that ‘the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.’ However, Article 15 cannot be invoked to challenge the constitutional validity of CAA because it applies to only citizens of India. The wording of this article clearly states that it is only applicable for Indian citizens.
Only those rights guaranteed under Articles 14, 20, 21, 21(A), 22, 23, 24, 25, 26, 27, and 28 are available to foreign nationals, except enemy aliens (residents of the country with whom India is at war), whereas the rights guaranteed under Articles 15, 16, 19, 29, and 30 are exclusively available to Indian nationals. This means that any legislation such as the CAA, which deals with foreign nationals, cannot be challenged using Articles 15, 16, 19, 29, and 30 of the Indian Constitution.
Violation of right to equality
The strongest criticism of the CAA is that it violates Article 14, which provides that ‘the State shall not deny to any person equality before the law or the equal protection of law within the territory of India’. While Article 14 has two provisions—non-denial of equality before the law and equal protection of the law—the State can reasonably classify nationals for providing equal protection of the law.
The inference is drawn that by omitting Muslims from Pakistan, Bangladesh, and Afghanistan from the CAA, they are completely denied the opportunity to apply for Indian citizenship. However, this omission cannot be equated to the complete denial of the opportunity to apply for citizenship, since other provisions of the Citizenship Act 1955 will be available for Muslims of these countries to apply for Indian citizenship. Hence, the first part of the equality law—‘state shall not deny any person equality before law’—cannot be established. It can only be invoked when the law explicitly states that Muslims from Pakistan, Bangladesh, and Afghanistan cannot apply for Indian citizenship.
Moreover, the omission of Muslims from the CAA does not equal exclusion or denial; rather, it is a matter of classification to speed up citizenship for the people from Hindu, Sikh, Jain, Buddhist, Parsi, and Christian communities. The classification is allowed for ‘equal protection of law’ subject to reasonable justification.
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Intelligible differentia of CAA
The doctrine for reasonable justification is called intelligible differentia—a difference capable of being understood. It means that the law is required to treat all individuals equally when placed in a similar situation. This implies that Article 14 does not require the law to universally apply to all individuals, but it demands similar treatment of similar persons. People can be reasonably classified for identification. The provision of equal protection of the law under Article 14 requires a test of the reasonableness of the classification proposed in the CAA.
After the implementation of the CAA, nationals of Pakistan, Bangladesh, and Afghanistan have been classified into two categories for the grant of Indian citizenship: the first comprises Hindus, Sikhs, Jains, Buddhists, Christians, and Parsis, and the second is Muslims. Both groups would be governed under different classes of the Citizenship Act 1955. However, the constitutional validity of this classification requires acceptance of reasonable justification, which is outlined in the ‘Statement of Objects and Reasons’ of the CAA.
While acknowledging the historical fact of continuous trans-migration between the territories of India and areas that are now part of Pakistan, Afghanistan, and Bangladesh, it says that “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.”
However, the constitutions of Pakistan, Afghanistan, and Bangladesh provide for a specific State religion; as a result, persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi, and Christian communities have faced persecution on religious grounds in those countries. Many such individuals have fled to India to seek shelter and continue to stay in India, even if their travel documents have expired or if they have incomplete or no documentation.
A counter-argument has been raised that if CAA is a law for protection against religious persecution, why are Shia and Ahmadiyya Muslims left out? The answer is that the CAA is not a general law for persecution against religious groups in these countries but due to ‘persecution arising out of the declaration of a specific state religion.’ The matters related to Shia and Ahmadiyya communities are internal conflicts within religion, and they can still apply for Indian citizenship under relevant provisions of the Citizenship Act 1955. Their application will be considered without any restrictions.
The crux of CAA’s statement of objective is that the declaration of Islam as the State religion of Pakistan, Bangladesh, and Afghanistan has resulted in the categorisation of their nationals into two groups—Muslims versus Hindus, Sikhs, Jains, Parsis, Buddhists, and Christians. If this proposition is accepted, it could be reasonably justified for foreign countries such as India to treat both classes differently. The evidence of this proposition might be sufficient for the Supreme Court to uphold the constitutional validity of the CAA.
The CAA might be criticised due to the exclusion of Muslims, but this exclusion is grounded in reason—under the preview of reclassification. Given the amount of injustice involved in this issue, the Supreme Court might be inclined to accept this classification since it seems to be reasonable.
Arvind Kumar (@arvind_kumar__), Assistant Professor in the Department of Law and Criminology, Royal Holloway, University of London. Views are personal.
(Edited by Ratan Priya)