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HomeOpinionReligion, not religious persecution: Why amended Citizenship Act is clearly unconstitutional

Religion, not religious persecution: Why amended Citizenship Act is clearly unconstitutional

For some years, SC has declared rights in grand terms and defended them with little enthusiasm. The citizenship law is a chance to set the record straight.

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The recent amendments to the Citizenship Act 1955, have been the source of much political tension. With the Citizenship (Amendment) Bill or CAB having become law, the matter now involves not only India’s political branches but also the judiciary. The amendments dramatically alter India’s founding and long-standing approach to citizenship. As Niraja Gopal Jayal has argued, the changes (to be seen alongside the National Register of Citizens), mark a shift from “soil to blood as the basis of citizenship” as well as a shift from a framework that is neutral toward religion to one that explicitly adopts a religious-based test. Are such changes constitutional?

A recent petition filed in the Supreme Court carefully outlines a range of constitutional concerns with the changes to the Citizenship Act. The core concerns stem from Section 2 of the Citizenship (Amendment) Act, 2019, under which “any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan … shall not be treated as illegal migrant for the purposes”. There are several constitutional concerns with the changes; two in particular merit underlining.

Also read: Citizenship protests in northeast show Muslims are really on their own in this fight

Both over and under-inclusive

The first set of concerns relate to Article 14 of India’s Constitution that guarantees equality before the law – a guarantee that applies to persons and not only to citizens (and therefore applies in this case). There are two kinds of distinctions that are made in the impugned changes. First, there is a distinction based on the religion of the person involved. Certain religions are included, which means that both certain religions (most clearly, Islam) as well as irreligious individuals are excluded. Second, there is a distinction based on the countries to which the individuals belong – three countries are included (Afghanistan, Pakistan and Bangladesh) but other countries (in the region and elsewhere) are excluded.

Are these distinctions valid? All equality guarantees permit certain kinds of distinctions. The question is not whether a law makes a distinction, but whether it is permissible. The traditional approach to assessing Article 14 violations in Indian constitutionalism has been to ask whether the law makes a classification based on an intelligible differentia, and then to further inquire into whether there is a rational nexus between the classification and the objective of the law.

The amendments to the Citizenship Act seem to fail each stage of the test. The classification made is both under-inclusive and over-inclusive with regard to the religions and the regions included in the provision. It is under-inclusive because, if the concern is religious persecution, then the provision cannot explain, as the Supreme Court petition notes, why, for example, Ahmadiyyas from Pakistan are excluded. And it is over-inclusive because it assumes that all persons who belong to the specified religions and regions, and who enter India, are religiously persecuted. By doing so, it ironically treats those who have actually been religiously persecuted differently, by lumping them in the same category as those that have not.

Also read: CAB protests a battle for India – either we are a secular state or we aren’t India at all

Religious persecution?

These concerns slide into the second stage of the test. The amendments say nothing of religious persecution – this is mentioned as the objective of the changes, but there is no provision that addresses the fact of religious persecution. This means that there is no rational nexus between the classification and the objectives of the law, because the law grants citizenship regardless of whether or not religious persecution has occurred.

The second set of concerns relate to the objective of the law. This is partially a concern under Article 14 itself – which demands attention as to whether the objective of the law is legitimate. But it is also a concern more broadly, because it implicates a whole set of constitutional provisions, such as those pertaining to citizenship. In a series of judgments, including Kesavananda Bharti and S. R. Bommai, the Supreme Court has held secularism to be a part of the basic structure of the Constitution. This means that the secular foundations of the Constitution cannot be altered even by a constitutional amendment, let alone by an ordinary statutory enactment.

The changes challenge the constitutional principle of secularism because they use religion as a basis for the classification of persons. It is the fact of one’s religion rather than the fact of religious persecution (which might take place regardless of the fact of one’s religion) that has a role in the classificatory scheme that is drawn up. This is evident by a bare reading of the provisions, making them ex facie unconstitutional. The changes, as the petition mentioned above states, “treats refugees who belong to one religion as less worthy of equal concern and respect than refugees who belong to a different religion”.

For some years, the Indian Supreme Court has declared rights in grand terms and defended them with little enthusiasm in specific instances. This is true across our jurisprudence from the right to life to the right to freedom of speech and expression. The changes to the Citizenship Act are a chance to set the record straight.

The author is a lawyer and political theorist and has written India’s Founding Moment (Harvard University Press, 2020). Views are personal.

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  1. SC will see that CAA is inclusive and doesnt discriminate between citizens.
    On the statement on being Under Incusive: How inclusive should it be , is a policy decision of the Govt and Parliament, Courts cant interfere in that.
    On the statement of being Over Inclusive: Once a law is created it is not tested against each individual to check if that person is really being religiously persecuted. For eg there is OBC SC ST reservation because they have been historically marginalized in India. But when an individual gets the reservation because he/she is SC/ST there is no test to check if that person is really being marginalized. The law applies as it applies to the whole community.Period

  2. You people have started unnecessary discussion (Bahas) on CAA. Why we should welcome muslims from Muslim countries? In most of these countries, non-Muslims are always treated as second class citizens. At least there is no persecution of muslims in the name of religion. As far as Ahmedias and Shias in Pakistan, they may be discriminated, but when it comes to India, they are muslims first and Shias etc afterwards. Jinnah to was Shia. And leave secularism to its deathbed. Think broadly and see wherever, muslims cross the 50% of population, that country becomes Islamic and you secularists are the first casualty. The immigration of muslims from neighboring countries is a well thought out design in that direction to convert India into an Islamic state.

  3. If the SC was a 9 bench court, the BJP will be licking its wound. A lower bench implies the cuckoos shall get away with it all

  4. The basic structure doctrine (passed by a razor thin 7/6 majority) is on the same lines as thd Collegium system of appointing judges. In both the tussle is about the judiciary grabbing more power to itself — from parliament and the executive.

    CAA has nothing to do with secularism. Am sure the SC will recognise that and throw out all the petitions challenging it.

  5. There is an insidious, well organized and well-funded communist-islamist campaign going on to erase the Hindu civilization. This writer seems to belong to that cabal. These forces enjoyed unlimited power for 70 years. They are now violently convulsing against the will of the country that is challenging their fascist mindset. I hope the SC does not behave like an NGO, instead behaves like an organ of the indian government (which it is) and acts to protect the interests of the country, not some wooly headed empty slogans or the breaking India forces.

    • Hindus are rioting and protesting across the country, because they don’t want the CAA! The government should honor the wishes of the people, and roll back the law.

      • All the Hindus are not rioting and protesting across the country.Those who failed in the Parliament are using the streets .They are still a meager minority.Majority principle is an important tenet of democracy .When there are different opinions the opinion of the majority is accepted.

    • In fact, we need to fight the fascist mind set of the present regime. BJP and bhakts’ strategy is in full play, deflect, blame all others, show their authoritarianism as will of the people, blame any and ill in the country to the last 70 years.

      • The Greeks (under Alexander) the Persians etc. invaded India .They didn’t demolish temples and destroy cultural centers of Hindus.But the Muslims–they brutally killed the Hindus who opposed them and refused to convert to Islam ;destroyed temples and cultural centers of Hindus.But they couldn’t destroy Hinduism.So in modern times fearing Hindu revenge they demanded for Pakistan .The BJP is trying to wake the Hindus to retrieve the lost glory of Hindu culture and morals .Twice they gained majority in the Parliament .They came to power democratically ;not through dictatorship.

        • @Ramchdran pk : Stop blabbering false stories and jumlas citing hundreds of years back. India gained the title of Golden Bird only during Mughal Regime..
          Talk about today.. here the concern is on today’s existing Racist regime which is more dangerous than monarch rule.

          • I didn’t talk foolishly,indiscreetly or excessively.There are no event in history that should remain private or secret.”Jumlas” in Hindi means “lies”.Are you saying that the history of Muslim invasions are lies? Do you believe that the Muslim invaders didn’t kill Hindus, convert them to Islam, destroy temples and cultural centers of Hindus? You don’t want to remember the past because you are afraid of it .”Talk about today.” only? .Why?Those past days were “to-day” for those who lived in the past. For the future generations “to-day ” will be history hundreds of years back .You accuse me of citing ” false stories and jumlas hundreds of years back.”At the sane time you are citing India’s glory during Mughal Regime..What a pity!(Read the history of the rise and fall of the Mughal Empire..)

  6. Fine column by Prof Ashutosh Varshney in Indian Express. He calls upon the apex court to act resolutely. Also for citizens to protect constitutional values by taking to the streets, peacefully. For state governments to abstain from participating in ill advised initiatives. Expresses the fear that India’s global image will be tarnished.

  7. There has been a puzzling near silence on Kashmir for almost five months. Ordering an enquiry into the police encounter with four rapist / murderers shows the institution monitors current events closely. On CAA, the basic structure of the Constitution must be protected, with clarity, conviction and force. Another erudite 1,045 page judgment would break our hearts.

    • The Court doesn’t pass its judgments based on your sentiments. Enough number of legal experts have already elucidated on how this act doesn’t run foul of any of the current constitutional provisions.

  8. I don’t know whether this writer is learned in Law. The article seems to be based on Chidambaram’s interview to Rajdeep Sardesai. Be that as it may, fundamental rights in the Constitution of India falls in two classes: One available only to the citizens of India, other, available to ‘person’, who may also be a national of another country. Article 14 is one such provision, which applies to any person. Since the Constitution applies to the territory of India, evidently a person who is a resident of Pakistan or bangladesh or Afghanistan cannot claim any right under Indian Constitution. Now, if the CAA does not give right of citizenship to majority community of those three countries, how does it amount to violation of right to equality before law under Art 14? Admitting someone as a citizen is the sovereign power of the Parliament and Government. Can anyone claim fundamental right to chose to become Indian citizen?

    • These articles are to form a public opinion to force the Supreme Court to strike down the law. But Modi & Shah would’ve known the hyperventilation of the secularists when they introduced this act in the parliament. It will get passed.

  9. There is some problem with Islam. A religion that promotes blasphemy and prohibits worship of gods of other religions cannot be compatible with secularism and pluralism. The B.J.P. government should deal with this matter first of all at national and international levels.


  10. This bill is caters to those neighboring countries whose state religion is Islam and from where minorities are coming to India.

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