Of late Article 14 of the Constitution of India is in the news since the Citizenship Amendment Bill, 2019 was passed in both the Houses of Parliament and finally became the Citizenship Amendment Act, 2019. Although the ruling party hailed it as a historic bill to protect the right of the Sarnarthis, the opposition created the bill a center of contention on the allegation that the Bill violates the equality before the law as mentioned in Article 14 of the Indian Constitution.
The argumentation put forward by the Opposition is that the Bill discriminates with the Muslim community by excluding them from the ambit of this Bill. This argumentation has also been picked up by a certain section of intellectuals and left-liberals. So let us look at the fact and check if CAA violates Article 14.
Article 14 of the Constitution states
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
But in the terminology of Political Science “equality” hardly means every human being, irrespective of race, caste, and sex is equal in all circumstances. In fact, Political Science recognizes the fact that there can always be some mental, physical and economic differences and without addressing these differences it is impossible to cater to the idea of Equality.
This was the idea behind starting the Reservation in India because at that time many communities in India faced economic paucity due to lack of resources. If we look at Article 14 from a narrow perspective we may end up questioning the lack of one single matrimonial act in India.
There are the Christian Marriage Act,1872, the Parsi Marriage and Divorce Act, 1936, The Hindu Marriage Act. Although Article 15 of the Constitution forbids the state to discriminate on the basis of race, caste, and sex, these Marriage Acts are completely constitutional because the Supreme court of India, on many occasions, observes that equality before the law is applicable to equal people of the same category which means the law cannot discriminate with two individuals from the same caste but the law can make different provisions for different castes.
In B. C & Co. vs Union of India, AIR 1973 case the Court observed that the guiding principle of article 14 will be the circumstances in which a person or a thing is. All persons who are similarly circumstanced will be treated alike in terms of privileges as well as Liabilities.
Thus it can be observed that Article 14 of the Indian Constitution makes classification inevitable. There must be various kinds of classification upon which equality before the law will be maintained. The Court also provided for this classification process and what will be the guiding principle.
In Shashi Mohan vs. State of West Bengal, AIR 1958 SC case the Court observed that the basis of the classification can be the geography, occupation or other things. Thus, when the Citizenship Amendment Bill provides to give citizenship only to the Sarnarthis from Pakistan, Bangladesh, and Afghanistan, it hardly challenges the idea of Equality before the law. At the same time, the apex court provided two conditions to make such classification:
- The process must be founded on an intelligent differentia in distinguishing persons that have been grouped together with the ones left out of the group.
- At the same time, the differentia should have a rational relation towards the object of the statute in question
This judgment was followed by the court on many such occasions where Article 14 was found to be questioned. The Citizenship Amendment Bill, in order to fulfill Article 14 must satisfy the conditions provided while classifying between the Sarnarthis and the illegal migrants. Here, the advantage the ruling government will enjoy is the fact that these Sarnarthis have already been recognized earlier by the previous Government by the Congress. The rationale of religious persecution will hardly apply to the Rohingyas or any other Muslims who migrated to India before 2014. Of course, the argument of including Ahmedias will not be any valid point since the persecution of Ahmedias, if any, will be of sectarian persecution in nature.
Thus, it can be observed that if the minorities of Pakistan, Afghanistan, and Bangladesh have been given citizenship through this Amendment, it will hardly violate Article 14 even if the draft of the Bill mentions the phrase ‘excluding Muslims’ because Muslims are not the minority in these three countries mentioned earlier.
However, those who are arguing that Article 14 does not apply to the Sarnarthis or illegal migrants are not speaking the truth since Article 14 promises to provide Equality to the Citizens as well as the foreigners.