The Citizenship (Amendment) Act of 2019 came into force with the President’s Assent on 12th December of the same year. Ever since, and even before, the country seems to have erupted in far-reaching protests, both violent and non-violent in nature. A primary grievance of the protesters (or rioters, depending on which event you are watching and who it is sponsored by) is that this particular piece of legislature is, for varying reasons, bad in law and unconstitutional. Today, let us, for a single article, distance ourselves from the issues of policy and morality. Today, let’s look at the CAA 2019 as purely a statute and analyze its legality.
The first and foremost allegation that has been leveled at this Act is that it ‘violates the secular nature of the Constitution’. First, let us understand this whole concept of constitutional secularism.
The word ‘secular’ finds explicit mention in the Preamble of the Indian Constitution. However, this word was never originally a part of this particular document in the first place. It was added as one of the heavy-handed changes bulldozed through by the Indira Gandhi government as part and parcel of the 42nd Constitutional Amendment. Many important members of the Constituent Assembly, including Dr. Ambedkar himself, had opposed the inclusion of the word into the Preamble then and there, due to the inherent ambiguity and confusion that would arise when people would try to shoehorn the Western Enlightenment concept of the word into the Indian context. As famous historian Ian Copland writes, the drafters of our Constitution understood that:
“Since ‘Enlightenment Secularism’, with its core principle of separation, founded on the Protestant conception of religion as essentially a private concern with which states had no legitimate business, was never going to work in a country where rulers and religious publics had been interacting from time immemorial, it was better not to use the term at all, than to use it fraudulently…”
A puritanical approach to secularism would prevent the Indian State from performing many of the functions it discharges today, such as the advantages provided to religious minorities or the reservations given to depressed and backward castes. It cannot be denied that the Indian Constitution carries elements of secularism, but our Constituent Assembly has evolved and integrated a peculiar and unique brand of it into our statehood, and it is foolish to compare it with concepts in other parts of the world.
As Justice Subba Rao put it in the Golak Nath case, ‘The Preamble to an Act sets out the main objectives which the legislation is intended to achieve’. It is equivalent to a Statement of Objects and Reasons, inasmuch as it tell us what was going on in the minds of the legislators when they drafted the statute. Thus, it establishes the mental and logical base on which the nature of the Constitution stands. However, the Preamble itself creates no substantive or procedural provision, and by that reason, the statements contained in it must be interpreted in light of the provisions of the Constitution to derive the true meaning of the phrases.
The Indian brand of secularism does not believe in complete separation of the Church and State; it, in fact, recognizes the full authority of the State to interfere in religious matters upto a certain degree. The government is given a position of tangible supremacy over the religious entities. Thus, the Constitution empowers the State to not only affect the functioning of religions under it, but also allows it to recognize and extend special provisions to certain religious bodies without it violating the Constitutional principles. We see examples of this throughout the body of law, ranging from various personal laws given to some religions to the special status accorded to minority institutions.
In light of these facts, it is irresponsible and incorrect to define Secularism as laid down in the Indian Constitution as Western Secularism. Our own unique secular character not only allows, but encourages special provisions for the advancement of certain communities in need. Thus, the CAA cannot be said to violate the secular nature of the Constitution.
Another, quite serious, allegation that has been leveled at the CAA is that it is a fundamentally discriminatory statute. It, according to its critics, distinguishes and discriminates between people on the basis of their religion, and is a violation of Article 14 of the Constitution, which is an integral part of the fundamental right to equality.
Let us first look at Article 14 of the Indian Constitution. What does it state?
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
As we can see, Article 14 guarantees to every person who comes before the State of India two things: equality before law, and equal protection of laws. Though sounding similar, the two concepts are manifestly differing.
- The guarantee of equality before law is negative in nature. It prohibits the State, when two persons come before it subject to a certain law, from discriminating between them on the basis of their personal characteristics. Any two people under the ambit of any provision of law are to be treated equally and without advantage or disadvantage to either.
- The guarantee of equal protection of laws is positive in nature. It imposes upon the State a duty to ensure, through its body of law, that any two persons in similar circumstances are entitled to similar opportunity and relief before law. As a necessary corollary, it also provides that people who are dissimilar circumstances are to be treated in a dissimilar fashion in such a manner that the law protects them as well, their inequalities notwithstanding.
To explain it simply, equality before law prohibits a Brahmin from receiving a lighter sentence for a crime when compared to a Shudra under the same law, while equal protection of laws allows the Shudra to get special lawful advantages to stand on the same footing with the Brahmin. We see the examples of this too in our existing body of law: Military law applies only to military personnel, only medical professionals are subject to the rulings of medical bodies, public officials have certain powers that private individuals don’t, et cetera. The special needs of their offices allows these apparently discriminatory rules to be imposed on them.
To regularize this process of classification, the Courts have, through the common law of judicial precedent, laid down the principle, or test of reasonable classification. Under this doctrine/test, to determine if a classification made under Article 14 is reasonable and good in law, two criteria must be fulfilled:
- Intelligible Differentiation (ID)
- Rational Nexus (RN)
These are two very important concepts. The criteria of intelligible differentiation states that the basis on which the people are classified into those who the law will affect and those who will not be affected should be well-defined. It should be easy to see who has been included and who excluded. Unnatural and excessive ambiguity will make a classification bad in law. Here, we can see the CAA has easily vaulted over this hurdle. There is a clear basis of differentiation between the people who have been included within the purview of the law and those who haven’t. The law has been clearly stated to apply only to members of six particular religions from three particular countries who have fled their country in a particular situation and due to a particular reason. There is no scope for ambiguity.
The second criteria is Rational Nexus. The doctrine of RN states that the basis of classification (which has already been shown to be intelligible) must be in line with, and have a nexus with the objective of the legislation which makes the classification. The classification must act in furtherance of the objective of the law, and not be completely tangential and unrelated. Thus, a law, for example, which prohibits blonde people from entering into contracts would be patently bad in law, but a law which prevents minors from contracting will be valid, as intellectual maturity has a direct nexus with regulation of the capacity to contract. It is possible, of course, to divine the objective of an Act from its provisions, but usually drafters attach a Statement of Objects and Reasons to a law. This SOR, as it is called, usually serves as the reference point to determine the object of the statute when it is called into question (however, legislative purpose has a definition much wider in scope – it is the true objective and purpose that may be attributed to the Act, whether the legislators were actually aware of it or not. As the presumption of constitutionality is with the Parliament, the Court may choose to reject the given SOR, and divine the true objective of the Act from its provisions). Here, too, we see that the CAA passes with flying colors. The objective of the statute as stated in the SOR (an expedited route to citizenship for religiously persecuted minorities, to paraphrase) has a direct nexus with the basis of classification as laid down before.
(These guidelines were laid down in the Saurabh Chaudhari v/s Union of India case)
Thus, we see that Article 14, while prohibiting unfair class legislation, does allow for reasonable classification. Now, another test for lawfulness under Article 14 was laid down in the E.P. Royappa case: the test of manifest arbitrariness. It states that the basis of classification in the statute must be reasonable and not arbitrary, artificial or evasive. Arbitrariness has been taken to be exactly antithetical to the principle of Article 14. This test has raised even greater misgivings in the minds of the Article’s detractors, as multiple questions have been raised regarding the scope of the statute. To answer these questions, we will be taking the help of, among other things, the comprehensive guidelines laid down by the Hon’ble Supreme Court in the famous Dalmia case.
The first question raised: Why three countries only? Why have other countries where people face persecution, such as Myanmar, not been included within the purview of this Act? Why have other minorities like Jews not been included? We must understand that under-inclusion does not automatically make a statute bad in law. The principle is that the under-inclusive basis, if present, should be well-defined. The government, under the guidelines, is free to recognize degrees of harm. To be clear, the legislature is empowered to identify the classes where the need is clearest, and among them, who stands to benefit the most from the particular statute, in its opinion, and subsequently confine the provisions of the statute to apply them only to this greatly needy class if the situation demands. The government is also free to consider the adverse effects to the nation as well, such as in matters of national security, while making this choice, and limit harm to itself.
As is clearly stated in the SOR, the amount of cross-border traffic between the three given countries and between them and India is comparatively very high. Thus, the intended objects of this law (religiously persecuted minority communities who have come to India from sanctuary) are those in the greatest need of help at this point. Their need is given priority. Similarly, communities like the Rohingyas may legitimately be excluded on grounds of limiting harm to the nation. Recognition of degrees of harm is explicitly given in law and cannot be grounds for allegations of arbitrariness. This justifies the exclusion of both other countries and other religions. Additionally, a country is not a ‘person’ under the meaning of Article 14, and thus, the State is free to discriminate in its treatment of countries.
Another question raised is this: Why does the statute only restrict itself to these particular religiously persecuted communities? Even many minority Muslim sects like the Hazaras, the Sufis and the Ahmediyyas are also facing persecution in these countries? Why are they not being given special treatment under this Act? We must understand, once more, that persecution, though equally bad in all circumstances, is of many different kinds. The persecution faced by these sects is not religious, but sectarian in nature. The CAA 2019 was brought into being to specifically address the problem of religious persecution in these countries. In this scenario, the addition of sectarian minorities which have been persecuted will have untoward effects: it will blur the sharp lines of classification by allowing certain elements of the majority religion to seep in, hurting the ID of the statute, and would also deviate from the given SOR, hurting the RN as well.
Inclusion of these sectarian minorities would actually hurt, thus, the prospects of its constitutionality. A law brought in to strike with great precision at one particular issue, if arm-twisted into a more general and nebulous approach, becomes more difficult to maintain as reasonable in matters of classification. Thus, this ground is also flawed. A minor argument may here be raised regarding the Pakistani Ahmediyyas, as they are not considered Muslims there, but we must remember that the CAA does not adhere to Pakistani but to Indian law, and the Indian body of law defines Ahmediyyas as part of the Muslim religion. Other forms of persecution, such as racial or ethnic, cannot similarly come under the CAA, though they may be addressed otherwise, such as in the case of the Tibetans or the Sri Lankan Tamils.
Under the Dalmia guidelines, the prima facie assumption of constitutionality is in favor of the legislature, and the burden of disproving that falls on the back of the one who attacks the statute. The classification need not be logically perfect and scientifically accurate, and a mere similarity of situation is enough to maintain the grounds for it. The Court takes into consideration all factors such as matters of basic knowledge or report, historical backdrop et cetera to ascertain and sustain the reasonable nature of the classification. Given all of these facts, the allegation of unlawful nature is itself bad in logic.
That the Bill is discriminatory is not denied by anyone. It necessarily discriminates between people by its very nature. The question is whether the discrimination is reasonable, and the CAA in my humble opinion checks all the boxes.
Are Muslims and others not included in the CAA cut off from citizenship?
Though this is a common route of fearmongering pursued by certain groups, this assertion is entirely untrue. The CAA is only a positive and not a negative legislation; it creates additional safeguards for a certain group, but does not in any way detract from anyone else’s rights. All lawful immigrants are open to seek LTVs (Long Term Visas) and subsequently citizenship by the procedures of registration or naturalization, whichever be applicable. In addition, the government had issued an SOP for all general persons claiming refugee status in 2011, wherein no document, even, is required: any person claiming refugee status need only go to the nearest FRO or FRRO (Foreigners Registration Officer/ Foreigners Regional Registration Officer) and give his narrative. After analysis of the story given and a background check by intelligence agencies, he may be granted an LTV on a yearly basis, with renewal facility at the FRO/FRRO level for upto five years, beyond which MHA clearance is required. Thus, the coming of the CAA will not impact the prospects of any legal immigrant or legitimate refugee whatsoever; it only makes an easier channel for a particular group in special need of help and creates additional safeguards for their well-being and security. When considered as a part of the larger body of laws and rules relating to matters of immigration and citizenship, even the question of this statute being discriminatory and unlawful does not arise if you ask this author.
A lot of information and misinformation is being spread regarding this statute on the internet. This is my studied and thought-out two cents on the matter. However, I am not the definitive authority in matters of Indian law – that power rests, as always, with the Supreme Court of India. In no way are my views expressed here to be taken to be formal legal advice. This is just a cursory glance at the matter, and deeper research by the reader is required before he can acquire the status of an authority on the subject.