Recently, quite a lot has been going around about the newly promulgated Citizenship Amendment Act 2019 (CAA). At the face of it, there has been a lot of concerns and backlash against it from various section of the civil society which the government of the day hasn’t been able to allay. At the same time, it has come to forth that a lot of those involved in the protests including those leading them, even after having a long prominent career in public and legal discourse lacks the basic understanding of the constitutional implication of the said Act. Having said that it is not to say that all their concerns regarding the Act are baseless and stem from mere paranoia.
Though a lot of legal luminaries and experts have tried to give a nuanced clarification about the Act yet there exist among a vast majority a lack of information and understanding which has allowed them to use this issue to further create a misinformation led propaganda because of which the real issues regarding the Act and the whole concern of citizenship in India have been twisted, deformed and perverted. Thus there still remains a need to discuss the issue of Citizenship from the very start in order to dispel the charade of disinformation that is being propagated and also to completely understand the implication of the said Act.
Constitutional understanding of Citizenship
The Constitution of India talks about Citizenship in Part II, starting from Article 5 to Article 11. Briefly speaking, Article 5 starts with talking about the individuals who are to be considered the citizens ‘at the commencement of the constitution’, stating that all the individuals/persons who were born in the territory of India or either of whose parents was born in the territory of India or who has been ordinarily a resident in the territory of India for at least five years immediately before the date of commencement of the Constitution shall be the citizen. Here the meaning of the operative word ‘territory’ is to be taken as it means in Part I of the constitution.
Article 6 defines the claim of the rights of citizenship of those who have migrated to the territory of India for the territory of Pakistan. In enshrines that all such individuals will be considered citizens if they or their parents or even their grandparents were born in India as defined by Government of India Act 1935 and the person or their parents or grandparents have migrated to India before 19th July 1948 and has been residing in the territory of India since migration.
Article 7 lays the provision for denial of citizenship rights of those who migrated to Pakistan from the territory of India after 1st March 1947. The exception to this are individuals who having migrated to Pakistan returned back to India under the permit of resettlement.
Lastly, Article 10 and 11 put down the provision for the continuance of citizenship under the aforementioned articles and also gives the power to the central Parliament to make any provision with respect to the acquisition, termination and other matters related to citizenship.
Citizenship Amendment Act 2019 & Citizenship Act of 1955
The Citizenship Act of 1955 has till now has been amended six times through the amendments in 1986, 1992, 2003, 2005, 2015 and latest by 2019 amendment acts is an array of legislation regarding various aspects of citizenship in India. Briefly put it lays down the ways and rules regarding the acquisition, termination, and deprivation of Indian citizenship. It also lays down various categories of individuals like ‘illegal migrants’ ‘Overseas Citizens’ etc. and rules in relation to them. Coming to the issue of changes the recently passed Citizenship Amendment Bill (which has now become and act) makes to the Act.
Firstly, it adds to the section 2 sub-section (1) clause (b) which relates to the definition of ‘illegal migrants’ the proviso reads –
“Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December 2014 and who has been exempted by the Central Government by or under clause © of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act”
What it means is that the Indian parliament has created a positive exception in the definition of the illegal migrants. Further, the clause ©, sub-section (2) of section 3 in the Passport act is a saving clause which enables the Central Government to exempt any person or the class of person either absolutely or on any condition, the need of fulfilling the requirements for entering into the territory of India laid under this act.
Additionally, the Foreigners Act 1946 in section 2 lays down the definition of individuals who are to be considered foreigners and thus aren’t the citizens of India. It also in section 3 gives the Central government powers to make provisions “either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into [India] or their departure therefrom or their presence or continued presence therein.” This enables the government to make any law with regards to a particular class and description of foreigners for their continued presence in the territory of India.
Thus, briefly put CAA at the outset acknowledges the presence of a particular class among those non-citizens residing in the territory of India before 31st March 2014 apart from the generality and also enables the government to make laws with respect to them without debarring anyone not belonging to that class or deteriorating their status in any way.
Article 14 of the Constitution and Citizenship Amendment Act 2019
Article 14 under Part-III of the Constitution of India reads-
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
In essence, it signifies two things for a person in Indian territory- ‘equality before the law’ and ‘equal protection of law’. It protects any person within the territory of India against any arbitrary discrimination at the same time it mandates that among the equals the law should be equal and equally administered. The concept of equality under article 14 doesn’t involve the idea of absolute equality. The concept of equality permits rational distinction and differential treatment. Conferment of special benefits or protections to a particular group for rational reasons is envisaged under Article 14 and is implicit in the concept of equality envisaged under it as has been pronounced in the Supreme Court Judgement in T.M.A Pia Foundation V. State of Karnataka (2002).
Article 14 does prohibit ‘class legislation’ but not ‘classification for the purpose of legislation’. What this means is that the Legislature can classify persons for the legislative purpose to bring them under a well-defined class. The classification should not be patently arbitrary. It should be reasonable and be based on qualities and characteristics that have a relation to the object of legislation (John Vallamaton v. Union of India AIR 2003). If there exist equality and uniformity within the group thus created, the law would not become discriminatory even when due to some incidental circumstances persons included in the group get an advantage over the others (the state of A.P. v. Nallamilli Rami Reddi, 2001)
Thus, if there is any reasonable basis of classification, the legislature is entitled to make a differential treatment. Moreover, Article 14 doesn’t limit the competence of the legislature to exercise its discretion and make classifications. The reasonableness of the classification is to be tested on the grounds whether it is based on an ‘intelligible differentia’ which distinguishes persons or things that are grouped together from the persons or things that are left out of group and the differentia has a ‘rational nexus’ to the object sought to be achieved by the legislation in question (National Council for Teacher Education v. Shri Shyam Shikha Prakashan Sansthan, 2011).
The question then arises is, has the legislature in Citizenship Amendment Act 2019 created the class or grouped the persons on the basis of an intelligible differentia? Yes, it has, because the grouping is based on the commonality of all those included being from the religion recognized by their respective states apart from the state religion. And there also exists a rational nexus to the object sought to be achieved by the legislation as all those being grouped also constitute the minority in their respective states quantitatively. Also at the same time, the law doesn’t prohibit the persons who do not fall in the group from applying or acquiring citizenship through the normal procedure which is open to anyone who is not a citizen of India and wants to be one regardless of their identities or nationalities.
“The Principle of equality (as under Article 14) doesn’t mean that every law must have a universal application for all persons who are not by nature, attainment or circumstances in the same position as the varying need of different classes of persons often require separate treatment” (Sarbananda Sonowal v. Union of India, AIR 2004)
“A legislature which has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particular objects; and for that purpose, it must have large powers of selection or classification of persons and things upon which such laws are to operate.” (Omkar Lal Bajaj v. Union of India, AIR 2003)
It is a commonsensical understanding that the possibility to exhaust all the circumstances or criteria which may accord a reasonable basis for the classification in all cases every time a legislation is brought is unviable. Thus, it should depend on the object of the legislation in view and whatever has a reasonable relation to the object of the legislation if intelligible should be considered a reasonable basis of classification of the persons coming under the purview of the enactment.
Another way of looking at it would be that India is relaxing its illegal immigration laws based on an intelligible differentia and basis for a particular class which share the commonality of minority and at the same time, it doesn’t bar or deteriorate anyone else’s right to take the normal path as has recently happened that too in J&K. Test of reasonableness can very much be defended. Hence from the point of legislative competence and constitutional mortality and the established precedence of its application including the test of reasonableness under Part III of the Constitution, there at least for now are no immediate urgent issues with Citizenship Amendment Act 2019 (CAA).
From a pure policy perspective Citizenship Amendment Act 2019, remains to be judged on the basis of its implementation and the rules drafted therein. Having said that there’s no denying the fact that NRC at least in its present form including in the form of NRIC which is being said to have been set in motion by the ongoing implementation of the National Population Register is problematic and is not feasible for the whole country by any standard. But its implementation or non-implementation for that matter has no bearing on the constitutionality of the Citizenship Amendment Act 2019, as the final implications of NRC/NRIC are going to be the same with or without Citizenship Amendment Act 2019, to some extent, quantitatively even worse without it.
This article was originally published on The Medium on 25 December 2019. Views are personal.