The Constitutionality of the Citizenship (Amendment) Act: A Response

[This is a guest post by Shivam Singhania. The piece was written before the passage of the Bill into an Act, and the constitutional challenge to the Act. References to the “Bill”, therefore, may be understood as references to the Act.]

---

This piece is in response to the piece on this blog titled “The Citizenship (Amendment) Bill is Unconstitutional”. Respectfully disagreeing with the author, I shall endeavour to address the arguments against its constitutionality, and also chart out a path within the bounds of the settled judicial precedent on Article 14.

The bill changes amends the Citizenship Act on two counts – by inserting a proviso in Section 2(1)(b), and by amending clause (d) of the Third Schedule. The first count, i.e., the proviso, provides that ‘any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan’ will not be treated as an illegal immigrant under the Act, subject to three conditions: (a) he/she entered India on or before December 31, 2014, (b) is exempted by the Central Government under Section 3(2)(b) of the Passport (Entry into India) Act, 1920, (c) is exempted from the application of Foreigners Act, 1946.

(Note: The Passport Act empowers the Central Government to make rules requiring persons entering India to possess passports. It also gives the Central Government power to exempt, conditionally or unconditionally, any person or class of persons from complying with such requirements. The Foreigners Act empowers the Central Government to make orders prohibiting, regulating, restricting entry of non-citizens, i.e., foreigners into India. The Central Government also has the power to exempt any individual or class or description of foreigner from the application of the act. The exemptions for Bangladeshi and Pakistani nationals were issued in 2015, and included Afghanistan nationals in 2016. These exemptions have not been challenged. Further, the same classification exists for the purpose of issuing Long Term Visas (LTV) to nationals of these three countries. The same has also not been challenged.)

The second count, i.e., amendment to the Third Schedule, relaxes the time-criteria for naturalization from at least 11 out of 14 years to at least 5 out of 14 years of residing in India, or being in service of the Government, for ‘any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan’.

Admittedly, the constitutional questions rest on the issue of discrimination and non-adherence to ‘equal protection of law’.

CLASSIFICAITON UNDER ARTICLE 14

The Constitutional position, right from Anwar Ali Sarkar to a catena of subsequent cases, is clear that the equality principle envisages like to be treated alike, and consequently allows unlike to be treated differently. Such differentiation, however, has to stand the test of intelligible differentia, i.e. that the basis or principle guiding the creation of different groups meant to be treated differently by the law should be ascertainable and sound. Further, such differentia should have a rational nexus to the object of the law, meaning that t should directly further the purpose that the law seeks to fulfil. Subsequently, the test of arbitrariness was also added in E.P. Royappa.

The classification in this amendment, as rightly described by the author, is on two counts: first – religion of the target group, i.e., Hindus, Sikhs, Buddhists, Jains, Parsis and Christians; and second – country of origin of these groups, i.e., Pakistan, Bangladesh and Afghanistan.

It will be shown in the course of this essay that the principles that ground the above classifications are intelligible and not under-inclusive and serve the object of the amendment and overall, are not arbitrary.

RELIGION, ARTICLE 14 AND ARTICLE 15

Over and above the generality of equality principle laid out in Article 14, Article 15 provides for prohibition of discrimination on specific grounds, such as race, sex, and also religion. This means that any such basis of classification, even if intelligible, cannot pass muster of Article 14 for reason of the specific prohibition in Article 15.

However, Article 15 applies only to citizens. On the other hand Article 14 applies to ‘any person’. Thus, as settled in Chandrima Das and Indo-China Steam Navigation cases, a non-citizen cannot take the benefit of Article 15. Thus, with respect to non-citizens, a classification which has religious inklings cannot be dismissed at the threshold; it will pass muster if it passes the tests of Article 14 discussed above.

We now address the author’s argument based on the concurring judgement of Justice Malhotra in Navtej Johar v Union of India. The author’s inference from certain portions of Justice Malhotra’s opinion Navtej Johar is misplaced. The quoted paragraph – “Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an individual’s personal autonomy” – lays out the underlying constitutional intent of Article 15. It does not, and is not meant to address the point of whether such grounds transcend Article 15, and apply as a bar upon classification ipso facto, including for non-citizens under Article 14

The following exposition from the judgment, admittedly, is unequivocal: “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia”. However, what begs an answer, and none is provided in clear terms by any judicial precedent, is whether certain grounds, beyond those in Article 15 and thus applicable to non-citizens, are barred at the threshold as the bases of any classification; if yes, then what are these grounds and do ‘intrinsic and core trait(s) of an individual’ qualify as such grounds?

Essentially, the submission of the author, relying on Justice Malhotra’s opinion, is that any classification with semblance to religion is impermissible, since like Article 15, which applies only for citizens, Article 14 contains an inherent bar upon classification on certain grounds, one of which is the notion of core trait/choice/personal autonomy (and religion is a part of that). This, however, has little basis in existing equality jurisprudence. The tests are clear and any classification can exist so long as the tests of Article 14 are met. Beyond that, no inherent barriers have been created for classification under Article 14.

In any case, the proposition that classification rests solely on religion should be taken with scepticism. In the CAA, religion is qualified by persecution. Therefore the two should be considered together. Religion persecution has also been recognized in the Refugee Convention as a form of persecution. Therefore, it cannot be considered as a capricious standard of marking the lines, given that the exact target groups are sought to be protected as recognized by International Convention. Further, the classification is not to create new benefits, but is only to accelerate an existing process as a measure of protection for recognizable and internationally accepted target group that, due to their precarious situation, need such protection. It is akin to any law which may be framed for instance to protect LGBT individuals from countries which provide for capital punishment for them. In that case, it will be a constitutional disservice to accept an argument that they cannot be allowed a dignified life in India because the law classifies on the basis of sex/sexual orientation.

THE PRINCIPLES CONUNDRUM AND UNDER-INCLUSIVENESS

A classic fallacy with the arguments on under-inclusiveness, also reflected in the author’s piece, is that its proponents enlarge either the principle determining classification, or the object of the law beyond their actual bounds, to argue that the classification is narrower than it ought to be.

It will be shown that the author’s purported principles determining the classification is deliberately broad, and the actual principle is more qualified. Therefore, when the purpose is defined properly, the classification is not under-inclusive.

The author, in her piece, considers four principles and finds them inadequate. For convenience, they are reproduced below –

1. “Principle 1: Pakistan and Bangladesh were part of British India. Illegal immigrants from there could still generically be considered of Indian origin. However, with the inclusion of Afghanistan, it is evident that the classification is not based on the principle of divided India and undivided India.
2. Principle 2: Afghanistan, Pakistan and Bangladesh have a State religion. However, the classification cannot be on the basis of a State religion, as Sri Lanka prescribes Buddhism as the State religion.
3. Principle 3: Degrees of harm. In Chiranjit Lal Chowdhury it was held that the legislature is free to recognize the degrees of harm and confine the classification to where harm is the clearest. However, if the CAB is based on the degrees of harm then the Rohingyas of Myanmar ought to be included as the 2013 UN report states that the Rohingyas are the most persecuted in the world.
4. Principle 4: The classification might be limited to singling out persecuted religious minorities. However, on this logic, Sri Lankan Eelam Tamils must also be included, as the Tamil Eelams are persecuted based on religion (Hinduism) and ethnicity.”

The classic problem of “inadequate principle” is at issue here. The above four principles, if applied, result in the law leaving out some group who ought to qualify. However, it is quite possible that the alleged principles are not actually the principles on which the classification is based.

In this context, let us begin by noting that laying down adequate determining principle for classification in a law lies at the doorstep of the Parliament.

It is submitted that here, the determining principle is not solely based on Partition, or harm. It is also not only about state religion or secular states, or about religious minorities. Determining principles cannot be laid in water-tight compartments, and it is not necessary that the entirety of one ground has to make a determining principle (for instance “all minorities”, or “all persecuted”). More than one ground can qualify the other grounds if the determining principle is specific (for instance, not all minorities but religious minorities, or not all persecuted but persecuted for being a religious minority).

While one set of determining principles takes in the Partition (Pakistan and Bangladesh), and the unique situation of Afghanistan vis-a-vis India, another possible set of principles is not Partition-related. India sees its responsibility as a regional leader in its neighbourhood with a thriving democracy and secular credentials to protect certain classes of foreigners under threat in their own countries. Among many forms of persecution, for now, India considers itself sufficiently prepared to be able to imbibe as citizens through a relaxed process of naturalization, those persecuted on the basis of religion. The next question is, who all and from where all?

The principle is members of communities (religion) not being the state religion of the respective nation. Essentially, it is a loose combination of Principle 2 and 4 described by the author. In other words, the broad sphere of ‘religious minority’ is qualified by its application only with respect to nations with state religions and on minorities being non-believers of the state religion. This is clearer with the altered text of bill, as being circulated in the media, by which the phrase “…persons belonging to minority communities, namely, Hindu, Sikh…” has been replaced with “persons belonging to Hindu, Sikh…”. [Editor’s Note: this is now the text of the Act.]

Therefore, it can no more be argued that the genus was ‘minority community’, and that only six of them cannot be protected (i.e., under-inclusion). The principle is shortened from ‘minority community’ to a principle which is qualified by two other components – applicable to states with a state religion, and applicable for religions not being the state religion. In other words, the principle is narrower than presented. Hence non-inclusion of some is not because of under-inclusion, but because they are not in conformity with the principle for classification. (such as Ismailis or Shias, being another sect of Islam and not a separate religion than Islam), or Myanmar, not included for not having a state religion.

Pakistan, Afghanistan and Bangladesh have a state religion, i.e., Islam. The Sri Lankan Constitution gives Buddhism the foremost place and the Myanmarese Constitution only recognizes the special position of Buddhism as the faith practiced by majority. In any case, if it is still considered that Sri Lanka has a state religion, courts may also take cognizance of data, if provided by the Union of India, of the alleged dwindling rate of the minority population in Pakistan, Afghanistan (less than 1% presently) and Bangladesh (from 23% at independence to 9% presently) of the communities sought to be protected vis-à-vis Sri Lanka (28 % in 1953 to 20% presently) to gather the mischief that the amendment seeks to arrest.

SUMMARY

The classification under Article 14 does not have inherent barriers of impermissibility at the threshold level, and nor does it have to conform to Article 15 when invoked with respect to non-citizens. In this case, the only test needs to be satisfied is the intelligible differentia-rational nexus-non-arbitrariness test of Article 14. The principle underlying the classification is not merely minority or religious minority, but of belonging to group other than the state religion of Pakistan, Bangladesh and Afghanistan (i.e. states with a constitutionally prescribed state religion). The classification with respect to states with state religions, for the benefit of persons not following the state religion, bears a rational nexus with the object of the amendment in protecting such persons facing threat of persecution for reason of non-conformity with their state religion and being eligible for relaxed criteria of immigration and naturalisation in India, and in furtherance of India’s responsibility as the leader in its nation with strong democratic values and emphasis on dignity of life to support victims of religious persecution in theocratic states. The classification, having semblance to a category of vulnerability recognized in international convention and supported empirically (possibly) is therefore not arbitrary.