Is Citizenship Amendment Act Unconstitutional?

CAA for and against

The nation is burning. Emergency declared in many places. Netizens are not heard in many places as internet service has been stopped. The Citizenship Amendment Act, 2019 is under the scanner and we are chalking out some important issues which could be framed for and against the same.

Point No:1= SECULARISM

Question: Whether the CAA is against the secular nature of the nation and violates Secularism as the basic feature of the Constitution since it accommodates only a few religions and has based the law on religion?

For CAA

Secularism is a wider term in idea and application. The State has no religion and the state is not liable to consider any particular religion favorable at the cost of unfavorableness of other ones to frame its policies. Citizenship is absolutely a State matter and the State has absolute power to choose persons who should be given citizenship. It may or may not include any class or religion. Since religion is not a matter of concern for the State, it cannot be compelled to take in people from any particular community or to include people from all communities or religions. The State’s idea of giving Citizenship to a certain category of people is well-founded on the demographic and historical facts and figures in some neighboring nations. People from a certain category are undoubtedly facing persecution and are fled to India to take refuge. The State may not able to give citizenship to all people from the world who come here. Hence it becomes imperative for the State to make certain categories/classification which creates an intelligible differentia to frame the policy of granting citizenship to illegal migrants. As a result, many people are excluded from citizenship. Not even Muslims, Hindus from Sri Lanka are not permitted as per the new law, to attain Citizenship. This undoubtedly asserts the fact that the State has no religious concerns which made it enact the new law. The State has decided not to accommodate refugees from Sri Lanka, Myanmar, etc which constitute people from Hindus and Muslims among other religions. It is the policy of the nation to now accommodate only a few of the refugees from the neighbor countries which happened to be Bangladesh, Pakistan, and Afghanistan. Hindus being the minority are persecuted and hence the State is striving to give them citizenship. This has nothing to do with the secular ethos and is completely compatible with the Constitution. This is the Policy decision of the government on a horizon that is absolutely within the exclusive power of the Union.

Against CAA

The judicial dictums which laid the foundation for the ideology of secularism in the country have reiterated and affirmed that it is the basic feature of the Constitution and the State shall not discriminate anyone on the ground of religion. By including persecuted people only from some Muslim-nations, the State has, in fact, excluded other refugees and homeless people from Sri Lanka and Myanmar. The policy of the government to classify citizens on the basis of religion is a striking blow at the idea of secularism guaranteed by the Constitution. The enactment may be the mirror cast of the policy of the Government and citizenship undoubtedly rests with Union power, yet the law passed by the Parliament must stand the test of compatibility with the Constitution.

Secularism is the undisputed and non-amendable basic feature of the Constitution. Classifying persons on the basis of religion to grant them citizenship is against Secularism. If at all the Government has a good idea of giving refuge to the persecuted people from Pakistan, Afghanistan, and Bangladesh, the law should have been worded so as to give an option to all those persecuted people to come to this nation. Though Muslim people who are born and living in Muslim nations are not likely to come to India seeking citizenship, there are some sections of Muslims who suffer from intra-religious persecution in those Muslim nations and are forced to flee from their homeland.

Citizenship shall only be given to people and not religions. By giving admission to people from certain religions by naming them and excluding others is equal to dividing the nation on the basis of religion and thus it is against the basic feature of the Constitution. On this account, the present law is unconstitutional and should be struck down.

Point No:2- RIGHT TO EQUALITY

Q: Whether the CAA is violative of Fundamental Right of Equality granted by the Constitution as per Article 14?

For CAA

Article 14 of the Constitution says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The present law stands the test of reasonableness under Article 14. It is neither evasive nor arbitrary in its application. There is an intelligible differentia which distinguishes the persons selected for citizenship from neighboring countries. This classification is reasonable.

It is evident that the non-Muslim population faces lots of trouble in the neighboring Muslim nations like Pakistan, Afghanistan, and Bangladesh. They are either killed, lynched, forcibly converted to Islam or persecuted. Either way, these people want to flee the country and seek refuge in a secular nation like India which is their neighboring nation. In such a situation it is the social and moral duty of the nation to save humanity and give them refuge. Keeping people as non-citizens will not help the nation in its social and economic progress. To have a structured data of citizens and for economic study and planning, these people are to be counted as the workforce of the nation who gives helping hand in nation-building process and it is necessary to give them citizenship and count them as nationals injected with all rights, duties, and liabilities prescribed by Indian laws.

As per the data collected, non-Muslim communities are facing many atrocities in the above nations and are fleeing to this nation. Hence it is imperative to classify them as a group so as to have a structured pattern to give the benefits of citizenship. This will make the process more clear and transparent in its application. Without making the classification the object sought to be achieved by the law cannot be met with. The Law wants to give refuge to those affected people only. If they are not classified as a group, it may be impossible to apply the law in its real sense. Hence the classification is a reasonable one.

In Chiranjit Lal Chowdhuri versus The Union of India and others (1951 AIR 41, 1950 SCR 869), it was held that even though when a  law is made applicable to a class of persons or things and the classification is based on differentia having a  rational relation to the object sought to be attained, it can be no objection to its constitutional validity that its application is found to affect only one person or thing.

It is plain that every classification is to some degree likely to produce some inequality, but the mere production of inequality is not by itself enough. The inequality produced, in order to encounter the challenge of the Constitution, must be actually and intensely unreasonable and arbitrary.

Furthermore, the classification helps the law to attain its object of giving refuge to persecuted people who are Non-muslims. If they are not classified as such, then they cannot be given special privileges to attain citizenship and the object will fail. Hence the present law which exempts the Muslims and including certain religions has rational nexus with the object sought to be achieved. Thus it is not violative of Article 14 of the Constitution.

Against CAA

Article 14 of the Constitution says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The Article says “any person” and it has wider application. Thus any law which treats any person differently within the territory of India, be it a Citizen of India or a refugee, is violative of Article 14 and is liable to be struck down.

The principles contained in Article 14 are reasonable classification through intelligible differentia and having rational nexus with the object sought to be achieved by the legislation. The classification of people/illegal migrants on the basis of religion is an utterly unfair and unsound decision. In the matter of citizenship, there should not be discrimination to any particular religion, race or caste. Since the State is the ultimate authority, it can choose whichever persons to be granted citizenship according to merit. Religion should not be made criteria to classify illegal migrants. Even if the report that only non-muslim people migrate to India is admitted at any stretch of the imagination, the classification is unfair. There are reports that the persecuted people include a certain category of Muslim people also who face intra-religious atrocities in those Muslim nations. The statement that these people will only flee to Muslim nations is based on imagination and there is no fact to substantiate the same. Hence there is no intelligible differentia.

Furthermore, the object of the Act is to give shelter to persecuted people. Therefore the classification within the Act which excludes Muslims are by including certain religions shows incompatibility within the Act itself. The classification is strictly a religious one and there is no sound principle determining the same. Non-inclusion of Muslims itself is evidence of unreasonable classification. Equality right warrants equal treatment of equal people which is absent in the present law. If the State wants to save persecuted people, it should include words like “persecuted migrants” rather than dividing the people on the basis of religion. Ahmadiyyas of Pakistan, Rohingyas of Myanmar and Tamils of Sri Lanka are some of the examples who face persecution. They are treated differently and this is unequal treatment of equals. It concretes the fact that the State wants only certain religions to become citizens of India. This type of classification is not permitted by law under Article 14.

A classification that is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must have a reasonable and just relation to the things in respect of which it is proposed.

While reasonable classification is permitted, without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed, and the classification cannot be arbitrarily made without any substantial basis. Arbitrary selection, it has been said, cannot be justified by calling it classification”.

The legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if the law deals alike with all of a certain class, it is normally not obnoxious to the charge of denial of equal protection; but the classification should never be arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect to which the classification is made, and classification made without any’ substantial basis should be regarded as invalid(3).

In the present situation, the object sought to be achieved by the law is murkier. If the real object is to save persecuted people, then classifying them and excluding some will not help in achieving the object sought to be achieved. Thus the classification has no reasonable nexus with the object sought to be achieved and the present law failed to pass this test also.

Thus it can be undoubtedly submitted that the new law violates Article 14 of the Constitution being infringing Right to Equality.

{IMP: Public Property does not belong to any political party. It belongs to the people/citizens of India. It was the property of our ancestors and it will be the property of our successors.}