The Citizenship (Amendment) Act (CAA), 2019, is unconstitutional. This has been said since the moment the first draft of the Bill was made public in 2016 and can be said of the latest draft that has cleared both Houses of Parliament and become law.
Any number of laws are passed in legislatures across the country in any given year that, in some way or another, violates the constitutional rights of people or is outside the power of such legislature as defined in the Constitution. The reason why the unconstitutionality of the CAA is so egregious and consequential is because it represents a fundamental break from the core principles of the Constitution, namely citizenship being open to all without discrimination on the basis of religion, language, race, ethnicity or gender.
Unlike even the so-called “mature democracies” of Europe and the Americas, India ensured full equality for all when it came to matters of citizenship from the day the Constitution came into force and the republic was born. The CAA is unconstitutional for both violating the text of the Constitution but also going fundamentally against one of the basic features of the Constitution. In this piece, I will elaborate how it does both.
But, first, what does the CAA do?
It primarily allows certain illegal migrants to apply for citizenship provided they meet four criteria: a) they came to India before 31 December 2014; b) they got exemptions from the Passports Act and Foreigners Act from the Union government; c) they’re from Afghanistan, Bangladesh or Pakistan and; d) they’re Hindus, Sikhs, Christians, Parsis, Jains or Buddhists. As per the government’s own numbers, only about 31,313 people, according to what the Intelligence Bureau submitted to the Joint Parliamentary Committee – those who fulfil the above four criteria and have stated, when they first entered India, that they had come here to escape religious persecution, will benefit from this legislation.
The purpose of the law is to protect members of minority communities of the three countries mentioned who have suffered religious persecution there. At least, that’s what the government says it is, but the law’s generosity on this front is niggardly. It assumes, using a colonial framework, that Muslims are one large monolith and that religious persecution between dominant and less dominant sects of Islam is not worth its consideration. This is not a theoretical exercise — Ahmadiyyas and Shias are at the receiving end of majoritarian violence in Pakistan and atheists in Bangladesh, even though born in Muslim families, are at the receiving end of extremist violence. If the idea is to protect against “religious persecution of minorities”, there’s no answer as to why the protective umbrella of the law leaves them out.
The argument made by the Union government is that this is a ‘reasonable classification’ permissible under the Constitution. Although the Constitution does not use these words,the test goes back to the State of West Bengal vs Anwar Ali Sarkar (1952), in which the Supreme Court was interpreting the scope of Article 14, which guarantees equality before the law.
However, this argument of the government goes against the grain of constitutional law developed by the Supreme Court since the 1950s and fundamentally misunderstands what the court said in Anwar Ali Sarkar. What the court actually said was (in the words of Justice SR Das): “Article 14 does not insist that every piece of legislation must have universal application and it does not take away from the State the power to classify persons for the purposes of legislation, but the classification must be rational, and in order to satisfy this test (i) the classification must be founded on an intelligible differentia which distinguished those that are grouped together from others, and (ii) that differentia must have a rational relation to the object sought to be achieved by the Act.”
The principle is not that any classification will fly — there must be valid bases for such classification and such differences must meet the purposes of the legislation. On both these grounds, the amendment fails — not only does it select certain illegal migrants on the basis of religion, but it also does so for reasons that have no basis in the law itself. Either a person is persecuted on the basis of religion or they are not. Some illegal migrants are not more equal than others. On this front, the CAA clearly violates Article 14 of the Constitution.
But any critique of the CAA cannot stop here.
The CAA is also an assault on the Constitution’s basic feature of secularism. Since the Supreme Court identified certain basic features of the Constitution in Kesavananda Bharati vs State of Kerala (1974), secularism has always been regarded as one of the core, basic features of the Constitution. What secularism means is discussed in most detail in the SR Bommai vs Union of India case (1994) where the court was hearing legal challenges to the dismissal of BJP-led governments accused of helping kar sevaks who destroyed the Babri Masjid.
In upholding the dismissal of the state governments in question on the grounds that they violated the principle of secularism, Justice PB Sawant said:
“One thing which prominently emerges from the above discussion on secularism under our Constitution is that whatever the attitude of the State towards the religions, religious sects and denominations, religion cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited.”
Citizenship, which was open to all with no discrimination towards anyone based on religion, race, caste, et al, was the most revolutionary and radical idea of the Indian Constitution. Coming as it did after a decade of slaughter around the world on narrow grounds of religion, race and nationality, this principle forming the core of India’s Constitution was a beacon of hope around the world and a matter of pride. The CAA is, therefore, an attempt to destroy one of India’s greatest achievements as a nation – the largeness of heart of a nation dominated by Hindus but where people of every other religion in the world have readily found shelter and safety.
It does not matter if no individual loses citizenship because of this, as Home Minister Amit Shah assured the nation. It does not matter even if there are only 31,313 individuals who will actually benefit from this.
It does not matter even if every other minority religion is included but only Muslims are left out. But the principle of secularism is non-negotiable and the CAA, mounting an attack on it, is an attack on not just the principles of equality and secularism, but on Constitutional rule in India itself.
(The author is Senior Resident Fellow, Vidhi Centre for Legal Policy)