Authored by Vidit Raj Jain, pursuing B.A., LL.B. (Hons.) at Hidayatullah National Law University, Raipur
Introduction
It is a well-established principle that India, as a Sovereign State, has the authority to decide who is granted citizenship. However, keeping in mind the Constitutional Democratic character, such decisions will have to be checked against the mandates of the Constitution. In light of this, the constitutional validity of the Citizenship Amendment Act, 2019 (‘CAA’) needs a check especially on the lines of equality as provided under Article 14 of the Constitution of India (‘COI’). The CAA grants citizenship to non-Muslim migrants from Afghanistan, Pakistan, and Bangladesh, while excluding Muslims. This creates a potential distinction based on religion, which may be considered discriminatory under the constitutional framework.
The CAA was debated and protested in the political climate during its initial period. Claims of religious prejudice arose from the amendment to the Citizenship Act 1955 that provided for the minorities of Afghanistan, Pakistan, and Bangladesh belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian religions can get Indian citizenship if the person entered India before December 31, 2014. Yet Muslims were denied this right. Protests began on the grounds that they violated the principles of the COI and specifically Article 14, which was intended to undermine the secular fabric of India; the government argued that the Act was an attempt to redress the catastrophic historical abuses suffered by persecuted minorities. Panic arose because of the likelihood that some oppressed people would be rendered stateless particularly because of being Muslim. While the Sixth Schedule areas and those under the Inner Line Permit (ILP) were exempted, protests in Northeast India were about the assertion of indigenous identity against the alleged violation of the Assam Accord of 1985. While the women-led sit-in at Shaheen Bagh in Delhi became an icon of non-violent protest, unprecedented demonstrations all over the country, led by students, civil society and political organisations turned universities like Jamia Millia Islamia, and Aligarh Muslim University into protest zones. In Assam, violent conflicts claimed lives while agitations raised the issues of deterioration of the culture. Fears of authoritarianism were raised when brutal police force during protests like the one at Jamia was expressed more vociferously. The Act was one of the most controversial acts which put more stress on broader issues of citizenship, secularism and sustainability of democracy in India. Domestic critics and foreign anti-India lobbies criticized the Act for distorting India’s democratic and culturally diverse stands.
National Register of Citizens Read With CAA
The CAA and the National Register of Citizens (‘NRC’) should be read together, which helps in understanding the very essence of both. The Home Minister of India, Amit Shah has also been very clear of one gaining meaning in the company of the other. Assam has been chosen as the laboratory to carry on this experiment. Through the process of NRC, the illegal migrants living in Assam are sought to be excluded from citizenship. However, the non-Muslims can earn their citizenship through the CAA, whereas, the Muslims, who will be excluded from the NRC will not have any other way of gaining the citizenship.
CAA also violates the Assam Accord, according to which 24th March 1971, was fixed as the cut-off date for the immigrants. The CAA extends this deadline and moves the date to 31st December, 2014 for the immigrants of the 6 accepted religions from the 3 mentioned countries.
A component of arbitrariness is visible as the whole burden of taking in illegal immigrants has been put on Assam. The burden should be imposed on the whole Union together, or even if border states are to be considered as the category, then every border state should be included in NRC. Being singled out has caused a lot of problems for the native Assamese, such as a change in the demographics of the state, reducing the native Assamese to a minority and hampering their cultural rights, reduction in the per-head resources available, etc.
Any act, the object of which is discriminatory, cannot fulfil the test of reasonable classification under Article 14 of the COI, as was held in Nagpur Improvement Trust v. Vithal Rao. As Assam has been discriminated against, from the perspective of NRC, Article 14 of the COI stands breached. Other border and even non-border states like Tripura, Meghalaya, Rajasthan, etc. also face the illegal immigrants issue but they have not been included in the NRC. Article 21 of the COI, which provides for the protection of community rights, and the right to self-governance, among other things, has also been breached. Article 29(1) of the COI provides for the conservation of distinct languages, cultures, etc. The CAA directly goes against this provision. Article 355 of the COI casts a duty on the Union to protect states against internal disturbances, quite contrary to which, the CAA has the potential to promote external aggression in the state of Assam.
There can be serious social, legal, political and economic consequences if the NRC is extended throughout the country. It may also cause injustice to the poor, the landless, indigenous people who do not possess the required documents. This may increase tensions in the society due to mass marginalisation and statelessness. It is not uncommon to understand that such a procedure would mean a huge administrative burden that would likely overload the system, thereby leading to further legal complications. Also, the exclusions might lead to loss of livelihood, especially in the informal sector, and implementation of the NRC might be expensive to fund using limited public resources. In the international arena, the process can bring a negative image to India and can also strain relations with Bangladesh and other neighbouring countries.
CAA on the Touchstone of Secularism
The 42nd Constitutional (Amendment) Act of 1976 defines 'secular' as treating all the religions in the republic equally. However, the Honourable Supreme Court has interpreted the law on many occasions in its judgements. Regarding secularism, we find that the Indian Constitution maintains a secular system and does not mean atheism.
Initially, secularism was understood to mean that the state should treat all religions equally and refrain from interfering in their practices. The courts concentrated on striking a balance between basic rights and personal legislation.
It was then firmly established as a fundamental component of the Constitution. It was anticipated that the state would actively contribute to maintaining equality and avoiding prejudice against certain communities.
Currently, the emphasis is on striking a balance between secularism, individual liberties, and contemporary ideals like gender equality. The intersection of social justice and secular values has been a topic, getting increased attention from the judiciary.
The validity of the Bombay Prevention of Hindu Bigamous Marriages Act,1946 was affirmed in State of Bombay v. Narasu Appa Mali, which concluded that Part III of the Constitution does not grant fundamental rights to personal laws. In India, where secular administration and personal laws coexist, it subtly brought attention to the complexity of secularism. A precedent for the judiciary's non-intervention in personal laws was established by this case. However, it was overruled in the Indian Young Lawyers Assn. v. State of Kerala, in which the test of constitutional morality was invoked, according to which not even personal or religious laws could override the constitutional provisions of equality.
In Mohd. Hanif Quareshi v. State of Bihar, according to the Directive Principles of State Policy, the Supreme Court upheld the state's authority to control slaughter. This laid the foundation for interpreting secularism as not strictly separating religion and state but rather treating all religions equally. It also illustrated the state's responsibility to strike a balance between secular ideals and cultural and religious practices.
In Ahmedabad St. Xavier's College Society v. State of Gujarat, the secular ideal of recognizing minority rights was reinforced when the court recognized religious and linguistic minorities' ability to create and run educational institutions under Article 30 of the COI.
In the case of Indira Gandhi v. Raj Narain, the Supreme Court of India interpreted secularism to mean that the state shall have no religion of its own and the citizens residing in the nation shall be given an equal right to have freedom of conscience and freedom to propagate, practice and profess any religion.
In the case of S.R. Bommai v. Union of India, Secularism was established as a basic feature of the COI. This view was reiterated in Kesavananda Bharati v. State of Kerala and it was held that the Parliament has the power to amend the Constitution but cannot change the basic structure of the Constitution. In Ziyauddin Bukhari v. Brijmohan Ram Das Mehra, the court while holding Secularism as a part of the basic structure, stated that the State should be impartial in extending its benefits to all the castes and should ensure that disabilities are not imposed on people based on their religion.
CAA, on the other hand, has provided immunity to people belonging to 6 minority religions, namely, Jains, Sikhs, Hindus, Buddhists, Christians and Parsis entering India as illegal migrants from Pakistan, Bangladesh, and Afghanistan before 31st December, 2014. This requirement to qualify as a citizen based on one’s religion goes directly against Secularism. The justification for this has been that they are the religiously prosecuted minorities in such countries. However, Ahmadiyya Muslims, a faith within the Muslim community, in Pakistan, who also face the brunt of prosecution have been provided no such protection by the CAA through which they can enter India and be provided with citizenships.
The CAA specifically targets Muslims, which can be demonstrated with the help of a hypothetical situation, wherein, a Hindu from Pakistan who has never faced prosecution in his life has come to India for better economic prospects, and would be entitled to citizenship; however, a Muslim from Sri Lanka, who has come to India by saving himself from the religious persecution in Sri Lanka, will not be entitled to citizenship.
Ana Parveen and others v. Union of India also point out the discriminatory nature of CAA. In this case, Mohd. Qamar, a Muslim, was subject to prolonged detention, which he would not have been, had he been a non-Muslim.
The rules for implementing CAA, came in the holy month of Ramadan, which is an indication of the hatred against a particular religion.
Legal Analysis of the Citizenship Amendment Act
Article 14
The reasonable classification test under Article 14 of the COI, which provides for equality before law and equal protection of laws, again comes up for consideration while considering CAA separately. In Navtej Singh Johar v. Union of India, it was provided that the classification should be based on a benchmark, which in turn should be reasonable. It was also held that it cannot be based on an intrinsic and core trait of an individual. As against this, the CAA bases the classification solely on the religion of the individuals.
In E.P. Royappa v. State of Tamil Nadu, the Supreme Court of India has restated the meaning of Article 14 explaining that equality is the complete antithesis of arbitrariness. The Court held that if any governmental act or legislation is arbitrary then it should be set aside for violating the right to equality before the law of other citizens. The proposal is that the current type of exclusion that is restricted only by religion and has no rational relation to the objectives of the Act is a breach of Article 14, as Muslims are unjustly denied their right to citizenship.
In Maneka Gandhi v. Union of India, the Supreme Court expanded Article 14 to mean that legislation and state activities have to meet the test of reasonableness and non-arbitrariness. The Court emphasised that there can be no question of equality until and unless it is accompanied by fairness. The CAA has been described as Discriminatory and irrational because this law grants citizenship privilege to some religious communities while denying the same to other communities.
State of West Bengal v. Anwar Ali Sarkar laid down the principle that any classification under Article 14 must not be arbitrary and should have a reasonable nexus with the object sought to be achieved by the legislation. The CAA's omission of Muslims from its purview has drawn criticism for having no reasonable nexus to its professed goal of combating religious persecution.
The object clause of CAA reads as “to protect those who have faced religious persecutions in Afghanistan, Pakistan, and Bangladesh.” Some other communities, for instance, Ahmadiyyas in Pakistan and Hazara community in Afghanistan also face religious persecution but have been denied citizenship. It is thus submitted, that it fails the reasonable classification test under Article 14 of the COI.
Apart from the reasonable classification test, it was held in Shayara Bano v. Union of India, that a statute can fall foul, if it is manifestly arbitrary in nature. The grounds for selecting the countries which have been selected lack a basis, as it was only Pakistan and Bangladesh, which were part of the erstwhile India. On the other hand, if the bordered countries were being included, then why countries like Myanmar, Sri Lanka, Bhutan, Nepal, etc. have been excluded? In Sharma Transport v. Government of AP, it was held that there must be a principle behind a decision. It is submitted that the principle behind the decision regarding the choice of country falls foul on this ground. Even, differential treatment of the prisoners based on their different countries was held violative of Article 14 of the COI in Madhu Limaye v. The Superintendent, Tihar Jail, Delhi.
Elaborating on it, CAA’s arbitrary nature can be gathered from the fact that the Eelam Tamils, prosecuted minorities in Sri Lanka, which also has a State religion, form the largest refugee group in India, and Bhutan, which oppresses the Non-Buddhist activities and has Vajrayana Buddhism as state religion have not been included in the CAA. So, the reasoning that the Identified Countries have a state religion falls foul. Their Islamic Constitution cannot be cited as a reason for the same, as India, being a Secular State cannot protect or deny protection to the immigrants on the basis of religion. Even the Rohingya Muslims of Myanmar, often referred to as the most persecuted minority in the world, have been excluded from the purview of CAA.
Article 15 of the COI prohibits discrimination on the grounds of religion, race, caste, etc. and if any classification is found on such grounds, it becomes prima facie an impermissible classification under Article 14 of the COI. The CAA directly contradicts this provision and makes a discriminatory classification against Muslims on the basis of religion.
Most of the rights in India are available only to the citizens of India. But there are a few exceptions including Article 14 of the COI, which is also available to the non-citizens. It was held in State Trading Corporation of India Ltd. v. Commercial Tax Officer and others that the right under Article 14 of the COI is available to all persons and not just to citizens.
Article 21
Article 21 of the COI provides that no person shall be deprived of his life or personal liberty. The Article has been interpreted to be quite extensive in scope. It includes the right to development, the right to livelihood, the right to live with dignity, etc. in its ambit.
The right to live with dignity can be seen as being violated as the statute is discriminatory in nature and the feature of Secularism has also been concurrently violated as it discriminates on the basis of religion.
In Surinder Singh v. State of Punjab, it was held that a person is deprived of his liberty if a procedure which is to be followed, is not reasonable, fair or just. The CAA read with the NRC has been submitted to be potentially arbitrary and unreasonable in nature and thus, it goes against the rule established in the Surinder Singh case.
If the CAA remains constitutional, the aggregate population of Assam and India will increase, which will lead to increased spending by the government for the migrants, which could rather have been used for development purposes. It is submitted that this leads to the violation of the Right to Development.
Article 13(2) and the Doctrine of Severability
As the CAA is found to contravene the principles of equality and non-discrimination provided under Article 14 and 15 of the COI respectively, among other things, it should be struck down under Article 13(2) of the COI, which provides that any law should be held void to the extent it is in contravention with the Fundamental Rights. However, in R.M.D. Chamarbaugwala v. Union of India, it was held that if a statute contains such provision, the valid and invalid parts of which are so intertwined that they cannot be separated, then striking down the whole of the provision is the right way forward.
Democratic Structure
In Kesavananda Bharati v. State of Kerala, the judges agreed that the Democratic structure was a part of the basic structure, and thus cannot be amended. Democracy postulates that the citizens should have a free voice and opinion with regard to whom they want to elect as their ruler. The legitimisation of the entry of illegal immigrants and further granting them citizenship through the process of naturalisation will also be entitled to vote in the elections of the particular constituencies. This would in turn be violative of the principle of democracy as it leads to the dilution of the voting power of the rightful citizens.
The core tenets of U.S. citizenship are naturalisation with no regard to race and/or religion, as well as birthright citizenship. To the same effect, Canada's policies entail non-discrimination and multiculturalism and refugee and immigrants’ rights are protected under humanitarian grounds rather than religious identity, in the country’s immigration laws.
A complete contrast is also provided by European democracies such as France, Germany and the United Kingdom. Germany permits refugees based on reasonable fear of their persecution, in compliance with EU international law. France’s strict secularism ensures that religion does not influence governmental decisions including those regarding citizenship. The UK prioritises asylum seekers' considerations over legal rights on citizenship.
The CAA is inconsistent with these methods, as it associates religion and citizenship, which is devoid of neutrality and equality.
International Law
Refugee Convention, 1951 prohibits discrimination on the grounds of religion. The same right is also available under Article 7 of the Universal Declaration of Human Rights, 1948 and under Article 26 of the International Covenant on Civil and Political Rights. United Nations Declaration on the Rights of Indigenous Persons, 2007 provides for the rights of indigenous communities to access and maintain their culture. This right of the Assam citizens is threatened by the illegal immigrants and by providing them citizenship, the CAA goes against International Law. In Vishakha v. State of Rajasthan and also under Article 51 of the COI as a DPSP, the importance of abiding by International Law has been recognised.
Despite not being a signatory of the UN Refugee Convention, India has always upheld values such as non-discrimination and non-refoulement. The CAA goes against the fundamentals of these ideals by omitting Muslims (such as the Rohingyas or Ahmadiyyas), from its purview.
Conclusion
The CAA grants too much discretion to the executive about the decision of citizenship, without having any criteria or basis upon which the individuals who are religiously persecuted can be determined. It creates two groups and divides the illegal migrants on the basis of who entered India before the cut-off date and who entered after the cut-off date, without any reasoning as to why the same rights have not been accorded to the latter as the former. In The State of West Bengal v. Anwar Ali, it was held that a law falls foul of the COI which discriminates against one class which is concurrently placed with another, who are accorded favourable rights. In this regard, CAA is submitted to be under-inclusive. The CAA also goes against Articles 5 and 6 of COI, which defines who a ‘citizen’ is. Though, Article 11 of the COI provides some limited powers to the Parliament to make laws in this regard, however, it is submitted that such powers are not unfettered in nature. The Indian Union Muslim League filed a petition under Article 32 of the COI challenging the constitutionality of the bill and a number of similar petitions were tagged to it soon, which prayed for the court to strike down the notifications which exempt illegal migrants from the Identified Communities from Identified Countries to be deported and detained under the Passport (Entry into India) Act, 1920 and Foreigners Act, 1946.
In Bachan Singh v. State of Punjab, the Supreme Court held that the ‘direct and inevitable consequences’ of a particular statute must always be taken into consideration. The NRC process mixed with CAA, could strip Muslims of citizenship, which is already under way in Assam.
In Sarbananda Sonowal v. Union of India (I) and (II), the court recognised that the illegal migrants should be expelled, based on which the Illegal Migrants (Determination by Tribunals) Act, 1983 was struck down. This migration was seen as ‘external aggression’. The cause of such migration has been recognised by the court to be primarily economic and demographic reasons, as against to saving them from religious persecution. Thus, the foundation of CAA is invalid.
Part III of the COI contains the Fundamental Rights, which acts as a fetter on the powers of the Parliament and thus upholds the right to live with dignity of every individual. These Fundamental Rights include the Right to Equality under Article 14, and the Right to Life and Personal Liberty under Article 21 among others. The CAA, it is submitted, violates these rights and other Fundamental and Constitutional Rights. The Fundamental Rights have been held to be a part of the basic structure of the COI. Parliament does not have the power to destroy the basic structure of the COI and thus, it is submitted that the CAA is violative of the basic structure doctrine and should be held as invalid. Apart from this, the CAA fundamentally undermines key principles of the COI, such as secularism, equality, and dignity, and also impacts the integrity of India as a democracy.
However, the CAA has been implemented since March 11, 2024, through the publication of the Citizenship (Amendment) Rules, 2024 by the Ministry of Home Affairs. Amnesty International has singled out that the CAA is unlawful according to international practice and the COI. The Act, the organisation said might instigate discrimination among Muslims and other minorities and called for its repeal. But, as of January 2025, the Court has not made its final decision as to the above issues.