In the wake of pandemic COVID-19, people of our nation are completely abstracted from countless issues in the country such as the violence in the National Capital Territory to lack of proper education, sanitation, health care systems; long-lasting issues such as corruption, poverty, illiteracy, pollution which were at zenith; decline in the economic growth rate, increase in the unemployment rate and the number game in Indian GDP was anyways never at question in Indian minds. One of the most important issue at question is the constitutionality of the Citizenship (Amendment) Act, 2019 (herein after referred as CAA, 2019).
The CAA, 2019 was passed on 11th December, 2019 by the Indian Parliament and was effective from 10th January, 2020. It is an amendment to the Citizenship Act, 1955. The basic provision of the Act that is at debate is to allow illegal migrants of Hindu, Sikh, Christian, Buddhist, Jain and Parsi religions from Pakistan, Afghanistan and Bangladesh that entered India on or before 31st December, 2014 to seek Indian Citizenship. No such provision was given to Muslims of those countries. And no such provision is given to illegal migrants of any other country.
According to the government, the CAA, 2019 envisages a reasonable classification between these illegal immigrants belonging to various religions. In Shri Ram Krishna Dalmia v. Shri Justice SR. Tendolkar, the court held that it must be presumed that the legislature understood the need of its own people and that its discriminations were based on adequate grounds1. The legislature is free to recognize degrees of harm and might confine its restrictions to those cases where the need was deemed to be clearest2.CAA, 2019 fulfilled the long-standing anguish of the refugees that are persecuted in name of religion in these countries. Provision of citizenship to these refugees is in concerns with the north-eastern states.
Article 14 speaks that; the state shall not deny any person equality before law or equal protection of the laws provided nothing therein contained shall prevent the State from making a law based on or involving a reasonable classification. Reasonable classification should not deprive people from equality. It means a law must operate alike on all persons similarly placed in similar circumstances.
The Supreme Court in Dalmia case3 said that reasonable classification must satisfy two conditions:
- It must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and
- The differentia must have a rational relation to the object sought to be achieved by the statute in question.4
Justice Gajendragadkar in KangshariHaldar v. State of West Bengal5 has held that if either of the two criteria are not satisfied then the act is liable to be struck down as unconstitutional. If one of the conditions fails, the classification is liable to struck down as ultra vires.
In case of CAA, 2019 the question arises that on what basis reasonable classification may be defined. It’s evident that the basis is on Geography, Religious Persecution and Illegal Immigration to India. In S.I.S. Mills Assn. v. UoI6 the principle was settled that geography can be a basis of classification provided there exists a rational nexus with the objects sought to be achieved by the Act. In SarbanandaSonowal v. UoI7the Court dealt with Illegal Migrants Determination (Determination by Tribunal) Act, 1983 and its geographical exclusiveness regarding its applicability to the State of Assam. The Court has held that
“For satisfying the test of Article 14, the geographical factor alone in making a classification is not enough but there must be a nexus with the objects sought to be achieved.”
This principle was followed in subsequent cases ofGopal Narain v. State of Uttar Pradesh,8 Kailash Chand Sharma v. State of Rajasthan,9ParisonsAgrotech (P) Ltd v. UoI.10
The object of the Act is to facilitate granting Citizenship to people of only six religious’ communities from Pakistan, Afghanistan and Bangladesh who have migrated to India. There are sizeable communities from these religions out of these three countries that have migrated to India. For example, Chin community who are Christians and are from Myanmar have migrated to India. Hence excluding Myanmar from the classification will not treat Christians migrated from Pakistan, Afghanistan and Bangladesh equally with the Christian migrants from Myanmar. Over 1.5 lakh Tamil Hindus and Christians have migrated from Sri Lanka to India, Excluding Sri Lanka from the classification results inequality between Hindus, Christians of these three nations with those of Sri Lanka. Hence, the objective envisaged by the legislature will not be fulfilled through the Act. In Bombay v. Bombay Education Society,11 it was held that if the prohibition provided in Article 14 is violated, the law would be void no matter whatever might be the intentions of the law makers. Hence the Act is unconstitutional basing Geography as a criterion for reasonable classification.
The contention that religious persecution as a basis for reasonable classification is not tenable. We know that the religious persecution is not just limited to these three nations or limited to these six religions. Rohingya Muslims are being persecuted in Myanmar, similar cases are also in Sri Lanka. Uighur Muslims are facing religious persecution in Xinjiang province of China. Tibetan Buddhists in Lhasa province are subjected to violence by Hui Muslims and vice-versa. Hence, classifying only these six religions as a separate cluster and formulating a legislation is not fulfilling the criterion of intelligible differentia.
The contention that immigration to India as a basis for reasonable classification is also not tenable. India has a sizeable amount of people belonging to Muslims such as Rohingyas from Myanmar, Uighur Muslims from China, Buddhists from Tibet, Christians from Myanmar, Tamils from Sri Lanka etc., These are all illegal immigrants. If a legislation is enacted, it should cater the needs of all these communities failing which it in a way promotes inequality. In Royappa v. State of Tamil Nadu12 and Maneka Gandhi v. UoI,13 the Courts held that Article 14 strikes at arbitrariness in state action and ensures fairness and equality in treatment.
India is not a signatory to the Refugee Convention of 1951 or the Refugee Protocol of 1967. Hence it does not have any obligation in providing asylum to immigrants. But it is a peremptory norm of International Law that no nation shall refuse asylum to immigrants. India is a signatory to several other international treaties such as Bangkok Principles on Status and Treatment of Refugees, 1966; United Nations Convention Against Torture, 1987; Prevention and Punishment of the Crime of Genocide and ratified it on 27th August 1959; India has assented to International Convention on Civil and Political Rights in 1979. With all these India has a moral obligation with respect to asylum seekers.
In Ktaer Abbas Habib Al Quraifi v. UoI and Ors14 the court held that “In view of directives under Article 51(c) and Article 253, international law and treaty obligations are to be respected when they are not inconsistent with domestic law.” Similarly, in Vishakha v. State of Rajasthan,15 it was held that International law convention may be adhered where there is a null in domestic law.
With all the above-cited cases, it is clear that India has to respect all its refugees regardless of their religion or the country they come from. To support this context, we place a reference to the case National Human Rights Commission v. State of Arunachal Pradesh & Anr.,16 wherein it was held that the Constitution confers certain rights on every human being and certain other rights on citizens. Article 21 of the Indian Constitution is guaranteed to all human beings, be he a citizen or otherwise. No person shall be deprived of his right to life and personal liberty and hence no person can be denied asylum or citizenship without reasonable classification. It is evident from the above explanation that there is no reasonable classification in denying citizenship to any person other than these six religions and other than these three countries. It is grossly violative of Article 14, 19, and 21; the golden triangle of the Indian Constitution.
In Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr.,17 the Court said that “the basic structure of the Constitution could not be abrogated even by any of constitutional amendment or legislation.” Fundamental rights are part of basic structure doctrine.18 Hence, any legislation violating fundamental rights is violative of the basic structure of the Constitution and is null and void as it is unconstitutional. From the aforementioned cases, views and explanations we conclude that the CAA, 2019 has violated the fundamental rights and the reasonable classification has not fulfilled the intelligible differentia, thus the CAA, 2019 in my view is violative of the basic structure of Indian Constitution and should be made null and void. Instead, the government should come up with legislation more inclusive and that which does not pave way for any kind of violence in the country.
1(1959) SCR 279
2Khyberi Tea Co. v. Assam (1964) 5 SCR and Nagappa v. IOM Cess Commr (1968) A.Mys. 42
3Dalmia, Supra Note 1
4Anwar Ali Sarkar v. The State of West Bengal (1952) SCR at pp 340-41; Om Prakash v. J&K (1981) A.SC. 1001; D.D. Joshi v. UoI (1983) A.SC 420
5AIR 1960 SC 457
6(1972) A.A.P 75, 81-82
7(2005) (5) SCC 665
8AIR 1964 SC 370
9(2002) (6) SCC 562
10(2015) (9) SCC 657
11(1955) 1 S.C.R
12AIR 1974 SC 555
13AIR 1978 SC 597
14(1999) CrLJ 919
151997 (6) SCC 241
16(1996) 1 SCC 742
17(1973) 4 SCC 225; AIR 1973 SC 1461
18Minerva Mills Ltd. &Ors. v. UoI&Ors. AIR 1980 SC 1789
About the authors
Meegada Uday Shankar likes to do legal research, and his passion lies with writing. He has always been driven by the issues that violate the basic structure of the Constitution of India, this has made him a lifelong learner. Ever since writing the first article, he has been obsessed to exhibit his views through my writings. He’s on his way in catering to his hunger for both writing and legal research.
Geetha Bhargavi Vindela is always known to be responsive to the socio-legal issues in the society. The time this competition was announced, She knew everyone would write on COVID-19 and hence decided to write something that is forgotten and is relevant. Here she has expressed her view point.