The Unconstitutionality of the Citizenship Amendment Act
Abstract: Recently legislated Citizenship Amendment Act has been the object of a lot of debate regarding its constitutionality. It makes a classification on the basis of religion for the grant of citizenship for immigrants from 3 nations surrounding India. This classification could be unreasonable and should have rationale and a just objective to achieve with along with being non arbitrary. This essay focuses on reasons that the CAA violates Indian fundamental rights and is essentially unconstitutional in nature. The argument that the Citizenship Amendment Act is unconstitutional is two pronged; Firstly, that it violates enforceable sections of the Indian Constitution and Second, religious grounds as the basis for discrimination for citizenship violates international public law. The principle of secularism is non-negotiable and an integral feature of the Indian Constitution. The CAA is an attack on not just the principles of equality and secularism, but in the constitution rule itself in India.
The Constitution of India guarantees to every person within the territory of India, equality before the law. The Citizenship Amendment Act seeks to provide citizenship to any person, belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh and Pakistan who entered India before or on 31st December 2014. In addition to this, the CAA reduced the requirement of the aggregate period of residence or service of the Government of India from eleven years to five years for the religious communities
mentioned. This amendment doesn’t extend these benefits to Muslims, which is a blatant violation of Article 14 of the Constitution. In the cases of State of West Bengal v. Anwar Ali Sarkar and Kedar Nath Bajoria v. State of West Bengal by the Supreme Court, it was established that Article 14 allows for classification so that the state may make laws to treat those who are unequally situated in a different manner. This classification could be unreasonable and should have rationale and a just objective to achieve with along with being non arbitrary. This essay focuses on reasons that the CAA violates Indian fundamental rights and is essentially unconstitutional in nature.
The essay shall discuss the history of the legislative process of citizenship in India, to establish what ideals the nation has been striving towards in this regard. The argument that the Citizenship Amendment Act is unconstitutional is two pronged; Firstly, that it violates enforceable sections of the Indian Constitution and Second, religious grounds as the basis for discrimination for citizenship violates international public law.
India’s contested citizenship regime was crafted in the aftermath of the subcontinent’s partition. In a survey of 38 citizenship related cases decided by the High Courts and the Supreme Court in India between 1951 and 2009, 32 were a result of the partition. The partition took place along deeply religious lines, which coloured a lot of the discussion on Indian citizenship that took place in the Constituent Assembly. Ultimately, however, Nehruvian universalism triumphed, and the framers adopted a “national-civic” rather than a “national-ethnic” understanding of citizenship.
The Constitution thus espoused a “secular” jus soli (citizenship by birthplace) system, defined in Part II (Articles 5–11) of the Constitutional text. This was a blueprint to determine citizenship of the thousands moving across the newly drawn Indo-Pakistan border, and the task of establishing a permanent law governing citizenship was left to be determined by future Parliaments. Accordingly, the Indian Parliament enacted the Citizenship Act 1955. Taking from the secular and inclusive conclusion of the Assembly, the Act incorporated conceptions both – jus soli as well as jus sanguinis (citizenship by descent) systems.
With the passing of the Citizenship Amendment Act, a massive step following the Assam Accord was taken. However, when the Indian state introduced a naturalisation process where preference is given to non-Muslims, it is suggestive of a broader sectarian agenda.
The Objective of this Act did not shed much light on its purpose, except for making the process of acquiring citizenship for the identified minority communities easier in light of the hardships they face. It is nothing but an attempt to write discrimination into law, through exploitation of concerns over illegal immigration. The differentiation was not made in a logical manner, since it ignored various other religiously persecuted minorities from Nepal, Sri Lanka (from where Tamil refugees migrate to India) or Myanmar (from where Muslim Rohingya refugees are fleeing) were excluded from the list. In ordinary course, the courts do not interfere in Parliament’s determination of what purpose and aim it should pursue through enacting a legislation. Parliament as the politically accountable branch is presumed to decide this question of policy in a legitimate manner. Nevertheless, this does not mean that there are no constitutional standards for the purpose of a policy. One such standard is that no legislation can be “manifestly arbitrary.”
CAA and the Indian Constitution:
Among other articles, the CAA violates article 14 of the Indian Constitution. Article 14 provides that state shall not deny to any person equality before the law and equal protection of laws within the territory of India. The article does not provide for absolute mathematical equality but allows equal treatment to equals and reasonable classification for the purpose of lawmaking.
Supreme Court in Clarence Pais v. Union of India held that ‘Historical reasons may justify differential treatment of separate geographical regions provided it bears a reason and just relation to the matter in respect of which differential treatment is accorded.’ ....
Although the Constitution does not use the words “reasonable classification” words, the test goes back to the case of 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. The principle is not that any classification will be accepted — there must be valid bases for such classification and such differences must meet the purposes of the legislation. On both these grounds, the act has failed — 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.
The CAA violates the basic structure of the Indian Constitution. 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, 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. “
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 in the constitution rule itself in India.
International Public Law’s significance:
Multiple human rights treaties that India has signed provide for equal protection of laws and prohibition against discrimination. The act violates those obligations made under public international law, especially the Covenant on Civil and Political Rights (“ICCPR'). Thereby, these would also be inconsistent with Article 51(c) of the Constitution of India, that requires India to respect its international obligations.
Article 51 (c) states that:
“The State shall promote international peace and security by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among governments and by the maintenance of justice and respect for treaty obligations in the dealings of organised people with one another.”
Although a directive principle, it seeks to direct the legislative in matters of rulemaking and thereby should be oriented towards.
Article 26 of the ICCPR, guarantees to all persons equal and effective protection against discrimination on multiple grounds including religion. In the nature of an autonomous right, it prohibits discrimination in any field regulated and protected by public authorities, requiring all legislation adopted by a State party to comply with the non-discrimination thereunder.
The Human Rights Committee notes that “discrimination” under the ICCPR implies “any distinction, exclusion, restriction or preference” which is based on any of the enumerated grounds (including religion) “which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms”. “Preference” entails actions that may not be directed against a particular group, but involves at least an unreasonable promotion of one group at the expense of others. Evidence of discrimination is thus seen on the basis of preferences in favour of other groups, or the relative treatment of someone else, and not necessarily as directed against the group allegedly discriminated against. One way in which discrimination under such circumstances may be measured is in relation to the treatment of someone else. The Act provides for easier naturalisation for migrants belonging to particular religions, to the exclusion of a few other equally placed religious groups. A preference in thus clearly granted in favour of the six identified religious communities, meting out differential treatment based on religious belief. While not all forms of differential treatment are prohibited, as discussed below, this Act differentiates in a manner prohibited under law.
Therefore, I argue, that discrimination on grounds of religion in granting citizenship is prohibited under international law and violative of Article 51(c) of the Indian constitution.
Article 26, unlike Article 2 of the ICCPR, or even Article 2 of the ICSECR, is autonomous in nature, extending to rights beyond the convention, protecting against discrimination with respect to social and economic as well as civil and political rights. Therefore, in granting citizenship by naturalisation, a State Party cannot discriminate on grounds such as religion. India, having acceded to the ICCPR,the non-discrimination obligation contained therein.
Some grounds under Article 26 may justify discrimination in granting naturalisation by nationality, to the extent they are used for discerning 'closer affinity' with the conferring state’s value system, or closer historical, cultural and spiritual bonds with the people of the concerned state. Given India’s syncretic past and large Muslim population, no particular claim of any 'closer” affinity or ties can be reasonably envisaged. The Explanatory Report to the European Convention on Nationality, that prohibits discrimination in granting nationality, notes that attributing nationality requires States to set some criteria for defining their nationals and that some degree of preferential treatment would be permitted.
In the absence of any sufficient justification for the differentiation, the provision is violative of the right to equal protection of laws under the ICCPR and other similar international conventions.
Since the Act was legislated, the government must make sure it is in alignment with the constitution and other various international treaties that have been signed. The complete absence of any factual basis behind the proposed amendment’s categorisation of migrants renders it devoid of any determining principle. This categorisation is done for its own sake, only to separate non-Muslim from Muslim illegal migrants. Not only is this discrimination made in the absence of a principle, it blatantly ignores the principles that were laid out in Part IV of the Indian Constitution.
 State of West Bengal v. Anwar Ali Sarkar1SCR284.  Kedar Nath Bajoria v. State of West Bengal 1SCR30.  Niraja Gopal Jayal, Citizenship and its Discontents (Harvard University Press 2013) 79.  Ronald Beiner (ed), Theorizing Citizenship (Albany: State University of New York Press 1995) 8.  Mukul Kesavan, 'Arguing about India – Assam and citizenship' The Telegraph (25 February 2018).  Constitution of India, 1950.  Clarence Pais v. Union of India 2001 (43) ALR 249.  State of West Bengal v. Anwar Ali Sarkar1SCR284.  Kesavananda Bharati vs State of Kerala  A.I.R. S.C. 1461.  SR Bommai vs Union of India AIR 1994 SC 1918.  International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.  Human Rights Committee, General Comment 18 (Thirty-seventh session, 1989), Compilation of GeneralComments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev9 (Vol I) at 195 (2008).  Stephanie Farrior (ed) Equality and Non-Discrimination under International Law (Vol 2, Routledge 2017) 116; Li Weiwei, 'Equality and Non-Discrimination Under International Human Rights Law' (2004) Norwegian Centre for Human Rights,  Committee on Economic, Social and Cultural Rights, Concluding Observations on the Report of Vietnam, E/C 12/1993/8, para 11; Yoram Dinstein, 'Discrimination and International Human Rights' (1985) 15 Israel Yearbook on Human Rights 11–27, as cited in Matthew CR Craven, The International Covenant on Economic, Social, and Cultural Rights: A perspective on its development (Clarendon Press 1995) 164.  Constitution of India, 1950.  United Nations Treaty Collection, International Covenant on Civil and Political Rights,<https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&clang=_en> accessed10 February 2020.  S Hall, 'The European Convention on Nationality and the Right to have Rights' (1999) 24 European L R 586.  Council of Europe, Explanatory Report to the European Convention on Nationality (Strasbourg, 6 November 1997) ETS 166, para 43.
Author Details: Sushruti Verma (O.P. Jindal Global University)
The views are personal only, if any.