Testing CAA On The Principles Of Constitutional Law

No other law passed in recent times has generated as much debate and protest as the Citizenship (Amendment) Act, 2019 ("CAA"). Two schools of thought have emerged among legal experts regarding the constitutionality of the CAA, one side opining that the CAA would not stand a day in court and the other opining that the law does not violate any principle of constitutional law. In this paper, I analyse the CAA on the principles of constitutional law and provide my views on whether it passes muster.

The aim of this paper is to analyse the constitutionality of the CAA on a standalone basis. This paper will explore: 1) the relevant legal provisions of the Constitution of India ("Constitution"), the Citizenship Act, 1955 ("Citizenship Act") and the CAA; 2) analysis of whether the CAA violates Articles 14 and 21 of the Constitution; 3) merits of the arguments raised by legal experts in favour of the constitutionality of the CAA; and 4) my conclusions.

1. The Law

1.A. Relevant provisions of the Constitution

Part III is perhaps the most important part of the Constitution conferring fundamental rights on persons and citizens. These rights are considered inalienable and are in consonance with human rights enshrined in several documents of the United Nations such as the Universal Declaration of Human Rights ("UDHR") and the International Covenant on Civil and Political Rights ("ICCPR"). Article 13 of the Constitution mandates that the State shall not make any law which takes away or abridges the fundamental rights conferred under Part III and any law made in contravention of this clause shall, to the extent of the contravention, be void. Article 14 guarantees to every "person" equality before the law or the equal protection of the laws within the territory of India. Article 21 guarantees that no "person" shall be deprived of his life or personal liberty except according to procedure established by law.

Part II of the Constitution deals with provisions relating to citizenship. Articles 5 to 10 deal with conferment of citizenship on persons at the time of commencement of the Constitution. Article 11 empowers Parliament to make laws with respect to citizenship. Interestingly, Article 6 which deals with migrants from Pakistan to India at the time of commencement of the Constitution does not specify that the migrants have to be of a certain religion.

1.B. Relevant provisions of the Citizenship Act

In exercise of the power conferred under Article 11 of the Constitution, Parliament enacted the Citizenship Act. Section 2(1)(b) of the Citizenship Act defines "illegal migrant" as a foreigner who has entered into India without a valid passport or other travel documents or with a valid passport or other travel documents but remains in India beyond the permitted period of time.

Section 2(1)(h) defines "undivided India" to have the same meaning as assigned to "India" under the Government of India Act, 1935, as originally enacted. Section 311 of the Government of India Act, 1935 defined "India" to be British India along with the princely states. British India included modern day Pakistan and Bangladesh but not Afghanistan.

Sections 3 to 7 of the Citizenship Act deal with various modes of acquiring citizenship of India which include citizenship by birth, descent, registration, naturalisation and by incorporation of territory. It is pertinent to note that the modes of acquiring citizenship by registration and naturalisation are available to foreigners who fulfil certain specified requirements but not to "illegal migrants" (Sections 5 and 6). Interestingly, it should also be noted that one of the criterion on the basis of which a person can become an Indian citizen by registration under Section 5(1)(a) of the Citizenship Act is if he/she is a person of Indian origin who is ordinarily resident in India for a period of seven (7) years before making an application for registration. Explanation 2 to Section 5 clarifies that a person shall be deemed to be of Indian origin if he/she or either of his/her parents was born in "undivided India" or in such other territory which became part of India after 15 August 1947. Again, this definition does not make a distinction on the basis of religion and considers persons of all religions born in "undivided India" which included modern day India, Pakistan and Bangladesh as persons of Indian origin.

1. C. The CAA, 2019

It is evident from the above that the Citizenship Act as it stood prior to the CAA did not allow illegal migrants of any religion the benefit of obtaining citizenship. The obvious rationale was that illegal migrants who have entered India without valid travel documentation have committed an illegality and do not deserve the benefit of citizenship. The CAA now seeks to carve out persons of certain specified religions (Hindus, Sikhs, Buddhists, Jains, Parsis and Christians together referred to as "Non-Muslims" hereafter for sake of convenience) from certain specified countries (i.e. Afghanistan, Bangladesh and Pakistan hereafter referred to as "Specified Countries") from the definition of "illegal migrant" even though they may have entered into India without valid travel documentation and confer upon them the opportunity of applying for citizenship. It does this through the following amendments.

A proviso has been introduced to Section 2(1)(b) of the Citizenship Act whereby Non-Muslims from the Specified Countries who entered into India on or before 31 December 2014 and who the Central Government has exempted from the application of other laws regulating entry of foreigners without valid documents shall not be treated as "illegal migrants" for the purposes of the Citizenship Act. By this proviso, the CAA carves out Non-Muslims from the Specified Countries from the broad class of "illegal migrants". Then, the CAA inserts a new Section 6B into the Citizenship Act which explicitly confers the benefit of allowing applications for citizenship by registration or naturalisation on the Non-Muslims from the Specified Countries and confers consequent benefits of citizenship on them. The CAA also amends the Third Schedule of the Citizenship Act which prescribes the conditions for naturalisation and relaxes the duration of residence in India requirement to 5 years from 11 years for the Non-Muslims from the Specified Countries.

The substance of the CAA is therefore to carve out hitherto illegal migrants of almost all religions other than Muslims from Afghanistan, Bangladesh or Pakistan and provide a benefit to them by allowing them to apply for citizenship and reduce the duration of residence in India requirement for such persons. The obvious effect therefore, is that from the date of the coming into force of the CAA, Muslims without valid travel documentation from Afghanistan, Bangladesh or Pakistan and persons without valid travel documentation from any other country continue to be construed as "illegal migrants" and therefore, not eligible for citizenship.

The Statement of Objects and Reasons provides that the rationale for the CAA is that since the constitutions of the Specified Countries provide for a specific state religion (i.e. Islam), many Non-Muslims have faced persecution on grounds of religion in these countries. Some of them also have fears about such persecution in their day-to-day life where right to practice, profess and propagate their religion has been obstructed and restricted. Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents. Therefore, the CAA proposes to make such persons eligible for Indian citizenship.

2. Constitutionality of the CAA

The primary ground for challenge against the CAA is that it is arbitrary, discriminatory and denies equality before law and equal protection of laws in violation of Article 14 of the Constitution in so far as it excludes Muslims from the Specified Countries and persons of other neighbouring countries who may have faced religious persecution ("Excluded Persons") from the benefit of eligibility for citizenship. Another ground for challenge is that it deprives these Excluded Persons of a meaningful right to life and personal liberty in violation of Article 21 of the Constitution. The CAA is tested against the ingredients of these constitutional provisions below.

2.A. Can the Excluded Persons claim fundamental rights?

At the outset, it is important to dispel a popular misconception that fundamental rights under Part III of the Constitution are only available to Indian citizens. Whilst it is true that some fundamental rights are only available to citizens, the protection of Articles 14 and 21 amongst others apply to all "persons" and not just citizens. This is evident from the usage of the word "persons" in Articles 14 and 21 as opposed to the word "citizens" used in other provisions under Part III.

This well settled proposition has been upheld by the Supreme Court. In Chairman, Railway Board and Ors v Chandrima Das (Mrs) and Ors ((2000) 2 SCC 465), the issue before the Court was whether a Bangladeshi national who was a victim of rape by one of the employees of the Indian Railways could claim compensation from the Indian Railways. One of the arguments raised by the Railway Board was that being a foreign national, the victim could not claim fundamental rights under the Constitution. Rejecting this contention, the Supreme Court observed:

"19. It was next contended by the learned counsel appearing on behalf of the appellants that Smt Hanuffa Khatoon was a foreign national and, therefore, no relief under public law could be granted to her as there was no violation of the fundamental rights available under the Constitution. It was contended that the fundamental rights in Part III of the Constitution are available only to citizens of this country and since Smt Hanuffa Khatoon was a Bangladeshi national, she cannot complain of the violation of fundamental rights and on that basis she cannot be granted any relief. This argument must also fail for two reasons: first, on the ground of domestic jurisprudence based on constitutional provisions and secondly, on the ground of human rights jurisprudence based on the Universal Declaration of Human Rights, 1948, which has the international recognition as the "Moral Code of Conduct" having been adopted by the General Assembly of the United Nations.

…

28. The fundamental rights are available to all the "citizens" of the country but a few of them are also available to "persons". While Article 14, which guarantees equality before law or the equal protection of laws within the territory of India, is applicable to "person" which would also include the "citizen" of the country and "non-citizen", both…

…

30. In Anwar v. State of J&K [(1971) 3 SCC 104 : AIR 1971 SC 337 : (1971) 1 SCR 637] (already referred to above), it was held that the rights under Articles 20, 21 and 22 are available not only to "citizens" but also to "persons" which would include "non-citizens".

…

32. The word "life" has also been used prominently in the Universal Declaration of Human Rights, 1948. (See Article 3 quoted above.) The fundamental rights under the Constitution are almost in consonance with the rights contained in the Universal Declaration of Human Rights as also the Declaration and the Covenants of Civil and Political Rights and the Covenants of Economic, Social and Cultural Rights, to which India is a party having ratified them, as set out by this Court in Kubic Darusz v. Union of India [(1990) 1 SCC 568 : 1990 SCC (Cri) 227 : AIR 1990 SC 605] . That being so, since "life" is also recognised as a basic human right in the Universal Declaration of Human Rights, 1948, it has to have the same meaning and interpretation as has been placed on that word by this Court in its various decisions relating to Article 21 of the Constitution. The meaning of the word "life" cannot be narrowed down. According to the tenor of the language used in Article 21, it will be available not only to every citizen of this country, but also to a "person" who may not be a citizen of the country.

34. On this principle, even those who are not citizens of this country and come here merely as tourists or in any other capacity will be entitled to the protection of their lives in accordance with the constitutional provisions. They also have a right to "life" in this country. Thus, they also have the right to live, so long as they are here, with human dignity. Just as the State is under an obligation to protect the life of every citizen in this country, so also the State is under an obligation to protect the life of the persons who are not citizens." (emphasis supplied)

In National Human Rights Commission v State of Arunachal Pradesh and Anr ((1996) 1 SCC 742), a writ petition had been filed by the National Human Rights Commission for the protection of the human rights of the Chakma/Hajong tribals ("Chakmas"), a tribal group displaced by a hydel power project in Bangladesh and who had moved and settled in Assam and Arunachal Pradesh in India. The Chakmas were attempting to obtain Indian citizenship by registration under Section 5(1)(a) of the Citizenship Act. As the Chakmas were originally from Bangladesh which constituted part of undivided India, they would be considered persons of Indian origin under Explanation 2 to Section 5 of the Citizenship Act. However, the Chakmas started facing persecution from the local population in Arunachal Pradesh and a body called the All Arunachal Pradesh Students Union had issued "quit notices" to the Chakmas threatening use of force if their demand was not acceded to. Again, upholding the proposition that foreigners also enjoy certain fundamental rights under the Constitution, the Court observed:

"20. We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law…" (emphasis added).

Thus, there can be no doubt that at least Articles 14 and 21 apply to all persons including the Excluded Persons and not just citizens.

2.B. The principles of Articles 14 and 21 are part of our international obligations and must apply to all persons

The proposition that the Excluded Persons can claim fundamental rights under Articles 14 and 21 of the Constitution is supported not only by the provisions of the Constitution and the precedents of the Supreme Court but also by the provisions of international treaties on human rights. A brief overview of the relevant provisions of these international treaties is set out below.

• Universal Declaration of Human Rights ("UDHR"): the UDHR is perhaps the most important document on human rights in the world. Adopted by the General Assembly of the United Nations ("UN") in the aftermath of the Second World War to ensure that such atrocities against human life never take place again, it sets out certain basic rights which inhere in a human being and his/her right to lead a life of meaning and dignity. Article 2 of the UDHR declares that everyone is entitled to all the rights set out in the UDHR without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or status. Article 3 (which Article 21 of our Constitution echoes) provides that everyone has the right to life, liberty and security of person. Article 7 (which Article 14 of our Constitution echoes) provides that all are equal before the law and are entitled without any discrimination to equal protection of the law. Further, all are entitled to equal protection against any discrimination in violation of the UDHR and against any incitement to such discrimination. Article 14 provides that everyone has the right to seek and enjoy in other countries asylum from persecution. This protection does not extend to persons facing prosecution for genuinely non-political crimes or for acting contrary to the principles of the UN.

• International Covenant on Civil and Political Rights ("ICCPR"): The ICCPR also adopted by the General Assembly of the UN expands upon the basic civil and political rights every human being is entitled to. Article 2(1) of the ICCPR provides that each State party to the covenant must ensure that the rights conferred under the ICCPR must be made available to all individuals within its territory without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 4(1) provides that in times of public emergency, State parties may derogate from their obligations under the ICCPR to the extent strictly required; however, such derogation must not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Article 6(1) mirrors Article 3 of the UDHR and guarantees the right to life. Article 26 mirrors Article 7 of the UDHR and guarantees to all persons equality before the law and equal protection of the law without any discrimination. Article 26 also mandates that the State law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on grounds amongst others of religion or national or social origin.

• Convention and Protocol relating to the status of refugees ("Refugee Convention"): Based on Article 14 of the UDHR, the UN adopted the Refugee Convention to guarantee certain basic rights to refugees fleeing from persecution in other countries. The Refugee Convention defines the term "refugee" as a person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it (Article I (A)(2) of the Refugee Convention read with Article I (2) of the Protocol). Article 3 of the Refugee Convention provides that the States party to the Refugee Convention shall apply the provisions therein without discrimination as to race, religion or country of origin. Article 34 provides that the States should as far as possible facilitate the assimilation and naturalisation of refugees. They must in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings.

India has signed, ratified and acceded to the UDHR and ICCPR thereby meaning that it is bound by the provisions of these documents and cannot violate the provisions therein. India has not till date signed the Refugee Convention; however, nothing much would turn on this fact as explained further below. On the weight to be given to international treaties while interpreting provisions of the Constitution, the Supreme Court has recognised their importance in Chandrima Das. After extensively quoting the provisions of the UDHR and other international covenants, the Court observed:

"24. The International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to the above words in those Declarations and Covenants have to be such as would help in effective implementation of those rights. The applicability of the Universal Declaration of Human Rights and the principles thereof may have to be read, if need be, into the domestic jurisprudence.

25. Lord Diplock in Salomon v. Commr. of Customs and Excise [(1996) 3 All ER 871] said that there is a prima facie presumption that Parliament does not intend to act in breach of international law, including specific treaty obligations. So also, Lord Bridge in Brind v. Secy. of State for the Home Deptt. [(1991) 1 All ER 720 (HL)] observed that it was well settled that, in construing any provision in domestic legislation which was ambiguous in the sense that it was capable of a meaning which either conforms to or conflicts with the International Convention, the courts would presume that Parliament intended to legislate in conformity with the Convention and not in conflict with it.

…

27. Our Constitution guarantees all the basic and fundamental human rights set out in the Universal Declaration of Human Rights, 1948, to its citizens and other persons. The chapter dealing with the fundamental rights is contained in Part III of the Constitution. The purpose of this Part is to safeguard the basic human rights from the vicissitudes of political controversy and to place them beyond the reach of the political parties who, by virtue of their majority, may come to form the Government at the Centre or in the State.

…

32. The word "life" has also been used prominently in the Universal Declaration of Human Rights, 1948. (See Article 3 quoted above.) The fundamental rights under the Constitution are almost in consonance with the rights contained in the Universal Declaration of Human Rights as also the Declaration and the Covenants of Civil and Political Rights and the Covenants of Economic, Social and Cultural Rights, to which India is a party having ratified them, as set out by this Court in Kubic Darusz v. Union of India [(1990) 1 SCC 568 : 1990 SCC (Cri) 227 : AIR 1990 SC 605] . That being so, since "life" is also recognised as a basic human right in the Universal Declaration of Human Rights, 1948, it has to have the same meaning and interpretation as has been placed on that word by this Court in its various decisions relating to Article 21 of the Constitution. The meaning of the word "life" cannot be narrowed down. According to the tenor of the language used in Article 21, it will be available not only to every citizen of this country, but also to a "person" who may not be a citizen of the country." (emphasis added).

The Supreme Court also took cognizance of international covenants and conventions while framing guidelines relating to sexual harassment of women at the workplace in Vishaka v State of Rajasthan ((1997) 6 SCC 241).

From the above discussion on treaties and covenants, the following principles can be culled out:

• All persons irrespective of their religion or national or social origin are entitled to equality before law and equal protection of the laws and have a right to life. These rights cannot be limited to only citizens.
• The Refugee Convention mandates that in dealing with refugees there is an obligation to facilitate the assumption and naturalisation of refugees as far as possible and in doing so, States must not discriminate on the grounds of religion or country of origin.

2.C. Does the CAA violate Article 14?

A basic well-established principle is that Article 14 does not mandate absolute equality. Classification is permitted so long as such classification is reasonable i.e. it is based on intelligible differentia and has a rational nexus to the objective sought to be achieved. This is the classic twin test of reasonableness expounded in several decisions of the Supreme Court (Navtej Singh Johar v Union of India (2018)10 SCC 1, paragraph 637.2).

Before delving into whether the CAA satisfies this twin test of reasonableness, we must clarify that the broad class that the CAA is concerned with is "illegal migrants" out of which hitherto illegal migrants of certain religions and from certain countries i.e. the Non-Muslims from the Specified Countries have been carved out. Prior to the CAA no illegal migrant of any religion or nationality had an opportunity of obtaining citizenship by registration/naturalisation. However, now the door is being opened only for a selected class of persons. Therefore, the issue is whether there is a reasonable basis for selecting this class of persons i.e. the Non-Muslims from the Specified Countries. This issue should not be confused with persons who are not illegal migrants. Non-illegal migrants of all religions (including Muslims) have always and will continue to have the registration/naturalisation route to citizenship and the CAA makes no changes in this regard. Therefore, the fact that Muslims who are not illegal migrants can obtain citizenship under the Citizenship Act cannot answer the issue of whether the CAA violates Article 14 by discriminating between "illegal migrants" of different religions and nationalities.

There can be no dispute that the broad objective of the CAA i.e. to make persons from communities who have faced persecution on grounds of religion in neighbouring countries and have migrated to India without proper travel documents eligible for citizenship is in consonance with fundamental rights guaranteed under the Constitution. In fact, even though not a signatory to the Refugee Convention, India is fulfilling the obligations under the Refugee Convention by making provisions for assimilation and naturalisation of refugees (Article 34, Refugee Convention). The issue of whether this benefit should have been extended at all is a pure question of policy which is the prerogative of Parliament. So far, this benefit did not exist for illegal migrants of any community. However, once Parliament decided to confer this benefit it cannot violate Article 14 by discriminating unreasonably. Article 14 applies to classification in all laws whether negative or positive i.e. whether the law creates a disability or confers a benefit. In both cases, the classification needs to be reasonable. E.g. in DS Nakara v Union of India ((1983) 1 SCC 305), the Supreme Court was concerned with whether a liberalised pension scheme announced by the Central Government for retired government employees which was made applicable only to government employees who had retired after a particular cut-off date violated Article 14 of the Constitution. The Court while holding that the scheme violated Article 14 observed:

"12. After an exhaustive review of almost all decisions bearing on the question of Article 14, this Court speaking through Chandrachud, C.J. in In re Special Courts Bill, 1978 [(1979) 1 SCC 380 : AIR 1979 SC 478 : (1979) 2 SCR 476, 534] restated the settled propositions which emerged from the judgments of this Court undoubtedly insofar as they were relevant to the decision on the points arising for consideration in that matter. Four of them are apt and relevant for the present purpose and may be extracted. They are: (SCC pp. 424-25, para 72)

…

(4) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.

…

16. As a corollary to this well established proposition, the next question is, on whom the burden lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved? The thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of unequals a welfare State will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of State affirmative action. In the absence of doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Article 14. The Court realistically appraising the social stratification and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in Part IV of the Constitution, evolved the doctrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succour. Legislative and executive action may accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlate it to the objects sought to be achieved. This approach is noticed in Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489, 506 : AIR 1979 SC 1628 : (1979) 3 SCR 1014, 1034 : (1979) 2 LLJ 217] when at SCR p. 1034 (SCC p. 506), the Court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory." (emphasis added).

The Court's ruling in DS Nakara relying on In Re Special Courts Bill, 1978 lays down two very important propositions: a) Article 14 applies even when Parliament is extending benefits or privileges as is the case with the CAA; b) the burden lies on the State to justify that the classification drawn in such cases is reasonable.

Therefore, we now have to examine whether the classification drawn by Parliament under the CAA satisfies the twin test of reasonableness under Article 14.

2.C.1 Twin test of classification

As discussed above, the stated objective of the CAA is to make eligible for citizenship, persons who have faced persecution on grounds of religion. In doing so, the CAA carves out a class based on religion and nationality i.e. it specifies persons from certain communities in certain countries. Creation of a class based on religion prima facie raises concerns of the law conflicting with secularism, a principle recognised by the Supreme Court to form part of the basic structure of the Constitution (SR Bommai v Union of India (1994)3 SCC 1, paragraph 304).

Whilst religion and nationality may be valid intelligible differentia in certain contexts, the issue is whether these are intelligible differentia in the context of this law i.e. the Citizenship Act and in light of the objective sought to be achieved by the CAA. A bare perusal of the provisions of the Constitution and Citizenship Act highlighted above would show that the law on citizenship till date has clearly been religion agnostic. Article 6 of the Constitution while conferring citizenship on persons who migrated to India from Pakistan at the time of commencement of the Constitution does not specify that such migrants have to be of a certain religion. Therefore, even Muslims who migrated to India from Pakistan at the time of the commencement of the Constitution were conferred citizenship. Explanation 2 to Section 5 of the Citizenship Act defines a person of Indian origin to mean a person of any religion born in or either of whose parents were born in "undivided India" i.e. even Muslims from Pakistan and Bangladesh are considered persons of Indian origin under the Citizenship Act. Therefore, the CAA's classification on the basis of religion is a radical departure from the previous citizenship law.

The only way to justify such a radical departure would be if the State is able to establish that only the persons of these specified religions i.e. the Non-Muslims from these Specified Countries have suffered on grounds of religious persecution. This of course flies in the face of well-known facts.

The Ahmadis or Ahmadiyyas are a Muslim sect who follow Mirza Ghulam Ahmad who claimed to have been divinely appointed as both the promised Mahdi (Guided One) and Messiah expected by Muslims. Due to this belief that Mirza Ghulam Ahmad was the Messiah, the Ahmadis are considered non-Muslims by many mainstream Muslims and face significant persecution and oppression. In Pakistan, by way of the Constitution (Third Amendment) Order, 1985, the Constitution of Pakistan was amended to define a "non-Muslim" as a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Buddhist or Parsi community, a person of the Quadiani group or the Lahori group (who call themselves 'Ahmadis' or by any other name), or a Bahai, and a person belonging to any of the scheduled castes. According to a BBC news report, blasphemy laws which carry a potential death sentence for anyone who insults Islam are often used to target and persecute minority faiths. Data provided by the National Commission for Justice and Peace, Pakistan showed that a total of 776 Muslims, 505 Ahmadis, 229 Christians and 30 Hindus had been accused under various clauses of the blasphemy law from 1987 until 2018. This clearly shows that the Ahmadis are as persecuted if not more than the communities specified in the CAA and the reason for their persecution is their religious beliefs. Yet, the Ahmadis do not get the benefit of seeking Indian citizenship.

Another prime example is the Rohingya Muslims living in Myanmar. The Rohingya Muslims migrated from Bangladesh and settled in the Rakhine state of Myanmar where they now constitute the majority of the population. In 2013, the UN declared the Rohingyas as "the most persecuted minority in the world". In direct contravention of international human rights law, the Rohingya Muslims have been denied citizenship under the 1982 Myanmar nationality law, rendering them stateless since then. The majority Buddhist community in Myanmar perceive the Rohingya Muslims as illegal and unwelcome foreigners. They call them "Bengalis" and reject using the term "Rohingya" to deny them their ethnic heritage and their collective identity despite the latter being able to trace their presence in Myanmar back several centuries. Hundreds of thousands of Rohingya Muslims were forced to flee their homes in August 2017 when violence broke out including the burning of entire Rohingya villages. Some of these Rohingya Muslims have also fled to India and their numbers according to press reports are approximately 40,000. The Rohingya Muslims will also not get the benefit extended under the CAA. It is indeed ironic that a law that seeks to protect and make eligible for citizenship communities who have faced religious persecution in neighbouring countries does not protect the most persecuted community in the world.

Yet another example is the Sri Lankan Tamils (mostly Hindu) who have fled Sri Lanka since the end of the civil war and are living in refugee camps in Tamil Nadu. The constant persecution faced by the Tamils in Sri Lanka is well known. According to press reports, the persecution of Tamils continued even as late as in 2016 despite the civil war ending in 2009. Approximately 59,000 Sri Lankan Tamil refugees are living in refugee camps in Tamil Nadu. These Sri Lankan Tamils would not get the benefit under the CAA as they are not from the Specified Countries.

The above examples make it amply clear that the religions and nationalities specified under the CAA are not the only persons facing persecution on religious grounds in countries neighbouring India. Therefore, we must assess if there is some other intelligible differentia for choosing only these religions and countries.

Another intelligible differentia that the Statement of Objects and Reasons of the CAA hints at is that the constitutions of the Specified Countries provide for a specific state religion. However, on this count as well, the CAA suffers from under inclusion as the Constitution of Sri Lanka, also a neighbouring country provides for a specific state religion. Article 9 of the Constitution of Sri Lanka provides that the Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana. Yet, curiously only Afghanistan, Bangladesh and Pakistan which provide for Islam as the state religion are included in the CAA.

Yet another intelligible differentia that supporters of the CAA have canvassed is that the CAA is only seeking to protect persecuted communities belonging to the territory of erstwhile undivided India. However, on this count, the CAA suffers from over-inclusion as Afghanistan was historically not a part of undivided India and yet it is included in the list of Specified Countries.

Therefore, on any of the plausible intelligible differentia, the CAA suffers from either under inclusion or over inclusion and treats equally situated persons unequally. This unequal treatment to equals manifests itself at two levels. First, a person belonging to a specified persecuted community from one of the Specified Countries is eligible for citizenship whereas a person belonging to a non-specified persecuted community from the same country is not eligible for citizenship. E.g. a Hindu from Pakistan becomes eligible for citizenship whereas an Ahmadi from Pakistan, despite also being persecuted on grounds of religion does not become eligible for citizenship. Second, a person belonging to a specified persecuted community from one of the Specified Counties is eligible for citizenship whereas a person belonging to the same community and who is persecuted on religious grounds in a non-specified country is not eligible for citizenship. E.g. a Hindu from Pakistan becomes eligible for citizenship whereas a Hindu (Tamil) from Sri Lanka despite also being persecuted on grounds of religion does not become eligible for citizenship.

Based on the above, in my view, the CAA does not satisfy the twin test of reasonableness i.e. it is not based on any intelligible differentia which can be said to have a rational nexus to the objective sought to be achieved. If the objective sought to be achieved was to provide refuge to communities persecuted on grounds of religion, then all persecuted communities from all neighbouring countries being equally placed persons ought to have been conferred the benefit under the CAA.

2.C.2. Manifest arbitrariness

Apart from the conventional twin test of classification, a law can also be struck down as violating Article 14 if it is manifestly arbitrary. In Shayara Bano v Union of India ((2017)9 SCC 1), the Supreme Court elucidated the concept of manifest arbitrariness in the following words:

"101…Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary."

A bare perusal of the above instances of over inclusion and under inclusion in the CAA would show that it is not based on an adequate determining principle. The selected class has no rational nexus to the objective sought to be achieved and cannot be distinguished from other equally placed persons. Of course, one cannot also ignore the possibility that the law has been framed with a sinister intent to discriminate against and exclude one particular religion. The popular argument advanced to exclude Muslims from the scope of the CAA is that the Specified Countries are Islamic majority countries whose constitutions specify Islam as the state religion. Therefore, there is no question of Muslims being persecuted in these countries. As discussed above, this is factually inaccurate as sects of Muslims such as the Ahmadiyas are persecuted in a Muslim majority country such as Pakistan. Further, this also begs the question as to why choose only the Islamic majority countries and not other countries where there is religious persecution such as Myanmar and Sri Lanka.

Therefore, in my view, the CAA violates Article 14 also because it is manifestly arbitrary.

2.D. Does the CAA violate Article 21?

Article 21 guarantees to every person the right to life and liberty which cannot be taken away except by procedure established by law. Life has been interpreted by several decisions of the Supreme Court to mean a meaningful life with dignity and not just mere animal existence (Paragraphs 33 and 34, Chandrima Das). Further, any procedure established by law to curtail the right to life must be fair, just and reasonable (Maneka Gandhi v Union of India (1978)1 SCC 248, paragraph 7). It must be recognised that refugees who have fled their country of origin on grounds of religious persecution lose their very identity and sense of belonging. They are homeless and stateless. In the new country where they flee to, they seek to rebuild their life and create an identity for themselves. Yet across the world, refugees are often seen as a liability – a burden nobody wants. They are driven out of their own country and spurned by the country they enter. The grant of citizenship would go a long way in ensuring a dignified and meaningful life for such refugees. Assimilation of such citizens is a duty of any nation which purports to respect basic human rights. This is why the Refugee Convention obligates States to facilitate the assimilation and naturalisation of refugees. Of course, nobody denies the practical difficulties in granting citizenship to all refugees that land up on the shores of a country. Particularly for a developing country such as India, resources may be limited. However, this cannot be a reason to arbitrarily and discriminatorily carve out a class of refugees without any reasonable basis and mandate that only this class of refugees will be made eligible for citizenship. Such a law would certainly violate the right to life of those equally placed excluded persons. Therefore, in my view, the CAA violates the right to a life with dignity of the Excluded Persons.

In light of the above, in my view, the CAA violates fundamental rights of the Excluded Persons guaranteed under Articles 14 and 21 of the Constitution and must fall as unconstitutional.

3. The arguments in favour of constitutionality of the CAA considered

The above was my analysis of whether the CAA passes constitutional muster. I now consider below the arguments and justifications raised by the Central Government and by legal experts in favour of the constitutionality of the CAA and whether these arguments hold water.

• Convenient argument: The primary argument put forward by the Central Government and legal experts in favour of the CAA which I call the 'convenient' argument goes something like this. The classification is reasonable and based on intelligible differentia because the Specified Countries i.e. Afghanistan, Pakistan and Bangladesh share land borders with India and have a history of partition on religious lines. These three countries being declared Islamic states have failed to protect the minorities in their countries who have been subject to religious persecution. The CAA only seeks to protect these minorities. There is obviously no need to include Muslims because Muslims are not a minority in these countries. In my view, this argument is a convenient one and ducks the fundamental question i.e. why pick only these three countries. If the criterion is land borders, other South Asian countries sharing land borders with India (at least Myanmar which has a religious persecution problem) should have been included. If the criterion is declared state religion, Sri Lanka which declared Buddhism as the official state religion should have been included. If the criterion was partition, there was no need to include Afghanistan as it was not a part of undivided India. One cannot ignore the fact that the common thread to these 3 Specified Countries seems to be religion. But even the Central Government knows this cannot be a reasonable classification; hence, the confusing mish mash 'convenient' argument discussed above. Further, this argument assumes that no Muslims are persecuted on religious lines in these countries which is a false assumption given the data on persecution of Ahmadiyas and the number of blasphemy cases filed against Muslims themselves in Pakistan.

• CAA seeks to undo wrongs of partition: A sub-set of the 'convenient' argument above is that India was partitioned on religious lines at the time of independence and the neighbouring states i.e. Pakistan and Bangladesh were created on religious lines. These states failed in their duty to protect the minorities in their countries and therefore, the CAA seeks to protect these minorities and undo the wrongs of partition. As discussed above, if this was the logic, then there was no need to include Afghanistan which was not a part of undivided India. Further, when the Constitution itself which was framed just after partition deemed it fit to welcome all refugees from Pakistan (which at that time also included Bangladesh) irrespective of religion (even Muslims) and confer citizenship on them (see Article 6), there appears to be no justification now to exclude Muslims from the CAA. In fact, the Citizenship Act itself defines all persons born in India, Pakistan and Bangladesh (including Muslims) as persons of Indian origin. If the idea is to undo the wrongs of partition, don't all persons of Indian origin deserve that benefit? The Constitution took a conscious call at the time of independence that despite partition happening on religious lines, we as a nation would not discriminate on the basis of religion. The CAA now seeks to change this core character of India and make India no different from its theocratic neighbours.

• Dealing with one problem at a time: Another argument raised to justify the selection of the Specified Countries and specific religions is that the Central Government has to deal with one problem at a time. However, once the Central Government has chosen to deal with a particular problem it has to deal with all equally placed victims of that problem and cannot arbitrarily exclude certain persons. I have discussed above several other communities from neighbouring countries who are facing religious persecution and yet do not get the benefit extended under the CAA.

• Rohingya Muslims: A particular argument raised in relation to exclusion of Rohingya Muslims is that the Rohingya Muslims do not enter India directly but come into Bangladesh and then enter India. In my view, this would have no relevance and bearing on the benefit sought to be conferred under the CAA. As long as religious persecution is established which the UN has declared in unequivocal terms in the case of the Rohingyas, there appears to be no justification to exclude them from the benefit of the CAA. In fact, if the Rohingyas are entering through Bangladesh, it is even more reason to include them as Bangladesh is one of the Specified Countries and yet the CAA excludes a persecuted community from this country.

• Sri Lankan Tamils: Another specific argument raised in relation to the Sri Lankan Tamils is that through several international accords, Sri Lankan Tamils has been granted citizenship from time to time. In my view, one-time instances of special grants of citizenship as per international accords cannot answer a statutory amendment which fundamentally discriminates between equally placed persons. We cannot hang our hat on executive largesse to justify a discriminatory law.

• CAA only a policy: One of the arguments raised has been that the CAA is only a policy decision of the Government as to whether to allow citizenship for refugees and courts cannot interfere with such a policy decision. This argument must fail for two simple reasons. First, the CAA is an Act duly passed by Parliament and therefore constitutes law under Article 13 of the Constitution which mandates that no law can violate fundamental rights. Second, in any event, it is well settled that the courts can interfere and set aside even executive action and policy if they violate fundamental rights under Part III of the Constitution. E.g. in Centre for Public Interest Litigation v Union of India ((2012)3 SCC 1), the Supreme Court set aside the allocation of 2G spectrum by the Central Government as the allocation policy, a purely executive decision, was found to be arbitrary and against public interest in violation of Article 14.

• Fundamental rights apply only to citizens: This popular misconception has already been dealt with above and it is clear from the decisions of the Supreme Court that at least Articles 14 and 21 apply to all persons and not just citizens.

• Choice of countries is a matter of policy: It has been argued that why the CAA has chosen to extend the benefit to only certain countries and certain communities is a matter of policy and cannot be a constitutional law issue. How much a country chooses to relax its migration policy is purely a policy decision and under inclusion in a citizenship law cannot be unconstitutional. This argument is flawed for several reasons. As discussed above, it is well settled law that once a benefit is sought to be conferred, Parliament cannot escape the rigours of Article 14 and discriminate between equally placed persons. Article 14 applies to all laws whether they seek to create disabilities or confer privileges. An analogy can be drawn to the law on trading of liquor. It is well established that in India, there is no fundamental right to trade in liquor. The State can either completely prohibit the consumption of liquor, reserve to itself exclusively any part of the trade in liquor or allow private participation by grant of license. However, once the State decides to allow private participation, it is bound by Article 14 and cannot discriminate between equally placed private persons say by arbitrarily conferring licenses or placing orders on only some private players (State of Kerala v Kandath Distilleries (2013)6 SCC 573, paragraphs 24, 32, 33; State of MP v Nandlal Jaiswal (1986)4 SCC 566, paragraph 33). Similarly, prior to the CAA no illegal immigrant had the benefit of eligibility of citizenship. Now, the Parliament seeks to confer this benefit but in doing so it cannot act arbitrarily and discriminatorily while choosing who to confer this benefit on.

• Intelligible differentia is 3 neighbouring countries who are declared Islamic states: The argument is that the choice of countries is based on intelligible differentia as the Parliament has chosen 3 neighbouring countries who are declared Islamic states i.e. their official state religion is Islam. This argument is problematic on several grounds. First, if the criterion is limited to one religion i.e. countries with Islam as the official state religion, this is on the face of it arbitrary and discriminatory and runs counter to the very objective of the CAA i.e. to protect communities who are facing religious persecution. This is because by this logic, Muslims can never be a persecuted community. How ironic would it be that a law that seeks to protect communities on the basis of religious persecution itself discriminates on the basis of religion and does not grant protection to an entire religion even though their followers may be and are in fact facing religious persecution. Second, if the criterion is not limited to religion but extends to any neighbouring country with an official state religion, then the CAA arbitrarily excludes Sri Lanka which is a declared Buddhist state where Tamils have faced religious persecution. Finally, facts and history show us that simply because a country may not have an official state religion, it does not mean that there is no religious persecution of people in such countries. E.g. Myanmar does not have an official state religion and yet it is responsible for the most persecuted community in the world i.e. the Rohingya Muslims.

• The Excluded Persons always have the general window to citizenship open: The argument that the Excluded Persons always have the general route to citizenship under the Citizenship Act open is based on a fundamental misunderstanding of the Citizenship Act and the changes brought about by the CAA. As discussed above, the CAA only deals with illegal migrants i.e. persons without valid travel documents. This is the broad class that the CAA is concerned with. Non-illegal migrants always had the general window to citizenship open and will continue to do so. However, what the CAA does is to carve out from this broad class persons who belong to certain specified religions from certain Specified Countries and declare them as non-illegal immigrants (without the need to produce any travel documents) thereby opening up the route to citizenship for these persons. The rationale for this move is that people of these religions have faced religious persecution in the Specified Countries. All other persons without travel documents continue to be treated as illegal migrants not eligible for citizenship even though they may have faced religious persecution. In conferring this benefit, the CAA unreasonably discriminates between similarly placed illegal migrants who have faced religious persecution. The answer to this cannot be that persons of a different class i.e. non-illegal migrants can avail of citizenship. This option was available to non-illegal migrants even before the coming into force of the CAA.

• The CAA recognises only one form of persecution i.e. religious and Parliament is not mandated to recognise every form of persecution: Whilst it is true that the Parliament is not mandated to recognise every form of persecution, once it has recognized a particular form of persecution i.e. religious it cannot then discriminate between different communities who have faced religious persecution as otherwise the law falls foul of Article 14.

• Persecution of certain sects within the majority religion is a different form of persecution from religious persecution: This argument has been stated to be rejected. It is common sense that any persecution for the beliefs one holds regarding god and spirituality would amount to religious persecution. In that sense, certain sects within a religion are persecuted precisely for the same reason as other religions i.e. that their beliefs regarding god and spirituality differ from those of the majority religion. In fact, at times, the sects within the majority religion are subject to far greater persecution than the minority religions. Take the example of the Ahmadiyas in Pakistan. They are persecuted for their belief that their leader is the Messiah which is contrary to the beliefs of the majority Sunni Muslim community. The Constitution of Pakistan officially declares Ahmadiyas as Non-Muslims. The number of blasphemy cases against the Ahmadiyas are higher than those against Christians and Hindus.

• One need not redress all wrongs to address some wrongs: Again, this is an argument that runs counter to the essence of Article 14. Whilst it is true that one need not redress all wrongs to address some wrongs, once Parliament chooses to address one wrong, it is constitutionally mandated to address that wrong completely and not arbitrarily exclude certain persons from the redressal of that wrong.

4. Conclusion

Based on the above discussion, it is my view that the CAA on a standalone basis violates the guarantee of equality before the law and equal protection of the laws under Article 14 and the right to a life with dignity under Article 21 of the Constitution of India and must be found to be unconstitutional. Whilst it is nobody's case that a law granting citizenship to refugees must apply to every person in the world, there must be reasonable criteria for selecting a set of refugees to confer this benefit. The CAA appears to lack such reasonable classification and appears to discriminate between equally placed persons. You may choose not to address a certain problem but once you choose to address it you must do so equally and without discrimination.

(Avinash Amarnath is an Advocate practising in Supreme Court)