Is The Citizenship Amendment Act Legal?

This post is also a part of YKA's user-run series, Excluded - Understanding the CAA and NRC, by Indian Civil Liberties Union, curated by YKA top user Sanobar. Join the conversation by adding a post here.

This article simplifies and analyses the legality of the Citizenship Amendment Act, 2019 (CAA) and puts to test some of the claims being made to defend the classification as provided under CAA.

Amit Shah in Parliament introducing the Citizenship Amendment Bill 2019
Amit Shah in Parliament introducing the Citizenship Amendment Bill 2019. Picture Courtesy: Business Today

Which Base Law Is This Act Amending?

The Citizenship Act of 1955 is the base law which the 2019 Citizen Amendment Act is incorporating changes into. The original Act states that citizenship may be acquired in India through five methods — by birth in India, by descent, through registration, by naturalisation (extended residence in India), and by incorporation of territory into India (by virtue of which residents of the erstwhile States of Hyderabad and Sikkim etc. became Indian citizens.)

Status of “illegal migrants” under the Citizenship Act of 1955:

An illegal migrant is prohibited from acquiring Indian citizenship under the Citizenship Act of 1955. Section 2 (b) of the Citizenship Act of 1955, defines illegal immigrants. Section 3 (c) (ii) bars anyone who may be born in India, but one of whose parents is an illegal immigrant, from getting citizenship by birth. Section 5 (1) bars Citizenship by registration for illegal migrants. Section 6 (1) bars Citizenship by naturalisation for illegal migrants.

Changes Incorporated By The Citizenship Amendment Act 2019:

The Amendment Act creates a special class of “illegal migrants”, who would no longer be considered as illegal migrants if a) they had migrated to India before December 31, 2014, and b) had migrated from Pakistan, Bangladesh, or Afghanistan, and c) belong to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious communities.

This amendment creates classification between the migrants mentioned, and any other illegal migrants, from any other country, including the countries mentioned above.

Is There An Intelligible Differentia For This Classification?

Article 14 of the Constitution of India reads as under “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The key element in this Article is that the protection provided under it is not only for the citizens of the country, but also extends to every individual, including foreigners, under the territorial boundaries of this country.

That said, Article 14 does allow the Parliament to create laws for different groups of individuals. In simplistic language, people who are similar cannot be treated differently under any law, but people who can be classified as different can have specialised laws for their benefit.

Such classification of people into separate categories must not be arbitrary, artificial, or evasive. For a classification to be valid, there are two requirements, a) there must be a rational and distinct differentiating factor between the people of the two separate groups (intelligible differentia) and the differentia must have a rational relation to the object of the Act.

In The current Case, The Two Different Groups Are:

a) Illegal migrants from the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious communities and from the states of Pakistan, Afghanistan, and Bangladesh, and who had entered India before 31st December 2014; and

b) Illegal migrants from the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious communities from any other country other than Pakistan, Afghanistan, and Bangladesh, illegal migrants from any other religious community (including atheists) from any other country, and all illegal migrants who had entered post 31st December 2014 (non-exhaustive list).

In the case of CAA, the logic behind this segregation seems inconsistent — the Act does not protect all religious minorities, nor does it apply to all neighbours, nor does it protect the most prosecuted group in this sub-continent. The Ahmediyas Muslim sect (who are not considered Muslims in Pakistan), face systematic discrimination in Pakistan.

Rohingya Muslims and Hindus face persecution in neighbouring Burma (which puts Buddhism on a higher pedestal as per their Constitution) and are currently considered the most prosecuted group in this sub-continent. Aside from all religious groups, Atheists are targeted and killed in Pakistan, Bangladesh, and Afghanistan. And yet, none of these individuals will find safety under the CAA. 

A lot of social media posts and users have argued that Baluchis, Ahmediyas, and other individuals excluded under the CAA can apply under existing laws. This is blatantly misleading as, under the existing law, which is the Citizenship Act of 1955, they would still be classified as illegal migrants as explained earlier, and thus not even illegible to apply.

Some flawed grounds/reasons for the above classification floating about on social media and their counter reasonings are;

a) “The Liaquat–Nehru Pact/to right “historic wrongs of partition”: Afganistan was not a part of this, hence the reasoning that the CAA attempts to correct some flaws of the L-N Pact cant be accepted as a valid classification.

b) “Pakistan, Afganistan, and Bangladesh are ‘theocracies’”: Possibly the closest to a valid argument, but a theocracy is defined as a system where a priest rules as a representative of God. Iran is a valid example of a theocracy. Bangladesh is not. Neither is Pakistan technically. Like Bangladesh, even Sri Lank and Myanmar have an official State religion/religion given greater significance than others by the State. Hence the inclusion of Bangladesh and exclusion of the other two do not cut ice.

c) “Muslims have other Muslim nations to protect them”: This does not satisfy the legal requirements of Article 14. The State cannot choose to discriminate against a particular group merely cause another State is willing to help them.

d) “The three nations of Bangladesh, Afganistan, and Pakistan have a horrible record of protection of minorities” — For one, this line of argument should have automatically also included Myanmar in the list as it has a similar record of atrocities against minorities. The State of Gambia has already filed a case before the International Court of Justice, for state-sponsored violence against minorities in Myanmar.

For another, the current Bangladesh Government has been putting legitimate effort into securing minority rights. While extremists groups still target minority groups in Bangladesh from time to time, the share of minorities in Bangladesh Government jobs and police have been steadily rising, along with Government support of minority religious festivals. 

e) “India is a Hindu country has a duty to protect other Hindus” — This is not a legally justifiable reason, which would stand the test of Article 14, especially as India is a secular nation and does not give primacy to any religion. 

f) “Under inclusion is legitimate under Article 14” — This is technically correct. The Supreme Court has held that in case of Government policy, under inclusion is valid and not unconstitutional per se. Under-inclusion is when the Government leaves out some groups who they could have extended a benefit too.

The two judgements of State of Gujarat vs Ambika Mills (1974 AIR 1300) and NP Basheer vs the State of Kerala (Appeal (Crl) 1334 of 2002) are two separate Supreme Court Judgements which deal with under inclusion. However, the Supreme Court has in these cases underlined on the Government’s policy discretion and right to experiment in matters of economic policy, and this being a matter of human rights cannot rely on the same precedent. For another in both of the above-quoted cases, the Supreme Court had still applied the test under Article 14 and the State had to justify the under inclusion with respect to the objective of the Act. And as argued above, the CAA fails in justifying the requirement. 

As such, with respect to the Citizen Amendment Act 2019, even without looking into Constitutional Morality, this Act would fail the test of Constitutional Legality. 

Sourya Banerjee is a freelance legal consultant and policy enthusiast

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