The article is written by Nandini Sharma from ICFAI University, Dehradun. The article “Faith and Exclusion: The Constitutional Fallout of the Citizenship Amendment Act” provides in-depth research on the CAA’s legal, social, and constitutional implications.
Introduction:
The Citizenship (Amendment) Bill was introduced in the year 2016 as an amendment to the Citizenship Act, 1955. The Citizenship Amendment Act 2019 (herein referred to as CAA, 2019) amends the Citizenship Act of 1955 to make it easier for certain religious minorities from Pakistan, Bangladesh and Afghanistan to become Indian citizens. The CAA, 2019 provides citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians who arrived in India before December 31, 2014. The CAA, 2019 exempts these groups from criminal cases under the Foreigners Act of 1946 and the Passport Act of 1920 and it also provides some protection from deportation and imprisonment from these groups.
Later, on 11th December 2019 the bill was passed by the Rajya Sabha. Subsequently, the President of India gave assent and enacted as law of the land. Thus, on 11th March 2024, the Central Government notified the rules for implementing Citizenship Amendment Act, 2019. It is pertinent to mention that the CAA, 2019 is against the principle of reasonableness and fairness in state action and is ultra vires. The CAA has been criticized for using religion as a criterion for citizenship and for excluding Muslims from the law and this premise is based on three grounds- Firstly, the classification in CAA, 2019 affects the principle to equal treatment under article 14 of the Constitution of India (I); Secondly, the classification criteria in CAA, 2019 is arbitrary in nature and against the principle of reasonableness (II); and thirdly, CAA, 2019 undermines the essence of the basic structure of the constitutional intent of secularism (III).
The classification in CAA 2019 affects the principle to equal treatment under article 14 of the Constitution:
Article 14 of the Constitution of India states “Equality before Law”- 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 article 14 is not only applicable to citizens but to non-citizens as well.
In the specific adjacent countries, the Hindus, Buddhists, Sikhs, Parsis, Jains, and Christians are qualitatively selected as a class in themselves, making this the first layer of the classification. This unlawful categorization of the CAA, 2019 based on religion is a violation of Article 14 of the Indian Constitution. According to comprehensible differentia, the CAA, 2019 lacks a meaningful classification. Article 14 of the Indian Constitution prohibits discrimination based on an individual’s inherent or fundamental identity, such as their religious identity. Therefore, any classification based on religion is automatically illegal. Because the CAA, 2019 expressly discriminates against Muslims, it is unable to establish a fair classification system based on discernible distinctions.[1]
In the recent judgment of Olga Rosnina v. Foreigners Regional Registration Office WP No. 351/2023[2], the Bombay High Court held that Principles of Natural Justice are an essential concomitant of Article 14 of the Constitution of India. This article protects not only citizens but also non- Citizens. In reference to the CAA, Act 2019 it is a clear infringement as it discriminates the Muslims. Further The Hon’ble Court in Navtej Singh Johar v Union of India[3], has held that “where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on intelligible differentia.
The CAA, 2019 violates the principle of secularism, which is being considered as the basic structure of the constitution and aims to provide equal treatment to all the religions. The Hon’ble Court of India in S.R. Bommai v. Union of India, (1994)[4] has unequivocally held that ‘Secularism is part of the basic structure of the constitution and of “constitutional morality”[5]. As a result, the concept of secularism pervades and is embedded in the constitution philosophy. The State is mandated to accord equal treatment to all religions and religious sects and denominations.
The classification criteria in CAA 2019 is arbitrary in nature and against the principle of reasonableness:
The Religious/Country based classification of CAA, 2019 is manifestly arbitrary and unreasonable. Two classifications are offered by Section 2 of the CAA Act, 2019 in order to remove some individuals from the category of “illegal migrant” and to afford them the benefit of naturalization under Section 6B of the Citizenship Act.
Other than the fact that Muslims are denied the opportunity to become citizens by naturalization due to their religion. This benefit is only available to Bangladeshi, Afghani, and Pakistani religious minorities. Furthermore, in order for a migrant to be eligible for benefits under the CAA, they must have arrived in India before December 31, 2014, according to the CAA. There is no rational justification for this deadline; it is arbitrary. The purpose of the CAA is undermined by this deadline, which merely serves to restrict the number of immigrants rather than aiding them in obtaining citizenship through the program. Therefore, the deadline set forth in the CAA of December 31, 2014 is a classification that is arbitrary as it does not support a rational government objective.
By virtue of the Act, Hindus, Parsis, Sikhs, Buddhists, Jains, and Christians who have fled religious persecution in adjacent Islamic-majority nations before December 31, 2014, can apply for residency in India more quickly. In contrast to Muslims, who must wait an additional 11 years and present legitimate documentation to prove their right to be in India, members of these other religions will all become eligible in five years and won’t need any more documentation or a valid visa. This categorization obviously disregards Article 14 and is arbitrary.
The Hon’ble Court in Sharma Transport v. Govt. of A.P., (2002)[6] wherein Para 25 states that “the expression “arbitrarily” means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone”.
The first landmark judgment which actually discussed the virtue of non-arbitrariness in Article 14 was S.G. Jaisinghani v. Union of India (1967)[7]. The court for the first time held “absence of arbitrary power” as sine qua non to rule of law with confined and defined discretion, both of which are essential facets of Article 14. Quoting the celebrated saying of Douglas, J., in United States v. Wunderlich (1951) 1951 SCC OnLine US SC 93[8]: “when it has freed man from the unlimited discretion of some ruler… Where discretion is absolute, man has always suffered”. Therefore, it can be interpreted that the Act goes against the principle of reasonableness, as it treats people unequally based on religion and does not form a reasonable classification based on an intelligible differentia. Additionally, it can be said that the CAA was passed while ignoring the provisions enshrined under Article 14 of the Constitution, as observed by the former Hon’ble Supreme Court Justice Madan Lokur.[9]
The CAA, 2019 undermines the essence of the basic structure of the constitutional intent of secularism:
The Constitution of India aims to create a secular state where all religions are treated equally. India’s concept of secularism is not merely a passive attitude of religious tolerance; it is also a positive concept of equal treatment of all religions[10] i.e. Sarva Dharma Sambhava. A secular State does not extend patronage to any particular religion. The State will not establish any State religion, nor will the State accord any preferential treatment to any citizen or discriminate against him/ her on the ground that he/she professes a particular religion.
The Hon’ble Supreme Court of India time to time has established that Secularism has been a part of the basic structure of the constitution. In Kesavananda Bharti v. State of Kerala, 1973[11] Chief Justice Sikri said that the “secular character of the Constitution was the essence of it”. Justice Shelatand and Justice Grover stated that “the secular and federal nature of the Constitution were the main ingredients of the basic structure. Additionally, SR Bommai v. Union of India, 1994[12] is a landmark case where the concept of secularism was discussed which means equal treatment of all religions. The CAA, 2019 giving different treatment to the particular religions is a violation of the basic structure of the constitution. At first glance, the Act appears to be a compassionate gesture towards individuals persecuted in their home countries due to their religion. Upon closer examination, the omission of Muslims from the amendment raises concerns.[13]
When tested upon the parameters of the reasonable classification theory, there is no clear indication why the Act of 2019 involves illegal migrants from only six listed religious minorities. In addition, the Act also fails to explain the reasons why ‘Ahmadiyya Muslims’ in Pakistan who are considered in Pakistan as non-Muslims, were excluded. In the case of Ratilal Panachand Gandhi v State of Bombay, 1954[14] the court held that Article 25 is not restricted to a citizen and would therefore protect the right to freedom of religion of aliens. Article 25 declares religious freedom for all persons in unambiguous words. “All persons” includes everyone, including aliens (even enemy aliens) Very pertinently, it can be concluded that the Act is also silent as to why illegal migrants from only six specified religious minorities have been included. Therefore, this amendment is a religion-based law which is expressly contrary to the ethos of the India’s constitution and to the democratic secularism of present-day.[15] By selectively granting citizenship based on religions, the Citizenship Amendment Act (CAA) 2019 undermines this principle. Such religious classification contradicts the Constitution’s commitment to equality and non-discrimination, making the CAA inconsistent with the foundational values of secularism and such legislation, which privileges certain religious groups while excluding others, fractures the secular fabric of the nation and undermines the vision of unity and equality enshrined in the Constitution.
What is Government’s Logic behind the CAA and why it is seen as a problem?
The CAA provides refuge to individuals fleeing religious persecution in Afghanistan, Bangladesh, and Pakistan, requiring entry into India on or before December 31, 2014. Eligible individuals, specifically minority groups (Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians), are exempt from the usual 11-year residency requirement. The CAA also includes a provision for cancelling Overseas Citizen of India (OCI) registration if the cardholder violates any Citizenship Act provision or applicable law. While the government asserts the CAA protects persecuted minorities, critics question its logic, citing exclusions of certain religious minorities and neighbouring regions facing similar issues, with concerns remaining unaddressed. Thus, this issue poses a significant problem for many people.
Conclusion:
India’s secularism and equality as core constitutional ideals are severely compromised by the Citizenship Amendment Act (CAA) of 2019. The CAA violates Article 14, which guarantees equality before the law, irrespective of religion, by giving citizenship to certain people on the basis of their religion. Muslims have been excluded from the Act’s advantages, which is an arbitrary and illogical classification that isn’t justified by logical political goals or comprehensible differences. As established in landmark decisions such as Kesavananda Bharti and S.R. Bommai, this goes against the fundamental structure of secularism, which is a feature of the Constitution. The fundamental principles of democracy and equality contained in the Indian Constitution are threatened by the discriminatory nature of the Act, which could ultimately cause the secular fabric of the country to shatter.
[1] Rijuka Naresh Jain, Constitutional Validity of Citizenship Amendment Act, 2019, Manupatra Articles, available at: https://articles.manupatra.com/article-details/Constitutional-Validity-of-Citizenship-Amendment-Act-2019.
[2] 2023 SCC OnLine Bom 1652
[3] (2018) 10 SCC 1
[4] 3 SCC 1
[5] Bloomberg Quint, 19 December 2019, available at: https://www.bloombergquint.com/opinion/indian-judiciary-is-constitutionalmorality-a-dangerous-doctrine-by-abhinav-chandrachud
[6] (2002) 2 SCC 188
[7] 1967 SCC OnLine SC 6
[8] 96L Ed 113: 342 US 98(1951)
[9] Bhadra Sinha, Proviso in new citizenship law unconstitutional: Justice Lokur. Hindustan Times (Dec. 23, 2019). https://www.hindustantimes.com/india-news/proviso-in-new-citizenship-law-unconstitutional-justice-lokur/storyTYqzMMIafXZXy6I4gPcvnJ.html
[10] Jain, M.P. 2008. Indian Constitutional Law, Butterworth, Nagpur, p.1201
[11] (1973) 4 SCC 225
[12] (1994) 3 SCC 1
[13] T Khan, The Citizenship Amendment Act, 2019: A Religion Based Pathway to Indian Citizenship, SSRN Papers, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3665743.
[14] AIR 1954 SC 388
[15] Abhinav Chandrachud, Secularism and the Citizenship Amendment Act in Paper Presentation “India: Seventy Years of the Republic” Victoria, University of Wellington (February 2020)
Great Analysis.
Very informative.