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The Citizenship Amendment Act 2019: Violative of Article 14?

Written by Sakshi Rajawat

Second Year, Hidayatullah National Law University, Raipur


Source: The Federal



Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.


Introduction

"The Law is hard, but it is the Law"

The above words by the author Cassandra Clare, summarizes the turmoil, Citizenship Amendment Act (CAA) has brought in the entire nation and also the stand of the Government. On 11th December 2019, the parliament of India passed the citizenship amendment bill, 2019, after which there have been riots all around the country with people calling the act as biased and discriminatory towards one religion, however the government despite all the protest has maintained its firm ground, unflinching on its stand stating the historical reason, whereby,

in the year 1950 the Prime Minister of India Mr. Jawahar Lal Nehru and the Prime Minister of Pakistan Mr. Liaquat Ali Khan signed the Nehru Liaquat pact, wherein specific provisions were made for safeguarding the minorities in their respective countries which fled due to the sudden partition[1] . The pact very clearly states that both the countries will adhere to protection of their minorities irrespective of religion.

With a number of petitions in the court pending, people who are opposing the Act and the opposition have pinned their hopes on the judgment of the Hon’ble Apex court which is awaited.

This article specifically focuses on one of the arguments brought forth that is, ‘whether the Citizenship Amendment Act is violative of Article 14 of the Indian Constitution’.

Article 14 Article 14 of the Indian Constitution reads as-

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 prohibition of discrimination on grounds of religion, race, caste, sex or place of birth’[2]

If one goes by the literal explanation of Article 14 of the Indian Constitution, then CAA is unconstitutional on the face of it, as the proviso to section 2 of Citizenship Amendment Act, 2019 mentions six religions communities from 3 different countries who shall not be treated as illegal migrants, it specifically does not include the muslims in the application of it as it keeps Muslims out of the ambit of its provisions and thus is void as per Article 13. However, the Indian Judiciary, by way of various judgments, has propounded the theory of ‘reasonable classification’ in order to mitigate the rigours of the Article.

Article 14 permits classification, though it prohibits class legislation, which means there are differently situated people that require different or separate treatment. Identical treatment in an unequal situation is in itself inequality. However the classification must not be arbitrary, evasive or artificial.

Reasonable Classification

Not all classes of people can be treated equally as there might be a certain group of people who have been subject to differential treatment in the past such as women. In that light, it’s important to point that Article 14 provides for equality amongst equals. In the case of State of West Bengal v. Anwar Ali Sarkar[3], the same concept of Reasonable Classification was applied, wherein certain offences were subjected to speedier trial, and the test of reasonableness was applied as has been provided below. The court in the case held that the speedier trial of offences does not amount to reasonable classification as it is too vague and uncertain a criterion to form the basis of a valid and reasonable classification.

The test of Reasonable Classification:

1. The classification must be founded on the intelligible differentia which distinguishes the class of people who are grouped together apart from the people left.

2. This intelligible differentia must have a rational nexus sought to be achieved by the particular statute.

Hence, if a particular legislation is treating a certain group of people differently, it is necessary that there is an intelligible differentia to justify the act.[4]

The court held that Article 14 prohibits discrimination by treating people who are similarly placed differently and treating those in the same manner who are not similarly circumstanced. The article seeks to prohibit hostile classification by law and is directed against discriminatory class legislation.[5]

Hence it is very important to note that Article 14 does not imply treatment of all persons on equal lines. That is to say, people can be treated unequally if they are or were circumstanced differently.

What Is The Test Of Reasonable Classification, How It Is Relevant Here?

Under Article 14 and Article 15(1), if any classification or special treatment is granted to a class of citizens not only on the basis of religion, race, caste, sex or place of birth but also due to certain reasons or special circumstances, an enquiry would be conducted by the court to find out if such classification stands the test of reasonableness. To carry out this scrutiny the court must find answer to the question: whether such classification meets the twin conditions of intelligible differentia[6] and reasonable nexus to the object sought to be achieved by the statute in question[7].

Section 2 of the Citizenship Amendment Act includes migrants of six religions namely Hindu, Sikh, Buddhist, Jain, Parsi or Christian who entered into India on or before the 31st day of December, 2014, from Afghanistan, Bangladesh or Pakistan. The issue in place is, that since Muslims have been kept away from the ambit of this section in CAA which is amended in order to provide citizenship to the migrants, it is discriminatory and hence violative of Article 14, however the above differentiation between the religions in the present context has been made mainly on two bases-

1. Afghanistan, Bangladesh and Pakistan are those neighbouring countries of India whose official religion is Islam, unlike India which is a secular State.

2. These particular six minorities are religiously persecuted minorities in these countries for a very long time.

Afghanistan, Bangladesh and Pakistan are Islamic countries (majority of the population is Muslim), which take Islam into consideration whilst making their policies[8]; Bangladesh was the last country to get the recognition as an Islamic country by the 15 Arab countries.[9] Afghanistan, Pakistan and Bangladesh are the member states of Organization of Islamic Corporation[10] which works towards protecting the interest of Muslims and raises the collective voices of Muslims in the world, whereas India recognizes itself as a secular state, with people of almost all the religions residing in the country[11], and no specific religion has been recognized as the state religion.

Hindu, Sikh, Buddhist, Jain, Parsi or Christian are the communities which are in minority in these countries and are severely persecuted. The Human Rights Commission of Pakistan in its 2019 report has clearly stated, that religious minorities are not able to enjoy their rights that constitution guarantees them[12], which includes Hindu and Christians who are forced to convert, are raped or kidnapped, however this list of persecuted minorities also includes Ahmadiyas, Hazara and Shiyas. According to a 2017 report, the law in Afghanistan prohibits production of anything which is contrary to the principles of Islam, the Hindu and Sikh community stay away from limelight to avoid retaliation, the non Muslim communities reported continued harassment and hostility, secular festivals are condemned herein.[13] The 2017 Human Right Commission’s report on Minority issues, revealed that over the last 45 years there has been silent ethnic cleansing of Bangladeshi Hindus, the population of Hindus from 23% in 1951 has dropped down to 9% in 2017, looting, murder, rape, conversion of Hindus is a common sight,[14] Dr. Abdul Barkat in his book ‘Political economy of reforming agriculture-land-water bodies in Bangladesh’, said after 25 years there will be no Hindus left in the country.[15]

As held in the case of Kedarnath Bajouria v. State of West Bengal[16], the government is very well entitled to make classifications or differentiations.

These particular religious minorities in these three countries have a fear of prosecution on the basis of religion and the differentiation becomes reasonable on humanitarian grounds.

In the case of Kathirening v. State of Saurashtra[17],Patanjali Sastri, C. J., sought to explain the meaning of ‘discrimination’. He stated (according to the Oxford dictionary) that ‘discriminated against’ means to make an adverse distinction with regard; to distinguish unfavorably from others". Thus ‘discrimination’ includes ‘some element of unfavourable. It was thereafter observed that if such bias is disclosed and is based on any of the grounds mentioned inter alia, in Article 15, it may well be that the statute will without more incur condemnation as violating a specific constitutional provision unless it is saved by one or other provisos to the Article.

What is being reiterated by people at large is that since people are being distinguished on the basis of religion, the particular legislation is against the spirit of Article 15, which prohibits such kind of discrimination and so effects the right under article 14 also. However, one thing to be considered here is what the language of article 15 says:

“Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” [18]

The word to be noted here is ‘only’, which essentially means that no citizen can be discriminated ‘only’ on these grounds. A secondary conclusion which flows from the aforementioned article is that if there is any other ground apart from the stated grounds, then such discrimination can be done provided it is just and not arbitrary. This view finds support in various judgments of the Apex Court such as Kumari Chitra Ghosh v. Union of India.[19]

Just because the classification made by the legislation is based upon religion does not make it offensive of Article 15.For it to be termed discriminatory, it should involve the element of unfavourable bias. Further, the classification must be made ‘only’ on the basis of religion which is quite so not possible when there exists either historical, personal or any other reason which supports the classification. This is apparent from the decision in Ajaib Singh's case,[20] wherein the statute applied only to Muslims, even so, the same was not held to be ultra vires, because Muslim abducted persons were regarded to constitute a well-defined class.[21]

It is said that the classification on the basis of religion shall not be violative of article 14 if it’s not made ‘only’ on the basis of religion but there is some other historical or any other reason to justify the same.

Conclusion

The Citizenship Amendment Act, 2019 makes a clear distinction between Muslim and Non- Muslim community, though apart from the popular opinion it’s not on the basis of religion but due to the religious persecution faced by these communities over a period of time in the three countries, it is important to note at this juncture that there are communities apart from these six communities which are being persecuted in these countries, however it is a policy decision for the state to make, if other communities should be included or a different class be created. In the present case the classification passes the test of ‘Reasonable Classification’ and thus is not violative of Article 14 of the Indian Constitution.


[1] Agreement between the government of India and Pakistan regarding security and rights of minorities(Nehru Liaquat agreement), New Delhi, 8 April 1950( https://mea.gov.in/Portal/LegalTreatiesDoc/PA50B1228.pdf) [2] Article 14, the Indian Constitution 1950 [3]1952 SCR 284 [4]State of West Bengal v. Anwar Ali Sarkar,1952 SCR 284 [5]State of Kerala v. NM Thomas, 1976 SCR (1) 906 [6] DS Nakara & Ors v. Union of India, 1983 AIR 130 [7] Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar Ors., 1958 AIR 538 [8] Abul, Kalam (ed.), Bangladesh: Internal Dynamics and External Linkages (Dhaka: 1996), p.299. [9] Kamal Hossain, "Bangladesh's Sovereignty and Independent NonAligned Foreign Policy", Man and Development, vol. 7, no. 4, Dec. 1985, p. 1972. For more details also see, Nurul Momen, Bangladesh: The First Four Years (From 16 December 1971 to 15 December 1975), (Dhaka: Bangladesh Institute of Law and International Affairs, 1975), pp. 181-84. [10] https://www.oic-oci.org/page/?p_id=52&p_ref=26&lan=en [11] https://www.censusindia.gov.in/census_and_you/religion.aspx [12]http://hrcp-web.org/hrcpweb/wp-content/uploads/2020/04/REPORT_State-of-Human-Rights-in-2019-20190503.pdf [13] https://www.state.gov/wp-content/uploads/2019/01/Afghanistan-2.pdf [14]https://www.ohchr.org/Documents/HRBodies/HRCouncil/MinorityIssues/Session10/Item5/AdditionalStatements/item5%20-%20Bangladesh%20Minority%20Council%20.pdf [15] https://www.dhakatribune.com/bangladesh/2016/11/20/abul-barkat-632-hindus-left-country-day/ [16]AIR 1954 SC 660 [17]AIR 1952 SC 123 [18] Article 15, The Indian Constitution [19]AIR 1970 SC 35 [20]AIR 1953 SC 10 [21]Bishnu Charan Mohanty vs Union Of India (Uoi) And Ors., 1993 II OLR 252 Bibliography

  1. Agreement between the government of India and Pakistan regarding security and rights of minorities(Nehru Liaquat agreement), New Delhi, 8 April 1950(https://mea.gov.in/Portal/LegalTreatiesDoc/PA50B1228.pdf)

  2. Article 14, the Indian Constitution 1950

  3. State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284

  4. State of Kerala v. NM Thomas, 1976 SCR (1)906

  5. DS Nakara & Ors v. Union of India, 1983 AIR 130

  6. Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar Ors., 1958 AIR 538

  7. Abul, Kalam (ed.), Bangladesh: Internal Dynamics and External Linkages (Dhaka: 1996), p.299.

  8. Kamal Hossain, "Bangladesh's Sovereignty and Independent NonAligned Foreign Policy", Man and Development, vol. 7, no. 4, Dec. 1985, p. 1972. For more details also see, Nurul Momen, Bangladesh: The First Four Years (From 16 December 1971 to 15 December 1975), (Dhaka: Bangladesh Institute of Law and International Affairs, 1975), pp. 181-84.

  9. https://www.oic-oci.org/page/?p_id=52&p_ref=26&lan=en

  10. https://www.censusindia.gov.in/census_and_you/religion.aspx

  11. http://hrcp-web.org/hrcpweb/wp-content/uploads/2020/04/REPORT_State-of-Human-Rights-in-2019-20190503.pdf

  12. https://www.state.gov/wp-content/uploads/2019/01/Afghanistan-2.pdf

  13. https://www.ohchr.org/Documents/HRBodies/HRCouncil/MinorityIssues/Session10/Item5/AdditionalStatements/item5%20-%20Bangladesh%20Minority%20Council%20.pdf

  14. Kedarnath Bajoria v. State of West Bengal, AIR 1954 SC 660

  15. Kathirening v. State of Saurashtra, AIR 1952 SC 123

  16. Article 15, The Indian Constitution

  17. Kumari Chitra Ghosh v. Union of India, AIR 1970 SC 35

  18. Ajaib Singh, AIR 1953 SC 10

  19. Bishnu Charan Mohanty vs Union Of India (Uoi) And Ors., 1993 II OLR 252

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