CAA: A Constitutional quagmire?
We, the members of this august democratic nation, exult and frolic in our individual freedoms guaranteed by the Constitution.
We, the members of this august democratic nation, exult and frolic in our individual freedoms guaranteed by the Constitution. But, have we developed an alternate constitutional morality to overthrow the rule of law, robust enough to keep us in control from abusing such freedoms?
Have we assumed greater freedom than our intelligence, maturity and nature could fathom? Have we really outgrown the malady of individual freedoms or silently transitioned to anarchy and chaos? Are we nearing such ethical and constitutional limits that the government is forced to run riot to discipline us?
It would not be exaggeration to note that the Citizenship Amendment Act (CAA) has been one of the most evocative and controversial pieces of legislation in recent times. In a sense, it has served to reinvigorate the constitutional values and spirit among the nation's masses.
However, the intent of the CAA and resultantly, its logical outcomes have been widely misunderstood. The politics surrounding it aside, the question, however, remains whether the CAA is violative of some of the most fundamental provisions of the Constitution. This article is an attempt to answer this question. Before we dive in, a brief overview of what the CAA actually entails is necessary.
The CAA has a specific and limited purpose, namely, to confer citizenship status to "persecuted religious minorities" belonging to Hindu, Sikh, Buddhist, Jain, Parsi, and Christian communities who entered India on or before 31st December, 2014 from three neighbouring countries that have avowedly religious Constitutions i.e. Bangladesh, Afghanistan and Pakistan.
History bears testimony to the fact that a certain section of the population in these countries were subjected to persecution on grounds of their religion.
The CAA also relaxes the residence requirement for citizenship by naturalisation for those hitherto considered "illegal immigrants" from eleven years to five years. According to Intelligence Bureau data, the immediate beneficiaries of the CAA are likely to be around 30,000.
Does the CAA threaten the secular nature of the Constitution?
The most popular and vehement criticism of the CAA is that it is blatantly violative of Articles 14, 15, and 21of the Constitution.
Article 14 provides that the State shall not deny to any person equality before law or equal protection of laws within the territory of India. The Supreme Court in Ram Krishna Dalmia Vs. SR Tendolkar elucidated the scope of permissible classification for the purposes of Article 14.
Essentially, it held that reasonable classification is permissible provided that: (i) it must be founded upon an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question.
The CAA passes both these tests of constitutionality.
Whether the distinction sought in the CAA is based on intelligible differentia: yes – the primary distinction that the CAA draws is between persecuted religious minorities belonging to six identified communities and the other non-citizens.
The CAA has a specific and limited purpose, namely, to grant citizenship status to these persecuted religious minorities. Whether the differentia has a rational relation to the object sought to be achieved by the CAA: yes – the object of the CAA is to confer citizenship status to identified persecuted religious minorities.
A rational relation to the intelligible differentia and the object of the CAA is hence clearly demonstrable. Further, in light of SC's decision in Parisons Agrotech Ltd. Vs Union of India, it can be argued that the power of judicial review does not extend to determining the correctness or the appropriate expanse of a state policy or brainstorming better alternatives to such a policy, but rather, the limited purpose of judicial review is to determine the legality/constitutionality of the Act in question.
Therefore, Parliament is well within its rights to legislate on matters relating to citizenship within the confines of Article 14.
Article 15 provides for prohibition against discrimination on grounds of religion, race, caste, sex or place of birth. Article 15 applies only to the existing citizens of India, not to "aliens" or those seeking refuge.
The CAA does not violate Article 15 as the same does not apply to non-citizens/aliens. It is outrageous to claim that CAA violates Article 21 of the Constitution, which provides that "no person shall be deprived of his life or personal liberty except according to the procedure established by law".
The CAA does not deprive any person of his life or liberty. Certain identified persons who satisfy the prescribed criteria are conferred citizenship status. Vestation of citizenship is different from existing citizenship. Contrary to popular perception, nothing contained in the CAA affects the citizenship rights of the existing population of India.
Parliament's power to make law on citizenship
Dr BR Ambedkar, the chairman of the drafting committee of the Constitution of India, during the Constituent Assembly debates on August 10, 1949, had said the following on Article 5: "It is not possible to cover every kind of case for a limited purpose, namely, the purpose of conferring citizenship on the date of commencement of the Constitution.
If there is any category of people who are left out by the provisions contained in this amendment, we have given power to Parliament subsequently to make provision for them." The Parliament has exclusive authority to legislate on matters relating to citizenship (Art.11).
Further, it was the avowed intent of the framers of the Constitution that any specific cases of conferring citizenship to persons who were left out by the original provisions of the Constitution were to be taken up by Parliament. The CAA is, thus, a step in that direction.
Federalism being one of basic features of the Constitution, the States should coordinate with the Centre in upholding the constitutional order in implementing the CAA.
Article 256 provides for an express obligation on the part of the States to ensure compliance with the laws made by Parliament. Any attempt by the States towards non-implementation of the CAA would render the State's actions unconstitutional forcing the Centre to impose Emergency under Article 356. Separately, NHRC can probe the transgressions by the States in this respect.
Every sovereign State has a right to apply its security considerations before it applies principles of non-refoulement. The CAA can also be construed as a step toward fulfilment of India's obligations under the Nehru-Liaquat Pact of 1950, whereby both India and Pakistan agreed to protect their respective minority rights.
Arguably, it is no less than morally-incumbent upon a State that finds itself with a significant number of refugees, who fled for their life, to grant them protection. At any rate, given its multi-cultural and pluralistic identity, it is only fitting that India implements CAA.
(The author is a Legal Research Associate with the Ministry of Law and Justice. Views expressed are personal)