Provided that any person belonging to a religion other than the state religion from India’s theocratic neighbours, who entered into India on or before the 31st day of December, 2014 …shall not be treated as illegal migrant for the purposes of this Act.If the amendment to Section 2 of the Citizenship Act brought in by the CAA reads as above, could it be argued that it is discriminatory? This extract is based on a juxtaposition of the words “a religion other than the state religion” in place of “Hindu, Sikh, Buddhist, Jain, Parsi or Christian” (the “Identified Persons”) and “theocratic neighbours” in place of “Afghanistan, Bangladesh or Pakistan”.
One caveat that must be placed is that Bangladesh, post-2011, provides an equal right to practice all religions; however since the CAA applies to immigrants who migrated to India prior to 31.12.2014, Bangladesh was a theocratic state for a majority of the period in question. Sri Lanka is not theocratic since it provides an equal right to practice all religions despite additional protections being provided to Buddhists.
Pre-CAA History: The Foreigners Act, 1946, and Foreigners Order, 1948, regulate the presence of foreigners in India and set out a list of powers of the state including deportation and certain punishments. The government, vide notifications dated 07.09.15, 08.01.16, 18.07.16 and 14.09.16, had exempted the applicability of the Foreigners Act and Foreigners Order to the Identified Persons covered today by the CAA and also made them eligible for long-term visas to reside in India. The classification made in these notifications has not been challenged. The CAA merely extends these privileges by providing an alternate fast-track route to citizenship to the Identified Persons.
Constitutionality of the CAA: Views have been expressed stating that the CAA falls foul of Articles 14 and 15. The argument in relation to the latter is a non-starter as Article 15 applies only to citizens (and the CAA deals exclusively with non-citizens). The former requires a more detailed consideration.
The test under Article 14 consists of two different tests: the reasonable legislative classification test and the test of manifest arbitrariness. The former is a two-step test—first, the classification must be based on an intelligible differentia (i.e. difference capable of being understood) and second, the intelligible differentia must have a reasonable nexus with the object of the statute. In the present case, the classification is twofold: first, between theocratic states and others, and second, between persons who do not profess the state religion in such states and others.
Clearly, the first limb is satisfied. In so far as the second limb is concerned, the object of the CAA is specified in its Statement of Objects and Reasons to be to provide the privilege of citizenship to the Identified Persons. Such an object cannot be achieved without making the classification in question. Hence there is a reasonable nexus between the classification and the object of the CAA. The CAA therefore does not fall foul of the reasonable legislative classification test.
The manifest arbitrariness test is a wider test that requires the legislation to “conform to norms which are rational, informed with reason and guided by public interest” (Shayara Bano v. Union of India).The CAA proceeds on the basis that religious minorities in theocratic states are most in need of protection. This presumption is questionable as it is a fact that religious persecution of minorities is not just restricted to theocratic states (such as Rohingya Muslims in Myanmar). Another questionable rationale is as to why the CAA only addresses the rights of persecuted religious minorities and not other persecuted groups (such as Sri Lankan Tamils). However, these arguments of under-inclusiveness are insufficient to meet the high threshold of the “manifest arbitrariness” test.
The law recognises a presumption of constitutionality and in the words of the seven-judge Bench of the Supreme Court in re: The Special Courts Bill, 1978, the mere fact of inequality in no manner determines the matter of constitutionality. A classification need not be constituted by an exact or scientific exclusion of persons and courts will not insist on delusive exactness for determining the validity of classification.
This issue also needs to be looked at from another angle—providing citizenship is not an obligation, it is a privilege that the state needs to be careful in extending. While Article 11 of the Constitution provides Parliament with the discretion to legislate in relation to the “acquisition and termination of citizenship”, as the saying goes, with great power comes great responsibility.
The state needs to consider various factors before conferring citizenship on a class of immigrants. Hence, unless it can be established that the policy was entirely whimsical, the question of declaring the CAA unconstitutional does not arise.Yet another argument against the CAA is the alleged contravention of the concept of secularism on the basis that the state is discriminating on the basis of religion. However, such discrimination has to be tested within the framework of Articles 14 and 15 itself and hence the argument is circular.
Most importantly, the CAA does not leave any class of persons worse off, it only makes one class of persecuted persons better off. An argument of under-inclusiveness is perhaps an argument in favour of a future amendment to the Citizenship Act after proper study of various factors, and not an argument to strike down a privilege conferred on humanitarian grounds to a persecuted class.