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Indian Constitutional Law and Philosophy

Guest Post: The Citizenship (Amendment) Bill is


Unconstitutional

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Tags
Citizenship, Equality, freedom of religion, non-discrimination

[This is a guest post by Nivedhitha K. The piece was wri en before the latest draft of the Bill – which
exempts certain North-Eastern states from the operation of the Amendment – was made available.]

The BJP-led Union government is determined to table the Citizenship (Amendment) Bill, 2019 in this
parliamentary session, after it lapsed earlier in the year. The bill proposes to amend Section 2 (b) of the
Citizenship Act – which defines ‘illegal immigrants’ – by excluding “persons belonging to minority
communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan,
Bangladesh and Pakistan” from the ambit of “illegal immigrants”. The bill also reduces the period of
residence in India for the acquisition of Indian citizenship through naturalization to six years from the
earlier period of twelve years. Thus, under the amendment, these ‘minority communities’ from
Afghanistan, Bangladesh, and Pakistan are no longer ‘illegal’ immigrants, and they can obtain Indian
citizenship through naturalization if they have resided in India for six years.

The amendment makes two classifications: first, a classification based on religion by excluding Hindus,
Sikhs, Buddhists, Jains, Parsis, and Christians from the ambit of illegal immigrants; and secondly,
a classification based on country, by restricting the benefit of acquiring citizenship through
naturalization to minority immigrants only from Afghanistan, Pakistan and Bangladesh.

Religion-based classification

The first argument for the unconstitutionality of the CAB is that it enacts an impermissible, religious-
based classification under Article 14 of the Constitution. To understand why, we first need to look at
Article 15. Article 15 provides for specific grounds – religion, race, caste, sex, place of birth – that cannot
form the basis for discrimination. Thus, the grounds in Article 15 indicate impermissible discrimination, i.e
the law should effect discrimination based on these grounds to be violative of Article 15. In Navtej,
Chandrachud J and Indu Malhotra J did not declare section 377 of the IPC as violative of Article 15 only
because it effected classification based on “sex”. Rather the test used was whether the classification was
based on Article 15 grounds, and if so whether it effected discrimination. Therefore, for the violation of
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Article 15, both classification based on the grounds and discrimination in effect will have to be proved.
However, the Citizenship Amendment Bill cannot be subjected to Article 15, because that Article is only
applicable to citizens (immigrants, by definitions, are not citizens).

This takes us to Article 14. The traditional test for an Article 14 violation requires the classification to
have an intelligible differentia and a reasonable nexus with the legislative object. In Anwar Ali Sarkar, it
was explained that intelligible differentia means that there must be a yardstick to differentiate between
those included in, and excluded from the group. However, in Navtej, an important interpretive advance
was made upon this. Indu Malhotra J, in her judgment, infused Article 15 grounds into Article 14. She
interpreted intelligible differentia to mean reasonable differentia. She required the intelligible differentia test
to fulfil two sub-tests: one there must be a yardstick to differentiate between those included in and
excluded from the group, and two, that yardstick must itself be reasonable. She observed: “Where a
legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a
reasonable classification based on an intelligible differentia”. Therefore, the yardstick is reasonable
only if it is not based on an intrinsic and core trait of an individual. She then referred to Article 15
grounds to explain that they form an intrinsic and core trait of an individual. She noted: “Race, caste, sex,
and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand,
religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an
individual’s personal autonomy.” Therefore, contrary to Article 15, the test for Article 14 violation is based
on impermissible classification. Impermissible classification means that a particular principle cannot be
used to classify because it is constitutionally irrelevant. Religion is a facet of personal autonomy, and a
classification based on it is an impermissible classification.

The infusion of impermissible classification into the intelligible differentia test is justifiable for two reasons.
First, while the objective of Article 15 is anti-discrimination, the objective of Article 14 is to provide equal
protection of laws. Thus, Article 14 will be violated if the classification is unreasonable, while Article 15
will be violated only if there is discrimination based on the classification. Second, the interpretation of
Article 14 on the lines of Article 15 aligns with the argument that fundamental rights are not watertight
compartments. This understanding began with Fazl Ali J’s dissent in A.K Gopalan v. The State of
Madras on the interpretation of the ‘procedure established by law’ clause. The interpretation was
cemented through the evolution of the golden triangle in Maneka Gandhi v. Union of India, and
strengthened by Chandrachud J’s interpretation of Article 26 in the Sabarimala case. Therefore,
classification based on religion is prima facie impermissible and violative of Article 14.

The second argument against religion-based classification in this case turns on its inability to fulfil
Article 14’s nexus prong. The object of the amendment is to ‘protect those who have faced religious
persecutions in Afghanistan, Pakistan, and Bangladesh’. However, by excluding Muslims from the
category of ‘persecuted’, the amendment is based on the false premise that only minorities face religious
persecution in a Muslim-majority country. The amendment makes an easy – but untrue – classification
between minority and majority religion. This assumption is similar to assuming that all Hindus in India
are treated alike irrespective of caste. However, within the majority Muslim religion, there is persecution
based on sect. For example, in Pakistan, the Shias face religious persecution. Ahmadiyyas who align
themselves with the Sunni school also face persecution. Unless persecution of a sect within the majority
religion is recognised, the classification – of majority and minority – will have no nexus with the object
of protecting those who face religious persecution.

Country based classification

The country based classification violates Article 14 as it fails the “manifest arbitrariness” test. Nariman J
in Shayara Bano noted, “manifest arbitrariness, therefore, must be something done by the legislature capriciously,

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irrationally and/or without adequate determining principle. Also, when something is done which is excessive
and disproportionate, such legislation would be manifestly arbitrary.” The common threads that run through
the three selected countries in the CAB are that they are Muslim-majority countries, and that they are
India’s neighbours. The first rationale has been addressed above. If, however, the relevant countries
have been selected because they are India’s neighbors, the exclusion of the other neighbors – such as Sri
Lanka and Myanmar where people face religious persecution – must be justified. However, there is no
justification because there is no adequate determining principle that guides the classification. The
following points elucidate the absence of a determining principle for the classification.

1. Principle 1: Pakistan and Bangladesh were part of British India. Illegal immigrants from there could
still generically be considered of Indian origin. However, with the inclusion of Afghanistan, it is
evident that the classification is not based on the principle of divided India and undivided India.
2. Principle 2: Afghanistan, Pakistan and Bangladesh have a State religion. However, the classification
cannot be on the basis of a State religion, as Sri Lanka prescribes Buddhism as the State religion.
3. Principle 3: Degrees of harm. In Chiranjit Lal Chowdhury it was held that the legislature is free to
recognize the degrees of harm and confine the classification to where harm is the clearest. However, if
the CAB is based on the degrees of harm then the Rohingyas of Myanmar ought to be included as the
2013 UN report states that the Rohingyas are the most persecuted in the world.
4. Principle 4: The classification might be limited to singling out persecuted religious minorities. However,
on this logic, Sri Lankan Eelam Tamils must also be included, as the Tamil Eelams are persecuted
based on religion (Hinduism) and ethnicity.

Therefore, it is evident that the exclusion of the other neighboring countries where people face religious
persecution is not justified, because the inclusion of these three countries is not based on any
determining principle be it Indian origin, state religion, the degree of harm, or of persecuted minorities.
Thus, the country based classification is violative of Article 14 as it suffers from the vice of manifest
arbitrariness.

Under-inclusiveness and Deference

Having established the violation of Article 14, it is also necessary to address two counter arguments that
arise. The first counter argument is that under-inclusiveness cannot render the law unconstitutional. The
second counter argument is that the court would have to exercise deferential review – by showing
deference to legislative wisdom – while deciding cases on citizenship, refugees etc.

Indian courts have permi ed under-inclusive laws on grounds of administrative necessity and
legislative experimentation (see State of Gujarat v. Ambika Mills). However, in N.P Basheer v. the State of
Kerala, it was held that under-inclusiveness would withstand scrutiny under Article 14 only when it is
‘nominal’. However, the decision neither explains nor defines the word ‘nominal’. Nonetheless, there is
ample evidence now for what cannot be considered “nominal”: for example, in the case of Sowmithri
Vishnu, the constitutionality of the adultery provision was challenged. The court observed that Section
497 was under-inclusive but allowed deference to legislative wisdom. However, in Joseph Shine, the court
performed a volte face and struck down section 497 because it violated the ‘personal autonomy’ of
women. The importance of personal autonomy in Article 14 challenges is also evident from the Supreme
Court’s decisions in Indian Young Lawyers (Sabarimala) and Navtej. Hence, if the differentiation violates
personal autonomy – in this case, religion – under-inclusiveness is certainly not ‘nominal’.

What of the argument that deference to legislative wisdom is required on issues of citizenship, refugees
and the like, as they fall under the realm of legislative policy? On the contrary, I suggest that this

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argument should be turned on its head: precisely because the issue concerns citizenship, deference is
undesirable. It has already been argued above that the court should not allow deference to issues that
concern personal autonomy. In Navtej, Indu Malhotra J and Dipak Mishra (writing for himself and A.M.
Khanwilkar) referred to Article 15 grounds as illustrative of personal autonomy. They also accepted the
analogous grounds argument, by holding Section 377 violative of Article 15 because it discriminates on
sexual orientation which is a ground analogous to grounds specified textually in Article 15. Therefore,
very li le deference must be allowed to grounds under Article 15, and grounds that are analogous to
Article 15 grounds, since they are based on personal autonomy. The argument now is that citizenship is
a ground analogous to Article 15 grounds, since it is an important facet of personal autonomy. The
Canadian Supreme Court in Andrew v. Law Society of British Columbia held that citizenship is a ground
analogous to Section 15 of the Canadian Charter of Rights and Freedom – a provision which is similar to
Article 15 of the COI – because it is a ‘personal characteristic’. It was observed that analogous grounds
must be determined based on the “place of a group in the socio-political-legal fabric of the society.”
Where a number of important rights are accrued on the basis of citizenship, non-citizens as a minority
whose interests are brushed off would fall within the analogous category. Hence, the heightened level of
scrutiny to a classification based on personal characteristics (grounds analogous to Article 15, and
grounds in Article 15) should prevent the court from applying a deferential review.

Conclusion

Consolidating the arguments above, religion-based classification is violative of Article 14 of the


Constitution because religion is a constitutionally impermissible ground for classification, and the
classification does not have any nexus with the object of the bill. The country-based classification is
manifestly arbitrary and violative of Article 14, as it is not based on any determining principle. The
argument that under-inclusiveness cannot be a ground for unconstitutionality is countered by
explaining that a law that is grounded on personal autonomy (i.e religion) is not merely a case of
nominal under-inclusiveness. And the argument on application of deferential review to issues
concerning citizenship and refugees is inapplicable, as citizenship falls within the ambit of analogous
grounds, for which deference should not be allowed.

thoughts on “Guest Post: The Citizenship (Amendment) Bill is


Unconstitutional”

1. said:Sameer kumar Dwivedi

December 5, 2019 at 6:17 pm

The Act is to regulate the minority community belonging from provided nations and there is nothing
injectable because only provided religions are minority in these specific nations and the only India is
their hope, for Muslims whole world is open as well as neighbouring muslim countries are always
open for them,
So provisions as described
“persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and
Christians from Afghanistan, Bangladesh and Pakistan” from the ambit of “illegal immigrants”

Is must to provide opportunity for them who are suffering because of mistakes of our nation

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builders.

REPLY

said:Sameer kumar Dwivedi

December 5, 2019 at 6:23 pm

*Objectionable instead of injectable

REPLY

2. said:Virender Negi

December 7, 2019 at 11:06 am

It seems the author has not done the homework properly. First and foremost, in order to fall back
upon Article 14 with the support of Article 15, it is required that Article 15 is applicable in the case at
hand. Which in the present case is not. The amendment pertains to foreigners and not citizens.
Fundamental rights available to foreigners/non citizens are 14, 20 to 28. So I fail to understand as to
how the proposed amendment is against the constitution. I would have agreed if the proposed
amendment made any distinction among the citizens, which in the the present case is not. Moreover,
grant of citizenship is within the exclusive domain of the executive and the parliament is empowered
enough to lay down the conditions

REPLY

3. said:Garvit Virendera Sharma

December 13, 2019 at 10:06 am

People who are saying that Article 15 is not applicable to CAB are not appreciating or do not want
intentionally to consider the circularity imbibed in the executive decicion to recognise citizenship on
the basis of religion when the constitution explicitly guarantees that will be no discrimination by any
authority based on religion.
So the people supporting the bill are basically saying that there will be discrimination based on
religion on citizenship but there will be no discrimination between citizens. Well there will be no
need to protect citizens from discrimination when the lot collected has already been filtered by
discrimination.Haha

REPLY

4. said:Kiran Sridhar

December 19, 2019 at 4:36 am

I’m not a lawyer, just asking some clarifications.

1. The bill puts an additional criterion of a date – that persecuted persons of these religions and
countries who entered on or before December 31 2014 are eligible for citizenship. What is your legal
opinion about this date requirement? Does it pass the test of arbitrariness?

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2. Some people claim that refugees of other religions are still eligible for citizenship under existing
laws like asylum. My understanding is that only foreigners who are documented – and therefore not
illegal migrants – are eligible for citizenship under section 5 and 6 of citizenship act. But it’s also
undeniable that some refugees have been given citizenship in the past. What are the legal ways this
could have happened? Does it imply that some refugees were converted into documented foreigners
in the past?

Thanks in advance.

REPLY

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17. said:ajeysri

January 3, 2020 at 12:27 pm

Thank you for the wonderful write up Mr Gautam Bhatia! I think there is a fairness in the
explanation of using the core traits of individuals used in Article 15 to support the explanation of

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reasonability of classification under Article 14, but it again has to be explained further on case to case
basis.

I have used a reference of your explanation in my write up on CAA, along with credits.

here is the Link:

h ps://thevoicebox.in/2019/12/31/citizenship-amendment-act-2019-caa-a-farcical-enactment
/? clid=IwAR1MnXhd4BsOGygrfNxXA hvdAe_u9p8PKYyoadswH72j_6s BWycrYQo

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