It is being argued that the Citizenship (Amendment) Act, 2019 compromises the secular character of the Indian State by excluding a particular religious community (Muslims), and that this is unconstitutional. The Opposition and several opinion-makers have said that this will shake the foundations of the Republic. It then becomes necessary to evaluate the political and legal dimensions of this amendment in order to draw a distinction between truth and propaganda. Here, we are trying to address the issues parawise as raised in the Open Letter (published in the web portal, The Leaflet) to Mr. Harish Salve, Sr. Advocate by the Maharashtra Students Law Association (MASLA) and the Maharashtra Students Union (MASU).
Yes, Article 14 is for ‘persons’ and not only for citizens. A non-citizen can claim equality under 14. However, the principle of Article 14 is equals ought to be treated equally and unequals can be treated differently. Therefore, potential violation of 14 can be justified and will stand water if the classification is reasonable, the differentia is intelligible and is in nexus with the object of the law. The classification, with its underlying principle, is religious minorities of theocratic states in India’s neighborhood and object of the law is to prevent their persecution. The classification is reasonable and intelligible, as the basis is structurally laid out, we know theocratic states in our neighborhood, we know the minorities living there, their second class existence by virtue of those nations’ state religion is well established. It is coherently in furtherance of the object of law, which is preventing their persecution. It is not arbitrary since one community is not being chosen whimsically, all religious minorities have been included. Further, it is also not arbitrary since official census records of these nations show systematic and alarming rate of fall of minority population, such as from 23 to 3 in Pakistan since independence and from 22 to 7 in Bangladesh since independence.
Article 15 is only applicable to citizens. Hence, foreigners from Pakistan, Bangladesh and Afghanistan cannot say religion cannot be basis of classification. Further, the basis is not only religion, but religious persecution. As long as the 3 prongs of Article 14 test are met, equality is not violated.
Leaving out Muslims is not ‘glaringly discriminatory’ since Muslims are not a religious minority in the Islamic nations of Pakistan, Bangladesh and Afghanistan. Muslims are not persecuted in these Islamic nations who swear by the Quran in their Constitution.
Ahmadiyas are a sect in Islam, not a religion. Further, this distinction is not to bypass humanitarian principles because in fact they believe in Islam and are practitioners of Islam and the Quran. In the broadest common denominator of world religions, the recognised world religions are broadly considered as Islam, Christianity, Hinduism, Buddhism, Jainism, Zoroastrianism, Sikhism, Judaism. Islam has multiple sects within it in various proportions across nations viz Sunni, Shia, Ahmadiyas, Baathis, Bohra, etc. They believe in different forms, expressions, and colours of Quran which does not mean they become external to the religion. Further, a width and scope of classification is determined at the altar of the sovereign, and on the basis of those principles it ought to have the right to determine contours of citizenship to foreigners, as long as the classifications meet the test of Article14. Broadening the principles are also the prerogative of the state, and there is no constitutional basis to say that the state ought to be forced to expand its principle of classification even if it meets the tests of 14. The state can obviously do that later in its own prerogative. In practice, the inner fault lines in Pakistan’s Islamic community can lead to a domino effect wherein an extension to Ahmadiyas shall mean an extension to Shias and Balochs, who constitute a considerable population of the country, the burden of which cannot be forced upon the Indian state because it afforded a beneficial legal structure to others from these countries on an entirely different principle.
The relegation to realm of policy is the basis of separation of powers in our constitutional democracy, the basis of statutes in policy is rooted in the democratic legitimacy of the executive, which if stands the test of constitutional scrutiny cannot be delegitimised as relegation to policy. Our constitutional principles are sound and strong that stands the force of India’s foundational ideas. It begs questioning when policies meeting constitutional ideals are questioned on alternative standards of morality.
Lastly, it is important to note that the CAA doesn’t discriminate against Indian Muslims. It only aims to protect, by fast-tracking the citizenship process, those minorities who are persecuted in their home countries owing to their religious affiliations.
The article is co-authored by Shivam Singhania, Law Student, WBNUJS, Kolkata and Shubhendu Anand, Advocate, Supreme Court of India.
Shubhendu Anand is a lawyer, practicing primarily in the Supreme Court of India, and is Chamber Junior to the Additional Solicitor General of India.