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Home / Analysis / The CAB meets the test of constitutionality and law | Analysis

The CAB meets the test of constitutionality and law | Analysis

Based on reasonable classification and non-arbitrariness, it does not discriminate against Indian Muslims

analysis Updated: Dec 12, 2019 20:58 IST
Rahul Kaushik and Shubhendu Anand
Rahul Kaushik and Shubhendu Anand
The amendment aims to protect minorities who are persecuted in their countries
The amendment aims to protect minorities who are persecuted in their countries(ANI Photo)

Seven decades after the Partition of India on religious lines, citizenship has again become a matter of debate in the public sphere. It has been argued that the Citizenship (Amendment) Bill (CAB), now passed by Parliament, 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.

Partition came as a tragedy for minorities of the Indian subcontinent. The exchange of population on both sides of the border was deliberated upon for a while before both dominions decided to cater to their minorities. To legally ensure the obligation of their rights, India and Pakistan signed the Nehru-Liaquat Pact on April 8, 1950. Syama Prasad Mookerjee resigned from Jawaharlal Nehru’s Cabinet because of his opposition to this pact on the day when it was signed. When we see today that the Hindu and Sikh population in Pakistan is less than 1% — it was almost 20% at the time of Partition — we realise that Mookerjee’s opposition was valid. This failure of the Nehru-Liaquat Pact suggests a constitutional obligation on the Indian State to give citizenship to the victims of Partition.

As far as the constitutionality of the amendment is concerned, it is neither against Article 14 nor does it violate the basic features of secularism. Article 14 deals with the right to equality enshrined in the Constitution. This does not mean that all general laws will be applicable to every section of the populace. The article allows reasonable classification of groups or sections founded on an intelligible differentiations, and such classification has a reasonable nexus with the object that it wants to achieve. The classification in the Citizenship Amendment Bill (CAB) is based on two factors: The classification of countries — from Afghanistan, Pakistan and Bangladesh vs rest of the countries, and the classification of people — Hindu, Sikh, Jain, Buddhist, Parsis and Christians vs other sections of people.

Now, the basis of this intelligible differential (classification) is “oppression” and “minorities”. Since these three countries are Islamic in one form or the other, this suggests a perpetuation of the oppression of the minorities.

Therefore, the two — oppression and minorities — are enough grounds for such differentiation. Since the government wants to ensure the life and liberty of these oppressed minorities and wants to protect them through the Citizenship Act, this is reasonable in the eyes of the law. The arbitrariness doctrine revived in Shayara Bano case by Supreme Court has set the standard of “unfair, unreasonable, discriminatory, not transparent, capricious, biased, with favouritism or nepotism”. This set the precedent for a legislation to be arbitrary and unconstitutional. In this case on citizenship, arbitrariness is not applicable as there exists a well-defined criteria of minoritiy-ism and oppression for a reasonable classification as discussed above. The legislation, therefore, passes both tests of reasonable classification and non-arbitrariness.

For minorities, who are victims of oppression just because of their religious identity in their own countries, any action for their protection will not amount to denting secularism in India. It, in fact, upholds and strengthens our secularism which seeks to protect and promote the rights of every individual, irrespective of religion. The very purpose of the amendment is to ensure the well-being of minorities who were and are being subject to religious persecution in Pakistan, Bangladesh and Afghanistan. Since Muslims are neither minorities nor do they face persecution because of their religious affiliation in these countries, they are obviously not included here. It is important to note that the CAB doesn’t discriminate against Indian Muslims, it only aims to protect those minorities who are persecuted in their home countries owing to their religious affiliations.

India has always opened its doors to persecuted populations. Be it Parsis, Tibetan refugees or Jews, India has been home to every sect that has faced religious persecution in its home country.

In that light, the recent amendment proposed in the Citizenship Act, 1955 is in fact a ray of hope for those who persecuted in Pakistan, Afghanistan and Bangladesh.

They are the cultural children of India. They cannot be allowed to suffer any further.

Rahul Kaushik is an entrepreneur. Shubhendu Anand is a lawyer with the Supreme Court
The views expressed are personal