If the background political noise surrounding the CAB is taken into account, the threat to secularism is clear(AP)
If the background political noise surrounding the CAB is taken into account, the threat to secularism is clear(AP)

The CAB’s discriminatory spirit undermines justice | Opinion

As a matter of principle, the bill discriminates — and in the critical domain of citizenship at that. It cannot stand
By Rishad A Chowdhury
UPDATED ON DEC 10, 2019 07:09 PM IST

The Citizenship (Amendment) Bill, 2019, appears destined to become law in the near future. The primary criticism is that it discriminates on religious grounds by treating persons belonging to six religions differently from all others, while carving out an exception and effectively allowing them to escape “illegal status” and gain citizenship.

The critics have got it all wrong, respond proponents of the bill. The law leaves Muslims out of its beneficial embrace only because they don’t face the same problems as the six religious groups listed in the bill, since the neighbouring countries in question are Islamic.

Of course, this defence amounts to attacking a straw man. The larger underpinning of opposition to the bill, evidently, is that it effectively treats India as the natural home for the majority (Hindu) community and less so for others, and thereby violates the secular character of the Indian Constitution.

It is also well established that there are many in India’s immediate neighbourhood, including Muslims, who would otherwise have benefited from such a law but have been conspicuously omitted. Tamils from Sri Lanka, for example; Rohingyas from Myanmar. And even if one limits oneself to the three countries the bill concerns itself with, communities such as the Ahmadis in Pakistan have a long and well documented history of religious persecution.

But forget all of this for the moment, and take the government’s position at face value. Can Parliament not attack the most prominent manifestation of a problem, without addressing each specific illustration? In legislation of a certain character (economic, taxation, regulatory and others of similar nature), courts in India and abroad have appreciated that the perfect ought not to be the enemy of the good, and, therefore, adopted a fairly deferential standard of “rational basis” review that might make legal defence of even such patently skewed legislation feasible.

The problem — for the government and those that would defend it — is that such deferential judicial review is never appropriate in the context of laws that impinge upon basic fundamental freedoms or treat particular communities unequally. The idea is simple but powerful, and deeply ingrained in legal jurisprudence throughout the world: Laws that discriminate or that would skew the even-handedness of the political process, must necessarily be reviewed on a far more exacting standard.

While it has universal appeal, a version of this principle is thought to have first emerged in a footnote in the Carolene Products case in the United States Supreme Court (often referenced as the most famous footnote in constitutional law). Here, in the context of upholding a piece of regulatory legislation, the court observed that cases involving “prejudice against discrete and insular minorities”, or which restrict “political processes ordinarily to be relied upon”, might require “more searching judicial inquiry”.

This germ of an idea has taken deep root in legal jurisdictions across the globe, and in India too. The experimentalism and incremental progress inevitable in regulatory or other similar economic legislation, and thus viewed benignly by the judicial system, is entirely out of place in the context of basic human rights.

Some decades ago, in a striking defence of religious liberty and individual conscience, the Indian Supreme Court set aside the expulsion of students of the Jehovah’s Witnesses faith for their refusal to join in the singing of the national anthem at school, on account of their sincere belief that their religious faith forbade it. The fact that there might only be a handful of persons across the country who might feel similarly, was simply irrelevant. And so it is in the present case. As a matter of principle, the law discriminates — and in the critical domain of citizenship at that.

Any contrived rationalisation for the rather obvious religious classification the bill makes, ought not to be enough to pass muster. Because it concerns a matter of constitutional principle, it is not a sound defence (if it were before) for the government to assert that the bill covers many or most religious refugees in India’s neighbourhood. And these conclusions follow even if one gives the government of the day the benefit of the doubt in all respects, on matters such as underlying motivation.

On the other hand, if surrounding circumstances and background political noise are taken into account, the threat to secularism — a part of the basic structure of the Indian Constitution — is even starker.

As a famous American judge once put it, judges are “not required to exhibit a naiveté from which ordinary citizens are free”. A clear-eyed examination of the proposed law makes clear that it ought not to withstand judicial scrutiny.

But we really shouldn’t need a judicial indictment to know that the Citizenship (Amendment) Bill, 2019 is deeply destructive of our constitutional ethos.

Rishad A Chowdhury is an advocate-on-record at the Supreme Court, and partner, Verus
The views expressed are personal
Story Saved