On Monday, March 11, more than four years after the enactment of the Citizenship (Amendment) Act, 2019 (CAA), the Union ministry of home affairs notified the Citizenship (Amendment) Rules, 2024. By themselves, the Rules are unremarkable. They merely give effect to the CAA. To that end, the problem lies not as much in their own substantive contents as in the legislation they make operational.
The CAA introduced, for the first time, a religious test for citizenship. It excludes from the
On Monday, March 11, more than four years after the enactment of the Citizenship (Amendment) Act, 2019 (CAA), the Union ministry of home affairs notified the Citizenship (Amendment) Rules, 2024. By themselves, the Rules are unremarkable. They merely give effect to the CAA. To that end, the problem lies not as much in their own substantive contents as in the legislation they make operational.
The CAA introduced, for the first time, a religious test for citizenship. It excludes from the definition of an illegal migrant, contained in the Citizenship Act, 1955, any person who belongs to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Bangladesh, or Pakistan, who had entered India on or before December 31, 2014. To these persons, the law provides an accelerated route to citizenship.
As is evident, there are at least three distinct classifications that the CAA makes. First, it accords its benefit only to those from Afghanistan, Bangladesh, or Pakistan. In doing so, it cuts out minorities from other neighbouring countries and indeed persons from any other nation who had been persecuted in one form or another. Therefore, the law offers no benefit to Tamils from Sri Lanka or Rohingyas from Myanmar, among others, who have been historically oppressed in their home country.
Second, it restricts its benefit only to minorities belonging to certain faiths from Afghanistan, Bangladesh, and Pakistan. Muslims, Jews, and atheists, who have fled persecution in these States, would not be entitled to citizenship. Third, it distinguishes persons who entered India on or before December 31, 2014, from others who entered later.
In defence of the law, the Union government claims that its power to stipulate conditions for citizenship, flowing as it does from Article 11 of the Constitution, is plenary in nature — that is, it has almost boundless authority to choose those categories of persons on whom citizenship can be bestowed. It also argues that the mere under-inclusion of some groups from the law is no reason to strike it down.
Neither of these arguments passes muster. Under our constitutional structure, any law made by Parliament is subject to fundamental rights. A law seeking to confer citizenship is no different. Article 13(2) of the Constitution states in no uncertain terms that “The State shall not make any law which takes away or abridges” fundamental rights, and that such a law will to the extent of its contravention be void.
In this case, there can be little doubt that the CAA violates the mandate contained in Article 14, to grant every person equality before the law and equal protection of the laws. Critically, the promise in Article 14 is not restricted to citizens alone. Therefore, even in choosing how to go about the process of granting citizenship, Parliament has a binding duty to ensure that it acts objectively, in a manner devoid of all caprices.
The Supreme Court has long maintained that class legislation is permissible. But this comes with an important caveat: Any classification that a law makes must be reasonable. To determine whether a classification is reasonable, the Court has adopted a twin test. It examines whether the grouping made is intelligible and whether there exists a rational nexus between the classification and the law’s perceived objective.
Here, the Union government asserts that the CAA’s aim is to protect minorities from neighbouring countries who have fled to India, having been persecuted on grounds of their faith. But if this were indeed the objective, the distinctions that the law draws out bear no rational relation to it. If the goal is only to shelter those from neighbouring countries with a State religion, there is no explanation why Sri Lanka and Bhutan are excluded; if the goal is only to shelter those from neighbouring countries where Islam is the State religion, there is no explanation why others who qualify as minorities in those countries — the Ahmadiyyas from Pakistan and the Hazaras from Afghanistan, for example — or Jews and atheists have been excluded.
Counter-intuitively, although the law claims that its intention is to protect religious persecution, the new Rules do not require applicants to adduce any proof to that end. As long as they belong to one of the three named countries and follow the religions enlisted, they are ipso facto entitled to citizenship. Thus, the law’s purported objective has not quite percolated into its Rules. But that apart, there is also no rationale offered for why the CAA protects religious oppression over other forms of abuse.
Providing citizenship to minorities persecuted in neighbouring countries is laudable. But by restricting the law in the manner in which it does, the CAA upends the Constitution’s most fundamental precepts. The basic structure doctrine — propounded in the Kesavananda Bharati case — recognises the limitations implicit in Parliament’s powers, in not only amending the Constitution but also in the making of our general laws. Our courts have reaffirmed from time to time that the principle of secularism forms an integral component of this structure. In encroaching on the rudimentary idea that citizenship must not be premised on one’s faith, the CAA drives a hole through the Constitution’s foundations.
The fault lines in the statute bring to note something starker still. India has a cherished reputation for offering protection to persecuted communities. But this record is not without its blots. The 1951 Convention relating to the Status of Refugees, which has almost universally been accepted as binding on all nation-States, requires countries to recognise as a refugee any person who has a “well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group”.
India’s failure to adopt the treaty must offend our conscience. The CAA must not be allowed to further blemish this record. Instead, we must strive to ensure that our law on citizenship is just and fair and that it treats every person with equal care and concern, regardless of their faith.
Suhrith Parthasarathy is a lawyer. The views expressed are personal
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