To declare any statute unconstitutional on the basis of secularism, the Court has to extensively look into the nature, aims, scope, and objectives of the enactment at first.
by Vijay Kumar
Since the enactment of the amendment 2010 (popularly called as CAA) to the original Citizenship Act 1955, entire India has seen vehement protests. The provision of the CAA is that the person of religious community namely; Hindu, Sikh, Buddhist, Jain, Parsi, and Christian who entered India on or before 31 December 2014 from Afghanistan, Bangladesh or Pakistan will be deemed to be the citizen of India from the date of their entry (retrospectively). The exclusion of Muslims from the beneficiaries of the provisions of the amendment is being criticized by the people of different quarters. It is being argued that such exclusion is against the secular nature of the Indian constitution and specifically it violates the mandate of Art 14 of the Constitution. In this connection, let’s test the CAA on the parameters of the Indian Constitution.
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CAA and Secularism under the Indian Constitution
Though the Constitution of India does not provide the definition of the term “secularism” –it cannot be denied that the secularism is the inherent feature envisaged by the framers of the Constitution. However, it is also widely agreed that the Indian practice of secularism is different from the West. Such absence of a definition in the Constitution provides broader room for interpretation by the Courts. Through Courts’ decisions, it is well established that secularism is a basic feature and structure of the Constitution. To maintain religious and cultural diversity and national integration, the practice of secularism is indispensable by the State. However, at the same time, India has taken various legislative actions to regulate and sensitize the religious activities and the same has been validated by the Courts.
To declare any statute unconstitutional on the basis of secularism, the Court has to extensively look into the nature, aims, scope, and objectives of the enactment at first. The court must satisfy itself that such laws or amendment is against the basic features of the constitution and beyond the competence of the legislature to legislate upon.
In this context, it seems that the Supreme Court will, as it has validated the legislative actions in the past even though they encroach in the domain of religion, hesitate to declare the CAA unconstitutional. Since the CAA involves the issue of granting citizenship to specific categories of people from specific countries – such power is conferred upon the Parliament by the Constitution and falls under the sovereign domain of any State.Distinguish State practices in this regard can be found in different countries where they have adopted specific ways for granting citizenships. In this connection, such State practices in the Indian context, needed to be reasonable and non-arbitrary.
CAA and Art 14 (the Question of Equality)
In the context of equality, Art 14 of the Indian constitution explains that Art. 14 reads that “[T]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Thus, the Art 14 contains the two elements: equality before the law and the equal protection of the law. The major question that has been raised against the CAA is that the selection of three specific countries and the exclusion of Muslims is against the equality provisions of Art 14.
So the preliminary question arises is whether the Art 14, in the name of equality completely prohibits special treatment to a special class of people? The question has been answered negatively in the plethora of cases decided by the Courts. It is a well-settled principle that the State can have a reasonable classification in the name of affirmative actions to treat especially any particular section of the society. A holistic reading of Art 14, 15 and 16 supports such constitutional mechanism and Court decisions. The Indian Supreme Court in addition to the test of “reasonable classification” has also devised the test of “non-arbitrariness” to validate the State’s affirmative actions. It means that the State has to only prove that its action is judicious and non-arbitrary.
Another important question arises is whether the selection of particular religious groups from particular countries is violative of Art 14? The answer to this question lies in the history of partition and the reports of persecution of those selected communities in those countries. During the debates of the passing of the CAA, several remarks and references were made to justify this selection. The validity of such selection lies to the Court’s wisdom which also seems in favor of the selection.
The third question, largely has been less discussed is, whether the benefit of Art 14 is available toa foreigner,especially to those who are not present within the Indian jurisdiction? The first part of the question that is whether Art 14 is applicable to a foreigner is almost settled that yes it is available to them. However, it is not clear that such benefits can be availed by citizens of other countries sitting abroad. In this regard, the 14th Amendment of the American constitution also does not provide much clarity. However, the equality provision available under the Australian constitution is useful which rejects the American notion of equality and adopted the provision prohibiting discrimination only against residents. Therefore, in the Indian context, though the Courts are much influenced by the American jurisprudence, it is better to wait for the pronouncement from the Court.
Since the CAA provides for granting citizenship to people from the selected jurisdiction, it is nowhere declares excluded communities illegal ipso facto. Such right of granting citizenship is the absolute function of the State and many countries in the world decide differentcriteriaon for granting it. So the question of competence of Parliament is not a valid one and the argument of violation of equality and secularism needs judicial scrutiny. Another point to note is that the CAA does not prohibit the Muslims from these countries to apply for citizenship as available under general law and practices followed by India. Therefore, in all probability it seems that the amendment is going to stay, however, the final verdict is awaited. However, such amendment could become critical if it is twined with the proposed National Register of Citizenship (NRC).
Vijay Kumar is pursuing PhD in Law from the Indian Institute of Technology (IIT) Kharagpur. Views expressed in this article are the author's own.
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