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Indian Constitutional Law and Philosophy

The Citizenship (Amendment) Act Challenge:

Three Ideas

21 Tuesday J ₂₀₂₀

P G B A ₁₄, C ,E ,I L ,S ,
U

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Tags
article 14, basic structure, citizenship amendment act, Equality, Implied Limitations, secularism

Thus far, the constitutional debate around the Citizenship (Amendment) Act has been framed around
the following arguments: (a) does the grant of immunity and citizenship to a select group of migrants
violate the principle of “reasonable classification” under Article 14, by virtue of the individuals and
groups it excludes?; (b) does the selection of groups lack any “determining principle”, and is therefore
unconstitutionally arbitrary?; and (c) by privileging religious persecution over other forms of
persecution in claims to citizenship, does the CAA violate the basic feature of “secularism”?

In this post, I a empt to move beyond these basic arguments which have – by now – run their course in
the public sphere. Beyond reasonable classification, arbitrariness, and secularism, I will suggest that
there are deeper reasons to hold the CAA unconstitutional. As it will become clear, a closer engagement
with these reasons will require us to rethink some of our long-held assumptions about Indian
constitutional law. As I shall argue, however, these are not radical or off the wall arguments, but rather,
implicit within constitutional practice. I shall argue, first, that the principle of equality under the Indian
Constitution has moved beyond the classification and arbitrariness tests (as I have argued before);
secondly, that – contrary to a widespread assumption in our legal culture – citizenship laws deserve
greater judicial scrutiny instead of judicial deference; and thirdly, that notwithstanding the language of
Article 11 of the Constitution, there exist implied limitations upon Parliament’s power to confer or
withdraw citizenship – limitations that flow from the existence of equally important and fundamental
constitutional principles.

The Evolving Idea of Equality

In the 1950s, heavily influenced by American jurisprudence, the Indian Supreme Court adopted the
“classification test” for determining violations of the guarantee of equal treatment under Article 14. The
“classification test”, as everyone knows, required that in order for a law to pass Article 14 scrutiny, there
must exist (a) an intelligible differentia between the individuals or groups that are subjected to
differential treatment, and (b) a rational nexus between that differentia and the State’s purpose in
framing the law. Right from the beginning, however, there was a dissenting tradition at the Supreme
Court that recognised this approach to be excessively formalistic and constrained. In Anwar Ali Sarkar,
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for example, Vivian Bose J. asked what “substantially equal treatment” might mean in “the democracy
of the kind we have proclaimed ourselves to be.” As Bose J. understood at the time, equality could not
be divorced from more fundamental ideas about democracy and republicanism.

In the coming years, the Supreme Court made various a empts to break out of the shackles of the
classification framework. For example, it evolved the “arbitrariness” standard – which is, only now,
being given flesh and bones, in some of the recent judgments of Nariman J. It also held that the State
“purpose” would have to be “legitimate” – i.e., it added a third, more substantive, prong to the
classification test. The real breakthrough came, however, with the 2018 judgments in Navtej Johar and
Joseph Shine. In reading down Section 377 and 499 of the Indian Penal Code, Constitution Benches of the
Supreme Court advanced a richer and more substantive vision of equality, that was also in line with
global best practices. In short, the Supreme Court shifted the focus from “reasonable classification” to
the idea of disadvantage. True equality – as we can intuitively sense – is about identifying disadvantage,
about identifying the axes of diadvantage, and then working to remedy them.

To recognise and identify disadvantage, however, the law requires proxies. It is here that the
observations of Indu Malhotra J., for example – as highlighted in a previous post – become important.
As a shorthand for identifying disadvantage, constitutional courts all over the world have asked
whether legislation picks out people on the bases of “personal characteristics” that they (a) have no
control over, (b) are powerless to change, or can only change at great personal cost. Take, for example,
the idea of “race”: a person does not choose the race into which they are born, and cannot – obviously –
change their race in any meaningful way. Laws that pick out people on the bases of race for differential
treatment, therefore, presumptively violate the principle of equality (unless, of course, they are designed
to remedy racial disadvantage, through affirmative action programmes, for example).

It is this richer and more substantive vision of equality and equal treatment that demonstrates the
unconstitutionality of the CAA in starkest terms. Each of the three “conditions” under the CAA –
country of origin, religion, and date of entry into India – are effectively beyond the control of the
individuals the law is targeted at. A person cannot choose which country they were born in, which
religious community they were born into, and when persecution forced them to flee into India. But the
CAA takes the category of migrants living in India and divides them precisely on these three bases. This
is why it goes against the basic tenets of equality.

Citizenship Laws and Standards of Review

Another common argument that is invoked by the defenders of the CAA is that issues of citizenship and
migration are firmly within the domain of sovereign State powers, and the scope of judicial intervention
is highly limited. Courts must – or so the argument goes – defer to the State’s decision regarding who
will be granted citizenship, and how. This argument has been repeated so often over the years, and so
frequently, that it has by now acquired the immovable weight of a mountain. But the most cursory
examination will reveal, however, that this mountain is made of straw.

Let’s go back to the basics. What was the original justification of judicial review in a democratic society?
What justified an unelected Court striking down laws passed by democratically-elected legislatures?
The answer, of course, was that the primary role of the Court was that of a counter-majoritarian
institution. It existed to check the excesses of majoritarianism, on the understanding that true democracy
meant something more than brute majority rule. For this reason, in its famous Carolene Products footnote,
the US Supreme Court noted that the role of the Court was particularly important in cases involving
“discrete and insular minorities.” Why? Because it were these minorities that faced the greatest
difficulties in articulating their interests through the normal channels of (majoritarian) democratic

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governance. The task of the Court, essentially, was to come to the rescue of those whom the political
process – formally or effectively – excluded from equal participation. Thus, for instance, if there is a
country where same-sex relations are viewed with opprobrium by a large segment of the population – to
the extent that the LGBTQ+ community is permanently excluded from access to political power, as
nobody else will ally with them – the Court is justified in subjecting laws targeting that community to
stringent scrutiny.

It should be obvious that migrants – or refugees, as the case may be – fall squarely within this category.
As they cannot vote, they are formally excluded from participation in the political process. More than
any other vulnerable or marginalised group in the country, they have no say in the laws and policies
that will impact them. For this reason, laws that affect citizenship status in the manner that the CAA
does, must be subjected to the highest threshold of judicial scrutiny, rather than the lowest.

Harmonising Constitutional Principles: Sovereign Powers and Conditions of Entry

In a constitutional democracy, no power is absolute. Constitutional authorities are established by – and

owe their existence to – the Constitution, and the powers they exercise flow from that same Constitution.
In some cases, these powers are limited in express terms. For example, Article 13 of the Constitution
expressly limits Parliament’s power of law-making by making it subject to the fundamental rights
chapter.

Article 11 of the Constitution – that deals with citizenship – contains no such express limitation. It gives
to Parliament the right to “regulate citizenship by law”, and allows Parliament to make “any” provision
with respect to acquisition and termination of citizenship, and “all other ma ers” relating to citizenship.
Commentators have pointed to the width of these words to argue that in ma ers of citizenship,
Parliament has virtually unlimited power (apart from the usual touchstone of the fundamental rights
chapter).

What this argument ignores, however, is that express limitations are not the only manner in which
constitutional authorities are constrained. As noted in Kesavananda Bharati, there also exist implied
limitations that flow from the structure of the Constitution. When – and how – do we discern implied
limitations? For the purposes of this post, a short answer will suffice: power under the Constitution to
do “x” is limited at the point at which doing “x” will frustrate or destroy another, equally important
constitutional principle. This principle was most recently reiterated by the UK Supreme Court in Miller v
The Prime Minister, where the British Prime Minister’s power to “prorogue” Parliament was held to be
limited by the constitutional principle of representative democracy, according to which it was
Parliament’s function to scrutinise and debate important legislation. It was found that the Prime
Minister’s prorogation – just before the deadline for Brexit – had the effect of denying Parliament an
adequate opportunity to debate the proposed EU Withdrawal Bill, and was therefore unconstitutional.

What is the implied limitation in the present case? The answer is the constitutional principle of
secularism. Secularism – as Kesavananda Bharati held – is a basic feature of the Indian Constitution
(independent of its subsequent insertion into the Preamble during Indira Gandhi’s Emergency). The
Indian Constitution commits us to being a secular polity. The key issue, then, is that can the conditions of
entry into the polity (determined by citizenship law) be such that they frustrate the character of the polity
itself. The answer, obviously, is no. In other words, therefore, there is an implied limitation upon the
power under Article 11 to grant or withdraw citizenship, that does not permit Parliament to pass any
such law that would negate the secular character of the polity – in this case, through the backdoor, by
creating conditions of entry where religious claims become determinants of citizenship. To put it in a
single sentence: the principle of secularism acts as an implied limitation upon Parliament’s power to

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legislate on citizenship. Parliament, therefore, has all powers to prescribe conditions of citizenship except
and insofar as such conditions frustrate the Constitutional commitment towards preserving a secular polity.

Conclusion

Sterile debates over “reasonable classification”, “rational nexus”, and “sovereign powers” can only take
us so far. More than that, they serve as conceptual prisons that stop us from thinking more deeply about
the idea of equality, the link between equality and democracy, and what the Constitution really asks of
us. In recent years, Indian constitutional jurisprudence has begun to liberate itself from that conceptual
prison, and has articulated a richer vision of equality and democracy. The CAA challenge now gives the
Supreme Court an opportunity to further develop – and evolve – that jurisprudence.

[Disclaimer: the author is involved in two of the petitions challenging the constitutionality of the CAA.]

thoughts on “The Citizenship (Amendment) Act Challenge:

Three Ideas”

1. said:Shyam Buddh

January 21, 2020 at 5:31 pm

Great article, and I found the idea of disadvantage Vs reasonable classification quite interesting. I
have a question about that.

“Laws that pick out people on the bases of race for differential treatment, therefore, presumptively
violate the principle of equality (unless, of course, they are designed to remedy racial disadvantage,
through affirmative action programmes, for example).

It is this richer and more substantive vision of equality and equal treatment that demonstrates the
unconstitutionality of the CAA in starkest terms. Each of the three “conditions” under the CAA –
country of origin, religion, and date of entry into India – are effectively beyond the control of the
individuals the law is targeted at.”

In this case, isn’t it possible to argue (in support of CAA) that it does not violate the principle of
equality because it seeks to remedy the disadvantage faced by non-Muslim citizens in Islamic
countries?

REPLY

2. said:PARAG S KINGE

January 22, 2020 at 6:55 am

There are several developed countries like the US, Canada, UK, Germany, etc who provide refuge
and citizenships to persons persecuted for their religious or racial characters. And most of refugees
persecuted on religion do come from islamic countries to the above states. They strictly follow the

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criteria of nature of religious persecution and specifically exclude illegal economic and fanatic
elements form such refugee groups. In India there are two categories of illegal immigrants: 1]
economic and 2] persecuted non-muslim persons. Of these the second category is solely
discriminated for their religious practices and nothing else; if they convert to islam the other muslims
have no issues with them in these 3 countries. The sole purpose of their persecution is forced
conversion of these minorities by the fanatics of islam, this you see and hear in everyday news from
Pakistan, Afghanistan and Bangladesh.

As to the logic given by Mr Bhatia about invalidity of CAA is just the twisted to the precedents in
this case. In fact, these non-muslims perfectly satisfy legal test of classification under Article 14.

It seems the author want to develop new test, but since the precedents cannot be ignored, same are
twisted to justify his points and then create confusion about the precedents so that some people will
ignore or discredit these precedents. But this is not wrong as some intellectuals think in doing
illogical things to satisfy their egos and history is full of such examples.

REPLY

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