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Citizenship Amendment Act 2019: Test of Constitutionality

Editorial Note by Atreya Chakraborty

The promulgation of the Citizenship (Amendment) Act, 2019, has been met with scathing criticism and widespread protests, primarily on the grounds that it is violative of Article 14 of the Indian Constitution and is opposed to the secular fabric of India. Although it is true that protests in our country, more often than not, become intertwined with the selfish objectives of smaller interest groups, opposition parties and the like, the generality and sustained nature of the protests in this case, is worthy of note. The existence of the presumption of constitutionality in favour of any statute promulgated by the Legislature is well-settled. Such presumption of constitutionality along with the various arguments advanced by the administration at the Centre, make a strong case in favour of the said Act. However, at the same time, separated from the white noise of hyperbolic protests, there lie certain arguments, which if advanced, in a manner devoid of spasmodic sentiment and unmitigated chauvinism, could be difficult to ignore altogether. The author has attempted to summarise some of these arguments in the following paragraphs.

It is a well-settled presumption and a matter of common sense that human beings can never be equal in all respects. If equal treatment is meted out to all human beings, in complete disregard of their innate inequalities and/or differences, it would essentially lead to unequal treatment. Corollarily, it can be safely stated that in order to ensure equality, equals must be treated equally and unequals must be treated differently, which in turn, necessitates the exercise of reasonable classification. Such exercise of reasonable classification has been recognised as valid in light of Article 14 of the Constitution of India.¹ In the matter of State of West Bengal v. Anwar Ali Sarkar², Das C.J., had quite eloquently, spelled out the test for reasonable classification. As per the dictum laid down in Anwar Ali Sarkar (supra), two essential conditions must be fulfilled for a legislative classification to be held as reasonable. These conditions may be listed as follows:

(a) the classification must founded on an intelligible differentia which distinguishes persons or things that are grouped together from the others left out of such group; and

(b) the differentia must have a rational relation to the object sought to be achieved by the statute in question.³

1.1 Whether Citizenship (Amendment) Act, 2019 fulfills the first test of reasonable classification?

A perusal of the Objects and Reasons of the Citizenship Amendment Act, 2019[4], shall reveal that it seeks to establish “religious persecution” as a ground of classification in respect of granting of citizenship by naturalisation. It is true that “religious persecution” can be accepted as a ground of reasonable classification as long as the same is constructed within the secular framework provided by the Indian Constitution. The said Act seeks to form a group of religiously persecuted communities consisting of Hindus, Sikhs, Jains, Buddhists, Parsis and Christians and leaves out the Muslim community. Such exclusion of members of the Muslim community in its entirety is based on the assumption that no member of the Muslim community could have faced religious persecution due to the fact that Islam has been recognised as the State religion in all three countries mentioned in the Act, namely, Afghanistan, Pakistan and Bangladesh. There are many examples that prove to be materially opposed to such assumption. One such example would be the religious persecution of Ahmadiyyas⁵ in Pakistan. Here, it is important to note that under the Martial Law Regime of President Zia-ul-Haq, Ordinance XX⁶ was added to the Pakistan Penal Code on 26th of April, 1984. Ordinance XX is a law which prohibits Ahmadiyya Muslims from publicly practicing their religion. Violations of Ordinance XX are defined as anti-Islamic activities and criminal offenses, punishable by imprisonment for up to three years, in addition to a fine.⁷ Ordinance XX also provides that “[the provisions of this Ordinance shall have effect notwithstanding any order or decision of any court.]”⁸ Therefore, it is abundantly clear, that even though originally, Ahmaddiyas might have been considered to be members of the Muslim community in a country with Islam as the State religion, any assumption of retention of their status as Muslims in such country, i.e. Pakistan (in this case) would be highly erroneous.

In light of the afore-mentioned facts, it is safe to state that with respect to religious persecution, Ahmadiyyas find themselves in a position similar to that of members of Hindu, Sikh, Buddhist, Jain, Christian and Parsi communities. Therefore, it can be said that if the purported objective of the Parliament behind enactment of the Citizenship (Amendment) Act, 1947, is in effect, the granting of citizenship by naturalisation to members of those religious minorities who, in fact, during Partition of undivided India had settled in any of the three countries specified in the Act but later on, as a result of being subjected to religious persecution, had fled to India, the exclusion of the Muslim community, in its entirety, seems arbitrary. Hence it could be stated, albeit subject to correction, that it does not satisfy the first test of reasonable classification as laid down in Anwar Ali Sarkar (supra).

1.2 Whether Citizenship (Amendment) Act, 2019 fulfils the second test of reasonable classification?

The second test of reasonable classification is that the differentia must have a rational relation to the object sought to be achieved by the statute in question.⁹ As already noted above, it is evident from the Objects and Reasons of Citizenship (Amendment) Act, that it seeks to safeguard the interests of members of those communities who have been facing religious persecution and in order to effectuate the operation of such safeguard, the Act provides for the establishment of “religious persecution” as a ground of reasonable classification. However, it is surprising to note that the Section of the Act,¹⁰ which paves the way for such classification, bears no mention of the term “religious persecution” or “persecution”. Hence, it can be reasonably argued that upon a literal interpretation of the terms of the said Section, it is difficult to arrive at a clear conclusion that the objective of the said Section is in consonance with the Objects and Reasons of the Act. As a result thereof, one may not be able to confidently state that the Act fulfills the second test of reasonable classification.

2. Citizenship (Amendment) Act, 2019 — Whether confers Excessive Delegation of Legislative Authority upon the Executive?

In light of the ever-expanding functions of the State and the complexities involved in governance of the State, delegated legislation has undoubtedly, become a necessary tool for efficient administration. Irrespective of the importance gained by delegated legislation, it is well-settled that essential and primary legislative functions must be performed by the legislature itself.¹¹ Determination of legislative policy is an essential legislative function.¹²

In the matter of Avinder Singh v. State of Punjab,¹³ it was held that the Constitution has laid down the creation of three great instrumentalities and entrusted them with certain basic powers — legislative, executive and judicial. Abdication of these powers by any organ would amount to betrayal of the Constitution itself and is intolerable in law.¹⁴ To ‘abdicate’ means “to renounce, discard, disclaim or refuse anything”.¹⁵ Simply put, abdication means abandonment of sovereignty¹⁶ (or a sovereign function).

Section 18(2)(eei) confers upon the Central Government, the power to make rules with regard to “(eei) the conditions, restrictions and manner for granting certificate of registration or certificate of naturalisation under sub-section (1) of section 6B”.¹⁷ If noted carefully, the ambit of this rule-making power as provided for, under the said section, is too wide and arguably amounts to conferring of excessive delegation of legislative authority upon the Central Government. Such proposition stands supported by the fact that no semblance of legislative policy has been laid down in the Citizenship (Amendment) Act, 2019, with respect to the determination of whether a person, applying for citizenship under Section 6-B, has actually been subjected to religious persecution or not; that all members of each of the six named religious communities have fled their original place of residence in Pakistan or Afghanistan or Bangladesh, due to religious persecution and settled in India before 31st December, 2014, is in the least, a foolhardy assumption. Moreover, the Act does not shed any light on the procedure to be followed in differentiating between persons who have settled in India due to religious persecution and those who have simply settled due to economic or other reasons. The lack of legislative policy prescribing the manner of determination of the veracity of the claim of religious persecution made by an applicant for citizenship by naturalisation along with the absence of any legal terminology indicating religious persecution as a ground for classification in Section 2(1)(b) enhances ambiguity and confusion. In the absence of legislative policy laid down by the Parliament, the Executive would obtain a free-hand in framing the conditions, restrictions and manner of granting of certificate of naturalisation and such rules even if arbitrary or capricious would enjoy a considerable degree of immunity from judicial review on grounds of administrative discretion.

In light of the afore-stated discussion, it is safe to state that the afore-mentioned provisions of the Act, in effect, lead to the abdication of legislative authority of the Parliament and therefore, is contrary to the principle of law as laid down in Avinder Singh (supra).¹⁸

3. Scope of Article 11:

It is well-settled that the CAA, 2019 is a law that has been promulgated by the Parliament by invoking its powers as guaranteed under Article 11¹⁹ of the Constitution of India. Here, it is important to note the ruling of the Supreme Court in the matter of Izhar Ahmed Khan v. Union of India.²⁰ In the said matter, it was held that Article 11 “not only confers and recognises the power of Parliament to make any provision with respect to acquisition of citizenship but also termination thereof…. The power so conferred by Article 11 is very wide and is not fettered by the provisions of Articles 5 to 10.”²¹ Upon a perusal of the afore-mentioned decision of the Supreme Court, it is clear that the Parliament for sure, possesses wide powers in matters relating to citizenship. However, the phrase “wide power” can under no circumstance be construed as unlimited power. Moreover, the term “power” with respect to this Article, refers to the power conferred upon the Parliament to make laws relating to citizenship. Therefore, even if such power is construed to be unlimited, such unlimited power is restricted to the extent of framing of rules and does not provide the rules framed thereunder with any sort of immunity from invalidation on ground of contravention of any constitutional provisions. Furthermore, merely on the basis of the fact that such power is unfettered by Articles 5 to 10, it would be irresponsible to contend that it is by and large unlimited and can override constitutional provisions, arguably, in this case, Article 14.²² As already noted above, it may be reasonably inferred that the mode of classification as provided under Citizenship (Amendment) Act, 2019 is contrarian to the principle of reasonable classification inherent in Article 14 and thus, is liable to be struckdown, as per Article 13(2) of the Constitution of India.²³ Therefore, Article 13(2) operates as a restriction on the power of Parliament to amend existing statutes or promulgate new statutes. The power conferred upon the Parliament by Article 11 with respect to framing of rules with regard to citizenship may be very wide but under no circumstance, can such rules be considered to be immune from test of constitutionality and judicial review.

4. Citizenship (Amendment) Act, 2019 — Whether a continuation of shift from jus soli to jus sanguinis?

In order to obtain a clear perception of the phrases “jus soli” and “jus sanguinis” it shall be prudent to refer to the following excerpt from the Oxford Legal Dictionary:

Jus Sanguinis: [Latin: law relating to blood] The principle that the nationality of children is the same as that of their parents, irrespective of their place of birth. This contrasts with *jus soli, whereby nationality is dependent on place of birth. In states in which the jus sanguinis principle applies, a conflict of jurisdiction may arise when a child is born of parents who are citizens of another state.²⁴

Jus Soli: [Latin: law relating to the soil (of one’s country)] The rule by which birth in a state is sufficient to confer nationality, irrespective of the nationality of one’s parents.²⁵

While jus sanguinis is premised on a country harking back to an arbitrarily-determined past, jus soli looks at the future, enabling a country create a pluralistic and inclusive society.²⁶

The usage principle of jus soli in India saw a steady decline since 1987 and was finally abolished on 31/12/2004 as an aftermath to the 2003 amendment to the Citizenship Act, 1955. The reason for this shift was the shortcoming in the system of jus soli surfacing immediately after the partition of India and Pakistan in 1947.²⁷ Another reason for such shift is fueled by the desire to ensure that the children of undesirable migrants do not accidently attain citizenship by birth.²⁸ However, such shift unfortunately, has been based on religious identities of people. The entire discourse on citizenship laws has seen an evolutionary trend but one thing that has remained common is the influence of the religion factor.²⁹ The question “Who is an Indian” was decided on the basis of communal factors which saw the systematic exclusion of Muslims³⁰ and the Citizenship (Amendment) Act, 2019 is just a continuation of the said process of communal segregation in respect of determining citizenship. The said Act of 2019 is in no way amenable to the doctrine of jus soli and is premised on harking back to an arbitrarily-determined past.³¹

Conclusion:

In light of all the afore-stated assertions, it may be prudent to state that even though the underlying objective of the Citizenship (Amendment) Act, 2019 is undoubtedly noble in character, the means adopted by the Act in fulfilling such objective may very well be brought into question. The Act is a means to an end and not an end in itself; thus, the means adopted by the Act in reaching an end, must be justified in law.

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[1] Art. 14, Constitution of India, 1950; Article 14: The State shall not deny to any person equality before law or the equal protection of the laws within the territory of India.

[2] AIR 1952 SC 75.

[3] Ibid.

[4] Clause 2, Statement of Object and Reasons, Citizenship (Amendment) Act, 2019.

[5] Ahmadiyyas, also known as Quadianis, are followers of Mirza Ghulum Ahmad, who founded the sect in Quadian, India, in 1901. Hirza Ghulum Ahmad claimed to have received a revelation from God; hence, those who believe Mirza Ghulum Ahmad do not believe that Mohammed is the last Prophet, as do the Sunni and Shiite Muslims. PAKISTAN: A COUNTRY STUDY 124 (R. Nyrop ed. 1984).

[6] Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984.

[7] Linda J. Berberian, Pakistan Ordinance XX of 1984: International Implications on Human Rights, 9 LOY. L.A. INT’L & COMP. L. REV. 661 (1987). Available at: http://digitalcommons.lmu.edu/ilr/vol9/iss3/5 (last visited on 17/03/2020)

[8] Ibid.

[9] Supra note 4.

[10] Section 2(1)(b), Citizenship Amendment Act, 2019.

[11] C.K. Takwani, Lectures on Administrative Law, 86 (6th ed., Eastern Book Company, 2017)

[12] Ibid.

[13] (1979) 1 SCC 137, 147.

[14] C.K. TAKWANI, LECTURES ON ADMINISTRATIVE LAW, 86–87 (6th ed., Eastern Book Company, 2017)

[15] P. RAMANATHA AIYER, CONCISE LAW DICTIONARY, 4 (6th ed., LexisNexis, 2018)

[16] Supra note 14 at 87.

[17] Sec. 18(2)(eei), Citizenship (Amendment) Act, 2019.

[18] Supra note 13.

[19] Art. 11, Constitution of India, 1950; Article 11 : “Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.

[20] AIR 1962 SC 1052.

[21] Ibid.

[22] Supra note 1.

[23] Art. 13, Constitution of India, 1950; Article 13(2) : “The State shall not make any law which takes away or abridges the rights conferred by this Part (Part III) and any law made in contravention of this clause shall, to the extent of such inconsistency, be void.”

[24] OXFORD DICTIONARY OF LAW, 275 (5th ed., Oxford University Press, 2003).

[25] Ibid at 276.

[26] Faizan Mustafa & Aymen Mohammed, The great Indian citizenship mess , THE HINDU (Jan. 21, 2020, 12:07 IST), https://www.thehindu.com/opinion/op-ed/the-great-indian-citizenship-mess/article30609610.ece .

[27] Priya, Changing Dynamics of the Citizenship Law of India, (2019) PL August 64, 67.

[28] Ibid.

[29] Ibid at p. 68.

[30] Ibid.

[31] Supra note 26.

The author is a Year III B.A., LLB student at the Department of Law, University of Calcutta and is a Senior Editor of Legis Sententia.

Disclaimer: Any academic content published in Legis Sententia will be for informational and academic purposes only, and shall not be reflective of the views of the Department of Law, University of Calcutta or the Editorial Board thereof or any other institution, but only the views of the author concerned.

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