Even Without the NRC, Here’s Why the CAA is Unconstitutional

The CAA violates Article 14 of the Constitution, which guarantees equal protection of laws, even to non-citizens.

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Video Editor: Purnendu Pritam

On 10 January, the central government notified the Citizenship (Amendment) Act 2019, or CAA, bringing the controversial new law into force.

Protests continue to rage across the country, however, and the notification doesn’t change the reasons why several legal experts have termed this law ‘unconstitutional’.

Suhrith Parthasarthy – a Madras High Court advocate who specialises in constitutional law – explains why this new law violates Article 14 of the Constitution of India, and why the justifications attempted by the government and its supporters don’t add up.

What Does CAA Do?

The CAA amends the Citizenship Act, 1955, which provides five paths to citizenship:

  1. By birth;
  2. By descent;
  3. By naturalisation;
  4. By registration; and
  5. By acquisition of territory

The Citizenship Act also defines the term ‘illegal migrant’, and prohibits anyone who is an illegal migrant from acquiring citizenship in India under these five paths.

The CAA amends the definition of ‘illegal migrant’ so that if a person who entered India before 31 December 2014, who doesn’t have valid documents to have entered India or remain in India, is from Afghanistan, Bangladesh or Pakistan, and is a Hindu, Sikh, Buddhist, Jain, Parsi or Christian, they will not fall within the definition of ‘illegal migrant’.

The CAA also provides a fast-track for citizenship by naturalisation for such persons, allowing them to become citizens after five years of residing in the country instead of 11.

The CAA does not cover people coming to India from other countries, even if they belong to the same communities, and does not apply to Muslims from any of these countries either.

What Does Article 14 of the Constitution Say?

“This law is bad and violates Article 14 of the Constitution because it effectively treats people situated equally, unequally.”
Suhrith Parthasarthy

Article 14 of the Constitution says that:

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

This creates a specific obligation on the government to treat all people – regardless of whether they’re citizens or non-citizens, equally. According to Parthasarthy, “This therefore means that any citizenship law that is predicated along religious lines would be ex-facie arbitrary and unreasonable.”

It is not as though the government can’t pass a law which treats those who are situated unequally in a different manner. To ensure that substantive quality is done, the government will sometimes need to provide special benefits to certain categories of people.

To decide when the government can do this, the Supreme Court has laid down a threefold test:

  1. Is there a legitimate state aim to create this classification?
  2. Is the classification based on ‘intelligible differentia’?
  3. Does this differentia have a ‘rational nexus’ with the objective of the law?

Why Does the CAA Violate Article 14?

“It violates Article 14 because it is neither predicated on a legitimate state aim nor does it make a reasonable classification.”
Suhrith Parthasarthy

Parthasarthy goes on to explain why there does not appear to be a legitimate aim to the CAA, and why the mooted objectives of the legislation are arbitrary. This arbitrariness becomes clear if we ask the following questions:

If the objective is to help people from neighbouring countries, why does it restrict itself to only three neighbouring countries, and not Sri Lanka, Myanmar, etc?

If the objective is to help people from pre-Partition India, then why does it cover Afghanistan? Why doesn’t it extend to people from Myanmar, which used to be part of British India till 1935?

If the objective is to help people from countries which have a state religion, then why not cover minorities from Sri Lanka, where Buddhism is the official state religion?

How can the classification exclude Muslims from its ambit if the objective is to protect those facing religious persecution? There are ‘Muslim’ communities like the Ahmadiyas in Pakistan who are persecuted there for their faith as well.

Because the CAA has no consistent aim, and fails to create a reasonable classification, he argues, further saying that it goes against the basic tenet of equality in Article 14 by treating equal persons unequally. “It creates a regime of citizenship that is predicated on religious lines,” he underlines, “which violates the inherent idea of secularism which is part of the basic structure of India’s Constitution.”

Do Arguments in Favour of the CAA Have Any Merit?

Parthasarthy also explains why the arguments trotted out by members of the government and by its supporters like J Sai Deepak, in a video that has been shared widely online, don’t really add up. Here are the major arguments for which he offers some straightforward counters:

ARGUMENT: Muslims can still apply for citizenship under the existing regime of Citizenship Act.

COUNTER: The problem is that if they don’t have documents for entry and valid visas, they will be considered ‘illegal migrants’, and therefore not have the opportunity to apply for citizenship. In comparison, the non-Muslim communities covered by the CAA, who would otherwise be in the same position, would not have the same problem.

ARGUMENT: There has been a dwindling of minorities in Afghanistan, Bangladesh and Pakistan, hence justifying the need to protect people from these three countries only.

COUNTER: There is data to show a dwindling of minority communities in Sri Lanka and Myanmar. Just because the size of the minority communities in those countries was already small, doesn’t mean their plight should be ignored.

ARGUMENT: If the CAA is struck down, other laws giving special benefits to minorities will also need to be struck down.

COUNTER: Article 14 allows for special benefits for those who are in an unequal position. This, read with Articles 15, 16 and other provisions, will mean existing laws for the benefit of minorities will remain in force – provided they satisfy the Article 14 tests of course.

ARGUMENT: The discrimination against Muslims in Pakistan, Bangladesh and Afghanistan is on sectarian, not religious, lines.

COUNTER: The persecution remains to be on the basis of those communities’ faith, which means it remains religious persecution.

ARGUMENT: Article 11 of the Constitution grants Parliament the power to make laws dealing with citizenship, and so the courts cannot interfere with this.

COUNTER: All Acts passed by Parliament, including those under Article 11, are considered laws within the framework of Article 13 of the Constitution – and so are subject to judicial review, and have to comply with the fundamental rights protections of the Constitution.

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