CAA, 2019 & ITS CONSTITUTIONALITY.

1.    Introduction:

The Act passed by the parliament is presumed to be constitutional. It is the enforceable within the territory of India unless, the application of the Act is exempted in the Act itself for specified territory. If any person aggrieved by any of the provisions of the Act passed by parliament, claiming it to be an unconstitutional the person is free to challenge the same before, the Hon’ble Supreme Court of India or the High Court. The constitutionality of the Citizenship Amendment Act, 2019 is challenged by some of the persons and same is subjudice. However, there is so much noise and chaos instigated against the government specially in the minds of minority community and in university campuses without understanding the background, object, provisions and the constitutionality of the Citizenship Amendment Act, 2019. In fact, the peaceful protest turned into riots in some parts of the country. The only solution, to the problem is to spread awareness about the Citizenship Amendment Act, 2019 as to how the act is intended to give justice to the religious persecuted minorities who were part of undivided India and now residing in neighbouring countries whose foundation itself based on Islamic religion.

The CAA, 2019 deals with the foreigners who came to India before 31^st December 2014 from Afghanistan, Bangladesh and Pakistan belonging to identified six communities viz., Hindu, Sikh, Buddhist, Jain, Parsi or Christian. The identified communities are in the minority in mentioned three countries who survived and migrated in India due to religious persecution. The Act only enables and facilitates the section of the foreigners to acquire Citizenship of India. However, some groups in the Indian society are consistently propagating that the Act violates the Rule of Equality as it excludes the Muslims or other religions, atheist etc. The other argument would be the Act is an attempt to force Democracy to give way to majoritarianism. There are several Articles claiming CAA, 2019 is an attack on Indian minority communities with Hindutva Agenda and to isolate Muslims. The veracity in the allegations and accusations can be answered by investigating into constitutionality of the CAA, 2019 and more particularly answering the  questions such as: Is the CAA, 2019 qualify the test of equality? Does the amending act affects the citizenship of the ‘Indian Minorities’? Is the argument as to enforce majoritarianism tenable? With the understanding of the concept of Citizenship. The Constitutional and statutory scheme of as to acquire citizenship in India.

2.    What is Citizenship?

The Black’s Law Dictionary defines the term Citizen as ‘A member of a free city or jural society, (civitas,) possessing all the rights and privileges which can be enjoyed by any person under its Constitution and Government, and subject to the corresponding duties. “Citizens” are members of community inspired to a common goal, who, in associated relations, submit themselves to rules of conduct for the promotion of general welfare and conservation of individual as well as collective rights.’[1] Further, it defines the term ‘Citizenship’, as a status of being Citizen.[2]

The term “citizen” as understood in Indian law is precisely analogous to the term “subject” in the common law, and the change of phrases has entirely resulted from the change of Government. The sovereignty has been changed from one man to a collective body of the people, and the person who was before a subject of the King is now a citizen of the State.[3] The term citizen is employed in a republican form of Government. The republican model is based on the principle of Civic Self-Rule having its origin in the Greek era, and the liberal model is based on Citizenship as legal status having its origin in the Roman era. The Idea of Citizenship can be traced back to the Greek era. Aristotle defines the Citizen as a person who has the right to participate in deliberative or judicial offices. Aristotle also distinguishes the citizens from other inhabitants, resident aliens and slaves, children and seniors.[4] The concept of Citizenship was limited to political rights, and there was a clear distinction between the Citizens and other subjects of the State. The concept of Citizenship expanded with the expansion of the Roman Empire, which expanded its territory beyond city walls. In the Roman era, the meaning of ‘Citizenship’ expanded from political status to legal status and privileges attached to such status. Therefore, the concept of Citizenship is based on two models, viz., republican and liberals. In the modern era, there is another element attached to the concept of Citizenship, i.e. membership in the political community, which gives a source of identity.[5] For example, British, Indian, American, Italian, Pakistani, and so on. Thus, there are three elements attached to the term ‘Citizenship’:

1. ‘Political Agent’ who participates in political structure,
2. ‘Legal Status’ which confirms legal rights, and protection of laws including liability, and.

• A source of ‘Identity’.

The idea of Citizenship underlines protection of the socio-political and legal rights of the individual as well as State as a community within the defined territory.

The essential requirement of any Nation is the political community in the defined territory. The law of Citizenship deals with the individuals who are entitled to civil rights and to have a status of membership, i.e. citizenship, in the political community. Therefore, it is the prerogative of the State to articulate the terms and conditions to acquire Citizenship. Globally, there are three principles for acquisition of Citizenship. Firstly, by birth within the territory of Nation which is based on the Latin principle jus soli, Secondly, by Decent from a state National which is based on Latinprinciple jus sanguinis and, thirdly by naturalisation which means the residence for longer period and further intention to reside permanently. The different countries have adopted different approaches for acquiring Citizenship or Nationality either in isolation or in a combination of these principles.[6]

The Indian Constitution at its commencement recognises the individual as Citizens of India on the parameters of these three principles, i.e. jus soli, jus sanguinis and naturalisation. In addition to these principles, the Indian Constitution also grants the status of Citizenship to migrants from Pakistan i.e. the persons came from undivided India. Subsequently, the Indian Parliament enacted the law, i.e. The Indian Citizenship Act, 1955 as stipulated under Art.11 of the Constitution of India. The Act recognises the principles mentioned above for acquiring Citizenship in India from the date of enforcement of the Constitution. In addition to these principles, the Act also facilitates the acquisition of Citizenship by registration. Moreover, the Act recognises the status of Citizenship of people on the incorporation of territory because of their connection to such incorporated territory.

The status as a citizen can be acquired by Birth, Decent, Naturalisation, Registration or incorporation of territory. Once the individual acquires such status, the status entrusts the legal rights and duties being a citizen of that country, which establishes his relationship with the State. The relationship between Citizen and State is for mutual benefits. The mutual benefits can co-exist only when there is an element of allegiance of individual towards State. Therefore, the allegiance towards State is one of the essential criteria for the acquisition of Citizenship. The allegiance is mental state to show the real intention to settle permanently with affection towards the State.

The status of illegal migrants remains unaccounted while exploiting natural and economic sources of the country. Illegal migrants in a State do not give mutual benefits to each other.  Therefore, any country must take strict action against the illegal migrants by deporting to their country of origin. Wherever, deportation is not possible due to apprehension of gross violation of Human Rights by way of discrimination based on race, religion or any other factors; the country can consider to grant Asylum and in some cases status of Citizenship.

3.    Acquisition of Citizenship in India

The second part of the Constitution of India deals with Citizenship. The right to acquire Citizenship at the commencement of the Constitution were recognised on the three grounds. Firstly, by birth in Indian territory. Secondly, by descent, i.e. either of whose parents born in the territory of India. And, Thirdly, ordinary resident in India at least for five years on the date of commencement of Constitution of India. The Art. 6 and Art.7 deals with the persons migrated from Pakistan to India due to partition. Art.8 deals with the rights of Citizenship to a particular person residing outside India who is of Indian origin. Art.9 restrict the right to acquire Citizenship and excludes those who have voluntarily acquired Citizenship of any other foreign state. The Art.10 protects the Citizenship acquired under Art.5 to Art. 8 subject to the law made by Parliament. Therefore, the right to acquire Citizenship is not a fundamental right but a constitutional right which is to be governed by Separate statute. The Art.11 empowers the Parliament to regulate the right of Citizenship by a separate statute. The Art.246(1) read with the Entry No.17 of Union List in Seventh Scheduled of the Constitution of India empowers the Central Government to make laws with respect to Citizenship, Naturalisation and Aliens. Accordingly, the Parliament enacted legislation known as the Indian Citizenship Act, 1955.

The Indian Citizenship Act, 1955 provides five categories to acquire Indian Citizenship from the date of enforcement of the Constitution of India. The Act of 1955 provides acquisition of citizenship by birth, by descent, by registration, by naturalisation and by incorporation of territory. In addition to these five categories, the special provision was added under the category of naturalisation to give effect to the Assam Accord.[7] Another special category was added as Overseas Citizen of India, i.e. the persons who were citizens of India after the commencement of the Constitution of India and later acquired Citizenship of foreign State excluding Pakistan and Bangladesh or any other foreign State as notified by the Central Government.[8] The Act provides termination and deprivation of Citizenship. Further empowers the Central Government to consider the Application for Citizenship by registration and naturalisation as well as Overseas Citizens. The act makes adequate provision for revision on any orders passed on such application including powers to review. The Act also prescribes punishable offence in case of false information given for procuring any benefit under the Act. Originally there were four schedules to the Act. However, the first and fourth Scheduled were omitted by the amending Act No.6 of 2004. The second schedule prescribes the Oath of Allegiance who wants to be a citizen either by registration or naturalisation. The third scheduled prescribes the qualifications to acquire Citizenship by naturalisation.

4.    Citizenship Amendment Act, 2019

The roots of the amendment goes back to the pre-independence era. The amendment cannot be read in isolation without understanding historical perspectives. The term ‘India’ was defined under Section 311 of the Indian Government Act, 1935 where the existing Pakistan and Bangladesh were part of India till independence. After a long struggle India got independence with the enactment of the Indian Independence Act, 1947 where British Parliament divided India into two dominion i.e. India and Pakistan. The partition took placed on the basis of religion as the then section of Muslim Community propagated two nation theory based on religion. The Partition unsettled the non-Islamic community within the territory of then east and west Pakistan. The large number of non-Islamic persons migrated into India by leaving behind almost everything they had. Similarly, large number of Muslims also migrated from India to then Pakistan. Subsequently those Muslims who migrated to Pakistan, some of them were returned to India with the permit of Indian Government. The Constitution of India grants the deemed citizenship on the date of constitution to all those people who migrated on or before 19^th July 1948 into India from the territory of undivided India as mentioned in the Act of 1935. However, some non-Islamic communities could not be migrated into India from Pakistan immediately after partition and later on the borders were closed to legally migrate into India.

After post-independence, the religious persecution became a norm in East and West Pakistan. Only with intent to protect minorities ‘Liaquat – Nehru Pact‘ was entered into as bilateral treaty between India and Pakistan. India continued its commitment to protect religious minorities in India but Pakistan measurably failed with its commitment to protect religious minorities. The religious minorities in Pakistan continued to suffer religious persecution and kept away from basic human rights by treating them as secondary citizens. Due to religious persecution or with the apprehension of persecution, the only option left with the religious minorities either to suffer or migrate into neighbouring countries. From Pakistan major chunk of the religious minorities moved into India. Though the religious persecuted minorities migrated from neighbouring countries into India their entry into India were not legal being illegal migrants and thus subjected to criminal prosecution. Therefore, the Government of India issued notifications dated 7^thSeptember 2015 and 18^th July 2016 as to amend the Passport (Entry Into India) Rules, 1950 and  Foreigners Order, 1948, thereby exempted the persons belonging to the identified minorities from Afghanistan, Bangladesh and Pakistan from the applicability of the Foreigners, Act 1946 as well as Passport (Entry Into India) Rules, 1950. In short, the 2015 and 2016 Notifications issued by the Ministry of Home Affairs articulated the religious persecuted minorities i.e. Hindu, Sikh, Buddhist, Jain, Parsis and Christians from three neighbouring Islamic countries.

The issuance of notifications dated 7^th September 2015 and 18^th July 2016 does not served the purpose as the religiously persecuted minorities as categorised in the said notifications remain as illegal migrants under the Indian Citizenship Act, 1956 and thus despite of longer stay in India, would not have enabled them to become citizens of India which otherwise available to any foreign nationals on valid entry and longer stay in India either by registration or naturalisation. Therefore, necessity was felt to amend the Indian Citizenship Act, 1955. Accordingly the Citizenship Amendment Bill, 2016 was introduced in Parliament which were lapsed due to lack of majority in Rajyasbha. Hence again, the Citizenship Amendment Bill, 2019 was introduced in November 2019 which was passed by the thumping majority.

The CAA, 2019 brought four amendments in the Indian Citizenship Act, 1955. Firstly the amending Act has added an exception to the definition of ‘illegal migrant’ by introducing proviso. The term ‘Illegal Migrant’ means a person who entered into India without a passport or valid travel document, or a person entered into India with passport or valid travel document for a specified period and remained on Indian territory after the expiry of such period. The proviso to the definition carves out an exception stating that any person migrated to India on or before 31^st December 2014 from Afghanistan, Bangladesh and Pakistan belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community, who is exempted under the provisions of Passport (Entry into India) Act, 1920 or exempted from Application of the Foreigners Act, 1946 shall not be treated as illegal migrant.

Secondly, the amending Act introduced Section 6B, which is an enabling provision to acquire Citizenship to the class of persons who carves out an exception to the definition of illegal migrant. The sub-section 1 of the Section 6B enables the Central Government to grant a certificate of registration or certificate of naturalisation with such conditions and restrictions as specified by the Government. The sub-section 2 declares that upon fulfilment of criteria for registration or naturalisation, if the certificate is granted, then such person deemed to be a citizen of India. The sub-section 3 nullifies any pending proceeding being illegal migrants or Citizen upon granting a certificate of registration or naturalisation. Further, it provides that pendency of any proceeding being illegal migrant or Citizen, it shall not be a bar for making an application for acquiring Citizenship. The sub-section 4 exclude the application of the Act from notified triable areas of North-Eastern States as well as States wherein inner-line permit is required.

Thirdly, it amended the third scheduled of the Act wherein the criteria for acquiring Citizenship for naturalisation have been prescribed. The amending Act relaxes the condition of 11 years of residence to 5 years for the exempted per persons from the definition of illegal migrants.

Fourthly, the amendment brought for Overseas Citizen of India Cardholder by adding additional criteria for cancellation of registration of Oversea Citizen of India, i.e. violation of any provisions of the Citizenship Act or any other provisions of law as notified by the Central Government after giving reasonable opportunity of hearing.

5.    Constitutionality of the Citizenship Amendment Act, 2019

In ‘Indian Democracy’ Constitution recognises the power of the Parliament to make laws.[9] The laws made by the Parliament must be consistent with the Fundamental Rights guaranteed under the Constitution of India.[10] The Fundamental Rights guarantees the Right to Equality which puts an obligation on State that not to deny equality before the law or equal protection of the laws to any person. Further Constitution restrains the State from making any laws discriminatory against any citizen based on religion, race, caste, sex, place of birth or any of them. The cultural and educational rights of the minorities[11] are protected under the Constitution of India in addition to the freedom of religion.[12] Therefore, though the Constitution recognises the right to equality, in the same breath it protects the interest of the minority section of the society to protect its distinct culture, language, script, or religion and administer their educational institutions. These exclusive rights or status available to minorities is otherwise not available to the majority section of the society. Exclusive rights and protection in favour of the minority section of society is an exception to the rule of equality. This exception can be defined as ‘positive discrimination.’ The positive discrimination enshrined under Art.15(4) and 16(4) which protects the citizens as affirmative action based on their historical injustices and social status by way of an exception to the rule of equality. The scheme under the Constitution of India is aiming to protect the interest of every Citizen of India. The Indian Constitution not only protects the rights of individual Citizens in India but also guarantees equal treatment and equal protection of laws including the right to life enshrined in Art.14 and Art.21 to every person irrespective of his status as Citizen of India. In simple words, the protection of the right to equality and right to life is available to the foreigners within the territory of India. Therefore, the challenge to CAA, 2019 may be limited under Art.14 and 21 of the Constitution of India as it does not deal with the existing citizens of India but a class of foreigners who entered into India on or before 31^st December 2014. The doctrine of equality is incorporated under Art.14 of the Constitution. The Art.14 forbids discrimination in general and assures equality before the law to all the persons. The underlying object of Art.14 is to secure to all persons, citizens or non-citizens, the equality of status or opportunity referred to in the preamble of Constitution.[13] However, the right to equality as enunciated in Art.14 has very wide amplitude, and it cannot read to treat unequal as equals. Any treatments of equals unequally or unequal as equals is in violation of the basic structure of the Constitution of India.[14] As all persons are not equal by nature or circumstances, the varying needs of different classes or sections of people require differential treatment. This leads to classification among different groups of persons and differentiation between such classes. Accordingly, to apply the principle of equality in a practical manner, the courts have evolved the principle that if the law in question is based on rational classification, it is not regarded as discriminatory.[15]

Now, it is well settled and cannot be disputed that Article 14 of the Constitution guarantees equality before the law and confers equal protection of laws. It prohibits the State from denying persons or class of persons equal treatment; provided they are equals and are similarly situated. It, however, does not forbid classification. In other words, what Article 14 prohibits is discrimination and not classification, if otherwise, such classification is legal, valid and reasonable.[16] For valid and legal classification, after considering several judgments, the apex court laid down twin test:

 (i) the classification must be founded on an intelligible differentia which must distinguish persons or things that are grouped together from others leaving out or left out; and

(ii) such a differentia must have rational nexus to the object sought to be achieved by the statute or legislation in question.[17]

The main contentions against the CAA, 2019 is twofold. First allegation is concerning constitutionality, alleging that the Act violates the principles of equality. It discriminates Citizenship based on religion. The Act does not offer Citizenship to Rohingya Muslims, Ahmadiyya Muslims, Tamil Hindus who are also religious persecuted communities from Myanmar, Pakistan and Sri Lanka, respectively. It is forced Hindu Majoritarianism violating the basic structure doctrine. So far, the basic structure doctrine is concerned; the doctrine itself relates to the power of the Parliament in amending the Constitution. In the present case, there is no constitutional amendment but a statutory amendment. The second allegation is limited to Assam as the allegation that the Act violates the Assam Accord. The rest of the allegations are purely political propaganda without having any legal basis. The present Article is restricted to the first allegation i.e. constitutionality of CAA, 2019.

The CAA, 2019 carves out an exception to the definition of illegal migrant. It distinguishes the migrants from Afghanistan, Bangladesh, and Pakistan belonging to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian community who entered into India before 31^st December 2014. The main controversy revolves around the amendment to the definition which facilitates the migrants who entered into India on or before the datum line from three countries with identified communities as one class distinguishing it from rest of the illegal migrants. Therefore, the legal question is why the persons mentioned in the Amending Act singled out from the other illegal migrants? Is the classification reasonable? Does this amendment pass the twin test as laid down by the apex court?

The ‘intelligible differentia’ is the foundation of reasonable classification. Prima facie intelligible differentia between the three countries and other countries is based on territorial condition and their political structure. There are total eight adjacent Nations connected to Indian territory, viz., Afghanistan, China, Nepal, Bhutan, Myanmar, Bangladesh, Sri Lanka and Pakistan. The significant difference between ‘Afghanistan, Bangladesh & Pakistan’ on one side and the rest five countries on the other side. The foundation of the three countries is based on a particular religion. The official name of Afghanistan and Pakistan starts with ‘Islamic Republic‘ which is evident that the Nation is based on one particular religion. Though the name of Bangladesh starts with the People’s Republic, the Art.2A of the Constitution prescribes the State’s official religion as Islam.[18] The Art. 2 of the Constitution of Afghanistan also indicates Islam as its official state religion.[19] The Art.2 of the Constitution of the Islamic Republic of Pakistan provides that Islam shall be the State religion of Pakistan.[20]  In short, the three Nation mentioned in the CAA, 2019 indicates State Religion as Islam.

So far, other states are concerned; the Constitution of the People’s Republic of China is silent about religion. Neither officially, China does recognise any religion, nor it gives freedom of religion. The Chinese Constitution does not give any special status to religious minorities. It only recognises minority based on Nationality.[21] In the Chinese Constitution, the term Nationality is not synonymous to Citizenship, but the term is associated with racial meaning.

The Constitution of Nepal prescribes that the State of Nepal is an independent, indivisible, sovereign, secular,inclusive, democratic, socialism-oriented, federal democratic republican state. Further, it explains the term “secular” which means religious, cultural freedoms, including protection of religion, culture handed down from the time immemorial.[22]

The Constitution of Bhutan, which is based on Monarchy, recognises the dual principle of religion and politics. The KingKing is the upholder of Chhoe-sid, i.e. religion and politics (Temporal & Secular).[23] The Constitution of Bhutan recognises Buddhism as Spiritual Heritage of Bhutan but it castes duties on the KingKing to protect all the religion.[24] Therefore, the cumulative reading of the Constitution highlights the secular political structure of Bhutan.

The Constitution of the Republic of Union of Myanmar recognises the freedom of religion.[25] The Constitution of Myanmar further bars the discrimination of any person on the ground of religion.[26]

The Constitution of the Democratic Socialist Republic of Sri Lanka gives Buddhism first place in Sasana. It also protects the freedom of religion as granted under the chapter of fundamental rights in Art.10 and 14 (1) (e).[27] Therefore, the Sri Lankan constitution indicates that it shall protect and foster the principles of Buddhism in Sasana, i.e. administration. However, it maintains the secular structure by granting freedom of religion as a fundamental right.

The close analysis of the Constitution of the eight adjacent Nations to India with whom India shares her territorial boundary indicates that the Afghanistan, Bangladesh and Pakistan are the only Nations which indicates one particular religion as State Religion, i.e. Islam. This factor of State Religion distinguishes the said three Countries from the other five countries.  The Pakistan and Bangladesh, then East and West Pakistan were part of Undivided British India. However, the two-nation theory was based on religion. Pakistan proclaimed itself as an Islamic country. Based on religious partition many non-Muslims migrated to India. However, some of them who could not afford to migrate or may have remained in the territory of the East and West Pakistan became a part of religious minorities. On this backdrop of partition, the religious minorities in India and Pakistan were subjected to atrocities and religious persecution. India and Pakistan entered into bilateral treaty popularly know as ‘Nehru Liaquat Pact’ to protect its minorities.[28] India fulfilled its promise and its commitment to protecting the rights of minorities. However, Pakistan and Bangladesh, i.e. erstwhile east Pakistan utterly failed to protect its minorities. There are many Reports in the UN which establishes the religious persecution of minorities in Afghanistan, Bangladesh and Pakistan. The recent report claims that in Pakistan, citizens belonging to religious minorities get a status of second-class citizens due to legislative, administrative and judicial discrimination.[29]In the year 2018, the Asian Resource Legal Centre also submitted its report in the United Nations and given the following recommendation:

1. a) The Government of Pakistan should ensure the security of the country’s religious minorities from injustice and attacks by militants. The only deterrence to violence is accountability. Only when the Government ends impunity can the tide of militancy, extremism and sectarianism in the country recede.
2. b) The Government of Pakistan must stop forcing religious minorities into degrading jobs. It should also work on sensitising society, to encourage a pluralistic and egalitarian atmosphere, where the rights of minorities are equally protected. It is imperative for a strengthened Pakistan that all its citizens, regardless of caste, colour, ethnicity, political or religious association, be treated on an equal footing by the State. The Government of Punjab in particular, should immediately stop the policy of discrimination and bias against its beleaguered Christian community.[30]

Moreover, the religious minorities, i.e. non-Muslims in Pakistan, were dropped down from 23%  since 1947 to less than 3% as on today. Either these people killed or forcibly converted to Islam or migrated into adjacent State, e.g. India. The 2015 report set-out the gravity of religious persecution and gives an example of Asia Bibi Blasphemy Case. Aasiya Noreen is a Pakistan Christian woman and a mother of her five children, who was convicted of blasphemy under Section 295-C of the Pakistan Penal Code by a Pakistan Court and received a sentence of death. In June 2009, she was convicted of insulting Mohammed after having a dispute with Muslim co-workers for the reason that she took a drink with a cup set aside for Muslims, which is forbidden to Christians. In November 2010, she was sentenced to death. The Lahore High Court confirmed the conviction and death sentence in October 2014. The persons who supported in favour of Aasiya Noreen was killed. The bodyguard of the Governor of Punjab killed the Governor. The cabinet minister, who was a Christian, was killed for supporting Aasiya Noreen.[31]

Bangladesh got its Independence in the year 1971. The Art.2A declares that the State Religion shall be Islam. However, the Constitution does have features of inclusive secularism on paper.[32] In reality, the report claims a severe problem at the implementation level.[33] The 2011 census of Bangladesh shows that the minority population dropped to 9% from 23% during 1971. The religious persecution of minorities is an open secret. Report submitted by Bangladesh Minority Council claims that there is silent ethnic cleansing in Bangladesh. The rape and forced conversion used as a cleansing tool. Since Independence of Bangladesh there are thousands of religious idols and temples are destructed.[34]

The position of religious minorities in Afghanistan is not different from that of Pakistan and Bangladesh. The report submitted in the United Nations reflects that there is consistent violence against Non-Muslims, especially Sikh and Hindu community. One upon a time the Sikh and Hindu were the trading community spread across Afghanistan. However, always targeted by a group of militants. During the Soviet Intervention of 1979 and the Civil War of 1992, there was a mass migration of the Sikh and Hindus to neighbouring countries, i.e. India, Iran and to some extent in the west. It is mentioned in the report that there were about 60000 Sikhs in the year 1992. However, as on date, there are less than 2000 Sikhs, and Hindus constituting 0.3% of the Population remain in Afghanistan.[35]

The consistent religious persecution of non-Islamic community from the Islamic States caused migration to the adjacent countries for their safety and livelihood. The classification of the persons mentioned in CAA, 2019 is based on the practical considerations, geographical considerations and historical considerations. The Supreme Court of India while considering the validity of Section 213(1) and 57 of the Indian Succession Act which was challenged on the ground of religious discrimination as the provision only applies to the Indian Christian. The Apex court held that the historical reasons may justify differential treatment of separate geographical regions provided it bears a reasonable and just relation to the matter in respect of which differential treatment is accorded.[36]  In Parents’ Association v. Union of India, the Supreme Court upheld the distinction between pre-1942 settlers and post 1942 settlers at Andaman Islands on historical considerations.[37]

The ‘intelligible differentia’ in the present facts is based on practical, territorial and historical considerations. Eight countries share the common border with India. Out of eight countries, the three countries have State religion as Islam, where the Non-Islamic communities are being persecuted on the ground of religion other than Islam. The rest five countries are secular in a sense that it does not treat any religion as State Religion. Out of three Countries, the present two countries were part of undivided India, wherein after partition the then Prime Minister of India and the then Prime Minister of East and West Pakistan, by way of the pact agreed to e protect the religious minorities within the respective States. The utter failure to protect the religious minority triggered the massive scale of migration into India. The persecuted migrants belonging to the six communities cannot be pushed back to these three countries from where they migrated.   Therefore, the Act protects to six communities who are religious persecuted minorities from Islamic states who have already entered into India before 2015 and does not treat them anymore as illegal migrants under the Indian Citizenship Act, 1955. The object is to protect the human rights of individuals who have entered into India due to Religious persecution from adjoining State. In such circumstances, the classification is not based on religion but based on territorial, historical, practical and other considerations.

The questions raised that the Rohingya Muslims from Myanmar, Ahmadiyya Muslims from Pakistan, and Hindu Tamils from Sri Lanka who are also religious persecuted minorities who entered into India are not brought within the ambit of CAA, 2019 hence discriminatory.  Before dealing with each class of persons; it may be noted that the basis of classification in CAA, 2019 is based on the territorial considerations, i.e. countries which are adjacent to India having a State religion. Therefore, other minorities tend to migrate to India due to religious persecutions. Secondly, while dealing with the question why other foreigners are not brought within the purview of the amending Act, it is settled law that so long as classification could withstand test of Article 14, the same could not be questioned why one subject was included and other left out and why one was given more benefit than the other.[38]

Myanmar is a secular country and does not have a state religion, and thus Rohingya Muslims are not brought within the purview of the CAA. Similarly, Sri Lanka is also a secular country, and therefore the Tamil Hindus are not brought within the purview of the Act. Ahmadiyya Muslims is one of the sects of Islam. Though Pakistan discriminates with them, it is the Ahmadiyya Muslims who identify themselves with the State Religion. It is purely a problem between Islamic sects. Hence Ahmadiyya Muslims cannot be treated as religious persecuted minorities. The Act intended to protect those religious minority who have suffered a lot only on the ground of belongingness from a particular religion which is not a State religion.

The second test for reasonable classification is rational nexus with the object sought to be achieved. The very object is to facilitate for entitlement of all the benefits for leaving dignified life to the religious minorities who came to India either persecuted based on religion or with the fear that they will be persecuted. The Act is enabling provision keeping in mind the reality. The CAA, 2019, which deals with the identified communities, is enabling provision with a humanitarian approach.  The persons illegally migrated from States can be deported if they are carrying the identity of religion which is the official religion of the State. In that case, there will not be an apprehension of violation of Human Rights after deportation. However, the religious persecuted minorities if deported again back to their homeland would be inhuman and cruel! India is not a shelter to accommodate all the religious persecuted minorities. However, it is very natural to these communities to migrate in the adjacent countries to save their life from physical and mental cruelties, atrocities.

Moreover, India is a welfare state. The budgetary and natural resources allocation is planned to benefit every Citizen of India. The unaccounted share of illegal migrants built-up pressure on the allocation of budgetary provisions as well as natural resources. It affects the rightful entitlement of the Citizens of India, which has been aimed to benefit the most vulnerable section of society. In such circumstances, granting benefits of the Citizenship to the migrants of identified communities from the three Countries who cannot be pushed back to their respective countries, will cause to take them into account of planning in allocation of budget and natural resources, which is entirely in the interest of existing Citizen’s entitlement.

Therefore the nexus between the classification of illegal migrants into India and class of migrants to whom the Citizenship is enabled with an object to facilitate the human rights and protect the interest of India in planning and implementing welfare schemes.

6.    Conclusion

The CAA, 2019 enables the class of foreigners who were migrated in India. The act no more treats them illegal migrants as belonging to identified six communities of three countries if entered into India on or before 31^st December 2014. Therefore, it distinguishes the persons belonging to the six communities from rest of the illegal migrants who entered into India. The classification is based on the territorial, historical, present situation and other factors which is permissible and reasonable classification. The classification is nothing but positive discrimination. The CAA, 2019 is an affirmative action to heal up the wounds of religious minorities across the borders who have faced enormous discrimination in every sphere of life, including physical and mental cruelty. Moreover, once the test of reasonable classification is satisfied, the argument as to why another class of persons are left out is immaterial and does not have any legal bearing. It is the prerogative of the State and policy decision.

The Act does not deal with the existing Indian Citizens. Therefore, there is no question of violating the rights of any of the Indian Citizens by excluding some sections of foreigners not covered under the Act. Irrespective of its non-application to Indian citizens, the protest seems to be continued with political motives with larger conspiracy which is against the interest of India. The Indian minority communities are being misguided about CAA, 2019 with political motives. The fear-mongering and deception about the amending act is planted and spread with ulterior motives as there is nothing to fear about the CAA, 2019 as the act is within the constitutional limits.

Pravaratak Suhas Pathak,

Advocate, Mumbai.

Email: pravartak@gmail.com

03/02/2020.

[1] Black’s Law Dictionary, 310, (4^th Ed., rev-6, 1971).

[2] Ibid, at 311.

[3] DD Basu: Commentary on the Constitution of India, Vol 1, Article 5, (9th ed, 2014)

[4] Miller, Fred, “Aristotle’s Political Theory”, The Stanford Encyclopedia of Philosophy (Winter 2017 Edition), Edward N. Zalta (ed.), available at https://plato.stanford.edu/archives/win2017/entries/aristotle-politics, last seen on 18/01/2020.

[5]  Leydet, Dominique, “Citizenship”, The Stanford Encyclopedia of Philosophy (Fall 2017 Edition), Edward N. Zalta (ed.), Available at https://plato.stanford.edu/archives/fall2017/entries/citizenship, last seen on 18/01/2020.

[6] Citizenship & Nationality, International Justice Resource Center, available at https://ijrcenter.org/thematic-research-guides/nationality-citizenship/last seen on 19/1/2020.

[7] S.6A, Indian Citizenship Act, 1955 (amended through Act 65 of 1985, S.2 w. e. f. 7/12/1985)

[8] S.7A & 7B, Indian Citizenship Act, 1955 (amended through Act 6 of 2004 S.7 w. e. f. 3.12.2004)

[9] Art.245 read with Art.246(1), the Constitution of India.

[10] Art. 13 of the Constitution of India

[11] Art.29 and 30, the Constitution of India

[12] Art.26 the Constitution of India.

[13] Natural Resources Allocation, In Re Special Reference No.1 of 2012, (2012) 10 SCC 1.

[14] M. G. Badappanawar v. State of Karnataka, (2001) 2 SCC 666

[15] Ashitosh Gupta v. State of Rajasthan, (2002) 4 SCC 34

[16] The State of Bihar v. Bihar State ‘Plus-2’ Lecturers Assns., (2008) 7 SCC 231

[17] Confederation of Ex-Servicemen Assns. v. Union of India, (2006) 8 SCC 399

[18] Constitution of Peoples Republic of Bangladesh, Art.2A, available at http://bdlaws.minlaw.gov.bd/act-367/section-24549.html, last seen on 26/01/2020.

[19] Constitution of Afghanistan, Art.2, available at http://www.afghanembassy.com.pl/afg/images/pliki/TheConstitution.pdf,  last seen on 26/01/2020.

[20] Constitution of Islamic Republic of Pakistan, Art.2, available at http://www.na.gov.pk/uploads/documents/1333523681_951.pdf, last seen on 26/01/2020.

[21] Constitution of the People’s Republic of China, Chapter I General Principles, Art.4, available at:

http://www.npc.gov.cn/zgrdw/englishnpc/Constitution/2007-11/15/content_1372963.htm, last seen on 26/01/2019

[22] Constitution of Nepal, Art.4, available at http://www.lawcommission.gov.np/en/archives/985, last seen on 26/01/2020.

[23] Constitution of Bhutan, Art. 2 (2) available at https://www.nationalcouncil.bt/assets/uploads/docs/acts/2017/Constitution_of_Bhutan_2008.pdf, last seen on 26/01/2020.

[24] Constitution of Bhutan, Art. 3(1) & (2) available at: https://www.nationalcouncil.bt/assets/uploads/docs/acts/2017/Constitution_of_Bhutan_2008.pdf, last seen on 26/01/2020.

[25] Constitution of the Republic of Union of Myanmar, Art.34, available at: https://www.burmalibrary.org/docs5/Myanmar_Constitution-2008-en.pdf, last seen on 26/01/2020.

[26] Constitution of the Republic of Union of Myanmar, Art.348, available at https://www.burmalibrary.org/docs5/Myanmar_Constitution-2008-en.pdf, last seen on 26/01/2020.

[27] Constitution of the Democratic Socialist Republic of Sri Lanka, Art.9, available at https://www.parliament.lk/files/pdf/constitution.pdf, last seen on 26/01/2020.

[28] Nehru Liaquat Agreement, New Delhi, 8th April 1950, available at: https://mea.gov.in/Portal/LegalTreatiesDoc/PA50B1228.pdf, last seen on 27/01/2020

[29] Written statement submitted by Christian Solidarity Worldwide, a non-governmental organisation in special consultative status, Human Rights Council, 22nd February to 22nd March 2019, U. N. General Assembly, Official Record, Sess. 40, U. N. Document A/HRC/40/NGO/129 (20/02/2019), available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G19/045/13/PDF/G1904513.pdf?OpenElement, last seen on 27/01/2020.

[30] Written statement submitted by the Asian Legal Resource Centre, a non-governmental organisation in general consultative status, Human Rights Council, 26th February to 23rd March 2018, U. N. General Assembly, Official Record, Sess. 37, U. N. Document A/HRC/37/NGO/91 (12/02/2018), available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/037/67/PDF/G1803767.pdf?OpenElement, last seen on 27/01/2020.

[31] Written statement submitted by the Jubilee Campaign, a non-governmental organisation in special consultative status, Human Rights Council, February – March, 2015, U. N. General Assembly, Official Record, Sess.28, U. N. Document A/HRC/28/NGO/140, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/037/58/PDF/G1503758.pdf?OpenElement, last seen on 27/01/2020.

[32] Constitution of Peoples Republic of Bangladesh, Art.12, available at: http://bdlaws.minlaw.gov.bd/act-367/section-24560.html, last seen on 27/01/2020.

[33] Report of the Special Rapporteur on freedom of religion or belief on his mission to Bangladesh, Human Rights Council, U. N. General Assembly, Official Record, Sess. 31, U. N. Document A/HRC/31/18/Add.2 (22/01/2016) available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/009/86/PDF/G1600986.pdf?OpenElement, last seen on 27/012020.

[34] Mr Barua and S Arun Jyoti, Minority Youth towards Inclusive and Diverse Societies, Human Rights Council, Forum on Minority Issue, Sess.10, 29th November 2017. Available at: https://www.ohchr.org/Documents/HRBodies/HRCouncil/MinorityIssues/Session10/Item5/AdditionalStatements/item5%20-%20Bangladesh%20Minority%20Council%20.pdf, last seen on 27/01/2020.

[35] Written statement submitted by Coordination des Associations et des Particuliers pour la Liberté de Conscience, a non-governmental organisation in special consultative status, Human Rights Council, 10 – 28 September 2018, U. N. General Assembly, Official Record, Sess. 39, U. N. Document A/HRC/39/NGO/67 (05/06/2018) available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/269/93/PDF/G1826993.pdf?OpenElement, last seen on 27/01/2020.

[36] Clarence Pais v. Union of India, (2001) 4 SCC 325, Pg 333.

[37] Parents’ Association & Another v. Union of India, (2000) 2 SCC 657

[38] Ombalika Das v. Hulisa Shaw, (2002) 4 SCC 539