Citizenship is one of the significant aspects in the life of any human being. It provides certainty of nationality and also provides fundamental rights to the people who belong to a democratic nation like India. Recently, however, a legislation named as Citizenship Amendment Act, 2019 was passed. Since, this Act was condemned across the country. It becomes, thus, important to analyse the constitutionality of this Act. This research paper aims to identify where the problem lies. “Black letter methodology” is used in this paper. Having reviewed the literature, it is found that this Act is contrary to the essence of Constitutional philosophy and against the principles of natural justice as well.
Key words: Natural theory, Reasonable Classification, Secularism, Democratic nation, International aspect.
The priorities of the government have changed over the period. Earlier, at the time of independence, the intellectuals and parliamentarians wanted to make a free India, not only from colonialism but also from the evils of the society. After the enforcement of Constitution of India, Parliament enacted Citizenship Act, 1955 to solve the problems arising from the division of India into two dominions. The constitutional stalwarts and great parliamentarians faced huge difficulty to provide citizenship to the migrants. For this reason, the Citizenship Act has been amended so many times over a period since independence. In 1971, it was amended when Eastern Pakistan became Bangladesh. It was that period when huge refugees came to India. To solve this problem, Act described the cut off date to be 24th March, 1971.
The Citizenship Act was amended again in 2019. This Act provides citizenship to six religious communities of three countries. The reason given by the parliament is that these six religious communities (Hindu, Parsi, Christian, Jain, Buddhists and Sikh) have faced persecution in these countries (Pakistan, Bangladesh and Afghanistan).
Now the question arises that being a SECULAR Country can a law be passed on the basis of religion in India? Would it harm the National INTEGRITY of India? If yes, then what is the need to pass such legislation. The theory of liberalism also provides equality before law. However, Indian Constitution is not wholly bridges with the theory of liberalism. But the concept of “Equality before law” is given in the Indian Constitution by the Constitutional Stalwarts as well.
In terms of aggregate analysis of Indian criminal statistics, the total incidence of riots over a period of fifteen years (1966-1980) has shown an increase of 100.71%. Riots constituted 45% of the reported crimes in 1980 got increased by 208.27% and its share of the total crime is estimated as 84.09%. This is better evidence to show that how communalism affects the integrity of the nation. It is also poisoning the feeling of brotherhood .
[Philosophical Analysis] Does Natural Theory of Law approve this law?
Natural theory of law, a philosophy, has greater significance in the evolution of politics, law, religion and ethics. This theory has provided justice and peace against the injustice, tyranny and misrule. It should not only be conceived as a theory of theoretical significance, but this theory has also greater practical significance. The concept of the human rights jurisprudence and basic rights of men essentially owes its origin to the natural law philosophy of the post-nineteenth century. The concept of “Rule of Law” in England & India and “due process” in USA are essentially based on natural law philosophy .
Individual liberty has also taken its roots from natural theory against totalitarian rule. However in 19th century, the role of this theory declined because of advent of the concept of positivism. The Rudolf Stammler (1856-1938) was one the main exponents of revived natural law. According to him “Just law” was the highest expression of man’s social life. He rightly said that the “the purpose of law is not to protect the will of one but to unify the purpose of all” .
To discuss this theory becomes vital, as it has played greater role in legal system of United States of America. The “Judicial Review” which reasonably restricts the power of legislation, has got its origin from this theory. The relevance to discuss the legal position of U.S.A is to clear the image of fundamental rights of India because makers of the Constitution of India have adopted the concept of Fundamental Rights from United States of America.
Practical implication on CAA, 2019:
It is evidently clear that the Indian legal system also recognises the notion of natural theory of law. CAA, 2019 clearly breaches the idea of revolution against totalitarian rule. This hasty legislation is based on the religion classification. According to the natural law, survival of human race with peace is vital than religion. On one side of the coin, this legislation is working as a poison to kill the integrity of India. On the other side, it treats the migrants unequally. Religion cannot become the basis of classification to differentiate the migrants.
The noteworthy thing is that that earlier the principles of natural justice was confined to the judicial and quasi-judicial enquiries and did not extend to the administrative action. But in the case of Maneka Gandhi v.UOI , the scope of the natural justice principle extends even to purely administrative actions. The Supreme Court, in this case noted, “for the applicability of the doctrine of natural justice, there can be no distinction between quasi-judicial and an administrative function”.
In the case of NHRC v. State of Gujarat , popularly known as Bakery case, the Court held that despite the NHRC and judiciary is playing an effective role, the cases of violation ofHuman Rights are continuously increasing. Right to peace and survival of human race is a human right which is violated by CAA. CAA, 2019 is a hasty legislation which is demolishing the reputation of India by giving a message of communalism.
In nutshell, the crux is that the human race is important than the religion. Human beings cannot be divided on the basis of religion. In 21st century, the valuable point is that religion should be an individual phenomenon and choice. Thus CAA, 2019 violates the natural theory of law.
[Constitutional Analysis] Doctrine of Reasonable Classification (Article 14):-
The onset democracy in India and emergence of the idea of welfare State led to the trend of guaranteeing basic human rights in the constitutional law. It is well said by the Ivor Jennings that like should be treated alike but unlike should not be treated alike. Article 14, therefore, provides reasonable classification. The reason is that all in the society are not equal. So making statute after doing certain classification is valid. It is, however, provided that class legislation cannot be passed by government.Earlier it was difficult how to decide classification is reasonable or not? This question was decided in the case of R.K.Dalmia v. Justice Tendolkar ,the court laid down the below test for determining the question of reasonable classification:-
- The classification must be on the basis of intelligible differentia.
- The differentia must have rational relation to the objective of the statute to be achieved.
Implication on CAA, 2019:-
It is necessary to assume the constitutionality of CAA, 2019 as per the doctrine of Presumption of Constitutionality. Now question arises that the classification which have made in the CAA is reasonable or not?
According to (a), classification must be based on intelligible differentia. In CAA, the classification has been made on the basis of religion. There is no intelligible differentia among these religions. It has been already cleared by the Constitutional stalwarts that religion cannot become the basis for the citizenship of India. (b) relates to establish nexus between classification and object. If there is no intelligible differentia, the next question of objective of the statute cannot arise.
Supreme Court has also evolved “test of arbitrariness” in the case of E.P. Royappa v. State of Tamil Nadu . This legislation does not pass this test either. This law violates the Article14 which does not permit class legislation.
SECULAR word of Preamble:-
Originally the meaning of the word Secular is that State has no religion. The Constituent Assembly has chosen India as a Secular State. With the adoption of this kind of word, the meaning of Secular in India was changed. The meaning of Secular, in India, is that State itself has no religion, but all the religions are equal before the State and law. The change in the meaning of the word Secular introduced because of the diversity in India. When the Preamble read along with Article 14, it shows the impartial philosophy of the Constitutional makers.
In the Case of S.R. Bommai v. UOI , a nine-judge bench the Hon’ble Supreme Court held that the concept of ‘Secularism’ was very much embedded in our Constitutional philosophy.
Implication on CAA, 2019:-
The above Act provides citizenship to the people belonging to the specific six religions and exclude Muslims. However, this Act has no impact on the citizenship of Muslim community who are already Indian Nationals. But the question lies here that parliament cannot enact colourable legislation. Indian Parliament cannot enact such law which takes away the very soul of the Constitution.
According to the language of Article 14, right to equality is available to any person. It means all the migrants should be treated equally. Migrants cannot be treated differently on the basis of religion. It is not only violation of Article 14 but also breach the principles of natural justice (fair hearing).
DEMOCRATIC word of Preamble:-
After getting independence, the Indian Constitution adopted to be democratic nation. India is the biggest democracy in the world. The best part of the democracy is that people can dismantle the government, if government is not working according to the Constitution of India. That means Adult suffrage is the inseparable part of the democracy.
Application on CAA, 2019
Democracy is not about the majority. It is quite different from the word of ‘will of majority’. The democracy has at least four meanings – (i) system of electoral power, (ii)it is not simply majority rule, (iii) election decides who rules and rulers so elected are constitutionally bound and (iv) system of political ethics.
The example of threat to democracy was the period of post-Nazi democracies. According to the Nazi regime and its theorists, democracy was only about the wishes of the majority. Thus if German majority wanted Jews to be Second-Class citizens, the Jewish minority had no option but to accept it. It was only liberalism which protected the Jews minority as well as the concept of democracy .
Modern democracy enables majority rule vis-a-vis checks and balances it with minority rights. It is said that public opinion is not the opinion of majority but the opinion of minority ratification with majority. The problem does not lie with the rule of majority, but with religiously defined majority .
CAA, 2019 creates threat to the Indian democracy. India cannot treats her minorities as Jewish was treated in the Germany in Post- Nazi period. The Assamese are revolting because of their cultural issue. But the point is that all the illegal minorities are already settled there. The noteworthy point is that a lot of Indian citizens who are Indian nationals have not registered in the NRC. Now, the situation is if that Indian national belongs to the six communities described in the CAA, 2019 would get Indian Citizenship by producing fake certificate of foreigner. On the other hand, if that person belongs to the Muslim community, he/she will not entitle to get Citizenship of India. Thus, this Act does not only affect the Muslim illegal migrants but also the Indian nationals (Muslim minority) also.
Article 15 of the Constitution of India provides prohibition against discrimination on five grounds (religious, race, sex, caste and place of birth). This legislation violates Article 15 per se. CAA, 2019 provides citizenship to six religious communities which proves discrimination on the basis of religion.
In the case of State of Rajasthan v. Thakur Pratap Singh , the Supreme Court struck down the Act that exemption on the basis of religion and caste are violative of Article 15(1).
Being a secular & democratic country, India has good reputation in the world. This impugned Act creates issues not only at individual level, but it is also affecting the international relations of India with its neighbouring countries. The noteworthy point is that that India has good relations with Afghanistan and Bangladesh. India and Bangladesh were enjoying close friendly relations which was known as “Golden Chapter” of bilateral lies. The office of the United Nations High Commission for Human Rights criticized the Act and called it “fundamentally discriminatory in nature”. It added, “Although India’s broader naturalization laws remain in place, these amendments will have a discriminatory effect on people’s access to nationality. Bangladesh’s minister of foreign affairs, A.K Abdul Momen said that this bill could weaken India’s historic character as a secular nation and denied that minorities were facing religious persecution in his country.
Before starting the research on CAA, 2019, I had two points in my mind that being a Hindu it should not affect my project. Since I am law student, rationality should be maintained by me. Rule of Law is above the religion. Getting inspired from autobiography of Justice M.C. Chagla, “Roses in December”, which gives a message that religion, being a personal affair, should not be introduced in national affair. It cannot be enforced on others and discrimination on the basis of religion is not acceptable to this technological world.
After doing the review of literature, I reached on the conclusion that it is the duty of the judiciary to up held this Act unconstitutional. This Act does not only violate Article 14 of the Constitution of India but also breaches principles of natural justice.
If we talk about from religious prospective, the problem is not with the ideology of the government, but with the misconception of the ideology. There is written in the Srimad Bhagvad Gita (Holy Book of Hindus) “Vasudev Kutumbakam”. However, government is using this phrase many times but doesn’t rely upon it.
Religion should be kept separate from the social life. A voter should not think about his/her religion while casting vote. The concern of religion must not interfere with the social life. Religion is made just for the moral values and ethics. But if it creates communalism and riots, it would not be wrong to say that it is not religion but orthodoxy.
Author: Mehak , University Institute of Legal Studies, Panjab University Chandigarh
- Upendra Baxi, Mambrino’s Helmet? 63(Har –Anand Publications, New Delhi, 1994)
- N. Paranjapee, Jurisprudence 162 (Cenratl Law Agency, Allahabad, Eighth Edition, 2016)
- Lloyd Dennis, Introduction to Jurisprudence 87 (1959)
- AIR 1970 SC 150
- AIR 2003 SC.
- AIR 1958 SC 538.
- AIR 1974 SC 555.
- AIR 1994 SC 1918.
- Editorial, “By numbers alone” The Indian Express, Aug. 17, 2019.
- AIR 1960 SC 1208.
Disclaimer: The views and opinion expressed in this article are those of the authors and do not necessarily reflect the views of ‘thelawmatics’.