(The Article was first published on December 22, 2019)
In the past few days, there has been unrest in the country over two actions of the parliament i.e firstly, due to introduction of a law called Citizen Amendment Act (CAA), which deals with granting of citizenship to refugees, and secondly, due to the declaration that India will soon have a register of citizens (NRC) where all citizens will have to prove their citizenship with documentary evidence.
About 60 petitions already stand filed in the Supreme Court challenging the (CAA) law. This is the first time in the history of the nation that religion has been considered as a determining factor for grant of privileges in a state enactment.
The concern of the people is, “whether there exists a threat to fundamental values of “fraternity”, “equality”, and “secularism” upon which this nation is built upon? , “Whether Something which is not allowed to be done directly is being done indirectly i.e exclusion based on religion in the grant of citizenship”?
Another decision of the Government, the “NRC (National Register of Citizen)” is being sought to be imposed nationwide. This exercise has costed public funds amounting to 1200 Cr to 1600 Cr in Assam already. It has also led to 40 lakh people being declared stateless by the Government in the first instance, just in Assam. This exercise was, however, erroneously done, and on re-checking, the Courts found that the actual number was 19 lakh. Shockingly there was an error of 20 lakh “Human Beings”, who wrongly stood declared stateless.
Apart from being an harassing excercise for people who were wrongly made stateless, the number of deportation affected by NRC in Assam is negligible. This begs the question, “what is the need for conducting such an expensive and unreliable process? and “whether the present decision of parliament is even necessary? Most importantly, if the Amendment in the citizenship Act is at all permissible from the perspective of constitutionality, humanity and ethics?
Citizen Amendment Act (CAA)
The Law as it Was Before The Amendment:
The law before the amendment essentially said:
If you are in India and you are a non-citizen, without relevant papers, then you are an “illegal immigrant” and in that case, you have no right to be in the country and you are liable to be subjected to be detained and ultimately deported.
An exception to the above rule was;
If one could show that he was a person who was in India, and had come to India due to legitimate fear of being persecuted on any ground in the home country, then he would be eligible for a long term visa. The idea was that if someone is a refugee fearing persecution, then he can stay in India on long term visa basis and the case would be evaluated on ‘case by case basis’.
Notably and rightly so, “religion” had no role to play in the unamended law whatsoever.
The New Law
The 2019 amendment changes the above provision/ position. It creates classes of people who would be entitled to immunity. These classes have been made on the bases of “Religion and Nationality”.
The amendment distinguishes persecuted people who have been living in the country from, on or before, December 31, 2014. It puts these people into two categories and says that; one category who are of a particular religion and nationality would be entitled to benefit in “grant of Indian citizenship” and other sets of people who belong to certain “Religion and Nationality”, would be ineligible for immunity in “grant of citizenship”.
Further the Act also reduces the requirement of residence in India for citizenship by naturalisation from 11 years to five years for these particular communities.
Classes of People Who Stand Excluded under Section 2 (B) of CAA 2019 are:
1. Based on Religion–Anyone who is not a Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians.
(The exclusion of Muslims, Atheists or any other religion is apparent.)
2. Based on Nationality – a classification based on country, by restricting the benefit of acquiring citizenship through naturalisation to minority immigrants only from Afghanistan, Pakistan and Bangladesh.
In other words, it says that for certain classes of people there is no immunity from being deemed illegal immigrants, and these classes of people can be denied citizenship and coupled with NRC they can even be put in detention centres or deported to their home country.
Due to such grave consequences, a closer examination of this classification made by the State warrants a scrupulous scrutiny.
Violation of Equality
The amendment draws distinction between “persecuted people living within India”, amongst these persecuted people, one set is given benefit by the state and the other set is not. The distinction between persecuted people has been drawn just based on religion and nationality. In a secular country, religion cannot become the basis of granting or denying privileges to any person, be it citizen or a non-citizen. This idea goes against the mandate of “Fraternity”, “Equality” and “ Secularism” hence violates the basic structure, Article 14, 15 read with 21, along with various other constitutional provisions.
It is a settled position/principle of law that whenever there is an exclusion based on classification then;
a. There must be a yardstick to differentiate between those included in and excluded from the group, and
b. That yardstick must itself be reasonable.
Where a legislation discriminates based on an “intrinsic and core trait” of an individual, which in the present case is religion, it violates the “Right to Equal Protection from Laws”. This protection is available to non-citizens settled in India also. Classification based on religion does not form a reasonable classification based on an intelligible differentia.
Therefore, the yardstick is reasonable only if it is not based on an “intrinsic and core trait” of an individual such as religion or sex, this is a constitutional limitation placed on the power of the State.
The determining principle for granting citizenship can never be religion. Citizenship can be granted on the grounds of birth, descent, persecution, and naturalisation alone. Bringing religion as a criterion for granting citizenship cuts through the guarantees of Fraternity, Equality, and Secularism.
For example, if you have 10 people living in India as refugees from past 40 years, all of them have been persecuted. Now you want to save them; you can either choose to save all of them or none. However, if you chose to save few and not save the others, then those few who are excluded cannot be excluded purely on grounds of their religion, there has to be some other basis of making this choice. In the old law, it was just persecution. A secular state is bound by principles of secularism and cannot make decisions based on the identity of religion.
It is a capricious and unconstitutional law supported by impermissible sense of purpose.
Few important legal positions are;
1. It is incorrect to say that the Act only applies to non-citizens and that Indians need not worry about it. Even though CAA does not at present impact Indian citizens, it impacts human beings who are living in India, who are being treated unequally. Further, the State is acting against the fundamental fabrics of our constitution in handing out such treatment.
If you are a Hindu who came from Pakistan 50 years ago, you get immunity from being an illegal immigrant but if you are a similarly situated Ahamadia or Sufi or Atheist from Pakistan/ Afghanistan/Bangladesh, you don’t get immunity. Such a law cannot be passed by a secular nation as it is unjust and discriminatory and can lead to exploitation of vulnerable groups.
2. It is incorrect to say that law is inclusive and seeks to benefit immigrants. On the contrary, the irrationality of exclusion is apparent from the fact that now, if a person is suffering from the wrong type of persecution, he won’t get immunity. Persecution in itself is not enough as it earlier was when the old law was in force. Now a determination of citizenship is made dependent upon a fact-finding probe into an individual’s religious beliefs.
3. The amendment arbitrarily pics up three nations without any rationale. If you are a persecuted person living in India and you belong to the privileged group of countries, only then you get this immunity and if you don’t belong to these three countries, then you don’t get this immunity. These three countries are not the only neighbouring countries where people have been subjected to violence and religious persecution, for example, Tamils and Rohingyas, or Buddhists from Tibet. There is a ‘pick and choose’ method without having any determining basis or underlying rationale in selecting these three countries. Religious persecution has happened in other countries around us and there are people settled in India, from other countries, who are being excluded from this benefit. This action of exclusion based on nationality is manifestly arbitrary as there is no basis for choosing these three particular countries.
4. The inclusion of few religions and nationalities is a welfare measure, but the problem is that persons who are equally entitled to get this immunity are being denied of this protection. This offends the equality principle and is discriminatory under Article 14.
5. It is an incorrect argument to say that Policy matter cannot be tested upon the constitution and cannot be struck down on being arbitrary. The most fundamental principle of equality is that every person in India is entitled to equal protection of laws. Equal protection of law allows the govt to draw certain classifications, which must be reasonable, non-arbitrary and with a defined purpose.
If the purpose of this act is to save people from persecution then it cannot draw these distinctions. And if the purpose of the act is to save only certain religions from persecution, then the purpose itself becomes discriminatory, being only on grounds of religion. On this ground alone, the policy can be struck down.
FRATERNITY
Is a Law/Policy Undermining Fraternity Constitutionally Permissible?
A law can be struck down if it violates the basic structure of the constitution. One of the basic features of the Constitution along with “Equality” is “Fraternity” which is mentioned in its preamble. Fraternity is a prime value from where other principles like secularism take root. It is the first time in the history of the country that a law has been passed where the “determining principle” of classification of human beings is based on their “religion” alone. This has naturally caused unrest in the country, but among the protests, the voices of “unity of religions” and “brotherhood” are being raised. The voices counter a “Law” which on the face of it, is being perceived to be against the unity of the nation and drawn on communal grounds.
In a country such as India, with several disruptive forces, such as religion, caste and language, the idea of fraternity is imperative for ensuring “unity of the nation”, through a shared feeling of a common brotherhood.
According to various decisions of the courts this value has been understood to be of prime importance, though not many precedents exist however there are few which have given the meaning of this principle and have applied it for circumventing State’s power.
Looking at the issue raised in the present case, this particular principle can be expounded by the Apex court, as the heart of this problem lies in the values of “fraternity and brotherhood” amongst human beings.
According to the jurisprudential understanding, a fraternal bond is one that does not relate to the shared use of goods but rather a shared feeling that is intrinsic to the existence and functioning of the agents themselves. Any law which undermines or poses a threat to fraternity should outrightly be struck down as the other two great values of “liberty and equality” become illusory in the absence of the fundamental value of fraternity.
Drawing the relation between these three fundamental values, it is said that;
a) Liberty without fraternity, for instance, would bestow upon individuals unlimited powers to pursue individual aspirations, without regard to community sentiments and considerations.
b) Equality without fraternity is characterised as ‘barbaric’ equality, as individuals would have no consideration for the standing of other disadvantaged persons.
In light of this, it becomes imperative to ask that;
- a) How have the courts interpreted the rights granted based on fraternity?
- b) Can a law be struck down as it offends the “guaranteed commitment to the fraternity” in our Constitution?
- c) Have the Courts directed the State to frame policies keeping these principles and constitutional limitations in mind?
The answers to the above questions can be found in the decisions of the Hon’ble Supreme Court. A Couple of important ones are discussed below;
In S.R. Bommai v. Union of India, amongst several conclusions the Court arrived, it declared that the principle of secularism was an essential feature of the basic structure of the Constitution. In arriving at this conclusion, the Court employed the principle of fraternity in a variety of contexts to assert that the idea of fraternity is a precursor to the attainment of secularism. The Court explained that the inclusion of secular ideals in constitutional provisions was not a product of mere chance but was consciously deliberated upon by the framers in response to the religious foundations of Pakistan. In substantiating this claim, the Court stated that India was historically a country where religious tolerance and a culture of fraternity existed, and the inclusion of secular provisions was accordingly a natural one.
The Court also established that “secularism is the bastion to build fraternity”, and therefore asserted that secular practice and thinking between diverse religious groups, would aid in the fraternal relations between those communities. The outcome of such religious tolerance would have a double impact on fraternity: it would ensure both the unity of the nation through peaceful interaction and the dignity of each citizen. The Court held that the Constitution strives towards the promotion of secular ideals that would ensure fraternal relations which is the ultimate goal of the framers.
In the Nandini Sundar Case the Courts employed the idea of fraternity in three distinct fashions:
a. As a buffer to unchecked state power;
b. As a mechanism to promote more inclusive policy by the State and finally
c. To reinforce the Centre’s responsibility of upholding human rights in a federal structure.
The governmental policies that disempower humans based on religion are against the constitutional vision. The constitution mandates that power must vest in the State for the welfare of all and not few. The constitutional vision of welfare must be achieved, according to the promotion of fraternity.
The judges in Nandani Sunder case have observed that state power is not exercised responsibly, then there is an inevitable breach of Articles 14 and 21. In using fraternity in such a manner, the Court has elevated the idea of fraternity to a constitutional principle and not merely a noble declaration. In drawing a clear link between unchecked state power and Articles 14 and 21, the Court has created a nexus between the threat to fraternity and a consequent breach of fundamental rights.
The Court also employed the principle of fraternity to judicially review the policy of the State, it stated that it was the responsibility of the Government to ensure the security and integrity of the nation by means which were within the four corners of the Constitution.
The Court in the issue at hand can certainly adjudicate based on the principles mentioned in the above two cases and further expound it. The Courts must preserve constitutional morality which here is an idea of a “unified nation”, where a culture of fraternity flourishes. Hence any policy of the Government which gives rise to “disaffection and dissatisfaction” from its citizens and is a threat to the unity and secular ethos is liable to be struck down on this ground alone.
NRC National Register of Citizens
Assam is a border state and is suffering from the problem of immigration. In the 70s and 80s, the immigration problem led to a strong movement in Assam, which ended with “Assam Accord”. The part of the agreement between Assam and Indian union was the preparation of NRC, which essentially was an exercise of identifying “citizen of India in Assam” and rest who were “non-citizens”.
What we have seen in the last five years is that this NRC process has led to widespread exclusion and disenfranchisement. This is because the NRC procedure relies on documents, the documentary evidence showing that you are a citizen of India.
In a country like India with widespread illiteracy and poverty, this is a very difficult task. The most vulnerable people will be up for exploitation and harassment.
In Assam, the experience shows that 19 lakh people have been left stranded as ‘stateless non-citizens,’ as they have no documents. Amount of more than 1200 crores have been spent on this exercise with negligible deportation. More worrisome is the fact that 20 lakh people in Assam were found to be wrongly excluded by the Supreme Court in this exercise.
Can NRC go National as the Home Minister Has Suggested?
Data collected till now highlights three major issues which have come in the implementation of NRC in Assam, these are;
1. The most marginalised suffer the most and
2. The women suffer more than men due to insufficient documentation
3. A negligible amount of people are deported, and the law does not even serve its purpose efficiently even after consuming lots of time and public money.
Hence, if data shows that these two oppressed groups are the most affected by such an exercise and there has been no benefit achieved, then implementing the same in the rest of the country is illogical.
If you combine CAA and NRC, what you get is that if you are a non-Muslim, who has been left out of NRC, then you still have a possible path of citizenship from CAA. A class of people gets automatic immunity based on religion and nationality. If you are a Muslim, atheist, etc., you are completely ruled out even if you belong to these countries. Ultimately, you are subjected to deportation, or you are put in detention camps. It’s relevant to point out here that the condition of detention camps is terrible and inhumane and is a separate issue in itself.
Conclusion
CAA read alone is discriminatory as it discriminates between persecuted people and divides them in an impermissible category on arbitrary grounds.
The amendment to citizenship Act has brought about disaffection, dissatisfaction and fear in a class of people and has caused unrest in the country. There is internet shutdown (which amounts to the curtailment of the right to speech and expression) in various parts of the country and Section 144 stands imposed in few states. We have an exercise like NRC which wrongly excluded 20 lakh, people, from being a citizen. Now, this is being proposed for the whole country, in the coming days. Worryingly, this might lead to the biggest statelessness crisis of the world causing immense human suffering.
A class is being discriminated based on religion, by state action. The law is arbitrarily neglecting certain communities which is against the Fraternal and Secular values of our country.
The role of the courts as the bastion of fundamental values of the nation is about to be tested. In such times, our commitment to “fundamental duty” and the true values of our country i.e brotherhood and unity and non-violent protests are also under test.
LawUmbrella 