CAA and NRC: Those arguing that the two are discriminatory and tools of persecution must read up on Constitution and Indian law

  • The debate over Citizenship Amendment Act and the issue of NRC has been raging for over two weeks now, but there is still dearth of legal scholarship on the constitutionality or unconstitutionality of the CAA and the proposed NRC

  • If CAA is unconstitutional, it has to violate some provision of the Part III. Article 14 - Right to Equality, forms a constituent of Part III. Whether Article 14 is violated or not becomes the central question to determine the constitutionality of CAA

  • By their very nature, legal and constitutional questions, have to be decided by particular pedagogy, which at times needs to be decluttered from the historical, political and social questions

The debate over Citizenship Amendment Act (CAA) and the issue of National Register of Citizens (NRC) has been raging for over two weeks now, but there is still dearth of legal scholarship on the constitutionality or unconstitutionality of the CAA and the proposed national NRC. By their very nature, legal and constitutional questions, have to be decided by particular pedagogy, which at times needs to be decluttered from the historical, political and social questions.

The judiciary in India has read the power of Constitutional Review under Article 13 of the Constitution of India by which it has the power to strike down the Parliamentary Laws, if they violate Part III (this is the part which contains Fundamental Rights) of the Constitution.

Therefore, if the CAA is unconstitutional, it has to violate some provision of the Part III. Article 14 - Right to Equality, forms a constituent of Part III. Whether Article 14 is violated or not becomes the central question to determine the constitutionality of CAA. The decision on the above question is not straightforward, and in the constitutional scheme of things, the judiciary has two doctrines to decide upon this question.

 CAA and NRC: Those arguing that the two are discriminatory and tools of persecution must read up on Constitution and Indian law

File image of Supreme Court. PTI

Article 14 contains two concepts - equality before law and equal protection of laws. The first, is a negative concept, which means that no one can have any special privilege in the country, with respect to treatment by law. For instance, no one can have a special trial at a criminal court, irrespective of the religion or the government position that they hold.

The second, is a positive concept, where in scores of cases, the Supreme Court has held that the provision provides for equal treatment only under equal circumstances. This means that the state can legitimately discriminate among people under different circumstances, and it is prohibited to discriminate only among people in a particular circumstance. Under the second concept, the State, for instance, can discriminate between a graduate and a diploma degree holder, legitimately, and can also provide special privileges to a set of individuals, for instance, the policy on affirmative action.

Judiciary, therefore, has a mandate to keep a tab on the extent of discrimination which has been allowed. To do this the apex court has postulated two judicial doctrines under Article 14. The first one, has been borrowed from the US jurisprudence, and is known as the Doctrine of Reasonable Classification. This says that if there is reasonable classification by a law which is based on intelligible differentia, and this differentia has a nexus with the objective of the law, then such classification should be allowed. This is known as the nexus test, and was propounded by the Supreme Court in the case of State of West Bengal versus Anwar Ali Sarkar.

The second and the new doctrine, adopted by the Supreme Court is known as Doctrine of Non-Arbitrariness. It was first propounded by the court in EP Royappa versus State of Tamil Nadu and was also used in the famous case of Maneka Gandhi versus Union of India. As per the test of arbitrariness in this doctrine, it does not matter if the state action attempts a reasonable classification or not, it matters if the action is arbitrary. It presumes that all arbitrary actions are unequal and hence are violative of Article 14.

Applying the above tests is the only way to ascertain the question of constitutionality of CAA. The first legal question, which arises from this, is that who are the subjects of this law. The determination of subjects is important, because only the subjects have the legitimacy to approach the courts and to challenge their treatment by the state. From a plain reading of the amendment, it will be clear that the law only applies to illegal immigrants, simply because it talks about legitimising illegal citizenship of a set of illegal immigrants.

The first legal question for the Supreme Court to decide in this case is, therefore, if an illegal immigrant can even approach the Court.

It is now pertinent that we examine, what is the jurisprudence otherwise relating to illegal immigrants, that has been propounded or settled by the Supreme Court of India.

The court in In Louis De Raedt versus Union of India has held that:

"The power of the Government of India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering its discretion and the executive government has unrestricted right to expel a foreigner. So far as right to be heard is concerned, there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case."

The court after quoting the above in Sarabananda Sonwal v Union of India, has held that the power to grant citizenship is consistent with territorial sovereignty. It means that it is a sovereign and totally executive function. The Court has quoted the famous authority on International Law - JG Starke, in para 49 of the judgment:

"Most states claim in legal theory to exclude all aliens at will, affirming that such unqualified right is an essential attribute of sovereign government. The courts of Great Britain and the United States have laid it down that the right to exclude aliens at will is an incident of territorial sovereignty. Unless bound by an international treaty to the contrary, states are not subject to a duty under international law to admit aliens or any duty thereunder not to expel them. Nor does international law impose any duty as to the period of stay of an admitted alien."

These observations of the Court are not only pertinent for the CAA but also for the NRC, when the court makes it clear that there is no duty upon the state under International Law, to admit any immigrant.

It has been held by the Supreme Court in a series of cases, like General Manager, North West Railway vs Chanda Devi, that the state can make rules to benefit a certain class of individuals, which can arguably also apply to illiegal immigrants. In the mentioned case, it was for the pension benefit to the regular employees, as opposed to casual employees.

Therefore, in the present case, the CAA provides for an expedited process for legitimisation of illegal immigration of persecuted minorities from Afghanistan, Pakistan and Bangladesh. It can be argued that this passes the tests contained in Article 14, because the reasonability of persecution and its relevance in better treatment, can serve as a non-arbitrary treatment by the state.

However, the ultimate decision has to be that of the Apex Court, because there can be legal arguments against the constitutionality also. What is certain is that this is a question which requires certain legal and constitutional scholarship, and can't be settled at the pedestrian level, on the roads.

The author is an Assistant Professor of Law at Maharashtra National Law University in Mumbai

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Updated Date: Dec 21, 2019 16:04:31 IST