By Ananya Singh
The Citizenship (Amendment) Act, 2019 [“Amendment Act“], since its inception, has been embroiled in controversy for not only its content, but majorly for the political intention with which it was passed by the India Parliament. Nevertheless, a major debate is arousing, regarding its constitutional validity wherein the debate abides on the issue of whether it stands the test of fundamental rights enshrined in the Constitution of India. In this blog post, the author is majorly focusing on one of the most important fundamental rights which is the right enshrined under Article 14 of the Indian Constitution and it will help to decipher whether the Amendment Act stands in consonance, or in dissonance with the equality principle.
The Amendment Act purportedly seeks to provide benefits to victims of persecution, but on two grounds- religion and country of origin. It seeks to grant citizenship to the illegal migrants belonging to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities, from Afghanistan, Bangladesh or Pakistan, who have entered India before 31 December, 2014.[1] Those illegal migrants who do not fall under these heads will have to resort to the long and tedious executive procedure for the grant of “Long Term Visas” provided under a Standard Operating Procedure released by the MHA in 2011.[2] The question that arises is whether such division violates the constitutional guarantee of equal protection of law under article 14?
The Classification and Arbitrariness test under Article 14
Before proceeding towards answering this question, it becomes necessary to know what the legal requirements to satisfy Article 14 are. The article says, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[3] It can be inferred from the prima facie reading that any person, whether he is a citizen or an alien, is entitled to the protection of this article.[4] However, the principle of equality does not connote that every law must have a universal application for all persons who are not by nature, attainment or circumstances, in the same position as the varying needs of different classes of persons, who often require separate treatment.[5] It does not take away the power of legislature to exercise its discretion and make classification for legitimate purpose.[6] The apex court had observed in a case that it is not prudent or pragmatic to insist on a mathematically accurate classification covering diverse situations and all possible contingencies.[7] Thus, State can make reasonable classification among the persons within the territory of India.
Article 14 prohibits “class legislation and not reasonable classification for the purpose of legislation”[8] and “the test for a permissible classification is that it should be based on an intelligible differentia and that differentia should have rational nexus to the object sought to be achieved by the statute.”[9]
The justification for limiting the operation of the Amendment Act to refugees from the countries of Pakistan, Bangladesh, and Afghanistan is set out in the Statement of Objects and Reasons of the Citizenship (Amendment) Bill 2019 which states that the constitution of these countries provide for a specific state religion which is why the earlier mentioned six religious communities have faced religious persecution in those countries to the extent that their right to practice, profess and propagate their religion has been obstructed and restricted.[10] Therefore, the migrants from these communities who have fled to India to seek shelter and have continued to stay in India, even if their travel documents have expired, or they have incomplete or no documents, before the cut-off date, for at least five years, will be granted citizenship by registration or ‘naturalisation’.[11]
The putative purpose in the Statement of Objects forms the basis of intelligible differentia for the classification between the migrants belonging to the six religious communities and those left out like Muslims, atheists etc. The Amended Act itself does not stipulate a legislative purpose, yet it is apparent that it seeks to address persecution of religious minorities in the three countries.
Classification test under article 14
It can be argued that the Amended Act ignores the existence of persecuted religious minorities from neighbouring countries other than Pakistan, Afghanistan, and Bangladesh, such as Sri Lanka, Myanmar, Nepal, and Bhutan. It does not protect the Tamils from Sri Lanka, Rohingyas from Myanmar, Tibetans from Chinese controlled regions, and atheists from all neighbouring countries, all of whom are in the same position as the groups that are protected by the Amended Act, i.e., they constitute persecuted minorities in neighbouring countries. In addition to it, the amended Act ignores the existence of other persecuted minorities within the three selected countries, such as the Ahmadiyyas[12] in Pakistan, and hence draws a religion-based distinction in deciding which communities are to be protected from the effects of religious persecution. The present Central Government has itself raised the issue of persecution of Ahmadiyas, Shias, Ismailias and Hazaras in Pakistan, in international forums.[13] Therefore such invidious distinction to protect communities that have “faced persecution on grounds of religion in those countries”[14] fails miserably on the prongs of rationality and reasonableness.
Manifest arbitrariness
A classification would not be justified if it is palpably arbitrary.[15] Arbitrariness is the antithesis of rule of law, equity, fair play and justice.[16] The Supreme Court of India has held in a case that “manifest arbitrariness”, which is defined as something done “capriciously, irrationally and/or without adequate determining principle”[17], is a ground for striking down legislation under Article 14 of the Constitution.[18]
Another debatable point against the Amended Act, could be that it is manifestly arbitrary because i) it sets the personal traits (religion and country of origin) of an individual as the criterion for citizenship; ii) it provides no explanation for privileging religious persecution over other forms of persecution (such as the political persecution of Tibetans)[19] when it comes to the grant of citizenship; and lastly, iii) it exempts from its operation, the “tribal areas of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873”[20], and hence creates two citizenship regimes within India. In reality, the constitutional guarantees of the Sixth Schedule as well as the Inner Line System have nothing to do with citizenship as a formal legal status, as their purpose is to protect the rights of indigenous community resident in those areas.
Reasonable classification for legitimate purpose
Article 14, in addition to “intelligible differentia” and “rational nexus”, requires the existence of a “legitimate purpose”.[21] In Navtej Johar v. Union of India[22], the Hon’ble Supreme Court clearly held that legislative classification founded on an “intrinsic and core” individual trait would ipso facto fail the test of Article 14. “Religion” and “country of origin” constitute “intrinsic and core” traits of an individual. One’s “country of origin” cannot form a reasonable classification based on an intelligible differentia as it is an immutable characteristic, i.e., it is beyond the control of an individual to modify or alter. Thus, a classification based upon the assumption that the illegal migrants within the Indian territory of only certain faiths or from certain neighbouring countries are entitled to protection from religious persecution is ipso facto invalid, and utterly fails the test of “reasonable classification for a legitimate purpose.”
However, on the other hand, the legitimacy of the object of the Amended Act can be deciphered from the fact that the religious minorities in the three selected countries have been and continue to be ill-treated (for example, a recent December 2019 UN report shows Pakistan atrocities overs its minority community)[23] and Islam, being their state religion and majority population belongs to Islam, cannot become a criteria for granting Indian citizenship because India cannot wade into sectarian or ethnic dispute within Islam in another Islamic country. The exclusion of other neighbouring countries becomes just because India cannot overburden its resources and capacity by widening the scope of the Amended Act to not include all the possibilities. Its limited scope cannot make the Act arbitrary or unreasonable because the reasonableness is to be judged with reference to the object of the legislation and not moral considerations.[24] Mere discrimination or inequality of treatment does not per se show that the classification is unreasonable but the absence of rational basis regarding the object of the legislation does.[25]
Therefore, the Amended Act is quite debatable from the purview of its constitutionality and congruity with article 14 but now since it has been challenged in the Supreme Court of India, it is for the apex court of the country to decide on the longevity of the Citizenship (Amendment) Act, 2019.
The Author is a 3rd year student pursuing her law degree from the National Law University, Jodhpur.
[1] §2(1)(b), The Citizenship(Amendment) Act, 2019 (India).
[2] See https://mha.gov.in/PDF_Other/AnnexVI_01022018.pdf
[3] India Const art.14.
[4] Chiranjit Lal Chawdhari v. Union of India, AIR 1951 SC 41.
[5] State of Bombay v. F.N. Balsara, AIR 1951 SC 318.
[6] Anukul Chandra Pradhan v. Union of India, (1997) 6 SCC 1.
[7] Kedar Nath Bejoria v. State of W.B., AIR 1953 SC 404 .
[8] Budhan Chowdhary v. State of Bihar, AIR 1955 SC 191 .
[9] State of W.B.v. Anwar Ali Sarkar, [1952] SCR 284 ; E.P. Royappa vs. State of Tamil Nadu, AIR 1974, S.C. 555.
[10] ¶2,The Statement of objects and reasons, The Citizenship (Amendment) bill 2019.
[11] ¶7,The Statement of objects and reasons, The Citizenship (Amendment) bill 2019.
[12] United Nations Office of the Human Rights Commissioner, “Pakistan Must Repeal Discriminatory Measures Leading to Persecution of Ahmadis, says UN Experts” (July 25,2019),
[13] Second Right of Reply by India under Agenda Item 2 at the 41st Session of the Human Rights Council delivered by Mr. Vimarsh Aryan, First Secretary, Permanent Mission of India, Geneva, (25th June 2019), https://www.pmindiaun.gov.in/pages.php?id=1953
[14] Supra note 10.
[15] Re Special Courts Bill, AIR 1979 SC 478.
[16] Lakshmi Precision Screws Ltd v. Ram Bhagat, AIR 2002 SC 2914.
[17] Id.
[18] Shayara Bano v Union of India, (2017) 9 SCC 1.
[19] Amnesty International, Persistent human rights violations in Tibet, ASA 17/018/1995, (1 May 1995) : https://www.refworld.org/docid/3ae6a9d1c.html
[20] Supra note 10 ¶10.
[21] Deepak Sibal v Punjab University, (1989) 2 SCC 145 ; Subramaniam Swamy v Union of India, (2014) 8 SCC 682 .
[22] Navtej Johar v. Union of India, (2018) 10 SCC 1.
[23] UN Commission on status of women, Pakistan:Religious Freedom under Attack, (December 2019), https://www.sadf.eu/wp-content/uploads/2019/12/2019-12-pakistan-religious-freedom-under-attack-final-compressed-single-pages-1.pdf
[24] Garg R.K. v. Union of India, AIR 1981 SC 2138.
[25] State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284.
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