We the members of this august democratic nation exult and frolic in our
individual freedoms guaranteed by the Constitution. But, have we developed
an alternate constitutional morality to overthrow the rule of law, robust
enough to keep us in control from abusing such freedoms?
Have we assumed
greater freedom than our intelligence, maturity and nature could fathom?
Have we really outgrown the malady of individual freedoms or silently
transitioned to anarchy and chaos? Are we nearing such ethical and
constitutional limits that the government is forced to run riot to
It would not be exaggeration to note that the Citizenship Amendment Act (CAA) has
been one of the most evocative and controversial pieces of legislation in
recent times. In a sense, it has served to reinvigorate the constitutional
values and spirit among the nations masses. However, the intent of the CAA and
resultantly, its logical outcomes have been widely misunderstood.
The politics surrounding it aside, the question, however, remains whether
the CAA is violative of some of the most fundamental provisions of the
Constitution. This article is an attempt to answer this question. Before
we dive in, a brief overview of what the CAA actually entails is necessary.
The CAA has a specific and limited purpose, namely, to confer citizenship
status to persecuted religious minorities belonging to Hindu, Sikh,
Buddhist, Jain, Parsi, and Christian communities who entered India on or
before 31st December, 2014 from three neighbouring countries that
have avowedly religious constitutions i.e. Bangladesh, Afghanistan and
Pakistan. History bears testimony to the fact that a certain section of the
population in these countries were subject to persecution on grounds
of their religion. The CAA also relaxes the residence requirement for
citizenship by naturalization for those hitherto considered illegal
from eleven years to five years. According to Intelligence
Bureau data, the immediate beneficiaries of the CAA are likely to be
Does the CAA threaten the secular nature of the Constitution?
The most popular and vehement criticism of the CAA is that it is blatantly violative
of Articles 14, 15, and 21of the Constitution.
Article 14 provides that the state shall not deny to any person equality
before law or equal protection of laws within the territory of India. The
Supreme Court in Ram Krishna Dalmia v. S.R. Tendolkar
elucidated the scope
of permissible classification for the purposes of Article 14.
it held that reasonable classification is permissible provided that:
- it must be founded upon an intelligible differentia which
distinguishes persons or things that are grouped together from others
left out of the group; and
- the differentia must have a rational relation to the object sought
to be achieved by the statute in question.
The CAA passes both these tests of constitutionality:
- Whether the distinction sought in the CAA is based on intelligible
differentia: yes –the primary distinction that the CAA draws is
between persecuted religious minorities belonging to six identified
communities and the other non-citizens. The CAA has a specific and
limited purpose, namely, to grant citizenship status to these persecuted
- Whether the differentia has a rational relation to the object sought
to be achieved by the CAA: yes – the object of the CAA is to confer citizenship
status to identified persecuted religious minorities. A rational relation to
the intelligible differentia and the object of the CAA is hence clearly
Further, in light of SCs decision in Parisons Agrotech Ltd. vs Union of
, it can be argued that the power of judicial review does not extend to
determining the correctness or the appropriate expanse of a state policy or
brainstorming better alternatives to such a policy, but rather, the limited
purpose of judicial review is to determine the legality/constitutionality of
the Act in question. Therefore, the Parliament is well within its rights
to legislate on matters relating to citizenship within the confines of
Article 15 provides for prohibition against discrimination on grounds
of religion, race, caste, sex or place of birth.
Article15 applies only to the existing citizens of India, not to aliens or
those seeking refuge. The CAA does not violate Article 15 as the same does
not apply to non-citizens/aliens.
It is outrageous to claim that CAA violates Article 21 of the Constitution,
which provides that: no person shall be deprived of his life or
personal liberty except according to the procedure established by law
. The CAA does not deprive
any person of his life or liberty. Certain identified persons who satisfy
the prescribed criteria are conferred citizenship status. Vestation of
citizenship is different from existing citizenship. Contrary to popular
perception, nothing contained in the CAA affects the citizenship rights
of the existing population of India.
Parliaments power to make law on citizenship
Dr B.R. Ambedkar, the chairman of the drafting committee of the Constitution
of India, during the Constituent Assembly debates on August 10, 1949,
had said the following on Article 5:
It is not possible to cover every kind of case for a limited purpose,
namely, the purpose of conferring citizenship on the date of commencement of the
constitution. If there is any category of people who are left out by the
provisions contained in this amendment, we have given power to Parliament
subsequently to make provision for them.
The Parliament has exclusive authority to legislate on matters relating to
citizenship (Art.11). Further, it was the avowed intent of the framers of
the Constitution that any specific cases of conferring citizenship to
persons who were left out by the original provisions of the Constitution
were to be taken up by the Parliament. The CAA is, thus, a step in that
Federalism being one of basic features of the Constitution, the states
should coordinate with the centre in upholding the constitutional order in
implementing the CAA. Any attempt by the states towards non-implementation
of the CAA wouldrender the states actions unconstitutional forcing the
centre to impose emergency under Article 356. Consequently, NRHC can probe
the transgressions by the states in this respect.
Every sovereign state has a right to apply its security considerations
before it applies principles of non-refoulement.The CAA can also be
construed as a step toward fulfilment of Indias obligations under
the Nehru-Liaquat Pact of 1950, whereby both India and Pakistan agreed to
protect their respective minority rights.
Arguably, it is no less than morally-incumbent upon a state that finds
itself with a significant number of refugees, who fled for their life, to
grant them protection. At any rate, given its multi-cultural and pluralistic
identity, it is only fitting that India implements CAA.
Written By: Srikar Jonnalagadda
The author is a Legal Research Associate with the Ministry of Law and
Justice ([email protected]