CAA: Writ Petition Summary (Indian Union Muslim League)Citizenship Amendment Act
The Citizenship (Amendment) Act, 2019 (hereafter ‘CAA’) amends the Citizenship Act, 1955 so as to grant a certain class of illegal migrants a path to Indian citizenship. The CAA makes illegal migrants eligible for citizenship if they (a) belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian community and (b) are from Afghanistan, Bangladesh or Pakistan. It only applies to migrants who entered India on or before 31 December, 2014. Certain areas in the North-East are exempted from the provision.
Viewed in combination with the proposed all-India National Register of Citizens (NRC), the CAA has the potential to deprive many Muslims residing in India of full citizenship. While excluded non-Muslims will have the opportunity to regain citizenship via the CAA, this will not be the case for Muslims. So, the NRC in combination with the CAA may disproportionately exclude Muslim residents of India.
The Indian Union Muslim League (IUML) filed a petition under Article 32 of the Constitution challenging the constitutionality soon after the Bill was passed in Parliament earlier in December. The CAA was officially notified on 10 January 2020. Soon various other litigants followed and there are currently around 200 petitions tagged to the IUML petition.
Many of the petitions pray for the Court to strike down four notifications issued by the Union government in 2015 and 2016 on similar grounds. The notifications (G.S.R. 685(E), 686(E), 702(E), 703(E)) exempt illegal migrants from the above six religions and three countries of origin from deportation and detention under the Passport (Entry into India) Act, 1920 and Foreigners Act, 1946.
Article 14 – Unreasonable Classification
The primary basis on which the CAA is being challenged is Article 14 of the Constitution of India, 1950.
Article 14 provides a ‘twin test’ of reasonable classification. This means that a legislation is valid only if (i) it differentiates or classifies on the basis of ‘intelligible differentia’ (ie with clear criteria) and (ii) this differentiation has a reasonable ‘nexus’ (connection) to the objective sought to be achieved by the legislation.
First, the petitioner contends that religion-based classification is impermissible. Navtej Singh Johar v. Union of India held that ‘intrinsic and core traits’ cannot be the basis of classification. And religion is such a core trait.
Second, there is no reasonable connection between the objective of providing citizenship to religiously persecuted minorities and the classification in the CAA. This is because the CAA leaves out Ahmadiyyas in Pakistan and Shia and Hazaras in Afghanistan, who also undergo religious persecution.
So, the classification is not reasonable.
Article 14 – Arbitrariness
In Sharma Transport v. Government of AP, the Court held that there must be a principle behind a decision, otherwise it is arbitrary under Article 14. The petitioner argues the choice of countries lacks a principle in making a classification and is arbitrary for this reason.
There are persecuted minorities in Sri Lanka (Eelam Tamils) and Myanmar (Rohingya Muslims) as well. And Sri Lanka also has a State religion. So, religious persecution in these countries, or the fact that these countries have a State religion cannot be the principles behind the classification. The petitioner submits that this is manifestly arbitrary.
Article 14 – Discriminatory Effect
In Bachan Singh v. State of Punjab, the Supreme Court had held that the Court must consider the ‘direct and inevitable consequence’ of the statute. The NRC process could strip people of citizenship. This is already underway in Assam. The petitioner argues that if the CAA applies, Hindu migrants would have legal protection, but Muslim migrants would not. The only people who have to prove their citizenship will all be Muslims.
This same effect would take place nationwide, if it is implemented as announced by the Union Government.
The petitioner argues that by treating Muslims as ‘second class citizens’, the CAA also violates the principle of secularism. In SR Bommai v. Union of India, the Court had held that secularism is a basic feature of the Constitution.
The petitioner argues that it also violates the Refugee Convention 1951, which prohibits discrimination on the basis of religion. The same right is available more broadly in Article 26 of the International Covenant on Civil and Political Rights and Article 7 of the Universal Declaration of Human Rights, 1948 (UDHR).
Further, Article 15 of the UDHR provides that ‘everyone has a right to nationality’. The petitioners argue that there is an emerging principle under international law that statelessness should be avoided. This constrains the discretion of a State to grant citizenship, to ensure that immigrants are not rendered ‘stateless’ without good reason.
So, the petitioner prays that the CAA, and the earlier mentioned Government notifications of 2015 and 2016 be struck down.