This article has been written by Niharika Goel, from VIPS, Guru Gobind Singh Indraprastha University. This article represents various circumstances where judicial interpretations have allowed reasonable classification to differentiate between different classes, and their applicability to the Citizenship Amendment Act, 2019.
Table of Contents
Introduction
The Constitution of India guarantees the right to equality through Article 14 to Article 18 which provides the notion that equality is one of the magnificent cornerstones of Indian democracy. The doctrine of equality runs collateral to the rule of law as provided in the Indian Constitution.
It is a matter of common knowledge that Article 14 outlaws discrimination and guarantees equality to all persons irrespective of their caste, race, gender, place of birth and religion. Article 14 is the most significant fundamental right of the Indian Constitution that has been given a highly active magnitude by interpretation of courts which gravitates to a large number of court cases.
It embodies the principle of non-discrimination and can be read in conjunction with the rights conferred by Article 21 of the Constitution. It refers to the right to life and includes several aspects of life and they both create the heart of the chapter on fundamental rights in the Indian Constitution.
It is pertinent to note that Article 7 of the Universal Declaration of Human Rights, 1948 provides that all are equal before the law and are entitled without any discrimination to the equal protection of laws which mirrors the concept of equality embodied in Article 14 of the Indian Constitution. The Supreme Court has declared the right to equality as a basic feature of the Indian Constitution and the Constitution emphasizes upon the principle of equality and is wedded to the concept of equality.
The principal becomes as strict as declaring a constitutional amendment invalid if the aforesaid is violated. Therefore, neither the parliament nor any state legislature can transgress or violate the right to equality. As enumerated by the Supreme Court of India in Baddapanabar v. State of Karnataka, equality is a basic feature of the constitution and any treatment of equals and equal or unequal equals will be a violation of a basic structure of the Constitution.
The Constitution is wedded to the negative and positive concept of equality, for equality is one of the magnificent cornerstones of Indian democracy. These negative and positive concepts are embodied for propagating reasonable and equitable principles. The former runs collateral to the Dicean concept of the rule of law subjecting everyone equally to the law of land, while the latter demands universal application irrespective of circumstantial eventuality. It embodies the principle of non-discrimination. However, it is not a free-standing principle, for it has to be read in conjunction with rights conferred by Article 21, and is a necessary corollary of the Rule of Law which pervades the Indian Constitution.
However, owing to the diverse needs of the different classes subject to nature, attainment, or circumstances, the legislature seeks to attain a particular object for legislation. This is done by way of distinguishing, classifying and selecting since mechanical equality would result in injustice.
Allowance of differential treatment/reasonable classification
As propounded by a seven-judge bench under the State of West Bengal v. Anwar Ali, the legislature is entitled to make a reasonable classification based on an intelligible differentia to put a section of people in one class on equal footing, forming a nexus thereof. The Citizenship Amendment Act, 2019 was established violative of the spirit of Article 14, holding the division based on geography, religion, and a cutoff date, to determine the eligibility of the immigrants to seek citizenship, arbitrary. When an administrative action is attacked as arbitrary and discriminatory, the impugned Act must be scrutinized for any discernible principle and if so, the test of reasonableness must be applied.
Thus, the principle of equality of law does not provide that the same law shall be applicable to everyone but that law should deal alike with all in one class falling under equal circumstances. This means, in simple words, that equals should not be treated distinctly and unlikes should not be treated alike as enumerated in Gauri Shanker v Union of India. Article 14 does not mean unequals should be treated alike, it means that people who stand on equal footing shall be treated equally but may be differentiated from people with unsimilar footing.
Therefore, the interpretation of Article 14 allows the legislature to make a reasonable classification for the purpose of the legislation and consider all such people in one class while the other class can be distinct from the former. Thus, Article 14 does not operate against rational classification and ensures equality among equals with the aim to protect persons similarly placed against discriminatory treatment. Article 14 forbids class legislation but it does not frown upon the reasonable classification of persons falling under similar circumstances for the purpose of a given specific end. For the classification to be reasonable, it should fulfill the following two tests:
- The legislation which classified a group of people should not be arbitrary, artificial. Further, it should not be based on a differentia that differentiates people falling under the same class, leaving a few out of it.
- The differentia adopted as a basis of classification must have a rational or reasonable nexus with the object sought to be achieved by such legislation or statute in question.
Therefore, what is necessary to create classification collateral to Article 14 of the Constitution is that, there must be a substantial basis for making such classification and there should be a nexus between the basis and the object that is being achieved by such classification. In simpler words, there must be some rational nexus between the aim of classification and the basis on which the classification has been achieved. Differentiation in treatment does not amount to discrimination within the ambit of the right to equality. It is necessary to absolutely prove the reasonableness and arbitrariness of such legislation and that it rests on a logical substantial nexus.
Judicial Decisions
The case of the Union of India v M.V. Valliappan further observed that differentiation is not always discriminatory if there is a rational nexus on the basis of which such differentiation has been achieved with the object that is aimed to be achieved, it would not violate Article 14 of the Constitution.
However, over-emphasis on such classification has been frowned upon and been warned against by the apex court of India. It has been explained that the doctrine of classification is only a subsidiary rule evolved and interpreted by the courts to give a practical aspect to the doctrine of equality. However, overemphasis on the doctrine of classification for deliberate attempts to discover some basis for classification mainly erodes the profound gravity of Article 14 of the Constitution.
On the other hand, in the case of Dipak Sibal v Punjab University, the Supreme Court pointed out that a classification need not be made with mathematical precision. However, if there is little or no difference between the persons who have been grouped together and classified into a class and those people left out of the group, such classification will not be regarded as reasonable.
To consider the reasonableness of classification it is necessary to take into focus the objective behind the aforesaid. The object standing illogical, unfair, and unjust classification will stand ultra vires. However, reasonable surroundings and circumstances can be taken into consideration which may otherwise have proven such statutes as discriminatory in nature.
The circumstances that have been taken into account must be searched to absolutely justify the discriminatory treatment for the classification which has taken place. Even administrative necessity or convenience has been upheld as a basis of classification as illustrated in Supdt. & Remembrancer of Legal Affairs v. State of West Bengal. This has formally taken place in matters of taxation and economic regulation considering the complexities involved in the specific areas.
As a matter of concern, however, it is pertinent to throw light on the fact that courts show reluctance to hold the legislation void on the ground of its violation with Article 14.
Circumstances under which classification is allowed
It is pertinent to throw light on the fact that courts portray reluctant behaviour to avoid legislation on the ground of incompatibility with Article 14 and structures its jurisdiction to give the benefit of doubt as to the purpose of classification of the impugned legislation. This is done in the view of speedy recovery considering policy decisions cannot be faulted. Further, the court does not hold the power to test the legitimacy of such measures.
Even the Supreme Court has over emphasised on the doctrine of classification. However, the apex court has held an anxious attempt to discover some basis for classification everytime a legislation has been challenged. Many a time, the Supreme Court itself has ignored this warning and upheld legislation by scrutinizing some intelligible differentia behind the policy within the law. Some voices of protest have occurred from the bench itself against too much judicial anxiety to discover a basis for classification.
The Supreme Court has time and again retaliated that the courts cannot act over the question of correctness, suitability and appropriateness of a policy, nor can they act as advisors to the executive on matters of policy which they are entitled to formulate. The racial review is confined to the examination of whether any fundamental right has been violated or opposed to the provision of the constitution.
Through this manifestly arbitrary door came the conclusion that the traditional reviews of courts are concerned only with the legality of the policy and not the wisdom or soundness of the policy. When a statute is violated under Article 14, it is the function of the court to decide whether the statute shall be struck down on the degree of arbitrariness and unreasonableness and the extent to which it is unconstitutional.
Thus, differential treatment on the basis of reasonable classification has been validated time and again by the apex court of India under the light of Article 14 in a catena of cases, as enumerated below.
Classification on the basis of cut-off dates
In the case of the State of Punjab versus Amarnath Goyal, the financial constraint was held as a valid ground for the fixation of a cut-off date to grant the benefit of increased quantum of death from retirement gratuity. Therefore, on the basis of financial constraints, the action of the government to limit the aforesaid benefit to those government employees who had died or retired on or after 1.14.1995 was held to be non-arbitrary and rational.
The court has always recognised that whenever a cut off date is fixed a question must arise as to why a person would suffer only because he comes within the wrong side of the cut-off date. The mere fact that some particular person or a section of society would face hardship by itself would not hold a reasonable ground for holding that the cut-off date so fixed is ultra vires of Article 14
In D.S. Nakara v Union of India, an official memorandum was announced by the government which announced a liberalized pension scheme for retired government servants; however it was conditional to those who had retired after March 31, 1979. The Supreme Court here held that the fixing of the cut-off date is discriminatory and violative of Article 14 considering that all pensioners retiring either before the cut-off date or after forming one class in itself. The division of pensioners into two classes on the basis of birth date was not at all based on any rational principle and could have a traumatic effect on the pensioner, making it arbitrary for no persuasive reason in its favour. The said classification does not have any rational nexus with the object sought to be achieved. It was further clarified that the case prohibited discrimination between pensioners forming a single class bound by the same rules could not be differentiated by the cut-off date.
In the case of Krishna Kumar v Union of India, the prior Nakara ruling was reconsidered. It was ruled by the Supreme Court that the option given to the employees being covered by the provident fund scheme to switch over to the pension scheme with effect from the specified cut-off date will not be violative of Article 14. The court based on the contention that pension retirees and provision fund retirees do not form a class and different rules apply to the two groups stated that it would make it unreasonable to argue that whatever applies to the pension retirees must also be equally applicable to the provident fund retirees.
Classification for foreigners
The Government of India holds absolute and unlimited power to expel foreigners and there is no provision in the Constitution of India which fetters its discretion. It enjoys an unrestricted right to expel a foreigner. As far as the principle of audi alteram partem is concerned, there cannot be any hard and fast rule by the manner in which a person concerned has been given an opportunity to provide his side of the case. In the case of Sarbananda Sonowal v Union of India, the procedure under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 was held to be just, fair and reasonable and not violative of any constitutional provision.
Classification for civil services
In the case of Mohan Kumar Singhania v. Union of India, it was ruled by the apex court that each of the various civil services that is IAS, IPS, Group A services and Group B services form a distinct cadre and each of these services is found on intelligible differentia which, on rational grounds, distinguishes person into a group, from those left out and these distinctions were held to be real and substantial holding rational and reasonable access to the objects that were sought to be achieved by such distinction.
Classification for life insurance
The Life Insurance Corporation (LIC) which is a statutory body had introduced a scheme of life insurance that was made open and accessible only to those people in government or selling government service or a reputed commercial form. When such a scheme was declared unconstitutional and ultra vires of Article 14, LIC argued that these salary groups form the class according to the identification of health conditions. However, the apex court rejected the argument stating that such classification tends to exclude lives in vast rural and urban areas and engaged in unorganised or self-employed sectors to have Life insurance which offends Article 14 of the Constitution under LIC of India v Consumer Education & Research Centre.
Mistake not to be repeated
In the case of Guru Sharan Singh v New Delhi Municipal Commissioner, the Supreme Court held that the guarantee of equality before law was a positive coin and could not be enforced by a person in a negative manner. In consequence, if illegality and irregularity were committed by a State in favour of a person or group of persons, it cannot be claimed by another person that the same irregular order shall also be applied in their favour on the principle of equality before the law.
Benefits extended to some person in an irregular manner or illegal manner cannot be claimed by citizens. If such claims are granted in the first place, it will amount to continuous perpetuation of an illegal process for extending similar benefits to others in order to achieve such benefit and such concept of equality. The petitioner shall establish his claim as just and legal, claiming that he has been discriminated against by others in pursuit of such benefit. Irregular judgements passed by the High Court under Article 226 in the favour of any person does not entitle another person to claim a similar benefit by invoking the doctrine of equality in his own favour because two wrongs do not make a right, as held in the State of Bihar v. Kameshwar Prasad Singh.
Mere Hardship not a ground for violation of Article 14
Merely the reason that hardship has been suffered by a person, in accordance with a reasonable classification done for others, holds no ground to violate the right to equality. That being said, the legislation cannot be held ultra vires of Article 14 on the ground of mere hardship faced by others.
However, it can still stand if the ground of total unreasonableness applies to such legislation. Such reasonableness can be determined by the principle of Wednesbury unreasonableness which states that a governmental decision may be quashed by the High court as held under Grand Kakatiya Sheraton Hotel and Towers Employees & Workers Union v. Srinivasa Resorts Ltd.
Discrimination by the State in its own favour
Article 14 does not outlaw discrimination between the state and private individual since the two do not stand on the same footing. Therefore, the creation of a monopoly by the state in its own favour was not held to be bad or completely rational under Article 14 as held in the case of Sagir Ahmad v. State of Uttar Pradesh. The exemption granted to land and buildings of the government or all of the local authority of a government-sponsored housing Board has been held to be valid as they do not hold any intention of personal profit and it would not lead to the erection of tenants nelli bi and duration of friends as done by private individuals does making the situation reasonable.
In a few cases, the apex court has also held that government debts can also be given clarity over individual tax, the government can organise special procedures for revocation of unauthorised occupants of government premises and government property from the class in itself.
Geographical differentiation
As held in the case of Clarence Pais v. Union of India, geographic considerations have formed a valid basis of classification for the purpose of legislation in accordance with appropriate cases. The historical reasons may justify differential treatment of separate geographical regions, provided it bears a reason and just relation to the matter in respect of which differential treatment is accorded. Uniformity in law has to be achieved, but that is a long drawn process.
Judicial observations provide support to the policy decision to such an extent that the power of judicial review is said to have not extended to determine the correctness of such a policy decision or to indulge in the exercise of finding out whether there could be more appropriate or better alternatives. Provided, the difference between the geographical units has a reasonable relation to the object sought to be achieved, geographical classification is not forbidden.
It has been presented that one uniform law shall not need to operate throughout the state regarding a particular matter. And if circumstances so desire, a state can be divided into several zones classified according to their needs and different laws regarding the same matter can be applied to these sacred zones. Thus, Orissa can have two Acts to nationalise road transport, one applying to that part of the State which was previously British, and the other to that part which was previously princely, as the conditions in the two parts differ materially as decided under Ram Chandra v. State of Orissa.
However, it has also been held in the case of Sarbananda Sonowal v. Union of India that mere geographical classification cannot be sustained as valid under Article 14 of the Constitution where the Act instead of sustaining the object of legislation, defeated the very purpose for which it was made.
Procedural differentiation
The protection under Article 14 is not limited to substantive law but extends to procedural laws as well. It tends to condemn and hold unconstitutional not only substantive law but procedural laws also. The apex court of India had observed that Article 14 does not only guarantee equal protection for substantial laws but procedural laws also come within its ambit in the case of Shree Meenakshi Mills Ltd., Madurai v A.v. Visvanatha Sastri.
In conclusion, Article 14 implies that all litigants situated under similar circumstances are entitled to avail themselves of the same rights for relief and for defence with no discrimination whatsoever. Therefore, if two different people falling under the same class are subjected to a more drastic procedure than others, then it will be discriminatory and ultra-vires of Article 14. If two laws apply to a class then the one which is more burdensome is discriminatory and shall be void under Article 14.
This means that if a special procedure is laid down for a class of people as distinguished from others, then such ‘class’ must be based on a rational differentia having a reasonable relationship with the object sought to be achieved.
Classification applicable to a single person
Merely because of the reason that certain classification is applied to only one person based on reasonable differentia and nexus achieved, such statute does not become invalid. A single body or institution may form a class. Any legislation specifically directed to a named person or body will be valid if a reasonable differentia is achieved on the basis of special circumstances. A single person can be treated as a class by himself.
However, an Act may not hold the potential of scrutiny if there are no distinguished special circumstances differentiating the person concerned from the rest or if the people left out have the same attributes not covered by the Act. To conclude, a restriction imposed by the reason of a statute shall be upheld if the person to whom the same applies forms a distinct class on the basis of reasonable classification based on intelligible differentia in nexus with the object sought to be achieved by such Act as laid down under John Vallamattom v. the Union of India.
Two laws
If there are two laws covering a situation, one more elastic than the other, then there might be a danger of discrimination, if the description is conferred upon the administration to apply any of these laws in a given case. Out of the two people placed in a similar situation forming one class, one may be dealt with a less drastic law than the other which shall be discriminatory and violative. In order to minimise any chances of such discrimination, it is pertinent to lay down some rational and reasonable principles and policies to regulate such administrative discretion in accordance with such application as insisted by the court. If there is an absence of such principles then it shall be void under Article 14. This was the scenario that was applied by the supreme court before 1974.
Special Courts
In the case of the State of West Bengal v. Anwar Ali Sarkar, a Bengal law was involved that permitted the setting up of special courts for the ‘speedier trial’ of such ‘offences’, or ‘classes of offences’ or ‘cases’, or ‘classes of cases’, as the state government might direct by general or special order. These courts were to follow a procedure less advantageous to the accused in defending himself than the procedure followed by the ordinary criminal courts.
It was held invalid as it made no reasonable classification, laid down “no yardstick or measure for the grouping either of persons or of cases or of offences” so as to distinguish them from others outside the purview of the Act. The government had the power to pick out a case of a person and hand it over to the special tribunal while leaving the case of another person similarly situated to be tried by the ordinary criminal courts. It gave ‘uncontrolled authority’ to the executive ‘to discriminate’. The necessity of a ‘speedier trial’ was held to be too vague, uncertain and an indefinite criterion to form the basis of a valid and reasonable classification.
On the other hand, in the case of Kathi Raning Rawat v Saurashtra, a provision practically similar to the one involved in the above-mentioned Anwar Ali case was held valid because the court found that a policy was stated in the preamble to the Act, and that the government was expected to select such offences, classes of offences and classes of cases for trial in special courts as were calculated to affect public safety, maintenance of public order, etc. Comparing the above two cases, it would appear that the main difference in the terms of the statutes, which resulted in different judicial verdicts as to their validity, was that the preamble to the Saurashtra Act was more elaborately worded than that to the Bengal Act. While the term ‘speedier trial’ used in the Bengal Act to set up special courts was held to be indefinite, the words ‘public safety, etc.’ in the preamble to the Saurashtra Act were held to be more definite and as giving a guiding principle to control administrative discretion. In essence, the difference would appear to be more in the nature of drafting rather than that of substance.
Though the principle that law should lay down the policy if discretion to classify is vested by it in the executive, and that the executive cannot be given an uncontrolled authority to differentiate, was applied in both cases, yet difference arose in its application to specific circumstances. However, in the Saurashtra law, the provision authorising the government to pick out any individual ‘case’ for trial by a special court was held invalid as being discriminatory. The government could specify a ‘class’ of cases, offences or persons for trial by special courts, but it could not claim the power to send a single, specific ‘case’ out of a class to a special court for trial.
The principle laid down in the above cases has been reiterated and applied in several other cases pertaining to special courts, though the result reached by the courts may not always appear to be quite satisfactory. In Kedar Nath Bajoria v. the State of West Bengal, the law setting up special courts mentioned the offences triable by them but gave discretion to the government to allot cases for trial to these courts. Two questions were raised for the consideration of the Supreme Court:
- Did the law disclose any reasonable classification as to the offences mentioned?
- Was the discretion left with the government to select cases for trial by special courts valid?
The court answered both the questions in the affirmative. As regards the first, it held that the types of offences mentioned in the Act were those which were widely prevalent during wartime and the policy was clear in the Act. It should however be noted that the Act in question contained no specific words to define the policy. The Court discovered the underlying policy by its own process of rationalization. On the second question, the argument that the government could make a discriminatory choice among persons charged with the same offence, submitting one case for trial to a special court and leaving the other for trial by an ordinary court, and thus discriminate within the same class, was rejected on the ground that the standards, policy and purpose of the Act were laid down in clear terms, and the administrative authority “is expected to select the cases to be brought before the courts in fulfilment of that policy”.
In August, 1978, the President made a reference to the Supreme Court under Article 143(1) of the Constitution, seeking the Court’s opinion on the constitutional validity of the Special Courts Bill proposing the setting up of special courts for speedy trial of offences committed by the holders of high public and political offices during the emergency of 1975-77.
The proposed court was to be presided over by a sitting or retired High Court Judge to be appointed by the Central Government in consultation with the Chief Justice of India, and the accused could appeal to the Supreme Court against the verdict of such a court. The Supreme Court ruled that Parliament could make the law in question under entries 11A of List III and 77 of List I and that it did not infringe Article 14 as the classification provided by the Bill was valid. “The promulgation of emergency is not and cannot be a matter of normal occurrence in a nation’s life, and “offences alleged to have been committed during the period of emergency constitute a class by themselves and so do the persons who are alleged to have utilized the high public or political offices by them as a cover or opportunity for the purpose of committing those offences.” The Court also invoked Article 21 to assess the fairness of the procedure provided for in the Bill — this aspect is discussed later.
The above-mentioned bill was enacted as the Courts Act, 1979 with one major change. Originally, it was confined only to the trial of offences committed during the emergency, but, in Parliament, its scope was expanded so as to provide for setting up of special courts for trial of offences committed by those who held high “public or political offices” for all time to come. The Act was thus envisaged to be a permanent measure instead of being confined only to the emergency.
The Act was upheld by the Supreme Court in State (Delhi Administration) v. V.C. Shukla, against challenge under Article 14. The Court said that the main object of the Act was to provide for the speedy trial of certain classes of offences, viz., offences committed by persons holding high public or political offices as a trust. Such persons have been placed in a separate class. For maintaining democracy, administrative efficiency and purity, it is necessary that when such persons commit serious abuse of power and are guilty of a breach of trust reposed in them, they form a special class of offenders. Quick disposal of such cases is necessary, for if such cases are allowed to have their normal and leisurely span before normal courts, then the whole purpose in launching them may be frustrated. The term ‘high public or political office’ is not vague, it bears a clear connotation as it means persons holding top positions wielding large powers.
Unreasonable laws
As has been explained by Bhagwati J. in Bachan Singh v State of Punjab, the rule of law which permeates the entire fabric of the Indian Constitution excludes arbitrariness. “Wherever we find arbitrariness or unreasonableness there is a denial of rule of law.” Article 14 enacts primarily a guarantee against arbitrariness and inhibits state action, whether legislative or executive, which suffers from the vice of arbitrariness. “Every state action must be non-arbitrary and reasonable. Otherwise, the court would strike it down as invalid.”
This new dimension of Article 14 transcends the classificatory principle. Article 14 is no longer to be equated with the principle of classification. It is primarily a guarantee against arbitrariness in state action and the doctrine of classification has been evolved only as a subsidiary rule for testing whether a particular state action is arbitrary or not. If a law is arbitrary or irrational it would fall foul of Article 14. As an example, it has been held that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14.
But controlled discretion exercisable according to a policy for a purpose clearly enunciated by a statute does not suffer from the vice of conferment of unrestricted discretion. A statutory provision providing for payment of compensation for the land acquired by the State from a person, in several annual installments instead of one lump sum, is unreasonable. The Supreme Court has argued that the owner of the land would require compensation in lieu of land forthwith to re-establish himself by purchasing another piece of land and, therefore, compensation ought to be paid in one lump sum. But Section 2(6) of the West Bengal Sales Tax Act, 1994 which requires the transporter to disclose the name of the consignor or consignee was not oppressive, irrelevant or arbitrary. Moreover for the purpose of such disclosure, no special proforma is mandatory nor any machinery required to effectuate the provision. A mere hardship cannot be a ground for striking down a valid legislation unless it is held to be suffering from the vice of discrimination or unreasonableness.
The Court has, however, pronounced a self-imposed restraint that ordinarily it will not determine the merits of the legislation and arrive at a conclusion that it is arbitrarily violating Article 14. The Court has pointed out that “inquisitorial inquiry” is beyond the province of judicial review. Qualifying the word “ordinarily” implies that in certain situations the Court might consider the merits. The Court has pointed out in Kerala Scheduled Tribes case that there is a presumption that the ground realities are known to the State, and, therefore, ”if anybody raises a contrary contention it would be for him to bring on record sufficient material to lead the Court to arrive at a conclusion that “State’s action was arbitrary”.
A provision not unconstitutional at the commencement of the Constitution can be rendered unconstitutional by later developments and thinking such as gender equality. Under the Bombay Rent Restriction Act, rents of premises were frozen at the level of 1st September 1940. The Supreme Court declared the provision to be unreasonable and arbitrary and violative of Article 14 in the 1998 in view of so much inflation in the country since 1940.
The Bar Council made a rule debarring persons aged above 45 years from enrolment as an advocate. The Supreme Court declared the rule to be discriminatory, unreasonable and arbitrary and thus violative of the principle of equality enshrined in Article 14. Reservation by institutional preference is not violative of Article 14 so long as it is reasonable and reasonableness has to be judged from a pragmatic point of view having regard to changed circumstances and practical realities.
Merely because an appeal is not provided in a statute, would not by itself render a statute constitutionally invalid. However, if no appeal is provided for under a statute, an aggrieved party will still have the remedy of approaching the High Courts and Supreme Court in exercise of its power of judicial review.
The Citizenship Amendment Act, 2019 and the potential to pass the twin test of differentia and nexus
Attention is drawn to the true meaning of Article 14 reiterated under the judgment of Shri Ram Krishna Dalmia v. Justice SR Tendolkar establishing the grounds for permissible classification
for the purpose of the legislation:
- That the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and
- That the differentia must have a rational relation to the object sought to be achieved by the statute in question.
Therefore, the Citizenship Amendment Act, 2019 can be established on the aforesaid grounds of twin tests of intelligible differentia and nexus concerning impugned geographical, religious, and cut off division which can be justified by the historic communal environment,contemporary eventuality, humanitarian ground, and national security. The spirit of Article 14 is not violated merely because the basis of classification does not appear on the facet of law, for the court may refer to relevant material like objects and reasons appended to the bill, parliamentary debates affidavits of the parties, matters of common knowledge, the background circumstances leading to the passage of the Act.
Firstly, the Act establishes geographical classification, seeking to enable acquisition of Indian citizenship to the persecuted minorities of Pakistan, Afghanistan, and Bangladesh. The contempt of the Nehru Liaquat Pact and Indira Mujib Pact left the minority communities at the mercy of these Islamic theocratic countries.
Besides the partition era, abrogation of the post-independence pacts, the Law Commission Committee observed that the Government decided to include Afghanistan along with Bangladesh and Pakistan within the ambit of the Notification issued on 7th September 2015 followed by two more Notifications on 18th July 2016. Addressing the concern over the inclusion of Afghanistan which is not a part of undivided India, the inclusion was justified by stating that there have been multiple attacks against Indian interests in Afghanistan by Pakistan sponsored Haqqani Network, Taliban, etc. for which several persons belonging to the minority communities in Afghanistan have come to India on account of or fear of religious persecution.
Geographical classification
The judgment propounded under case Clarence Pais v. Union of India serves as a guiding light to further vindicate the aforesaid, where differential treatment of separate geographical regions was propounded justified, provided a sufficient nexus is drawn. Judicial observations provide support to the policy decision to such an extent that the power of judicial review is said to have not extended to determine the correctness of such a policy decision or to indulge in the exercise of finding out whether there could be more appropriate or better alternatives. Provided, the difference between the geographical units has a reasonable relation to the object sought to be achieved, geographical classification is not forbidden.
Cut-off date
The Act also brings forth a cut-off date of 31 December 2014 to establish eligibility for citizenship. It is primarily highlighted that the executive authority and the court do not normally interfere with the fixation of cutoff date by executive authority unless the order appears to be on the face of it blatantly discriminatory and arbitrary.
Yet to establish its non-conformity with arbitrariness, it is determined that the date is evaluated in concern with national security. It is, as established under the Joint Committee Report, to prevent the possibilities of vested interests in the neighbouring countries taking advantage of this provision for further influx into India. This creates a rational nexus with the object sought to be achieved, with national security being the pith and substance thereof.
Attention is drawn to judicial observations, wherein classification for historical, geographical, and cut-off dates was upheld as being reasonable in the light of the object of the Act.
In Parents Association v. Union of India, the distinction drawn between treatment of the pre-1942 settlers and the post-1942 settlers in Andaman & Nicobar Islands by the Central Government on consideration of the historical background of the Island was upheld, against other affluent groups, on the ground that they belong to a separate category due to their struggle/suffering and were considered as backward, socially and educationally. Since, the provisions of the Bill appear to have made a classification, for the object of facilitating all such minority communities without any discrimination who, subject to partition era and persecution religion had to seek refuge in India without valid travel documents.
The assertions on the religious bias of the act, as a concrete step to establish a Hindu Rashtra, are baseless. The amendment limits itself to the Muslim-majority neighbours of India and takes no cognizance of the persecuted Muslims including Ahmadiyyas – a Muslim sect who have been “viciously hounded in Pakistan as heretics”, and the Hazaras – another Muslim sect who have been murdered by the Taliban in Afghanistan.
The exclusion of the Ahmadiyyas was defended, by saying that subject to prior judicial observations, first the Constitution of India considers these sects of Islam as Muslims, and the matter is of an internal conflict of Islam which does not concern India. Since Pakistan, Afghanistan, and Bangladesh are Muslim-majority countries that have modified their constitutions in recent decades to declare Islam their official state religion, non-Muslim populations have experienced discrimination and persecution. Therefore, Muslims in a Muslim majority country do not fall under the definition of a minority which throws religious bias, and anti-secular asseverations out of the question.
According to the Joint Committee report, what may hold the constitutional scrutiny is the fact that there are 50 countries that have broadly a State religion of Islam and 11 of them follow the Shariat so, where is the option? That is the issue that may hold the State in terms of it because the persecution being the angle on which you are bringing it or granting them the possibility of citizenship and eventually granting them citizenship, that would form the critical objective. People in the name of persecution can seek citizenship even in western countries as they do, in parts of Europe, America, etc.
The Constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. Needless to say, the Act is, in fact, inclusionary in nature and not exclusionary since the report underscores a Standard Operating Procedure (SOP). As regards the non-inclusion of other neighbouring countries like Sri Lanka, Myanmar, etc., the Ministry of Home Affairs clarified that the guidelines of the Standard Operating Procedure (SOP) issued on 29th December 2011 would take care of the migrants/refugees from other countries including Sri Lanka and Myanmar. Not only that but it was specified if any Muslim individual applies for the same, it will be considered with an open mind.
“I want to assure this House that this Bill will only bring justice to the people who have been waiting for it for 70 years. It is not targeting anyone and will do no injustice.“
This conformity of the impugned Act with the principles of secularism is clearly established by the fact that the Act is inclusionary in nature and not exclusionary for the purpose of injustice. The mere grounds of hardships encountered by the other immigrants are not sufficient grounds. When the policies have far-reaching implications and are dynamic in nature, their implementation in a phased manner is welcome, for it receives gradual willing acceptance and invites lesser resistance. The Act merely facilitates the process of citizenship putting these particular sects of people in one class on equal footing with respect to the historic communal environment, the contemporary eventuality of persecution, demand for refuge, humanitarian grounds, and national security. This establishes how the Act establishes an intelligible differentia and rationale for the purpose of the legislation, forming a nexus thereof.
The current refugee crisis is undoubtedly one of the worst humanitarian crises and India is yet to come up with a comprehensive legislative framework dealing with the issue of refugee protection.
However, the Citizenship Amendment Act, 2019 is a step to rectify seventy years of injustice towards the minorities who were left at the mercy of these theocratic Islamic states. The Act’s seemingly discriminatory character subject to geographical, religious and cut-off division nevertheless becomes invisible upon deeper scrutiny and unprecedented munificence as it succeeds to measure up to the standard of equality envisaged under the Constitution of India.
The Joint Committee of the Parliament that was set up to examine these issues vis-a-vis The Citizenship (Amendment) Bill, 2016 which has strongly established its correlation with the notifications dated 7th September 2015 and with the Standard operating procedures (S.O.P.) of 26.11.2012 further appreciates the point. The aforesaid basis of classification and secularism as a tenable challenge to the constitutionality of the Bill are deposited by the potential of the act to
pass the twin test of intelligible differentia and nexus.
Non-exclusion of any other minority illuminates the inclusionary nature of the act for the mere purpose of facilitating the process of citizenship for the said minorities who are put into one class on equal footing subject to historical communal environment, contemporary eventuality, humanitarian grounds, call for refuge and national security.
The deprivation of the right to life and personal liberty despite prior exemption from the requirement of the valid documents further establish the bonafide intention of the act in conformity with Part III of the Constitution. The distinct assertion of the indigenous people of Assam concerning the Assam Accord, 1985 is also not ignored but reposited with the fair operation of precedents, judicial interpretations, Joint Committee Reports, and legislative intent.
The hollow assertion of the unconstitutionality of the act in the juxtaposition of International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, and Global impact of migration is effectively countered. Beginning with the interface between municipal and international law, digging into the norms for the protection of refugees by the jus cogen nature of the principle of non–refoulement, the Act is established to be a competent, constitutional rectification of historic wrong and a historic demand fulfilled.
Right to life and personal liberty
In order to constitute the conformity of the Act with Article 14, it shall also be run collateral to Article 21. Being an inherently natural right for the purpose of life and personal liberty, Article 21 is applicable to citizens as well as foreigners. The citizenship amendment Act could be declared unconstitutional only when it has a “direct and inevitable effect” on the fundamental rights and not mere hardships causing the incidental and indirect effect.
It is imperative to look at “the pitch and substance” or “true character and nature” of the legislation to determine its true scope. It is necessary to examine the provision as a whole to ascertain its true nature and character.
The impugned Act provides conditions and procedures for citizenship of India. It must be considered in this regard that the legislative intent behind the enactment is to redress the problems faced by the minority communities from these three countries who are compelled to seek shelter. It must be noted that the aforesaid mentioned six minorities, despite being exempted from the application of provisions of the Foreigners Act, 1946 still continued to be termed as ‘illegal migrants’. Facilities have not been extended to immigrants who have been living in India for the last 20 years.
The immigrants have been facing lack of facilities such as drinking water, electricity, gas connections, hospital, BPL/caste certificates, ration card, Adhaar card, bank account, etc. Since the legislative intent is clearly out of judicial scrutiny but is a relevant factor to assess the constitutionality of the provisions, and the intention behind the enactment is to ensure that these religious minority communities are considered for naturalization to enjoy basic amenities necessary for the well being, establishes how the act has distinct conformity with Article 21.
Article 21 read with persistence with directive principles of state policy and international charters on human rights encompasses the right to live with dignity, right to livelihood, food, water, and a decent environment. Genocide, persecution, and attacks were an infringement of their rights under Article 21. However, if these immigrants were to be deported without so much as giving them a notice of fair hearing or elements of due process, it would be arbitrary and violative of Article 21. Although the citizens of India also enjoy fundamental rights, one competing claim cannot always be made to yield to another, and thus no hierarchy can be established between the two conflicting rights.
Conclusion
To conclude, the principle of equality of law not just means that the same law should apply to everyone but that the law should deal alike with all in one class, that there should be an equality of treatment under equal circumstances. It means “that equals should not be treated unlike and unlikes should not be treated alike. Likes should be treated alike”.
Accordingly, to apply the principle of equality in a practical manner, the courts have evolved the principle that if the law in question is based on rational classification it is not regarded as discriminatory. Equality of opportunity embraces two different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action under which the State is obliged to provide a level playing field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalising results with respect to various groups. Both the conceptions constitute ‘equality of opportunity’.
A legislature is entitled to make a reasonable classification for purposes of legislation and treat all in one class on an equal footing. The Supreme Court has underlined this principle – “Article 14 of the Constitution ensures equality among equals: its aim is to protect persons similarly placed against discriminatory treatment. It does not however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to.”
Therefore, what is necessary to create classification collateral to Article 14 of the Constitution is that there must be a substantial basis for making such classification and there should be a nexus between the basis and the object that is being achieved by such classification. In simpler words, there must be some rational nexus between the aim of classification and the basis on which the classification has been achieved. Differentiation in treatment does not amount to discrimination within the ambit of the right to equality. It is necessary to absolutely prove the reasonableness and arbitrariness of such legislation and that it rests on a logical substantial nexus.
References
- https://indiankanoon.org/doc/367586/
- https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2014
- https://iitr.ac.in/internalcomplaintscommittee/annexure.pdf
- http://www.bareactslive.com/ACA/ACT401.HTM
- https://www.un.org/en/about-us/universal-declaration-of-human-rights
