The
Constitutional Validity of the Citizenship Amendment Act, 2019
-By
K. Rahul Krishna[1]
Presumption of
Constitutionality
1.
It
is well established that the presumption is always in favour of the
constitutionality of an enactment, since it must be assumed that the
Legislature understands and correctly appreciates the needs of its own people,
that its laws are directed to problems made manifest by experience and it does
not intend to make laws which are ultra vires.[2] In Charanjit Lal v. Union of India,[3] the Supreme Court stated-
“…the presumption is always in favour of the constitutionality of an enactment,
and the burden is upon him who attacks it to show that there has been a clear
transgression of the constitutional principles.”
2.
It
is established that when two possible interpretations of a statute occur –one
in violation of the Constitution and one in favour of the Constitution, in such
a case, the interpretation that favours the Constitution is considered valid[4] until the petitioner
proves otherwise, in a manner that convinces the Court beyond reasonable doubt,
laying the burden of proof on the petitioner.
Whether
the Citizenship Amendment Act, 2019 violates Art. 14 of the Constitution?
The Citizenship Amendment Act, 2019
is NOT violative of Article 14 of the Constitution of India. The principles of
equality and equal protection do not apply to the illegal migrants in the
instant case as they are in unequal and dissimilar circumstances. In any case,
the classification made by the Act is reasonable for the purpose of legislation
and it follows the principles laid down by the Hon’ble Court Supreme Court. The
presumption by this Court must be in favour of constitutionality of the Act and
the burden of proof is on the petitioner to prove violation of Article 14 of
the Constitution of India in no unclear terms.
Doctrine of equal protection does
not apply to the illegal migrants
1.
The
Citizenship Amendment Act, 2019 has
been enacted to grant immunity to the persons belonging to Hindu, Sikh,
Buddhist, Jain, Parsi and Christian communities who have faced persecution on
the grounds of religion in the countries Pakistan, Afghanistan and Bangladesh
and migrated to India seeking shelter and continued to stay in India even after
the travel documents expired or with no documents. A reading of the statement
of objects and reasons of the bill shows that the same excludes the Muslim
community from these three countries which are Islamic theocracies.
2.
It
is submitted that this Act does not violate Art. 14 of the Constitution which
guarantees equality before the law and equal protection of the laws. Equal
protection means the right to equal treatment in similar circumstances,[5] both in the privileges
conferred and the liabilities imposed. It is submitted before this Hon’ble
Court that equal protection does not apply in the instant case because the
subjects of the legislation (the illegal migrants) are in dissimilar
circumstances regarding their status of minority in the respective countries of
Pakistan, Bangladesh & Afghanistan and hence are not liable to be treated
equally. Each of these three countries are Islamic theocracies, which means
they are Muslim majority countries. Other religions such as Hindu, Sikh,
Buddhist, Jain, Parsi and Christian communities have faced persecution on the
grounds of religion in these countries and having regard to that fact, the
illegal migrants are in different or dissimilar circumstances and cannot be
treated as equals. Therefore, the doctrine of equal protection does not apply
in the present case.
3.
The
principle of equality does not mean that every law must have 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
often require separate treatment.[6] The principle does not
take away from the State the power of classifying persons for legitimate
purposes.[7] The legislature is
competent to exercise its discretion and make classification.[8] Every classification is in
some degree likely to produce some inequality, and mere production of
inequality is not enough.[9] In this context, there
arises no question of violation of Art. 14[10] in the instant case.
4.
Differential
treatment does not per se constitute violation of Art. 14. It denies equal
protection only when there is no reasonable
basis for the differentiation.[11] What Art. 14 prohibits is
class legislation and not reasonable classification for the purpose of
legislation.[12]
It is submitted that the classification made under the impugned legislation is
reasonable.
The Classification made under the
Act is reasonable.
5.
In
order to pass the test of permissible classification two conditions must be
fulfilled, namely, (i) That the classification must be founded on an
intelligible differential which distinguish persons or things that are grouped
together from others left out of the group and (ii) That, that differential
must have a rational relation to the object sought to be achieved by the
statute in question. [13] What is necessary is that
there must be a nexus between the basis of classification and the object of the
Act under consideration.[14]
6.
It
is humbly submitted to this Hon’ble Court that in the instant case the object
of the Act is to grant immunity to persons belonging to Hindu, Sikh, Buddhist,
Jain, Parsi and Christian communities who have faced persecution on the grounds
of religion in the countries Pakistan, Afghanistan and Bangladesh and migrated
to India seeking shelter and continued to stay in India even after the travel
documents expired or with no documents. Muslims are excluded. The
classification of the illegal migrants is based on their religion and country of origin because these three
countries being Islamic theocracies have a history of persecuting minorities
based on religious grounds. Thus, the basis for classification is
clearly connected with the object of the Act and therefore it is reasonable
classification permitted under Article 14 of the Constitution of India.
7.
Art.
14 does not insist that legislative classification should be scientifically
perfect or logically complete.[15] A mere possibility of a
better classification is no ground to strike down the classification made by
the statutory authority.[16]
8.
It
is well established that when a law is challenged as denying equal protection;
the question for determination by the Court is not whether it has resulted in
inequality, but whether there is some difference which bears a just and
reasonable relation to the object of legislation.[17] Mere differentiation or
inequality of treatment or inequality of burden[18] does not per se amount to
discrimination within the inhibition of the equal protection clause.[19] To attract the operation
of the clause, it is necessary to show that the selection or differentiation is
unreasonable or arbitrary; that it does not rest on any rational basis having
regard to the object which the legislature has in view.[20]
The burden of proof is on those who
attack it
9.
It
is also well established that the burden of showing that a classification rests
upon an arbitrary and not reasonable basis[21] or the discrimination is
apparent and manifest[22] is upon the person who
impeaches the law as a violation of the guarantee of equal protection.[23] Further, if any state of
facts can be reasonably conceived that would sustain the classification, the
existence of that state of facts at the time the law was enacted must be
assumed.[24]
10.
The
allegation must be specific, clear and unambiguous[25] and must give
particulars.[26]
Throwing out vague hints that there may be other instances of like nature which
the impugned legislation has left out, is not enough. It is for the petitioner
to show that the persons or objects as between whom the Legislature is alleged
to have discriminated, are similarly situated.[27] Thus the critics
arguments against the impugned Act that the Rohingyas of Myanmar and Tamils of
Sri Lanka have been excluded falls flat as the supreme court categorically held
that the mere fact that there are other instances which are left out of the Act
does not constitute unreasonableness within the meaning of Article 14.
11.
It
is well established that the Govt. policy, unless shown manifestly arbitrary or
wholly unreasonable cannot be held violative of Art. 14.[28] An Act of legislature
cannot be struck down merely by saying that it is arbitrary.[29] Therefore the Citizenship
(Amendment) Act, 2019 cannot be struck down as it makes reasonable classification
for the purpose of legislation permitted under Art. 14 of the Constitution of
India.
12.
Where
the basis of classification is not apparent on the face of the law, it may be
established by the State not only by material evidence[30] or by bringing to the
notice of the Court facts of which the Court can take judicial notice[31] but also by making an
affidavit,[32]
stating the circumstances which led to the making of a statutory instrument.
Similarly parliamentary proceedings may be referred to for showing the
background in which an enactment was made.[33] Parliament has a number
of times reiterated that protecting the persecuted minorities in the
neighbouring countries is India’s responsibility.
Supreme
Court’s position on foreigners/illegal migrants
The
Hon’ble Supreme Court while examining the contention that Section 3(i)(b) of
The Foreigners Act,1956 offends Article 14 of the Constitution of India had
held that the classification of foreigners into different groups does not
offend Article 14 since there is no individual discrimination and there is a
reasonable classification. Even under the amendment Act, the words ‘minority
communities’ in the referred countries itself shows that they form into a
separate group and therefore it may be said that there is a reasonable
classification.
The
Hon’ble Supreme Court in Mr. Louis De Raedt & Ors Vs. Union of India[34]
And Ors has specifically held that the fundamental right of the “foreigner” is
confined only to Article 21 of the Constitution of India for life and liberty. In
the light of the law laid down by the Hon’ble Supreme Court that except the
Article 21 of the Constitution of India a foreigner cannot claim any other
right under the Constitution viz. Article 14 of the Constitution of India, even
if the amendment legislation is challenged on the ground of violation of
Article 14 of Constitution of India, it may not sustain unless the Supreme
Court relooks into the scope of Article 14 of the Constitution of India
vis-a-vis the illegal migrants.
Article 21
With
regard to Article 21, The Supreme Court in Hans Muller of Nurenburg Vs.
Superintendent, Presidency Jail, Calcutta & others[35] had
held that the power of the government in India to expel foreigners is absolute
and unlimited and there is no provision in Constitution fettering this
discretion. It was pointed out that the legal position on this aspect is not
uniform in all the countries but so far the law which operates in India is
concerned, the executive government has unrestricted right to expel a foreigner.
So far as the right to be heard is concerned, there cannot be any hard-and-fast
rule about the manner in which a person has to be given an opportunity to place
his case. The principle of procedure, being just, fair and reasonable can have
no application in the matter of identification of a foreigner and his
deportation since he is not being deprived of his life or personal liberty.
Deportation proceedings are not proceedings for prosecution.[36]
In All
India Lawyers Forum for Civil Liberties v. Union of India[37]
the Supreme Court directed the government to verify the status of alleged
illegal immigrants from Bangladesh and to deport them by setting up appropriate
mechanism if their residential addresses are not verified.
Thus
we can see by the several rulings of the Supreme Court of India that
verification and deportation of illegal migrants is within the scope of Article
21 of the Constitution of India.
[1] Vth year Student, School of Law,
Christ (deemed to be) University.
[2] State of Bombay v. Balsara F.N., AIR 1951 SC 318; Prabhu Das Morarjee Rajkotia v. Union of
India, AIR 1966 SC 1044; Garg, R.K.
v. Union of India, AIR 1981 SC 2138 (paras 7-8).
[3] Charanjit Lal v. Union of India
AIR 1951 SC 41.
[4] Kedar Nath Singh v. State of
Bihar, AIR 1962 SC 955.
[5] Shrikishan Singh v. State of Rajasthan, AIR 1955 SC 795.
[6] ACHARYA DR. DURGA DAS BASU,
SHORTER CONSTITUTION OF INDIA 56 (13th ed. 2006).
[7] State of Bombay v. Balsara F.N., AIR 1951 SC 318; Ameroonissa Begum v. Mehboob Begum, AIR
1953 SC 91; Babulal Amthalal Mehta v.
Collector of Customs, Calcutta, AIR 1957 SC 877; Gopi Chand v. Delhi Administration, AIR 1959 SC 609.
[8] Anukul Chandra Pradhan v. Union of India, (1997) 6 CC 1 (para 5).
[9] State of Bombay v. Balsara F.N., AIR 1951 SC 318
[10] The Constitution of India, 1950.
[11] Ameroonissa Begum v. Mehboob Begum, AIR 1953 SC 91; Babulal Amthalal Mehta v. Collector of
Customs, Calcutta, AIR 1957 SC 877; Gopi
Chand v. Delhi Administration, AIR 1959 SC 609
[12] Budhan Chowdhry v. State of Bihar, AIR 1955 SC 191.
[13] Budhan Choudry v. State of Bihar, AIR 1955 SC 191; Hanif v. State of Bihar, AIR 1958 SC
731; Harakchand Ratanchand Banthia v.
Union of India, AIR 1970 SC 1453; Pathumma
v. State of Kerala, AIR 1978 SC 771 (para 41); Babu Ram v. State of U.P., (1995) 2 SCC 689 (para 37).
[14] State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75, MUKHERJEA, J; Budhan Choudry v. State of Bihar, AIR
1955 SC 191.
[15] Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404; P.B. Roy v. Union of Inida, AIR 1972 SC
908.
[16] State of Bihar v. Sachchidanand Kishore Prasad Sinha, AIR 1995 SC
885.
[17] Suraj Mall v. Biswanath, AIR 1953 SC 545; State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.
[18] Ramkrishna Dalmia v. Tendolkar
Justice S.R., AIR 1958 SC 538
[19] ACHARYA DR. DURGA DAS BASU,
SHORTER CONSTITUTION OF INDIA 62 (13th ed. 2006).
[20] Suraj Mall v. Biswanath, AIR 1953 SC 545; State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75; Ramkrishna Dalmia
v. Tendolkar Justice S.R., AIR 1958 SC 538; State
of A.P. v. Nalla Raja Reddy, AIR 1967 SC 1458.
[21] State of U.P. v. Kartar Singh, AIR
1964 SC 1135; Ajay Kumar Mukherjee v. Local Board of Barpeta, AIR 1965 SC 1561;
East India Tobacco Co. Ltd. V. State of A.P., AIR 1962 SC 1733.
[22] Parayankandiyal Eravath Kanapravan
Kalliani Amma v. K. Devi, AIR 1996 SC 1963.
[23] ACHARYA DR. DURGA DAS BASU,
SHORTER CONSTITUTION OF INDIA 98 (13th ed. 2006).
[24] Harnam Singh v. R.T.A., AIR 1954 SC 190; Syed Mohd. V. State of
Andhra, AIR 1954 SC 314.
[25] V.S. Rice and Oil Mills v. State
of A.P., AIR 1964 SC 1781(1788); Cochin Devaswom Board v. Vamana Setti, I.S.
No. 2, AIR 1966 SC 1980; Ramnath Verma v. State of Rajasthan, AIR 1967 SC 603
(706); Prabhu Das Morarjee Rajkotia v. Union of India, AIR 1966 SC 1044.
[26] Cochin Devaswom Board v. Vamana
Setti, I.S. No. 2, AIR 1966 SC 1980; Ramnath Verma v. State of Rajasthan, AIR
1967 SC 603 (706); Prabhu Das Morarjee Rajkotia v. Union of India, AIR 1966 SC
1044.
[27] Srikishna Singh v. State of
Rajasthan, AIR 1955 SC 795; Syed Mohd. V. State of Andhra, AIR 1954 SC 314;
U.P. Electric power and supply Co. Ltd. V. State of U.P., AIR 1970 SC 20 (21);
Ramchand v. Union of India, AIR 1966 SC 1044.
[28] Khoday Distilleries Ltd. V. State
of Karnataka, AIR 1996 SC 911 (para 19).
[29] State of Bihar v. Bihar Distillery
Ltd., AIR 1997 SC 1511 (para 22).
[30] Ramkrishna Dalmia v. Tendolkar
Justice S.R., AIR 1958 SC 538 (552).
[31] Kedarnath Bajoria v. State of
W.B., AIR 1953 SC 404.
[32] Ramkrishna Dalmia v. Tendolkar
Justice S.R., AIR 1958 SC 538 (552).
[33] Chiranjit Lal Chouwdhuri v. Union
of India, AIR 1951 SC 41.
[34] 1991 AIR 1886
[35] 1955 (1) SCR 1284.
[36] Sarbananda Sonowal v. Union of
India, (2005) 5 SCC 665 para 73, relying on Attorney General of Canada v. Cain,
(1906) AC 542, Chae Chan Ping v. United States 130 US 581.
[37] (1999) 9 SCC 281 Para 2.
