Mohsin Alam Bhat writes: CAA and the test of India’s constitutional identity
Mohsin Alam Bhat writes: CAA and the test of India’s constitutional identity
m.u.h
13/09/2022715
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Written by: Mohsin Alam Bhat
After a long wait, the Supreme Court is scheduled to hear the arguments on the constitutional validity of the Citizenship Amendment Act 2019. Parliament has changed the Citizenship Act 1955, India’s principal citizenship law, on numerous occasions in the past. But its most recent amendment has ignited an unprecedentedly intense and divided public reaction. The Court is now poised to decide several significant constitutional questions for the first time, which could shape India’s constitutional identity.
The CAA introduces important changes to the Indian citizenship law. Since 2003, Indian law has disqualified persons deemed to be “illegal migrants” from citizenship and disqualified their progeny even if they are born in India. The Act exempts non-Muslim immigrants from being considered “illegal migrants” if they arrived from Pakistan, Bangladesh and Afghanistan before 2015. It also provides accelerated naturalisation to these non-Muslim immigrants.
The first question for the Supreme Court is whether this “religious test” for Indian citizenship is arbitrary and discriminatory. In its counter affidavit filed in the court, the government has argued that the CAA does not discriminate on the basis of religion but provides relief to persecuted minorities in the region. But while it is uncontroversial that non-Muslims in Pakistan, Bangladesh and Afghanistan are persecuted, the government will still need to justify limiting CAA’s benefits on the basis of religion and countries of origin.
This is because Indian constitutional law requires that the government must show a “rational connection” between the law’s purpose and the distinctions the law makes among groups. Muslim groups like Ahmadiyyas, Shias, Rohingyas and Uyghurs, and non-Muslims like Sri Lankan Tamils, Tibetan Buddhists and the Lhotshampa continue to be persecuted in India’s neighbourhood. The burden for the government will be to show why choosing only non-Muslim minorities from three countries satisfies the CAA’s proclaimed purpose of addressing persecution.
Perhaps the most accessible argument for the government is that the CAA addresses the plight of the minorities affected by Partition. In its affidavit, the government has argued that under the 1950 Nehru-Liaquat Pact, India and Pakistan had promised “complete equality of citizenship” and “a full sense of security” to their religious minorities. The failure of Pakistan and by extension today’s Bangladesh to honour this promise, according to the government, justifies targeting relief to non-Muslim refugees from these two countries. The inclusion of Afghanistan under the CAA, though, will stick out like a sore thumb. The Act’s exclusion of immigrants after 2015 also appears inconsistent with the law’s apparent purpose of addressing persecution, which is ongoing by all accounts.
For critics of the government, these anomalies show that the real aim and effect of the CAA is to selectively give citizenship to the alleged Hindu undocumented immigrants living in regions like Assam. The Supreme Court will have to consider whether under the law it should take the government’s claims at face value or inquire deeper into its motives.
The CAA’s ambiguities will pose further challenges for the government. For instance, it does not define “persecution” or provide meaningful guidance about what beneficiaries will need to prove beyond their religious identity. It is also unclear if Muslim immigrants would qualify under the CAA if they convert to Hinduism. This scenario raises the alarming possibility of religious coercion and violation of religious liberty. The Court will need to decide if these issues with serious implications for individual rights can be left for the government to formulate later under the rules.
It would also be interesting to see if the SC takes into account India’s obligations under international law. While India is not strictly bound to respect asylum and other refugee rights as a non-signatory to the 1951 Refugee Convention, religion-specific grant of citizenship and disqualification of Indian-born children on the basis of their parents’ religion under the CAA violates international human rights law. Indian courts ordinarily do not directly enforce international law but have historically interpreted India’s internal laws in its light.
Answers to these questions will depend on what the Court considers to be the legally appropriate deference to Parliament’s powers in the area of citizenship. The government has argued that Parliament as the “sovereign” has unrestricted powers to decide qualifications for Indian citizenship. There are good reasons to be sceptical of this expansive position, not least because such unlimited powers would permit Parliament to even deprive Indians of their citizenship. It is more constitutionally tenable and hence likely for the Supreme Court to find a middle ground that recognises Parliament’s broad powers and also specifies its limits.
What these limits are will be the most significant legal contribution of the case and will depend on what the Court determines to be citizenship’s constitutional value and status. Though citizenship status is not a fundamental right, it still has a profound bearing on individual liberty, freedom and dignity. The Court will have to carefully consider if excluding long-term refugees and their Indian-born children from Indian citizenship, who do not have meaningful recourse to any other country’s citizenship, violates the rights they enjoy as persons under the Constitution. It will also have to consider if selectively granting citizenship to such refugees based on ethnicity or religion aggravates this violation.
Most significantly, we will see if the Court is willing to recognise that citizenship, even if not explicitly a right under the Constitution, constitutes the very foundation of our constitutional republic. By this measure, the “religious test” of citizenship under CAA will also have to be assessed on how it alters our constitutional identity as a secular and inclusive polity that belongs to all its citizens irrespective of their religious faith.
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Written by: Mohsin Alam Bhat