India’s selective stance on equal protection

The Supreme Court is soon going to consider an equal protection challenge to the controversial Citizenship Amendment Act, 2019, which was gazetted by the Government of India on December 12.

In doing so, the Court will inevitably need to grapple with the following crucial and contested issue: does the Act, which has been said to differentiate between Muslim and non-Muslim illegal immigrants, infringe upon the fundamental right to equal protection guaranteed under Article 14 of the Indian Constitution.

The Act amends the definition of “illegal immigrants” to provide an amnesty from prosecution to individuals who belong to specific religious minority groups (Christians, Buddhists, Hindus, Jains, Sikhs and Zoroastrian) and come from a specified list of countries (Afghanistan, Bangladesh and Pakistan). The Act also fast-tracks the naturalisation process for these individuals.

Rationale behind the Act

As in any other equal protection challenge, the judicial task at hand will be to test the basis on which the drafters of the statute arrived at this differentiation. Why did the government have a religion-based criterion for citizenship acquisition, why were Muslim illegal immigrants excluded from the exemption, why are only three of India’s neighbouring countries being favoured, etc, are some questions of Constitutional significance that must be addressed.

Admittedly, Article 14, which applies both to citizens and non-citizens, forbids class legislation, as it is not a reasonable classification. However, a statute must pass two tests to withstand an equal protection challenge: the first is that the classification must be founded on an intelligible ‘differentia’, which distinguishes persons that are grouped together from others left out of the group. The second test requires that differentia to have a rationale to the objective sought to be achieved by the law. This objective of the law, of course, cannot be whimsical or arbitrary.

Irrespective of how the court will approach — and provide answers to — the underlying questions, there is no denying that the Act in its present form goes against the court’s own equal protection jurisprudence.

Providing shelter and protection to the vulnerable is motherhood and apple pie. However, the problem is that the Act arbitrarily singles out Muslim illegal immigrants and denies them an equal opportunity to acquire Indian citizenship. For instance, a Rohingya Muslim from Myanmar will not benefit from the exemption provided in the Act, but a Hindu from Pakistan will, even if the reason for which both fled their respective countries was the same — religious persecution.

The classification that the Act reeks of irrationality and manifest arbitrariness. A faulty assumption implicit in the Act is that Muslims cannot be persecuted in Islamic countries: the long-standing persecution of religious minorities in Pakistan, namely the Ahmadis and the Shias, is well-documented. There is also no reasonable justification for including only three of India’s neighbouring countries: why not include Myanmar, for instance, where the Rohingya community is facing persecution, or Sri Lanka for anti-Tamil pogroms, or China for the oppressing of Tibetans.

Decision-making power

One argument cited in support of the Act is that the government’s immigration or citizenship policies are immune from judicial review and, in any event, illegal immigrants do not have an inherent right to citizenship. The argument, however, is misplaced. It is true that the government has the discretion to extend or deny citizenship to illegal immigrants; but that discretion, if and when exercised, must not be arbitrary and must conform to the constitutional principles governing legislative decision-making.

Arbitrary discrimination and irrational classification of individuals for the purpose of granting the exemption not only strikes at the very root of Article 14, but also upsets some of the key basic features of the Constitution and of our democratic republic (such as equality, liberty, fraternity and secularism).

The Act is more than just unconstitutional: it is a ringing endorsement of the two-nation theory propounded by Muhammad Ali Jinnah and supported by Sangh icon VD Savarkar, who shared the belief that Hindus and Muslims constitute two separate, antagonistic nations in themselves and cannot live peaceably in one nation.

The theory was vigorously rejected by Mahatma Gandhi, who believed that religion cannot be the basis of partition, that the Indian territory should be home to people from all faiths and that there must be a collective zeal to uphold the constitutional rights of all religious minorities. As rightly pointed out by Congress leader Shashi Tharoor, the Act is a victory of Jinnah’s thinking over Gandhi’s, and undermines the very foundational principles of our Republic.

A vociferous opposition in Parliament and nationwide mass protests is emblematic of the anti-India character of the Act. Clearly, the Act would not have passed muster but for the brute majority that the ruling dispensation has in Parliament. We must warn ourselves that the same Parliament that decides to grant citizenship based on religious grounds can also decide to take it away on that same basis in future. The drafters of the Constitution have given us a powerful Supreme Court to prevent that from happening.

The writer is a lawyer and academic

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