The use of Article 14 in criticising the CAA is a reductionist exercise
J Sai Deepak | 04 Jan, 2020
For close to a month now, ever since the Citizenship (Amendment) Bill, 2019 was cleared by the Union Cabinet for introduction in the Parliament, the passionate yet constitutionally and logically untenable opposition to the then CAB and now the CAA has primarily been mounted on grounds of alleged violation of Article 14 of the Constitution. It has been argued over and over again by the opponents of the CAA that since the Indian State cannot deny to “any person” equality before the law or the equal protection of the laws within the territory of India, the CAA fails to pass Constitutional muster owing to its limited and specific scope.
Before proceeding to address this argument, it is imperative to understand that a targeted intervention through CAA was necessitated, in part, by the fact that India does not have a specific law which deals with refugees or grant of citizenship to refugees. By now, it is a well-known fact that currently India follows a Standard Operating Procedure (SOP) dated December 29, 2011 for dealing with foreign nationals who claim to be refugees. Under this SOP, cases, which are prima facie justified on the grounds of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion, can be recommended by State Governments/Union Territory administrations to the Ministry of Home Affairs for grant of Long Term Visa (LTV) after due security verification. Given this ad hoc state of affairs, the CAA must be seen as a limited amendment to the Citizenship Act, 1955 to grant expedited citizenship to those refugees who belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Pakistan, Bangladesh and Afghanistan. Therefore, it a specific amendment bestowing a limited benefit to address a specific issue which applies to a specific class of people from an identified set of countries having a common character. This does not in any way alter the fundamentals of the Citizenship Act, which is set out below.
Contrary to the myth that been pushed deliberately, the CAA does not automatically grant citizenship to members of the six communities from the said three countries. Following are the limited benefits that flow from the CAA to its beneficiaries:
1. Thanks to the newly inserted proviso to Section 2(1)(b), those members of the six communities from the three countries who entered India on or before December 31, 2014 and who have been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrants for the purposes of the Citizenship Act;
2. As a corollary, any proceeding pending against any beneficiary of the CAA in respect of illegal migration or citizenship shall stand abated on conferment of citizenship to him from the date of commencement of the CAA;
3. Importantly, exemption from the definition of “illegal migrant” does not translate to grant of citizenship to beneficiaries of the CAA. A combined reading of the newly inserted Section 6B, Section 18(2)(eei) of the Citizenship Act 1955 and the proviso to Clause (d) of the Third Schedule to the Act makes it abundantly clear that such members will have to apply for naturalisation and satisfy “the conditions, restrictions and manner for granting certificate of registration or certificate of naturalisation under sub-section (1) of section 6B”.
The only difference between beneficiaries and non-beneficiaries of the CAA is that while the latter has to show an aggregate period of residence in India or service of Government in India for “not less than eleven years”, the former has to show “not less than five years”.
Hence, the author is justified is stating that the CAA does not automatically bestow citizenship on its beneficiaries, but merely facilitates the expeditious grant of citizenship.
Set in this limited and specific factual and legal backdrop, putting aside all the rhetorical arguments which are being employed both by the proponents and opponents of the CAA, let’s attempt to understand the grievance as dispassionately as possible and examine if it holds water Constitutionally and legally, both being subtly different. For the sake of clarity and to give the opponents of the CAA the concession that their views are not monolithic, the varying shades of opposition to the CAA, if at all they exist, can perhaps be put in the following baskets:
Basket A- That the CAA violates Article 14 because it is not all encompassing and limits its scope only to six persecuted religious minorities from the three countries identified in it. This is the position of the “Global Citizen”, one who believes that her religion is “humanity” and that India’s doors must be open to everyone from any part of the world regardless of who they are and why they wish to enter the country;
2. Basket B- That the CAA violates Article 14 because it is not all encompassing and limits its scope only to six persecuted religious minorities from the three countries identified in it, instead of addressing all the countries and groups in India’s immediate neighbourhood. This is the position of the “South Asian Citizen”, who believes that India owes a responsibility to everyone living in its immediate neighbourhood;
3. Basket C- That the CAA violates Article 14 not because it is not all encompassing, but because it limits its scope only to six persecuted minorities in the three countries who have been identified on the basis of religion, thereby excluding by implication and intent other persecuted groups in the said countries. This is the position of those who believe that India must open its doors to all persecuted groups at least from the said three countries;
4. Basket D- That the CAA violates Article 14 not because it is not all encompassing, but because it limits its scope only to six persecuted minorities in the three countries who have been identified on the basis of religion, thereby excluding by implication and intent persecuted Muslim groups in the said countries. This is the position of those who believe that the CAA is slyly anti-Muslim;
5. Basket E- That the CAA expressly excludes persecuted Muslims, groups and individuals, coming from any country. This is the position of those who believe that the CAA is overtly anti-Muslim;
6. Basket F- That the CAA excludes persecuted Muslims, groups and individuals, coming from the said three countries. This too is the position of those who believe that the CAA is overtly anti-Muslim;
Baskets E and F are, without a doubt, factually incorrect and have no basis in the express language of the CAA. Therefore, anyone who is pushing the narrative that the CAA expressly prevents Muslims from any part of the world or specifically from Pakistan, Bangladesh or Afghanistan from applying for Indian citizenship, is either thoroughly ill-informed or is deliberately pushing a malicious narrative to foment trouble within the country.
That leaves us with Baskets A-D. The common thread that ties these Baskets is that they are premised on the broad assumptions that (a) Article 14 prohibits the kind of targeted intervention which the CAA undertakes and (b) Article 14 mandates that the standard the Indian State applies with respect to its citizens is the standard it must apply to those who seek its citizenship since Article 14 speaks of “persons” and not merely “citizens”.
A perusal of Articles 5-11 and 19 is warranted before accepting these contentions based on Article 14. Let’s start with Article 19, which is in the same part of the Constitution as Article 14, namely Part III which deals with Fundamental Rights. It is critical to note that Article 19 expressly limits the scope of rights enumerated under it only to “citizens”, and does not extend it to “non-citizens” or “persons”. Amongst the bundle of fundamental rights guaranteed by the said Article to “citizens”, the rights to freely move throughout the territory of India, and to reside and settle in any part of the Indian territory are expressly envisaged in Sub-clauses (d) and (e) of Article 19(1) respectively.
Even an average student of Constitutional law will tell you that it is a well-settled position that no fundamental right is absolute and is subject to the reasonable restrictions permitted by the Constitution. One need not go beyond Article 19 to make good this position since Article 19(5) expressly states as follows:
“Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.”
It is, therefore, evident that the right to move freely throughout India, and the right to reside and settle in any part of India, which is available only to citizens is clearly capable of being restricted reasonably in the interests of the general public or for the protection of the interests of any Scheduled Tribe, both of which are broadly worded categories of purposes.
Importantly, the right to move freely throughout India must also include within its ambit the very right to enter India. Consequently, the right to enter India is a fundamental right which is available only to citizens, and is capable of being limited in accordance with Article 19(5). Surely, it cannot be any sane person’s case that non-citizens have more rights than citizens, especially in matters of entry into India. The law in this regard was laid down by a Constitution Bench of the Supreme Court in as early as 1955 in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors, wherein it was held as follows:
“The second point raises a question of wider import touching the status and rights of foreigners in India, and the question we have to determine is whether there is any law in India vesting the executive government with power to expel a foreigner from this land as opposed to extraditing him. Article 19 of the Constitution confers certain fundamental rights of freedom on the citizens of India, among them, the right “to move freely throughout the territory of India” and “to reside and settle in any part of India”, subject only to laws that impose reasonable restrictions on the exercise of those rights in the interests of the general public or for the protection of the interests of any Scheduled Tribe. No corresponding rights are given to foreigners. All that is guaranteed to them is protection to life and liberty in accordance with the laws of the land. This is conferred by article 21 which is in the following terms: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Entries 9, 10 17, 18 and 19 in the Union List confer wide powers on the Centre to make laws about among other things, admission into and expulsion from India, about extradition and aliens and about preventive detention connected with foreign affairs. Therefore, the right to make laws about the extradition of aliens and about their expulsion from the land is expressly conferred; also, it is to be observed that extradition and expulsion are contained in separate, entries indicating that though they may overlap in certain aspects, they are different and distinct subjects.”
In the very same judgement, the Apex Court went on hold further as follows:
“The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.”
This position was reiterated by the Supreme Court in 1991 in Mr. Louis De Raedt & Ors vs Union of India And Ors, wherein it held as under:
“13. The next point taken on behalf of the petitioners, that the foreigners also enjoy some fundamental right under the Constitution of this country, is also of not much help to them. The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of this country. It was held by the Constitution Bench in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors,  1 SCR 1284 that the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the 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.”
In view of these decisions of the highest Court of the land, which recognise the near-absolute discretion of the Government with respect to admission and expulsion of foreigners, the crude reliance on Article 14 of the Constitution by opponents of the CAA is clearly a position which lacks nuance and goes against the express dicta of the Supreme Court. To avoid any misinterpretation, it must be clarified that it is not the author’s position that Article 14 is completely irrelevant to the issue, however, it is certainly the author’s position that the extent of application of the said Article is limited in matters of admission and expulsion of foreigners given the extraordinary discretion vested in the Union by the Constitution. After all, the application of Article 14 to an issue must vary and varies with the extent of prerogative vested in the Executive by the Constitution in relation to the issue.
The very same conclusion can be arrived at through another route i.e. through a combined reading of Articles 5-11, the Citizenship Act, 1955 and the Foreigners Act, 1946. Articles 5-11, which are contained in Part II of the Constitution, expressly and specifically deal with the issue of Citizenship. The Citizenship Act was enacted pursuant to the express power vested in the Parliament by Article 11 which allows it to “make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship” without being fettered by Articles 5-10. After all, this was the intent of B.R. Ambedkar, which is reflected in his deliberations in the Constituent Assembly’s debate of August 10, 1949 with respect to the draft Article 6, which corresponds to Article 11 of the Constitution. The relevant extract of the debate is as follows:
“The business of laying down a permanent law of citizenship has been left to Parliament, and as Members will see from the wording of article 6 as I have moved the entire matter regarding citizenship has been left to Parliament to determine by any law that it may deem fit… The effect of article 6 is this, that Parliament may not only take away citizenship from those who are declared to be citizens on the date of the commencement of this Constitution by the provisions of article 5 and those that follow, but Parliament may make altogether a new law embodying new principles. That is the first proposition that has to be borne in mind by who will participate in the debate on these articles. They must not understand that the provisions that we are making for citizenship on the date of the commencement of this Constitution are going to be permanent or unalterable. All that we are doing is to decide ad hoc for the time being.”
This is the extent of discretion and prerogative vested in the Parliament which explains why matters of expulsion and admission into India and matters relating to citizenship are present in the Union List. It is clear that the history of Articles 5-11 only strengthens the argument that the scope for application of Article 14 in matters of citizenship is limited.
The sheer untenability of the manner in which Article 14 is being employed by the opponents becomes starker when the Citizenship Act is read with the Foreigners Act. While the use of “persons” in Article 14 forms the basis of the position of the opponents, they fail to take into account the Foreigners Act which defines “Foreigners” as under:
“foreigner” means a person who is not a citizen of India.
In other words, if the argument of the opponents based on Article 14 were to be accepted, the very existence of the concept of foreigners would be violative of Article 14, thereby rendering the Foreigners Act unconstitutional. The ludicrous effect of this position would also extend to the definition of “illegal migrant” under Section 2((1)(b) of the Citizenship Act, 1955, which defines illegal migrants as those foreigners who have entered India without valid documents or those whose documents are no more valid or those who have overstayed the permitted period.
Simply put, the opponents’ argument based on Article 14 would render useless and unconstitutional the concepts of foreigners and illegal migrants because, according to them, “all persons” must be treated equally before the law and must receive equal protection of Indian laws. Consequently, the citizen, the foreigner, the illegal migrant and the refugee are all the same in law, according to the opponents. There couldn’t have been a more glaring example of the utterly destructive, illogical and unconstitutional use of Article 14 as an argument.
Let’s take the Article 14 enquiry further. Every law, including the Constitution, applies only to its sovereign territory, unless there is an express provision to the contrary. After all, it is the Constitution of India, not the world. This is part of the accepted jurisprudence on territoriality of laws and Constitutions. This is further strengthened by Article 245(1) of the Constitution, which states that “subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State”. While under Article 245(2), the Parliament may pass laws which have an extra-territorial application, it is not the norm, and extra-territoriality being an exception, needs to be express.
Therefore, given that Article 14 itself uses the words “within the territory of India” in guaranteeing equality before the law or equal protection of laws, is it possible to contend that foreigners who are yet to enter Indian territory can legally invoke rights under Article 14? At best, Indian citizens residing abroad are exception to the rule of territoriality in specific circumstances. But surely it cannot be reasonably argued that such rights are available to foreigners in alien territory to which the Indian Constitution does not apply.
Thus far, with respect to citizenship, it hasn’t been legally demonstrated by opponents of CAA that Article 14 applies to foreign citizens who reside outside the territory of India, especially in matters of grant of citizenship. Merely because a foreigner seeks entry into India to acquire its citizenship, it cannot be argued that she or he is entitled to invoke rights under Article 14. Therefore, Article 14 is not even available as an argument to those foreigners who are not present within the territory of India. As a sequitur, it could be argued that the Indian Government’s discretion to deal with them may not even be fettered by Article 14, except to the extent of dealing with them with dignity.
As regards those foreigners who are present within the territory of India, they could be classified under two categories- foreigners who are not illegal migrants, and foreigners who are illegal migrants. In so far as illegal migrants are concerned, they do not have the right to expect to be granted citizenship nor the status of refugees since, as stated earlier, that is entirely within the prerogative of the Union Government, as laid down in the Constitution and endorsed by the Supreme Court. The Indian State has the right to consider the security aspects and other implications of granting refugee status or citizenship to any group or individual on a case-to-case basis. It is not to be treated as an entitlement, no matter how mercenary this may sound to bleeding hearts. Therefore, again Article 14 is of little help in supporting the grant of citizenship to illegal migrants or refugees, or grant of refugee status to illegal migrants, without applying India’s discretionary filters. In fact, in light of the law laid down by the Supreme court in this regard, it may be possible to even contend that the Supreme Court’s jurisdiction to examine the validity of the CAA is limited to the issue of competence and due process, and does not extend to the scope of the CAA.
Having said the above on the room available to the Executive in matters of admission into and expulsion from India, it must be appreciated that the Indian State’s exercise of discretion can certainly be questioned if it exercises such discretion to the detriment of India’s integrity by facilitating influx of groups whose presence could be inimical to the interests of Indians. This line of argument is supported by the decision of the Supreme Court in Sarbananda Sonowal vs Union Of India & Anr (2005), the first Sarbananda Sonowal judgement which was delivered in the context of the challenge to the validity of the Illegal Migrants (Determination by Tribunals) Act, 1983 on the ground that it violated Articles 14 and 355 of the Constitution, among other things. Article 355, in particular, casts a duty on the Union to protect States against external aggression and internal disturbance. The Court struck down the IMDT Act, among other things, on the ground that its provisions and Rules negated the mandate of Article 355 by impeding the process of deportation of illegal migrants from Assam despite ostensibly claiming to expedite deportation. Therefore, should the Indian Government choose to facilitate or turn a blind eye to influx of groups at the expense of Indian interests, its prerogative to do so can be Constitutionally challenged.
That said, in the context of the CAA and its beneficiaries, the opponents of the CAA would be hard-pressed to make the argument that by facilitating the grant of expedited citizenship to members of such groups, which is a fulfilment of a promise that was expressly made in the Constituent Assembly debates, the Government has breached its mandate under Article 355. Since the Government has assured that the legitimate concerns of the people of the Northeast, including Assam, and the promises made under the Assam Accord shall be respected to protect the indigenous identity of Assam and the Northeast, it may not be possible for the opponents to challenge the CAA by riding on the coattails of the Northeast. The fact that the CAA expressly states that it does not apply to tribal areas in Assam, Meghalaya, Mizoram or Tripura and Manipur (later added) as well as areas covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873, only makes it difficult for motivated parties to incite passions against the CAA in the Northeast.
While it remains to be seen how the Apex Court will deal with petitions challenging the CAA, this much is clear- Article 14 is not the strongest of arguments against the CAA and thus far no other ground of challenge has been credibly presented. One sincerely hopes that in their desperation, the opponents of CAA do not end up depriving Article 14 of all its nuance and run aground the rich jurisprudence that has been evolved over decades to benefit those who truly deserve the protection guaranteed by the said Article.
Finally, when someone advocates for indiscriminate dilution of standards for grant of Indian citizenship, it may not make them anti-national, but it certainly speaks volumes of their commitment to protecting the integrity and identity of this land.