A legal critique of the Act which has caused much protest in the country
There has been much ado about the amendment to the Citizenship Act. It has been attacked as being unconstitutional - falling foul of the Constitutional guarantee of equality, the principles of secularism and the Constitution’s basic structure.
The law covers three aspects - one, facilitating persons of religious minorities who suffered persecution in Afghanistan, Bangladesh, Pakistan to acquire Indian citizenship, secondly the law is inapplicable to certain areas and thirdly cancellation of registration as Overseas Citizen of India cardholder. It is the first aspect that has generated widespread, though misplaced, criticism and protest.
At first blush the law may appear to be discriminatory and unconstitutional, but such charge does not stand closer scrutiny.
The gravamen is that the law singles out and excludes Muslims, that there is hostile discrimination against them rendering the law ultra vires Article 14 and unconstitutional. These apprehensions are misconceived.
The amendment, as is clear from the statement of Objects and Reasons as also the provisions, is a law seeking to facilitate religious minorities in the named countries which have a State religion acquire Indian citizenship as a one-time measure.
Article 14 guarantees equality before law and equal protection of the laws. This has been the subject matter of Constitutional interpretation and exposition over the decades and its scope and ambit are well settled. The amendment does not violate Article 14.
The equal protection of the laws is a pledge of the protection of equal laws. But laws may classify. In addressing this problem the courts have neither abandoned the demand for equality nor denied the legislative right to classify.
The seemingly contradictory demands of legislative specialisation and Constitutional generality have been resolved by the doctrine of reasonable classification. It is one which includes all persons who are similarly situated with respect to the purpose of the law which may be the elimination of a public mischief or the achievement of some positive public good.
In the present case there is a reasonable, valid classification of persons of religious minorities in the three named theocratic states who came to India before a cut-off date. Such persons are not treated as illegal migrants and special provisions are made as to their citizenship.
The law is criticised for not including Muslims from these countries as also persons suffering persecution in other neighbouring countries.
Classification is permissible; even if it is taken to be an under-inclusive classification, the courts have held that it would be justified considering that legislative dealing with such matters is usually experimental.
The amendment would help 31,313 persons who belong to this category as per figures furnished by the Intelligence Bureau to the Joint Parliamentary Committee. It is said as a fact that no Muslim from any of these or other countries has come to India seeking refuge.
Classification is dependent upon the peculiar needs and specific difficulties of the community which are constituted out of facts and opinions beyond the easy ken of the courts. It is largely dependent on the assessment of the ground realities which the legislature is best, and perhaps exclusively, equipped to make.
Certain Constitutional fundamentals are well established.
There is always a presumption in favour of the Constitutionality of a statute. It is presumed that the legislature understands and correctly appreciates the needs of its people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds.
And in order to sustain this presumption, the court may take into account matters of common knowledge and report and history and assume every state of facts which can be conceived existing at the time of the legislation.
A law need not be all embracing. A legislature acting within its domain is not bound to extend laws to all cases which it might possibly reach. The legislature is free to recognise degrees of harm and confine its laws to those classes of cases where the need seemed to be clearest; and that is a matter of legislative judgment.
If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. Therefore the grievance and argument that others in the three named countries and those persecuted in other neighbouring countries should have been included and meted out the same treatment does not avail.
The great divide in the area whether classification is reasonable or not lies in the difference between highlighting the actualities or the abstractions of legislation. As society becomes more complicated, the greater is the diversity of its problems and more does legislation direct itself to such diversities.
“Statutes are directed to less than universal situations. Law reflects distinctions that exist in fact or at least appear to exist in the judgment of the legislature which has the responsibility of making the law fit fact.”
The legislature for dealing with complex problems that arise out of an infinite variety of human relations, cannot but proceed upon some sort of selection or classification of persons upon whom the legislation is to operate.
As Frankfurter, J observed, “Laws are not abstract propositions but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies.”
Therefore when there is a classification the court will not hold it invalid merely because the law might have been extended to other persons who might resemble the class for which the law is made.
For, the legislature is the best judge of the needs of the particular classes and to estimate the degree of evil so as to adjust the law according to the exigencies. Article 14 does not require that legislative classification should be scientifically perfect or logically complete.
The aforesaid settled legal position leads to the inevitable conclusion that the law does not fall foul of Article 14. Otherwise we would be proving Anatole France right that the law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread. “Bare equality of treatment regardless the inequality of realities is neither justice nor homage to the constitutional principle.”
All apprehensions and contentions in that behalf are baseless and imaginary. Appeal to Article 25 as a ground of attack is equally misconceived and puerile. Locus is not simply technical. No rights of those who assail the law have been violated. No foreigner has a right to claim Indian citizenship or an easier means of acquiring it.
There is more rhetoric than legal reasoning in the contention that the law is opposed to the principles of secularism and infringes the Constitution’s basic structure. A law can be invalidated only on the ground of lack of legislative competence or violation of any Constitutional provision. Neither ground is present here.
Any law regarding citizenship is within the exclusive domain of Parliament and this Parliamentary enactment does not infringe any Constitutional provision. The basic structure doctrine is a ground and the only ground to challenge a Constitutional amendment.
It is unavailing in the case of ordinary legislation though there may be some judicial gratis dicta to the contrary stated with flourish which do not represent the correct and settled legal position.
Justice Cardozo’s remarks come home with a strange poignancy: “The half-truths of one generation tend at times to perpetuate themselves in law as the whole truths of another, when constant repetition brings it about that qualifications taken once for granted are disregarded or forgotten.”
It is to be remembered and reiterated that the amendment does not take away citizenship of any Indian, the law does not exclude anyone, but it does not include some within its ken.
Whether this is the best or wisest law is a matter for Parliament, not for the court. The court is concerned only with the Constitutionality of a law, not its wisdom, desirability or expediency. We ought not to confuse Constitutionality with wisdom, desirability or morality.
While this is the legal position and people should not be misled or misinformed, it is wrong to describe those who oppose this measure as anti-national. A democratic society lives and grows by accepting ideas, experimenting with them and if necessary rejecting them.
The right to dissent is conferred by the Constitution. Discussion and dissent are the very life breath of democracy.
But no democracy can afford or support violence. Violent protests as well as putting down dissent - both are a negation of democracy.
It is the duty of every good government to discuss, inform and educate the nation. The amount of time that people spend in hearing each other talk is said to be an important constituent of political life. Enduring institutions, it is said, depend upon the enduring support of ordinary people.
To a query as to what kind of government the Constitutional Convention of 1787 had created in USA, Benjamin Franklin replied, “A republic, Madam, if you can keep it.” The most effectual means of preventing perversion of power and preserving the democratic republic ‘is to illuminate the minds of the people at large.’ This is what is of utmost need and urgency today.
The amendment does not require the approval of any of the states. They have no role and some Chief Ministers opposing it is wholly irrelevant.
While one may criticise and oppose a law, as long as the law stands, one is bound to obey and abide by it. Persons occupying Constitutional positions protesting against the law and threatening not to obey and implement it, is very disturbing.
It amounts to a breach of the Constitutional oath of office which would render them unworthy and ineligible for public office. It also amounts to failure of the Constitutional machinery inviting remedial action under the Constitution.
We would do well to recall Rousseau’s admonition: “The first of all laws is to respect the laws.”
(The writer is a senior advocate based in Bengaluru. Views are personal.)