On the face of it, the Citizenship (Amendment) Act, 2019 would appear unconstitutional to any individual who is not familiar with the provisions of constitutional law. Whether CAA passes the aritcle 14 test or not, is a question which can only be answered by indulging deeper into the implications of article 14, and how it has been interpreted by the judiciary over the years.
The Constitution of India is not limited to the mere articles and statutes enacted by the legislature, but it also includes the implications and interpretations of these laws by the judiciary which form the precedents for future judgements. Article 14, is perhaps the most important fundamental right guaranteed by the constitution. It states that all persons are equal before law and are entitled to equal protection of the laws within the territory of India. However it permits reasonable classification found on the basis of intelligible differentia and that such classification should possess direct nexus with the objects of the act- The doctrine of reasonable classification.
The doctrine allows the State to treat a specific class of persons differently from those not included in the class. However, the doctrine states that that the classification must be based upon intelligible differentia that distinguishes persons or things that are grouped from others that are left out of the group. This differentia must have a rational relation to the object of classification. This is the same doctrine which gives birth to the system of reservation in jobs and admissions, and which is under scrutiny from the legal standpoint.
Thus the question arises 'Is the classification of persecuted minorities in the act a reasonable classification?'
It's not that simple.
While certain judgements like Sanaboina Satyanarayan v. Govt. of Andhra Pradesh and State of West Bengal vs Anwar Ali Sarkar (1952) would lead one to believe that the classification is reasonable, the writ petition filed by Janaadhikara Sangharsha Parishath, an NGO, raises serious doubts on the ambiguity of the statute with respect to 'persecuted minorities'.
The petition states that the act does not provide for the definition of ‘Persecuted Minorities’. It states that the objects of Citizenship (Amendment) Act, 2019 is to provide Indian Citizenship to the ‘Persecuted minorities’. Hence ‘persecuted minorities’ being the basis of providing citizenship, ought to have been defined. Any statute challenged on grounds of ambguity is subject to it's interpretation by the Supreme Court. The decision of the Supreme Court will form the base for all subsequent judgements that are made, something known as Staire Decisis, the doctrine of abiding by precedent.
Thus the classification made by the state under the amendment is based on countries and religion which, according to petitioners, is discriminatory in nature as a it excludes Tamil people of Sri lanka and Rohingyas from Myanmmar who also faced religious persecution in their respective countries. Furthermore, the petitioners argue that the act excludes Hindus who are classified as minorities in neighboring countries such as Nepal, Bhutan and Myanmmar. According to various protest groups, the act assumes that Muslims are one large monolith and that religious persecution between dominant and less dominant sects of Islam is not worth its consideration. Ahmadiyyas and Shias are at the receiving end of extremist violence.
While this may be a valid counterpoint to the Centre's argument, one cannot expect the Supreme Court to declare the entire amendment unconstitutional. A strong reason to why the bill specifically includes Pakistan, Bangladesh and Afghanistan would be that the legal system of these States is predominantly derived from Sharia Law. This implies, there is no freedom of religion and the law itself does not recognize other religions. In fact, one needs to convert to islam inorder to get married. The legal structure makes any other religious community ipso facto a 'Persecuted Minority'.
What's most likely to happen?
The Amendment in itself cannot be deemed unconstitutional, and should pass the article 14 test. However one has to consider the concerns raised on the definition of 'persecuted minorities'.
The Supreme Court can stay the implementation of the act and exercise its advisory jurisdiction to direct the legislature to define the term 'persecuted minorities' more comprehensively, but a striking down of the act in it's entirety is highly unlikely. The report submitted to the Joint Parliamentary Committee by the Intelligence Bureau, however, states that the beneficiaries of the act amount to 31,313 people only, thus weakening the stand of the Centre.
What one cannot expect is for the act to include minorities, as was being demanded by certain protest groups. If Islam is inserted in the act, considering the deplorable standard of living in the 'three-countries' and comparitively better prospects at life in India, the act would serve as a roadmap to fastracked citizenship, and would create a surge of illegal migrants which, frankly, would not be in the best interests for the second most populous country in the world.
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