Thoughts on the Citizenship Amendment Bill
Article 14 of the Indian Constitution deals with equality before law. It states "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth."
This does not mean that a classification or division cannot be made amongst the people in the process of making any law. We can, for example, make a law for only for the Hindus, like the Hindu Undivided Family (HUF) Act and make it not applicable to a Christian. Article 14 does not allow what is called 'Class legislation' - which means that you cannot apply the HUF Act to all Hindus who are having five children and not otherwise.
While presenting the Citizenship Amendment Act in the Loka Sabha, Home Minister declared that the classification or distinction made amongst the people for the purpose of the bill is - paraphrasing him - "Religiously persecuted minorities of Hindu, Sikh, Buddhist, Parsi, Jain and Christian religions in Muslim theocratic states that share immediate border with India".
For any classification or distinction to be made as per Article 14, it has to go through three standards.
1. The classification should be justifiable and reasonable. Is the bill's classification justifiable? To be called so, there has to be an intelligible differentiation between those included and excluded. The purview of 'persecuted religious minorities' mentioned in this act includes most major religions, except Muslims. The logic given is that Muslims cannot be a minority in a Muslim theocratic Muslim state. This is not a justifiable classification, as sub groups within the larger Muslim religious group like the Sunni and the Amadiays are persecuted religiously both in Pakistan and Afghanistan. The Bill does not consider them as 'religious minorities'. This is not justifiable or reasonable.
2. The classification should have a rational object. The object of providing dignity to the religiously prosecuted is perfectly rational. Providing dignity to selective minorities who are religiously prosecuted in their countries of origin is not.
3. The classification should not be Arbitrary. For what purpose is the condition 'sharing the border with India' exists? If it is so, why not include Sri Lanka Myanmar and other countries that India shares its border with? The logic given by the Home Minister while debating on the bull in the Parliament is that the classification is done on the basis that the counties are theocratic in nature of the Muslim religion. On what basis is the criteria of 'only Muslim theocratic states' being selected? Is there no religious prosecution in non Muslim theocratic states and non Muslim states which give constitutional preference to a Non Muslim religion? If the Bill assumes that there is no persecution non Muslim theocratic stated, it is arbitrary in nature.
On television interviews, Adv. Harish Salve, as always, defending the State mentions that the intelligible differentia is that the three countries selected by the Bill are Islamic states sharing a common past heritage with India. If it is so, it would seem that Islam religion is the basis for this criteria and classification. It is presumptuous to assume that persecution happens only in states whose religion in Muslim. Adv. Salve conveniently terms this distinction as a matter of government policy. What sort of government policy is this that brings an amendment to a law based on this unintelligent assumption?
The majority in the Indian Parliament seems to think that this religious classification has a reasonability to it - ie... if they ever have given a thought to it before voting. It would be interesting to see what the Supreme Court will decide on this, if an when it decides.