Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution
–Anant Sangal, IV Year, B.A., LL.B. (Hons.), National Law University, Delhi
In the first half of December 2019, the Indian Parliament passed a discriminatory legislation, which provides citizenship to a class of people on the basis of their religion. According to the Citizenship (Amendment) Act, 2019 (‘Amendment’), people belonging to the Hindu, Sikh, Christian, Jain, Buddhist, and Parsee community and who came from India’s three neighboring countries (Bangladesh, Afghanistan, and Pakistan) before 31st December 2014 will be eligible for Indian citizenship. While the Statement of Objects and Reasons appended to the bill argues that people belonging to only these religions are persecuted on the basis of their religion in these three Islamic-theocratic nations, however, no such reference is available in the actual text of the legislation.
With the solitary exclusion of the Muslim community from the scope of the legislation, the challenges posed to the constitutionality of the legislation are many. In this post, however, I will limit my argument to only two such limitations the legislation suggests.
Ever since the passage of the legislation on 12th December 2019, the reasonable-classification test as a standard of judicial review has gained wide currency. The reasonable classification test is a milder form of judicial review (when compared with the strict scrutiny or the proportionality test) which was originated in India in early 1950s by the Indian Supreme Court (‘Court’). As per the judgment of the Court in Anwar Ali Sarkar, a law will be valid if: (a) the classification created by that law is reasonable; and (b) there exists a ‘rational nexus’ with the objective that classification aimed to achieve.
While the central government has argued in its reply to the petition filed challenging the Amendment’s constitutional validity that the Amendment passes the reasonable classification test, there is, however, sufficient literature arguing why the Amendment fails to meet the classification test. However, I will take this inquiry one step further. I will argue about a situation when such object itself is unlawful or discriminatory.
In a lone instance of its kind, the Court in its landmark decision of Nagpur Improvement Trust, took the two-step inquiry I discussed above a step further. The Court held that if the object of such classification itself is unlawful or is posited to discriminate against a section of minority, such discriminatory object will not be justified simply on the ground that there is a reasonable classification and it has rational relation to the object sought to be achieved.
In a constitution-bench decision of the Court in 2018, which struck down a colonial era law which criminalized homosexuality, one of the judges on the bench wrote her independent, majority opinion. In her opinion, the Justice Indu Malhotra observed that a law which discriminates on the basis of ‘inherent’ qualities of a human being will be bad in law. The present Amendment performs that very act. One’s birth as a Muslim is a factor one cannot have any control over and hence, the very object of the legislation is discriminatory against people belonging to the Muslim community. The purported objective is to provide for the people facing persecution a safe harbour in India. However, the objective falls foul for its inability to explain why only Muslims are left out from the ambit of the protection extended by the Amendment. The pointed question to raise is whether the object cannot be met without excluding the Muslims. The clear answer is no, also because there is ample evidence that in parts of Pakistan, as against the myth perpetuated that Muslims in these three Islamic republics do not face persecution, the Ahmadiya Muslim community has been persecuted for long now. This is, therefore, the first constitutional limitation the legislation offers.
Unlike the United States Constitution, the Indian Constitution does not provide for an anti-establishment clause in its constitution. In short, while the US cannot be a theocratic state with a particular religion as its official religion, what does this suggest about the Indian Constitution? Does this necessarily imply that the Indian Constitution is by its very nature an unsecular document? The answer is surely in negative. The word ‘secular’ was inserted in the Preamble to the Indian Constitution as late as in 1976, that is after almost thirty years of India’s independence from the British rule. However, despite the non-existence of the word secular, as Gary Jacobsohn argues, the principles like secularism are not explicitly specified by the text of the Constitution and yet continue to have a “brooding omnipresence”. For him, the ‘omnipresence’ of religion is a constitutive reality which determines the meaning of secularism for the Indian Constitution.
While the same is true, the backing for the secular principles in the Indian Constitution is provided by three primary provisions in the fundamental rights chapter of the Constitution. These are the clauses on: (a) the anti-discrimination principle; (b) freedom of profession, practice, and propagation of religion; and (c) protection and special consideration for religious, linguistic, and caste minorities. The distinction between (a) and (b) is also argued by Khaitan and Norton, where the right against religious discrimination is a protection of members of a religious groups, irrespective of their adherence to the tenets of such group.
In that setting, the question how is the Amendment unsecular or not is not of much interest to me. However, the real question to ponder is whether as a secular polity, the Parliament can even have powers to enact a legislation, which reserves conferment of a certain right with religion as its basis. By singularly excluding the Muslim community, the norms of a secular polity are dramatically disturbed, so to say. Going by the principle of interpretation of constitutional silences, as Michael Foley argues, not all constitutional silences are owing to linguistic indeterminacy. Rather, some are deliberate choices to keep contentious political issues in abeyance.
Secularism for the Indian Constitution was one such contention. Therefore, as has been argued, the Kesavananda Bharati judgment evolved the doctrine of implied limitations, flowing from the silences of the Constitution itself. It acts as a check on the powers of the Parliament from doing something which infringes those principles, which are not provided for by the text of the Constitution. The principle of secularism is one such limitation for the Amendment in question.
Whenever religion will form the basis of conferring any right upon a particular community and not another, such law will discriminate on the basis of religion, which in turn is prohibited by the Constitution. As scholars have argued, the reasonable-classification test is extremely formalistic in its application. Let us imagine a legislation which provides that given the number of people belonging to a certain religion are in majority, India will therefore be a theocratic nation with that religion as the state religion. While the reasonable-classification test may endorse such legislation’s validity, however, given that unsecular tendencies form the basis of this legislation, hence, it shall be bad in law and liable to be set-aside. This is despite the fact that there is no anti-establishment clause in the Constitution. However, the implied limitations will argue that the structure of the Constitution itself provides for secularism as an obstruction to something as venomous as this legislation
While the validity of the legislation has been challenged and is now pending in the Indian Supreme Court, it will be fascinating to observe how the Supreme Court will interpret the limitations and meaning of Indian secularism. The last time it did, it was in SR Bommai, when it went on to consider secularism as a part of the basic structure of the Indian Constitution while deciding on the grounds for dismissal of state governments. The Court found that non-adherence of principle of secularism was one such ground. The Court could have decided whether secularism is a part of the basic structure of the Constitution only while reviewing the validity of a constitutional amendment, a phenomenon evolved in the Kesavananda Bharati judgment. With the judgment reviewing the validity of the Amendment, far too many questions on the nature and the current state of Indian secularism await an answer.
Suggested Citation: Anant Sangal, Special Undergraduate Series–The Rot Runs Deeper: Citizenship at Odds with Religion, Int’l J. Const. L. Blog, Apr. 12, 2020, at: http://www.iconnectblog.com/2020/04/special-undergraduate-series–the-rot-runs-deeper:-citizenship-at-odds-with-religion