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CAA must meet Article 14's reasonable classification test: Achary

BY SUMIT SAXENA   |  New Delhi

23-December-2019

Religious persecution can certainly be a valid ground for classification but only within a secular framework provided by the Constitution, says P.D.T. Achary, former Secretary General of the Lok Sabha, on the Citizenship (Amendment) Act, 2019.

Speaking to IANS, Achary noted that the main challenge to this law is it violates Article 14 of the Constitution which proclaims that the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India.

"So if the state makes a law which denies equality before the law or equal protection of laws to anyone, not merely the citizens, it will be void under Article 13. However, the Indian judiciary propounded the doctrine of reasonable classification to mitigate the rigors of the equality clause. As per the doctrine, if the law makes a reasonable classification of a group for special treatment, it will not violate Article 14," he added.

Achary said that the Act provides the foreigners, who have no passport or other documents, belonging to the Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities who come from Pakistan, Afghanistan and Bangladesh shall not be treated as illegal migrants. However, similarly situated foreigners belonging to the Muslim community have been excluded, and will continue to be treated as illegal migrants.

But, he explained: "The Constitution deals with the issue of citizenship in Chapter II. The basic provisions relating to citizenship of the Indian Republic are contained in this chapter. After providing for citizenship of different types in Article 5 to 8, the Constitution leaves it to Parliament to make any provision relating to the acquisition and termination of citizenship."

The Centre has justified the amendment act, which violates the equality principle contained in Article 14, on the basis of the doctrine of reasonable classification. The doctrine of reasonable classification is based on tests of intelligible differentia, and rational nexus between the differentia and the object to be achieved by the law.

The apex court has passed a large volume of judgements interpreting and applying this doctrine. The yardstick of reasonable classification is required to be in conformity with the constitutional scheme and policy.

Achary insists if the Act can show an intelligible differentia in the classification of beneficiaries under the Act and rational nexus between the differentia and the object of the Act, it will be safe but otherwise, not.

"Although religious persecution is not mentioned in this amendment Act, the six religious communities have been grouped together on the ground that they faced religious persecution. This is evident from the amended rules relating to the Passport (Entry into India) Act, 1920 as well as the Foreigners Act, 1946," he added, citing any classification, howsoever reasonable, which violates the constitutional policy is not reasonable classification.

Therefore, Acharty vehemently insisted the Citizenship Amendment Act fails to satisfy the test of reasonable classification. He cited the Supreme Court has made this point emphatically clear in Nagpur Improvement Trust V. Vithal Rao & Ors (AIR 1973 SC 689). "In this connection it must be borne in mind that the object itself cannot be discriminatory, for otherwise, for instance, if the object is to discriminate against one section of the minority, the discrimination cannot be justified on the ground that there is a reasonable classification," the court has ruled.

Therefore, Achary concluded that the law violates Article 14 and no rational nexus can exist nor can it have any relevance. "The issue of grant of citizenship to the refugees could have been dealt with within a secular framework. No one in this country will say that the Hindu refugees should not be given citizenship. Every deserving person irrespective of religion can and should be considered," he added.IANS