CAA: Between Scylla and Charybdis

by | Nov 20, 2020 | Citizenship, Contitutional Law, Govt. Policy, Judiciary | 0 comments


It might appear that Citizenship Amendment Act, 2019 has been put on the backburner. But the issues it puts forwards; the type of polity it exposes India to be – are relevant.

Article 14 – The vintage beckons

The “core and intrinsic trait” test – which states that certain traits are so close to the personal autonomy of an individual, that they per se cannot be made a basis of classification as formulated in Navtej Johar[1](also used by Indian Union Muslim League [IUML] in its petition against CAA under Article 32[2]) cannot be concretely relied upon, being a concurring opinion by Malhotra, J. This is because the law is ambiguous as far as the binding nature of concurring opinions is concerned. Even though there are certain factors reference to which we can form a probability as to whether the same would bind, it fails first two out of three of these factors[3]– 

  1. Whether the said issue was directly raised ?
  2. Whether the said issue was necessary for the adjudication of the dispute? 
  3. Whether it has been expressly disapproved by the other judges of the bench?

Next comes the test of “manifest arbitrariness” as laid down in Shayara Bano[4](triple talaq case) which states that there must be “adequate determining principle” behind classification. In simple words, classification must be on the lines of logic not the lines of whim. Though this test is one of the more recent ones, it quite surprisingly effete to prove CAA unconstitutional. This is because howsoever narrow and cherrypicked the classification may be, with criteria conveniently sometimes cutting across and overlapping each other – it is never implied once in the test that there need be just one determining principle. And so long this remains the status quo, the government can plead one principle after the other to apply in conjunction – thus ruling out all exceptions. This obvious once an effort is made to express the “determining principles” of the classification made by CAA – 

  1. Countries which share land border with India. 
  2. Countries who have their state religion as Islam.
  3. Countries which were part of British India.
  4. Communities who have been victim of religious persecution in said countries due to historical reasons.
  5. Such communities must have entered India before December 31,2014. 

Thus, it is apparent as “determining principles” can be more than one, with them qualifying each other – any outlying statistic can be made part of the scheme by providing for another determining principle which covers the exception by providing another contrived logic for it. 

With the new tests examined, comes the turn of the test of “reasonable classification” as originated in Anwar Ali Sarkar[5].The abovementioned test formulates the requirement of an “intelligible differentia” (or how classified groups are distinct from each other) and “rational nexus” (of such differentia with the state aim – how division relates to objective[6]). This test has been restated following decisions in Deepak Sibal[7]and Subramanian Swamy[8],due to the additional requirement of state aim itself being reasonable. 

As an Act of Parliament presupposes constitutionality[9]– it must be assumed until proved contrary that legislature had a sound and compelling reason to enact the same.[10]Even if the most servile of all deference is given to the legislature, even after accepting the arguments of religion[11], historical reasons[12]and degrees of harm[13](taken from US jurisprudence[14]) being valid basis for classification are accepted (such grounds were copiously pleaded in the Joint Parliamentary Report[15]on CAB and the Counter Affidavit[16]by the government in response to the litany of petitions against CAA), it doesn’t pass the muster of reasonable classification. 

When the CAA is subjected to this test, we realize its tautological nature. 

  1. Intelligible Differentia: Communities are classified on the basis of them suffering religious persecution in countries which share land border with India who have Islam as state religion, who used to be part of British India and such communities came before December 31, 2014. 
  2. State Aim: To provide relaxation in applying for citizenship along with protection from penal provisions which apply in lieu of being an illegal entrant to those communities who suffered religious persecution in countries which share land border with India who have Islam as state religion, who used to be part of British India and such communities came before December 31, 2014. 
  3. Rational Nexus: The differentia and aim are related by virtue of their identity. (Read in a solemn, bureaucratic voice for better understanding.)

Thus it is patent that there is relation between the differentia and aim only because of the aim being the differentia itself! There cannot be classification just for the sake of classification.

Hence, there is no imperative to refer to “manifest arbitrariness” or “core and intrinsic trait” when just the old doctrine (though restated in recent decisions) of “reasonable classification” would do. The only oddball is the decision in David John Hopkins[17], which disqualifies pleading Article 14 on refusal of grant of citizenship.

It is pertinent to make a mention that ironically, if the defense of degrees of harm fails (as it allows selecting gradations of degrees and not cherrypicking), the new defense of “miniscule minority” (under inclusion is not excused on ground of minority being too negligible to consider) which was recently approved in Navtej Joharmight be pleaded – although in a context which was surely not in mind of the court when it gave the same. 

Discords with Article 21 – Substantive pass, Procedural fail?

It is postulated that while the claim under Article 14 might be quite strong, under Article 21 the position is rather ambivalent. The courts have already held many unqualified prerogatives and categorical powers in the hands of the Central Government regarding citizenship and expulsion – 

  1. Article 21 is wide, but not wide enough to give a right to citizenship.[18]
  2. Right under Art 19(1)(e) is not available to foreigners – thus they are barred from pleading the right to reside and settle in India.[19]
  3. There is no specific textual reference in the constitution as to any limit over Government in lieu of grant of citizenship. Thus, the power to expel is absolute.[20]
  4. The court cannot enforce a procedure as to hearing of cases of foreigners regarding their claims of citizenship on the Government.[21]
  5. The above principles were reapproved in Sarbananda Sonowal[22].

Hans Muller, which is the fulcrum of all arguments by which Article 21 can be satisfied – enquired into the vires of S 3(2)(c) of the Foreigners Act, 1946 and S 3(1)(b) of Preventive Detention Act, 1950. It was held, that these sections were constitutional, and even went on to hold that S3(1)(b) had been framed keeping in mind Art 21 and 22. 

But the enquiry also focused on whether there was any mala fides on part of West Bengal government. Finding none, the decision was given. Thus, the principles in Hans Muller can be applied mutatis mutandis only if in presence of bona fide intention, which is a disputable topic in itself.[23][24]

It might look that the Act might have no difficulty sailing through the muster of Art 21, but issues arise when the procedural technicalities are observed. Members of foreigners tribunals (the authority to adjudicate upon citizenship claims) lack security of tenure and judicial experience.[25]

Moreover, there are no statutory appeals[26]in case the verdict is against the alleged illegal immigrant (though there is an illusory protection through writ jurisdiction). These facts fly in the face of established precedent.[27]

CAA and International Law – Storm in a teacup?

Though it may seem infra dig to the proponents of monism in International Law, Indian courts have time again followed the theory of dualism. A continuum of decisions verify the dualist proclivity. Before we begin with such a string of precedents, it is necessary to dispel first the myths surrounding Vishakha’s case[28]. This case, it seems, is being used to support the binding nature of customary international law as well as treaties. But this isn’t so because of three reasons – 

  1. This was merely a case of cassus omissus (pun intended). As no legislation existed on that day germane to sexual harassment of women at workplaces, international law was “read into” to plug the gaps.
  2. Even after this substitution exercise it was clearly provided that this can be done so only in case of no inconsistency between municipal and international provisions.[29]
  3. Most importantly, the Court sought the permission of the executing department of Government of India through the Attorney General to avoid any legal difficulty due to inconsistency.[30]Though there was no particular cause for adopting such a course of action, it can be guessed that the court was hinting towards the doctrine of Separation of Powers. 

As said earlier, the catalogue of following decisions dismantle the case of any international law being binding –

  1. InShri Krishna Sharma[31]it was decided if International Law is in conflict with any Indian statute, courts cannot override the latter.
  2. InGramophone Company case[32]it was averred “National Courts cannot say yes when Parliament has said no” and “National Courts being organs of state and not international law” must apply national law in case of inconsistency.
  3. In Birma v State of Rajasthan[33]it was held “Treaties do not form part of law of the land unless made so by law making authority”
  4. In Maganbhai v Union of India[34]it was made clear that Parliament had legislative competence by virtue of Entry 10 and 14 of List I of 7thSchedule.
  5. InJolly George Verghese[35]it was made certain that the language of Art 253 (Power of Parliament to make laws to implement treaties) implied that treaties had to be legislated upon to become effective.
  6. In Civil Rights Vigilance Committee, Bangalore v Union of India[36]it was settled that the courts cannot compel parliament to make a law to honor international commitments, nor it can enforce said commitments at the instance of citizens. 

The last case almost mirrors the frequent invoking of International Law against CAA. But this simply isn’t tenable.

Excessive delegation?

The Joint Parliamentary Committee Report on the erstwhile CAB 2016 was apprised by the MHA that the application for religious persecution would be scrutinized at two levels : First by the FRRO (Foreigners Regional Registration Office) / FRO (Foreigners Registration Office) and in case of dubious documents, secondly by the Foreigners Tribunals constituted under Foreigners Tribunals Order, 1964.[37]

There is no such policy for determining “religious persecution”. There will be a mechanism, that too a two tier one – but on what basis ? It is a well worn precedent that legislature cannot delegate policy to the executive.[38],[39]This principle is so well entrenched, that it is followed even in the US where the executive is near indomitable.[40]

Segregating people on religious identity in an avowed secular country is an essential legislative function. Standing judicial scrutiny on this ground is near unviable. 

Conclusion

The Act is stuck between two irresolute positions of constitutionality and lack thereof – thus the title of Scylla and Charybdis. While it doesn’t stand scrutiny of Art 14 even when the vintage test of reasonable classification is applied, there are glaring procedural irregularities in foreigner tribunals which don’t allow it to stand tall in front of Art 21 either. Being dualistic, international law doesn’t apply. 

The only way left is to plead sovereign powers in the sphere of citizenship – which ironically has been affirmed by the court itself. The doctrine of stare decisis is not strictly followed in India, which means these precedents can be reversed. 

The question that remains is, are courts overstepping? With the court devoting an entire heading to “Transformative Constitutionalism”[41]inNavtej Johar[42],using it as part of its reasoning and with the meaning of “Constitutional Morality”[43]being referred to a higher bench[44]in addition to the already established Basic Structure Doctrine[45]– the time to answer, has come.


[1]Navtej Singh Johar v Union of India, AIR 2018 SC 4321

[2]Indian Union Muslim League v. Union of India, WP (C) 1470/2019, available at https://scobserver-production.s3.amazonaws.com/uploads/case_document/document_upload/1228/IUML_WPC_1470_2019.pdf, last accessed on June 29,2020.

[3]Sudhanva Bedekar & Swapnil Shanbhag, The Conundrum Of Concurring Judgements: More Questions Than Answers,WWW.LIVELAW.IN, https://www.livelaw.in/columns/the-conundrum-of-concurring-judgements-more-questions-than-answers-158493?fbclid=IwAR0fwg93YQ_t5OF2YmkowAwgJrOz6j_semdNdfFOJsxr3x1FfXYtVKJdiDA (lastvisited June 23,2020). 
The piece analyses the litany of decisions, some tilting towards in favour of the binding nature of concurring opinions, and some the other way. The 3 factors have been gleaned from as pointed by the selected court decisions in the article.

[4]Shayara Bano v Union of India, (2017) 9 SCC 1

[5]State of West Bengal v Anwar Ali Sarkar, 1952 AIR 75

[6]Budhan Choudhry v State of Bihar, AIR 1955 SC 191

[7]Deepak Sibal v Punjab University, 1989 AIR 903

[8]Subramanian Swamy v. CBI, (2014) 8 SCC 682

[9]Ram Krishna Dalmia v Justice S.R. Tendolkar, AIR 1958 SC 538

[10]Ibid

[11]Mahant Moti Das v S.P. Sahi, AIR 1959 SC 942

[12]Clarence Pais v Union of India (2001) 4 SCC 325

[13]Chiranjit Lal Chowdhuri v Union of India, AIR 1951 SC 41

[14]Radice v New York, 264 US 294

[15]Report Of The Joint Committee On The Citizenship(Amendment) Bill, 2016, accessible at https://www.prsindia.org/sites/default/files/bill_files/Joint%20committee%20report%20on%20citizenship%20%28A%29%20bill_0.pdf, last seen on 25 June 2020

[16]Preliminary Counter Affidavit On Behalf Of The Union Of India, Writ Petition (C) No. 1470 Of 2019, accessible at https://images.assettype.com/barandbench/2020-03/ce48cef8-485a-4f2f-8026-4882405092f8/Central_Government_CAA_Counter_Affidavit.pdf

[17]David John Hopkins v. Union of India, AIR 1997 Mad 366

[18]Gnanaprakasam v Government of Tamil Nadu W.P.No.18373 of 2008 (Mad).

[19]Louis De Raedt v. Union of India, 1991 SCR (3) 149

[20]Hans Muller of Nurenburg v Superintendent, Presidency Jail, Calcutta, 1955 SCR (1)1284

[21]Ibid

[22]Sarbananda Sonowal v Union of India, AIR 2005 SC 2920

[23]Sagar,The government’s disingenuous defence of the CAA and NRC in the Supreme Court, The Caravan, accessible at https://caravanmagazine.in/law/the-governments-disingenous-defence-of-caa-and-nrc-in-the-supreme-court, last accessed on 27 June, 2020.
The author in essence shows the criss-crossing arguments of the Government through the Counter Affidavit in which the Centre contradicts itself on many counts; uses a mish mash of arguments conveniently garnering selective facts and narration to prove its point by sophistry. Another point – allied but not mentioned in the article is that the term “religious persecution” was never put to legislative scrutiny, as it was introduced through the backdoor by means of notifications – which are formulated by the executive and don’t need parliamentary approval.

[24]Another point – allied but not mentioned in the article is that the term “religious persecution” was never put to legislative scrutiny, as it was introduced through the backdoor by means of notifications – which are formulated by the executive and don’t need parliamentary approval.

[25]Chandrachud, Abhinav, Secularism and the Citizenship Amendment Act (January 4, 2020). Available at SSRN: https://ssrn.com/abstract=3513828 or http://dx.doi.org/10.2139/ssrn.3513828at Pg31

[26]Ibid at Pg33

[27]Madras Bar Association vs Union Of India, WP No. 697 of 2007

[28]Vishakha v State of Rajasthan, AIR 1997 SC 3011

[29]Ibid at Pg 3011

[30]Nishant Kumar Singh, The Indian Constitution And Customary International Law: Problems And Perspectives, The Student Advocate, Vol 12, Pg 97, NLIU Bangalore (2000) available at http://kailash.pairserver.com/kailash/wordpress/wp-content/uploads/2016/07/The-Indian-Constitution-and-Customary-International-Law_Problems-and-Perspectives_Nishant-Kumar-Singh.pdflast accessed on June 29,2020.

[31]Shri Krishna Sharma v The State of West Bengal, AIR 1954 Calcutta 591 at Pg 591

[32]Gramophone Company of India Ltd v Birendra Bahadur Pandey, AIR (1984) SC Pg 667

[33]AIR 1951 Rajasthan p127

[34]AIR 1969 SC 783

[35]Jolly George Verghese v Bank of Cochin, 

[36]AIR 1983 Karnataka p85

[37]Joint Parliamentary Committee Report, supra note 15 at P 68

[38]Hamdard Dawakhana v Union of India, AIR 1960 SC 554

[39]In re Delhi Laws Act, 1951 AIR 332

[40]Panama Refining Co v Ryan, (1934) 293 US 388

[41]The doctrine essentially means that once rights jurisprudence has moved forward (scope of rights granted under the constitution have been expanded), a “retrograde step” cannot take away the newly granted rights, thereby moving two steps backward.This is yet another doctrine which managed to find not just a passing mention but significant and relevant enough space so as to be considered ratio decidendi. This could be used to declare many actions as “retrograde step” and declared unconstitutional.

[42]Supra note 1 at p 65 para 190

[43]It is no wonder that being worded vaguely, it has a diffuse meaning. It might mean the gestalt of the constitution. 

[44]Kantaru Rajeevaru v. Indian Young Lawyers Association, Review Petition (Civil) No. 3358 of 2018,

majority judgment dated 14 November 2019

[45]Kesavananda Bharati v State of Kerela, AIR 1973 SC 1461


Preferred Citation : Godhwani, G. “CAA: Between Scylla and Charybdis”, The Law Culture (2020)

Gautam Godhwani

Gautam Godhwani

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Gautam is 4th year Law Student at Hidayatullah National Law University, Raipur.

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