John Sebastian is a Ph.D. candidate at Melbourne Law School and Assistant Professor at Jindal Global Law School. His research interests include constitutional law, criminal law, and legal and political theory. This blog post is a summary of an argument developed in greater detail in an article in the Socio-Legal Review, which can be accessed here.
There is little doubt that the Citizenship (Amendment) Act, 2019 (‘CAA’) makes a classification on the basis of religion—it explicitly mentions that its benefits are for persons ‘belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communit[ies] from Afghanistan, Bangladesh or Pakistan.’ It would prima facie, therefore, seem to breach the requirements of Article 15(1) of the Indian Constitution, which prohibits the State from discriminating on the ground of religion, amongst other grounds such as race, caste, sex, and place of birth. However, this is often countered by the argument that Article 15 specifically applies to citizens i.e., the persons who are eligible for citizenship under the CAA are not currently citizens, and therefore, cannot claim rights based on Article 15. In my article I interrogate this claim, and argue that due to the inherent nature of the CAA as a law which determines the conditions of entry into the political community of citizens, Article 15 should apply to it. In doing so, I also analyse the scope of the anti-discrimination guarantee in Article 15, demonstrating how the application of Article 15 impacts the constitutional analysis (and validity) of the CAA.
Situating the Article 15 Argument
The specification of certain grounds of discrimination as prohibited makes Article 15 a uniquely powerful tool in discrimination law. At the very least, as Khaitan notes, courts are expected to subject laws which classify or distinguish between citizens on any of the grounds mentioned in Article 15 to a higher standard of scrutiny when compared to other classifications. A claim that Article 15 applies to the CAA, hence, implies a more rigorous standard of scrutiny by the court, which in turn raises the justificatory burden on the state.
Of course, Article 15 is only one instantiation of the principles in the equality code within the Indian Constitution, and several other principles of equality—notably Article 14—are not conditional upon citizenship. Hence, it has rightly been argued by many that the CAA breaches the reasonable classification and manifest arbitrariness tests within Article 14. In brief, the state argues that the CAA aims to enable the grant of citizenship to those who have been forced to seek shelter in India due to religious persecution. It justifies its choice of countries—Afghanistan, Bangladesh and Pakistan—on the grounds that these countries are in India’s neighbourhood and have an official state religion (Islam), which leads to the persecuted religious minorities mentioned in the CAA seeking refuge in India. The CAA has, however, been challenged as a violation of Article 14’s guarantee of equality due to its inapplicability to other equally persecuted groups such as (a) other religious minorities within the three countries specified, (b) those persecuted for non-religious reasons, (c) those persecuted in other countries in our neighbourhood, and (d) those who arrive in India after the CAA’s cut-off date of 31 December 2014.
The state, in response to these challenges, has repeatedly claimed that the scope of judicial review over the choice of countries and communities is limited. It further argues that it is up to the legislature to decide whether to enact a law which is all-embracing, or to focus on certain groups alone. The claim is, therefore, that the CAA meets the threshold requirements of Article 14 and that the judiciary’s ability to review the law is limited. Of course, those who challenge the constitutionality of the CAA (correctly) argue that the unequal impact of the law is substantial enough to be a violation of Article 14 even under the reasonable classification test. However, if Article 15 applies, the court will require the state to produce stronger reasons and evidence to explain why it could not include other equally persecuted groups within the ambit of the CAA. The higher scrutiny of Article 15 requires less deference to be shown to ‘legislative wisdom,’ and will require the state to go beyond its bare assertions of ‘foreign policy’ and ‘reasons of state’ in defending the CAA. Essentially, it will enable courts to demand greater justification from the state, failing which the law will be declared unconstitutional.
It has also been argued that, even within Article 14, courts should apply a relatively higher standard of scrutiny to the CAA since the interests involved—the very ‘right to have rights’—are sufficiently serious in nature. Further, it has been strongly argued by Ahmed that the CAA breaches the requirements of Article 15’s ‘anti-subordination’ principle due to its unique signaling value that lowers the status of Muslim citizens in the polity. As a caveat, my arguments do not detract from but rather add to these other arguments about the correct standard of review to be applied to the CAA.
In addition, I limit myself to the argument that Article 15 ought to apply to the CAA, and do not further analyse whether, once Article 15 applies, the CAA would or would not meet its higher threshold of justification. That would be out of the scope of this piece. However, as mentioned above, many have cogently argued that the CAA fails to meet even the relatively lower requirements of Article 14. These very arguments will apply, even more forcefully, once the CAA is subjected to the higher scrutiny of Article 15.
Article 15 and Conditions of Entry – Nergesh Meerza and Navtej Johar
In Air India v Nergesh Meerza, certain service conditions of Air India, which discriminated between Air Hostesses (who were female) and Assistant Flight Pursers (who were male), were challenged by many Air Hostesses. Among the many grounds of challenge was a claim that the classification, being based on sex, was in violation of Article 15(1). The Supreme Court negated this claim, observing that Air Hostesses and Assistant Flight Pursers constituted two separate classes which were ‘governed by [a] different set of rules, regulations and conditions of service.’ Being separate categories of employment or cadres, they could not be compared (much like apples and oranges, presumably). In addition, the court observed that Article 15(1) could not apply to this case as that prohibited discrimination only on the grounds of sex, whereas this was a classification on the basis of sex and employment cadre (though the Court itself noted that the functions discharged by Air Hostesses and Assistant Flight Pursers were the same). This reasoning, termed the ‘sex-plus’ argument, has been rightly criticised by many.
However, one of the criticisms of Nergesh Meerza throws a sharp light on the perils of ignoring conditions of entry into a group in an analysis of discrimination. In Navtej Singh Johar, Chandrachud J. observes that one of the many flaws in the reasoning of Nergesh Meerza is that the judgment failed to enquire as to whether the ‘initial classification’ itself was based on sex, as women could only become Air Hostesses and not Assistant Flight Pursers i.e. ‘the very constitution of the cadre was based on sex’ [emphasis mine].
In other words, it might be logically correct to claim that within the classes of Air Hostess and Assistant Flight Pursers, respectively, there is no discrimination on the grounds of sex, since all persons within the category of ‘Air Hostesses’ are being subjected to the same treatment (since, by default, they all are women). However, as correctly observed in Navtej Singh Johar, the condition of entry into the class of Air Hostesses was itself discriminatory, and this, in turn, coloured the entire class with the vice of discrimination, even if, after entry into the class in question, there is no further discrimination. This makes sense—otherwise, Article 15 could be completely subverted by the creation of groups with different entry conditions based on the very grounds it prohibits, as is demonstrated in Nergesh Meerza.
I term this the ‘conditions of entry principle’ (‘COE principle’). The COE principle states that when a law prohibits discrimination on a certain ground within a group, then it also necessarily prohibits discrimination on the same ground in the determination of who can be a member of the group in question. The COE principle is, in many ways, a manifestation of the commonly-accepted principle of the Supreme Court, that ‘the State cannot do indirectly what it cannot do directly.’ If the state is prohibited from discriminating on certain grounds, it cannot subvert this prohibition through indirect means. In the next section, I apply and justify the application of the COE principle to the CAA.
Application to the CAA – A Thought Experiment
The CAA, while not applying to current citizens, is a law which determines who eventually constitutes the class of citizens, since it regulates the conditions of entry for a person who seeks Indian citizenship. Extending the logic of Chandrachud J., I argue that to not apply Article 15 to the CAA would be to repeat the mistakes of the court in the Nergesh Meerza case. It is important to note that Navtej Johar does not formally overrule Nergesh Meerza since the other judgments in Navtej Johar do not mention the case. However, for reasons I explore in greater detail in my full article, I contend that while Nergesh Meerza does not apply to the CAA anyway, Justice Chandrachud’s judgment in Navtej Johar nevertheless demonstrates strong reasons in favour of the applicability of Article 15 to the CAA.
In order to draw a clearer picture, let us consider an example: imagine that Parliament passes a New Citizenship Act (‘NCA’), which recognises all those who are currently Indian citizens as citizens under the NCA. However, the NCA has a provision which states that only male children born after the commencement of the Act will be entitled to citizenship. As a result, females or persons of other genders born after the commencement of the NCA will not be granted citizenship. Now, I assume that most of us would find such a law to be abhorrent. Here, it is important to interrogate the reasons why we would consider this law as unconscionable, and how it sheds light on the CAA.
In defence of the NCA, it might be argued that this is not a law which discriminates against citizens on the grounds of sex as prohibited under Article 15 of the Constitution, as the persons it covers, i.e. children who have not been born, are clearly not citizens. This law, much like the CAA, deals with persons who are not yet citizens, and more importantly, with the qualifications through which citizenship can be gained. Does this mean that this law will not be subject to the scrutiny of Article 15? Surely not—as the implementation of such a law, over time, would lead to a situation where only males are citizens, rendering nugatory the entire purpose of the prohibition of discrimination on the grounds of sex in Article 15(1). In purely formal terms, of course, this law does not discriminate between persons who currently are citizens on the grounds of sex. In fact, adopting such a line of reasoning will eventually lead to a situation where discrimination on the grounds of sex between citizens will become a logical impossibility since there will be no non-male citizens left after all those in the current generation pass away. But such an interpretation can clearly reduce the guarantee of Article 15(1) to a hollow shell.
The Difference between Grounds of Discrimination and the Subject of Discrimination
It might be argued, to the contrary, that the distinction between the NCA and the CAA is that children in question (in the NCA) will be born to parents who are currently citizens of the country and thereby, discriminates against them. However, the discrimination in question, while being on the grounds of sex, is not on the grounds of the sex of the parents i.e. those who are currently citizens. A single father (a citizen) of a girl child (not a citizen) is not discriminated against because of his sex. Therefore, it could be countered, this again is not discrimination between citizens on the grounds of their sex. It is pertinent to underline that this is not a trivial distinction, and is precisely the distinction advanced by those who support the idea that Article 15 does not apply to the CAA i.e., they do not claim that the CAA does not classify on the grounds of religion (which it obviously does), but rather that it does not classify on the grounds of the religion of those who are currently citizens. In other words, their argument is that Article 15 has two conditions: (a) that the discrimination be on the grounds specified, and (b) that the subject of the discrimination be someone who is currently a citizen, and not someone who potentially can be.
My NCA example clearly brings out the flaws of this reasoning advanced commonly in defence of the CAA. Even though, formally, the NCA (a) does not discriminate between those who are currently citizens on the grounds of sex, and (b) only discriminates between those who can potentially be citizens, its effects could be devastating and undermines the very purpose of Article 15. A purely formal construction of Article 15 would lead to absurd results. Entry conditions are, hence, clearly relevant to Article 15.
Anti-subordination and the Question of Numbers
Let us continue with the NCA example. Another way in which the NCA violates Article 15 is that it does in fact affect current citizens who are women (and those of other non-male genders). Even though their citizenship continues to be recognised, the NCA would send a message to non-male citizens that persons who share their gender are not equally worthy of citizenship as men. The law signals that a fundamental part of the identity of women is not equally worthy of recognition in the future generation. This is precisely the ‘anti-subordination’ argument proposed by Ahmed who argues that Article 15 would accordingly apply to laws like the CAA which determine conditions of entry into the polity. This essay furthers Ahmed’s argument by claiming that the violation of Article 15 stems not just from its impact on current citizens, but also from its ability to change the nature of the body politic itself.
Of course, supporters of the CAA may argue that it only deals with a minor number of persons, and does not substantially change the nature of the polity the same way as my NCA example does i.e. there still will be Muslim citizens in India after the CAA. But any such assertion ignores the fundamental premise of my argument – that Article 15 is relevant to any law which determines who is to be a citizen. We can tweak the example of my NCA so that it now states that, while all males born after its commencement will be citizens, only one in two non-male persons born after its commencement will be citizens. This new version of the NCA (‘NCA 2.0’) clearly also suffers from the same flaws as the first NCA. It cannot be claimed that, just because now there will be some women in the polity, NCA 2.0 need not meet the requirements of Article 15. The nature of the group composed of citizens will still be disproportionately men due to the conditions in NCA 2.0, and not identifying this as discrimination under Article 15 will suffer from the same flaws as in my discussion above.
It is important to note that this interpretation does not reduce the word ‘citizen’ in Article 15 to a nullity. My argument will only apply to a law which lays down the conditions for citizenship and thereby affects the composition of the citizenry as a consequence. As I discuss in my full article, a law which, for example, classifies non-citizens on the grounds mentioned in Article 15 for some other purpose, while keeping intact their status as non-citizens, would not be affected by my argument. This does not, however, mean that such a law will be valid, as there might be other constitutional principles at play—such as Article 25 and the general principle of secularism—but just that it is outside the scope of this piece. Additionally, my full article also discusses the manner in which my argument would deal with laws which determine citizenship by place of birth. Several examples can easily be constructed to further demonstrate my argument. Imagine a law which specifically grants citizenship to only white persons who immigrate to India. Imagine alternatively if the Citizenship Act, when it was passed in 1955, recognised only upper caste men as citizens. The underlying problem with such laws is the same, which implies that conditions of entry matter to Article 15.
Fundamentally, citizenship is a bundle of many rights including the rights to share in the common resources of a community. If laws based on the grounds prohibited in Article 15 can alter who can share these resources and exercise these rights, without being subjected to its heightened scrutiny, it would deprive that great anti-discrimination safeguard of much of its force. Much like Article 14 has been liberated of the constraints of the formalistic reasonable classification test in recent case law, it is time for us to liberate Article 15 from formalistic arguments which take away from its essence as a safeguard, for both those who are citizens as well as the many who will become citizens in the future.