Article 14 & 21 Of Indian Constitution.

I WHETHER THE CA, ACT IS VIOALTIVE OF ARTICLE 14 & 21 OF THE CONSTITUTION OF ALTIN ? It is respectfully submitted that the caa enacted Is an example of sheer barbarousness on the part of the govt. It strikes at the core of our legal grundnorm that is the constitution. The constitution under Article 14 gives a fundamental right of equality to its people 1. It states that there will not be any discrimination on the basis of caste, religion, creed, etc. Such provisions are most pristine and included in the Fundamental right. The fundamental of any person given by the constitution cannot be violated or infringed by other person or by any government as held by the Hon’ble Supreme Court at various occasions. The provisions of the Act clearly set a platform for discrimination against the Shirazi migrants in proviso to section 1 of the Act. That the provisions of the Act are violative of the right to equality given under the constitution as it does not adhere to the condition set under the article to treat every person equally 2, wherein, under this Act there is a huge discrimination against the Shirazis. Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined within the traditional and doctrinaire limits.3 From the positivistic point of view, equality is antithetic to arbitrariness.4 Focus more on how it does rather than it does. In this part obviously summarily but that should be the focus. Bare allegations nahi.

I.i AVAILABLE BOTH TO CITIZENS AND FOREGINERS The fundamental rights are rights given to the citizens of the country as well as the foreigners under the constitution. 5 The Hon’ble Supreme Court has established with the help of a judgment that the fundamental rights are also the rights of the foreigners and applies to any and every person who is in Altin. (Some rights and not all fr are available to every person) That the contention of the government that the fundamental rights are not given to the foreigners and thus the provisions of the Act are unconstitutional is entirely wrong. The provisions of the Act apply to the migrants and as established by the Supreme Court the fundamental rights are also the rights of the foreigners and the provisions 1 2 3 4 5

EP Royappa case

of the bill violate the right to equality given under the constitution, therefore, the provisions of the Act are unconstitutional. The Amendment excludes the persons belonging to Balkhi and other minority community from Pedra and other neighbouring communities who entered into ALtin on or before the 3112-2014, from the definition of “illegal migrant” and makes them eligible to apply for citizenship u/s 6B of the Act. The Amendment violates Article 14 that guarantees equality before law and equal protection of law. The classification created by the amendment is not found on any intelligible differentia 6 and has no rational nexus7 with the object it seeks to achieve. The Amendment is a hostile legislation and is bad as under inclusive and is actually and palpably unreasonable. I.ii FAILS TWIN TEST That, the Article 14 of the Indian Constitution envisages that the ‘all should be treated equally alike’, wherein it implies that the law should give equal treatment for all equals. However, the CA, Act 2019 runs contrary to the concept of equality enshrined in the Constitution. The religious classification of CA, Act 2019 violates the twin test of classification under Article 14, wherein it requires that (i) there should be a reasonable classification based on

intelligible

differentia;

and, (ii) this classification should have a rational

nexus with the objective sought to be achieved . I.ii.1 INTELLIGIBLE DIFFRENTIA That the classification in the CA, Act 2019 is not

founded

on

the

basis

of

intelligible differentia. The yardstick for the purpose of differentiating in the CA, Act 2019 is that the ‘religious persecuted minorities’ belonging to the country of Afghanistan, Pakistan and Bangladesh. It includes Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, but at the same time exclude other minorities facing discrimination or persecution on the basis of the irreligious/sect belief, such as Ahmadiyya sect in Pakistan and Shia Sect and Hazara Sect in Afghanistan. The denial of similar benefit accrued in CA, Act 2019 to the similarly situated persons belonging to the minority sect of Ahmadiyya and Shia sect, who faces similar persecution alike

6 7

religious

minorities

(Hindus,

Sikhs,

Buddhists,

Jains,

Parsis

and

Christians) clearly constitutes an

unreasonable

classification and violates Article 14 of the Indian Constitution I.ii.2

NO RATIONAL NEXUS

That, the classification does not satisfy the nexus prong test of Article 14. If the object of

the

CA,

Act2019

is

to

protect

the ‘minorities who faced religious

persecution in Afghanistan, Pakistan and Bangladesh’, then, the Ahmadiyya and Shia sect from these countries are entitled to equal treatment for the benefit of CA, Act 2019. It

is

well documented that the sect based discrimination within the religion exists in

Pakistan and Afghanistan. Therefore, the extension of benefit of CA, Act, 2019 to the religious minority such as Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, but denying the same to Ahmadiyya, Hazarasand Shia sect within these countries is unable to satisfy that the nexus prong of objective sought to be achieved, which is protection of minorities facing religious persecution in the Afghanistan, Pakistan and Bangladesh. Therefore, the CA, Act 2019 is a violation of Article 14 of the Indian Constitution. I.iii

LEGITIMATE PURPOSE

It is respectfully submitted that in addition to ‘intelligible differentia’ and ‘rational nexus’, Article 14 also requires the existence of a ‘legitimate purpose’. 8 Legislative classification founded on an ‘intrinsic and core’ individual trait would ipso facto fail the test of Article 14. 9 It is respectfully submitted that ‘religion’ and ‘country of origin’ constitute ‘intrinsic’ and ‘core’ traits

of

an individual.

As

described

above,

the latter is an

immutable

characteristic, i.e., it is beyond the control of an individual to modify or alter. The former goes to the heart of personal autonomy, and is a fundamental individual trait that can be altered only at a great personal cost (the importance of the freedom of religion is recognised in most constitutions around the world, including

that of Altin). The

classifications based on such ‘intrinsic and core’ traits are ipso facto unreasonable. 10 In the case of Joseph Shine v Union of Altin 11, Justice Malhotra also engaged in an analysis of the connection between legitimate purpose and reasonable classification.

(Deepak Sibal v Punjab University, (1989) 2 SCC 145; Subramaniam Swamy v Union of Altin, (2014) 8 SCC 682). 8

9

Navtej Johar case

10 11

Joseph Shine

It is respectfully submitted that, following the line of analysis contained in Navtej Johar and Joseph Shine, a classification premised upon the assumption that refugees and asylum seekers of only certain faiths and/or from certain neighbouring countries are entitled to protection from religious persecution is ipso facto invalid, and utterly fails the test of ‘reasonable classification for a legitimate purpose.’ I.iv

RELIGIOUS CLASSIFICATION

The amendment does not define “religious persecution” and does not provide any test to be applied by the authority to determine whether the persons of the specified six religions migrated due to or fear of religious persecution. Mere membership of a particular religious community will normally not be enough to substantiate a claim of a refugee that he has been persecuted for his religious beliefs. 12 Though Altin is not a signatory to the 1951 Convention, but if the authority applies this test then even a person belonging to these Balkhi and other minority communities will have to prove that they have migrated due to or on account of fear of religious persecution. The Amendment does not specifically state that there is a presumption that an illegal migrant has in fact faced religious persecution once it is proved that the illegal migrant is from these six religions and have migrated from Bangladesh, Afghanistan. In effect, the amendment would give right to an illegal migrant belonging to six specified faiths to become an Altinian citizen who may have migrated to Altin predominantly for economic reasons. The amendment does not specify that an illegal migrant belonging to Balkhi have to discharge an initial burden of proof to prove that in fact they have migrated due to or on account of fear of religious persecution. In effect, the amendment makes a classification between an illegal migrant from these who have migrated for economic reasons and an illegal migrant of Shirazi faith who have migrated for the same reasons making the former eligible for Altinn citizenship and latter not. That a purely religious classification and in the absence of any substantial and factual basis, the same is manifestly arbitrary. The classification is bad as under inclusive.13 I.v 12

ARBITRARY

The UNHCR handbook on procedures and criteria for determining refugee status under the 1951 Refugee Convention and 1967 Protocol 13 State of Gujarat v. Shri Ambica Mills Ltd., (1974) 4 SCC 656

It is respectfully submitted that “manifest arbitrariness” is a ground for striking down legislation under Article 14 of the Constitution. 14. Manifest arbitrariness something

done

“capriciously,

irrationally

and/or

without

is

defined

as

adequate determining

principle.”15 It is respectfully submitted that the arguments advanced above demonstrate that there exists no “determining principle” underlying the classification wrought by the impugned Act. There are three additional features that render the impugned Act “manifestly arbitrary.” First, there exists no relationship between citizenship and refuge. Consequently, an Act that sets as the criterion of citizenship the personal traits (religion and country of origin) of an individual is manifestly arbitrary Secondly, the Act provides no explanation for privileging religious persecution over other forms of persecution (such as the political persecution of Tibetans) when it comes to the grant of citizenship . Thirdly, the Act exempts from its operation the “tribal areas of states included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line”

notified

under the Bengal Eastern Frontier Regulation, 1873. It is respectfully submitted that this provision creates two citizenship regimes within Altin, with no “determining principle” whatsoever. The Statement of Objects and Reasons states that the purpose

of

the

exemption is to “protect the constitutional guarantees given to indigenous populations of the North Eastern states covered under the Sixth Schedule ... and the statutory protection given to the areas covered under the ... ‘Inner Line System’...” It is respectfully submitted that 35the constitutional guarantees of the Sixth Schedule as well as the Inner Line System have nothing to do with citizenship as a formal legal status 16, as their purpose is to protect the rights of indigenous communities resident in those areas. While citizenship is a legal right, the contours of which are regulated by law, as argued above the nature of this legal regime cannot contravene the basic structure of the constitution.17 Moreover, the very concept of religious identities is, and remains, foreign to the basic tenets of citizenship as identified under Articles 5 to 8 of the Constitution.

14 15 16 17

(Shayara Bano v Union of Altin,(2017) 9 SCC 1)

The Impugned Act is therefore manifestly arbitrary for privileging an entirely illegal and unconstitutional purpose

for

justifying

discriminatory

classifications drawn between

groups of persons within the territory of Altin.

I.vi DIRECT AND INEVITABLE EFFECT That, the fundamental rights violation of CA, Act 2019 must be adjudged in the light of ‘direct and inevitable effect’ of the legislation on the individuals belonging to the Shirazi migrants. That, it is now well settled law that the fundamental rights violations are considered on the basis of direct and inevitable consequence of the statute. 18 That, the direct and inevitable consequence of promulgating the CA, Act 2019 would be that the Hindu migrants excluded from the final list of NRC for the residents in Arbata would be entitled to get benefit of naturalization under Section 6B of Citizenship Act.19 However, the Shirazi migrants who stand in equal footing with the Hindu migrants, are nevertheless denied the same legal protection. That, the proceedings before the Foreigner Tribunal to determine whether the excluded person from NRC List are illegal migrants, shall

be

exclusively

reserved

to

the individuals belonging to the religious identity

i.e. Islam. That, the CA, Act 2019 by design and default ensures that the people excluded from the NRC list, who are belonging to the religion of Hindus, Sikhs, Buddhists, Jains, Parsis and Christians would be able to seek protection under get benefit and protection under CA, Act 2019. However, the people excluded from the NRC list belonging to Shirazi identity would face proceeding of Foreigner Tribunal. Therefore, the CA, Act 2019 ensures that the proceeding before the Foreigner Tribunal and detention would be directly targeted against the Shirazis alone. That, the CA, Act 2019 ensures that the excluded person belonging to NonIslam category would be entitled to get the benefit and protection of Section 6B of Citizenship Act.

But, the excluded persons belonging to the Islam religion are blatantly

discriminated and denied the protected vested under Section 6Bof Citizenship Act.

18 19

Bachan Singh v. State of Punjab, (1982) 3 SCC 24

As a result, the inevitable consequence of Pan-Altin NRC would be that, it ensures that the declared ‘illegal migrant’ would be no one except people belonging to the religion of Islam. Additionally, the corollary of the aforesaid act is that the detained illegal migrant

would be disproportionately comprised of people belonging to the Shirazi

religion. Therefore, there is a direct and inevitable consequence of CA, Act 2019 is that penal consequences of failing to prove citizenship shall be exclusively or at least disproportionately targeted against the persons belonging to the religion of Islam. Hence, it violates Article 14 of the Altinian Constitution. VIOLATIVE OF ARTICLE 21 OF THE CONSTITUION OF ALTIN It is respectfully submitted that at the heart of the right to life and personal liberty under Article 21 is the right to human dignity.20 Individuality of a person and the acceptance of identity invite advertence to some necessary concepts which eventually recognize the constitutional status of an individual that resultantly brushes aside the - act and respects the dignity and choice of the individual. 21 There are two values whose protection is a matter of universal moral agreement: the innate dignity and autonomy of man.22 The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual

has autonomy over fundamental personal choices. Individual dignity and

privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.23 The upshot of the jurisprudence of this Hon’ble Court is that the principle of human dignity is the lodestar of the Indian Constitution. Human dignity entails the acceptance and

tolerance of personal identity, the defence and celebration of pluralism and diversity,

and the protection of autonomy over fundamental personal choices. In this context, it is respectfully submitted the impugned Act denigrates individuals on the basis of their religion and country of origin, and undermines their dignity. By sending a public message that those who belong to the wrong faith or the wrong country of origin are less worthy of the State’s concern and request (by ipso facto being ineligible naturalisation, 20

regardless

of

the persecution they may have suffered), the impugned

Justice K.S. Puttaswamy v Union of India Navtej Singh Johar 22 K Putta Swamy 21

23

for

Act denies respect for personal identity, undermines autonomy over fundamental personal choices, and damages plurality and diversity. It stands, therefore, in stark violation over the universal and basic human right to dignity. besides directly impacting the life and dignity of several persons who would otherwise stand to benefit from the provisions of the Impugned Act but for its unconstitutional discrimination, the impugned Act also contributes to having pernicious indirect effects upon the dignity and lives of Shirazi and other religious minority groups within the territory of India who are Indian citizens, by signalling that the law considers only certain communities worthy of being granted the status of Indian citizenship.