Indian Law Review

ISSN: 2473-0580 (Print) 2473-0599 (Online) Journal homepage: https://www.tandfonline.com/loi/rilw20

Secularism and the Citizenship Amendment Act

Abhinav Chandrachud

To cite this article: Abhinav Chandrachud (2020): Secularism and the Citizenship Amendment Act,
Indian Law Review, DOI: 10.1080/24730580.2020.1757927

To link to this article: https://doi.org/10.1080/24730580.2020.1757927

Published online: 19 May 2020.

Submit your article to this journal

Article views: 16

View related articles

View Crossmark data

Full Terms & Conditions of access and use can be found at

https://www.tandfonline.com/action/journalInformation?journalCode=rilw20
INDIAN LAW REVIEW
https://doi.org/10.1080/24730580.2020.1757927

RESEARCH ARTICLE

Secularism and the Citizenship Amendment Act

Abhinav Chandrachud
Bombay High Court, Mumbai, India

ABSTRACT ARTICLE HISTORY

This paper examines the provisions of the recently enacted Received 4 January 2020
Citizenship (Amendment) Act, 2019 (CAA) against the backdrop of Revised 18 March 2020
the citizenship provisions of the Indian Constitution. It argues that Accepted 19 March 2020
by articulating a preference towards non-Muslim immigrants and KEYWORDS
discriminating against Muslim immigrants, the CAA is vaguely remi- Citizenship Amendment Act;
niscent of policies adopted by the Indian government at the time of National Register of Citizens;
the partition of the country and the framing of the Constitution. Indian Constitution;
However, this paper will then argue that the CAA is unconstitutional secularism; CAA; NRC
by today’s standards because the conditions which existed during
the days of India’s dominionship, between August 1947 and
January 1950, viz., partition-era housing shortages and
a communal environment charged by millions of refugees, no
longer exist in India today. It posits that the CAA is discriminatory
for several reasons though not for the insidious, mala fide reasons
that are usually attributed to the government in popular discourse.

I. Introduction
The recently enacted Citizenship (Amendment) Act, 2019 (CAA) has caused a great deal
of political upheaval in India. Though ostensibly designed to grant a benevolent pathway
to Indian citizenship for certain minorities that fled religious persecution in Pakistan,
Bangladesh or Afghanistan, it has widely been perceived as a stunt by the Hindu political
right in India to attempt to strip Indian Muslims of their citizenship rights. The enact-
ment of the statute was followed by the most widespread and widely covered political
protests in India in recent memory, in which the central argument was that the CAA
violates the secular spirit of the Indian Constitution.
“Secularism” is a relatively recent word and one of imprecision.1 Unlike the American
“wall of separation” model of secularism in which the Constitution prohibits “estab-
lished” religions, the European model where there is an established state religion but
non-believers have the right to hold their own beliefs, and the French model of laicité or
antipathy towards religion in the public sphere,2 Indian secularism requires the state to
reform religious practices. For instance, the Constitution abolished untouchability and
threw Hindu religious places of worship open to all, including “untouchable” castes –
substantial reforms of regressive customs in Hinduism.

CONTACT Abhinav Chandrachud Bombay High Court, Mumbai, India

1
See Abhinav Chandrachud, Republic of Religion: The Rise and Fall of Colonial Secularism (Penguin Random House 2020)
175 (footnote 10).
2
Ronojoy Sen, Articles of Faith: Religion, Secularism, and the Indian Supreme Court (Oxford University Press 2010) xvii-xx.
© 2020 Informa UK Limited, trading as Taylor & Francis
2 A. CHANDRACHUD

Secularism originally found no mention in the Indian Constitution. It was inserted,

somewhat disingenuously, into the preamble to the Constitution in 1976 during
a national emergency, by Prime Minister Indira Gandhi whose electoral symbol was
a cow (considered sacred in Hinduism) suckling a calf. Yet, members of the Constituent
Assembly who drafted India’s Constitution between 1947–50 frequently invoked the
word “secularism”. It was understood by them that contrary to Pakistan, India would be
a place which would welcome all religions with open arms as it had done for centuries.
Secularism has been held by the Supreme Court to be a part of the “basic structure” of the
Indian Constitution and of “constitutional morality”3
In recent times, however, “secularism” in India has fallen into disrepute. It has been
associated with the opportunistic vote-bank politics of previous regimes in which
religious minorities, particularly Muslims, were “appeased” at the cost of and against
the interests of the Hindu majority. The Hindu right, consisting of the Bharatiya Janata
Party (BJP) and the Rashtriya Swayamsevak Sangh (RSS), has risen swiftly to power in
recent years. In 2014 and 2019, it convincingly won India’s general elections and secured
a majority in Parliament that had not been seen since the 1980s, enabling it to rule the
country without the sobering support of regional coalitions. The Hindu right has openly
advocated the abandonment of secularism and embraced political “Hindutva”. Its legis-
lative policies, of late, have tended towards muscular majoritarianism – abrogating the
special constitutional status of the Muslim-majority state of Jammu and Kashmir,4
enacting a law criminalizing the practice of triple talaq in Islam, and opposing the
Supreme Court’s judgement allowing menstruating women to enter the Sabarimala
temple in the State of Kerala. The CAA is the latest law which forms part of the ambitious
legislative reform agenda of the ruling regime in India.
This paper examines the provisions of the CAA against the backdrop of the citizenship
provisions of the Indian Constitution. It argues that contrary to popular belief, the
discrimination against Muslim immigrants which seems to form a part of the CAA is
not a phenomenon of relatively recent vintage. At the founding of India’s republic,
leaders with otherwise unmistakably secular credentials, like Nehru and Ambedkar,
brought about provisions which discriminated against Indian Muslims who had
migrated to Pakistan and wished to return to India. This paper argues that by articulating
a preference towards non-Muslim immigrants and discriminating against Muslim immi-
grants, the CAA is vaguely reminiscent of policies adopted by the Indian government at
the time of the partition of the country and the framing of the Constitution. However,
this paper will then argue that the CAA is unconstitutional by today’s standards because
the conditions which existed during the days of India’s dominionship, between
August 1947 and January 1950, viz., partition-era housing shortages and a communal
environment charged by millions of refugees, no longer exist in India today. It posits that
the CAA is discriminatory for several reasons though not for the insidious, mala fide
reasons that are usually attributed to the government in popular discourse. However, this
paper also argues that India’s citizenship laws amplify the problems with the CAA, by

3
See Abhinav Chandrachud, “Is ‘Constitutional Morality’ a Dangerous Doctrine” Bloomberg Quint (19 December 2019)
<https://www.bloombergquint.com/opinion/indian-judiciary-is-constitutional-morality-a-dangerous-doctrine-by-
abhinav-chandrachud> accessed 24 December 2019.
4
Abhinav Chandrachud, ‘The Abrogation of Article 370ʹ in Arvind Datar (ed.), Festschrift in Honour of Nani Palkhivala
(LexisNexis 2020).
 INDIAN LAW REVIEW 3

casting the evidentiary burden of proof on Indians to prove their citizenship, by aban-
doning the principle of citizenship by birth, by failing to give judges of foreigners
tribunals security of tenure, and by omitting a safe harbour for Muslim “dreamers”
who illegally came to India as minors with their parents, by no fault of their own, and
who have only known India to be their homeland since childhood.
Part II explains how the Indian government introduced a permit system for migra-
tions from West Pakistan to India in July 1948 in order to prevent Muslims who had
migrated to West Pakistan from returning to India. This was because the homes
“evacuated” by Muslims who left for West Pakistan were being used to rehabilitate
Hindu and Sikh refugees in India, who resented having to give those homes up to
Muslims. It argues that while Hindus and non-Muslims generally were welcomed with
open arms as citizens by the Indian Constitution, Muslim migrants from West Pakistan
were only conferred citizenship if they were able to obtain the elusive “permanent
resettlement” permit. In this sense, citizenship in India had unsecular origins. Part III
analyses the provisions of the CAA and finds that a compelling argument can be made
that they are unconstitutional and discriminatory. It explains why amending the CAA to
render it constitutionally valid will not address the arguments of those who protest its
enactment. It looks at the evidentiary rules of Indian citizenship laws and how the reverse
burden of proof in such cases makes the NRC process flawed. It examines how Indian
citizenship by birth was taken away in 1986 and 2004 and how this renders the future of
Muslim “dreamers” in India especially tenuous, exacerbating the problems with the
CAA. It examines the procedural problems with “foreigners tribunals” that are tasked
with deciding whether a person is a foreigner or Indian citizen. This paper then
concludes by finding that while the CAA in its present form may be unconstitutional,
many of the arguments that have been made against it are fallacious.

II. The unsecular origins of Indian citizenship

1. The permanent resettlement permit
The citizenship laws in this country had a somewhat unsecular origin. Though this is
contrary to popular belief, it is in line with the work of scholars like Zamindar5 and Jayal6
on the historiography of partition. At the founding of India’s republic, the citizenship
provisions of the Constitution discriminated against Muslim immigrants and made it
more difficult for them to acquire Indian citizenship as compared to non-Muslim
immigrants.
After the partition of the country, two waves of immigration occurred from West
Pakistan to India. In the first wave, which started from 1 March 1947,7 large numbers of
Hindus and Sikhs arrived from West Pakistan into India. In the second wave in 1948,
many Indian Muslims who had migrated to West Pakistan sought to return to India,

5
Vazira Fazila-Yacoobali Zamindar, The Long Partition and the Making of Modern South Asia: Refugees, Boundaries, Histories
(Columbia University Press 2007) 104.
6
Niraja Gopal Jayal, Citizenship and its Discontents: An Indian History (Harvard University Press, 2013) 61–62.
7
This was the date when disturbances started and the exodus of refugees began. See Dr. B.R. Ambedkar “Speech”
(Constituent Assembly Debates, vol. ix, 423, 12 August 1949); Jawaharlal Nehru “A Uniform Refugee Policy” in S. Gopal
(ed.), Selected Works of Jawaharlal Nehru: Second Series (vol. 6, Jawaharlal Nehru Memorial Fund 1987, 62,
12 September 1947) (note to cabinet ministers).
4 A. CHANDRACHUD

especially from Karachi.8 This second wave of immigration created troubles for the
Indian government. The homes of Indian Muslims who had migrated to West Pakistan
were being used to house Hindu and Sikh refugees who had arrived in India from West
Pakistan. If the Muslim owners of those homes returned to India, what would happen to
the non-Muslim refugees who were living there?9 Their re-entry into India and into their
old homes was causing much resentment among the non-Muslim refugee population in
India. In order to remedy this problem, the Indian government introduced a permit
system which made it difficult for Indian Muslims who had migrated to West Pakistan to
return to India. A similar permit system was not introduced for immigrations that
occurred from East Pakistan to India partly because large numbers of Hindus were still
moving from there to India.
By January 1948, apart from the eight or nine lakh Hindus and Sikhs who remained in
Sind, virtually every other part of West Pakistan had hardly any Hindus left.10 The
exodus of Hindus and Sikhs from West Pakistan to India had declined. Some 6–7 million
Muslim refugees had arrived in Pakistan from India, which was giving rise to riots and
looting in Karachi.11 The future of Muslim immigrants in refugee camps in Pakistan
looked bleak.12 As a result, some Indian Muslims who had migrated to West Pakistan
were now returning to India. By April 1948, thousands of Meo Muslims had returned to
India.13 Between March-August 1948, some 22,000 Muslims from Pakistan had arrived
in Delhi alone.14 Though this paled in comparison with the millions who had left India
for Pakistan, it still gave rise to some concern in India.
In April 1948, Nehru wrote to his principal private secretary that the “influx or the
return of Muslims to Delhi and other parts of India from Pakistan [had] raised certain
difficulties”, which might require a revision of the government’s policy.15 The following
month, Sardar Vallabhbhai Patel wrote to Nehru that there was “considerable discon-
tent” among the public in general and refugees in particular about the Indian govern-
ment’s “failure to prevent the inflow of Muslims from Pakistan.”16 The return of “these
Muslims”, he explained, “while we are not yet able to rehabilitate Hindus and Sikhs from
Pakistan . . . would again be the breeding ground of communal poison, on which activities
of organisation[s] like the RSS thrive.”17 He believed that returning Indian Muslims were
“a great source of danger to the peace and security of Delhi”.18 Nehru replied and said
that this was an “undoubtedly serious” matter.19

8
See Zamindar (n 6) 85–86.
9
“Evacuee property”, as these houses came to be called, was originally meant to be held in trust by the “Custodian” until
the “evacuee” returned. However, the Custodian had the power to allot such houses to refugees temporarily. Later,
evacuee property legislation was aimed at rehabilitating non-Muslim refugees in India. See ibid 28, 120.
10
Letter from M.A. Khuhro to M.A. Jinnah (13 January 1948). See Z.H. Zaidi (ed.), Quaid-I-Azam Mohammad Ali Jinnah
Papers (Government of Pakistan 2002) 23.
11
Confidential letter from Charles W. Lewis Jr. to George Marshall, American Embassy, Karachi (2 February 1948). See ibid
77.
12
Letter from Shaikh Sadiq Hasan’s to M.A. Jinnah (23 April 1948). See Zaidi (n 11) 467.
13
ibid.
14
Zamindar (n 6) 88.
15
Note from Jawaharlal Nehru to his Principal Private Secretary (16 April 1948). See Gopal (n 8) 103.
16
Letter from Sardar Patel to Jawaharlal Nehru (4 May 1948). See P.N. Chopra (ed.), The Collected Works of Sardar
Vallabhbhai Patel (vol 13, Konark Publishers Pvt. Ltd 2015) 116.
17
ibid 117.
18
Letter from Sardar Patel to Rajendra Prasad (18 May 1948). See Chopra (n 17) 125–126.
19
Letter from Nehru to Sardar Patel (5 May 1948). See Gopal (n 8) 105.
 INDIAN LAW REVIEW 5

Soon, the Indian government issued a communiqué which said that it would welcome
the return of Muslims to India “subject to any interest that may have been created in
pursuance of plans for rehabilitation of non-Muslim refugees”.20
It was against this backdrop that the Indian government introduced, on 19 July 1948,
a permit system for immigrations from West Pakistan to India.21 Under this system, no
person could move from West Pakistan into India without a permit issued by the Indian
high commission in Karachi or Lahore.22 There were eventually five kinds of permits that
could be issued for the purpose. They were: (i) permits for temporary visits to India; (ii)
permits for repeated journeys to India (e.g., on business); (iii) transit permits (i.e., for
those wanting to travel through India from West Pakistan to East Pakistan); (iv) permits
for “permanent return” to India, i.e., permits usually meant for non-Muslims who
wanted to immigrate to India; and (v) permits for “permanent resettlement” in India,
i.e., permits for Indian Muslims who had migrated to West Pakistan who now wanted to
return and resettle permanently in India.23
The “permanent resettlement” permits were the hardest to obtain. An applicant who
wanted one had to disclose his religion, and his property in India which he wanted to go
back to.24 The application had to be personally scrutinized by the Indian High
Commissioner or Deputy High Commissioner.25 The government of the province in
India to which he intended to return could veto the permit. It had to be willing to accept
him and his family and agree that his return to India would not affect “their rehabilitation
plans for displaced persons”.26 In other words, if the home in India of the Indian Muslim
who had migrated to West Pakistan was being used to rehabilitate non-Muslim refugees,
then his return to India could be blackballed by the government of the Indian province in
which his home was located.
Tellingly, a person immigrating to India from East Pakistan did not require a permit.27
This is partly28 because the immigration of Hindus and Sikhs from West Pakistan to
India had virtually come to an end by July 1948 when the permit system was introduced,
but there were still large numbers of Hindus in East Pakistan who were arriving in India

20
19 May 1948. See Gopal (n 8) 105 (footnote 3).
21
Influx from West Pakistan (Control) Ordinance 1948. This was replaced by the Influx from Pakistan (Control) Ordinance
1948 on 10 November 1948. This, in turn, was replaced by the Influx from Pakistan (Control) Act 1949.
22
See Permit System Rules 1948 (7 August 1948).
23
Permit System Rules 1949, Rule 3. Appendix I, Form C of these rules provided the format of the “permanent
resettlement” permit application form which had to be filled out by “Pakistan residents who migrated from India on
and after 1 March 1947”. According to Zamindar, the “permanent return” permit was meant for Muslims and the
“permanent resettlement” permit was meant for non-Muslims. However, the language of Appendix I, Form C of the
Permit System Rules, 1949, suggests that it might have been the other way round. See Zamindar (n 6) 104.
24
Permit System Rules 1949, Appendix I, Form C, Items 4, 11 and 12.
25
Permit System Rules 1949, Rule 10; Permit System Rules 1948, Rule 16.
26
Permit System Rules 1949, Appendix 1, Form C.
27
Permit System Rules 1949, Rule 31; Permit System Rules 1948, Rule 19. Rule 19 was inserted into the Permit System
Rules, 1948 on 10 November 1948. On 21 July 1948, for instance, Nehru prepared a note in which he said that a permit
system need not be introduced for migrations from East Pakistan as was in place for migrations from West Pakistan. See
Gopal (n 8), vol. 7, 67. The question of a permit for migrations from East Pakistan was discussed at the first Inter-
Dominion conference in Calcutta in April 1948. See Arupjyoti Saikia, “Borders, Commodities and Citizens across Mud
and River: Assam, 1947–50s” (2016) 32(1) Studies in History 72, 83.
28
See text to (n 36) and (n 37). Further, evacuee property was not used to resettle Hindus who came from East Pakistan to
India. See Jayal, Citizenship and its Discontents: An Indian History (n 7) 63. In fact, evacuee property law in India did not
apply to West Bengal. See Administration of Evacuee Property Ordinance 1949, Section 1(2); Administration of Evacuee
Property Act 1950, Section 1(2). Additionally, the government wanted to protect those who had to routinely travel
between East Pakistan and India for their work (though this could have been regulated by a temporary permit). See
Saikia (n 28) 93; See also (n 32).
6 A. CHANDRACHUD

as refugees at that time. In November 1948, several months after the permit system was
introduced for immigration to India from West Pakistan, there were still around
16 million Hindus in East Pakistan,29 many of whom were being forced to either convert
to Islam or leave for India.30 Meant to prevent Muslims from permanently re-entering
India, the permit system, if introduced for immigrations from East Bengal, would prevent
Hindu refugees from arriving in India. Nehru hinted at this in a letter he wrote that
month to his Minister for Rehabilitation, Mohanlal Saksena, in which he said:

We have to help in relief and rehabilitation of refugees from East Bengal in the same way as
any other refugees, but it must always be remembered that in the one case the actual
migration was over and in the other it is continuing and has to be stopped.31

Though the Indian government wanted to generally discourage large-scale immigration

to India, it did not wish to prevent Hindus who were forced out of Pakistan to relocate to
India, though it did not hesitate to make it more difficult for Indian Muslims to return to
India. Immigration from West Pakistan was regulated through the permit system
because, in Nehru’s words, “[w]hile the Government of India welcome people coming
here, the position here is rather difficult and there is no room.”32 In June 1949, Nehru
wrote to Mehr Chand Khanna that “we should be strict about the return of large numbers
of Muslims to India from Pakistan or even a small number”.33 Despite this, no permit
system was put in place for immigrations from East Pakistan between 1948–49, at least in
part to make room for Hindu refugees.34
To be sure, there are several other reasons, provided in the historiography of partition,
why a permit system was not introduced for immigrations from East Pakistan to India.
Haimanti Roy writes that compared to West Pakistan, there was generally less partition-
related violence in East Pakistan until 1950. This made officials on both sides of the
border believe that migration in Bengal was a temporary and unnecessary phenomenon
which would cease once conditions normalized. No permit was introduced for migra-
tions from East Pakistan, she writes, in order to encourage migrants to return home.35
However, Roy acknowledges that even in June 1948, there was a rise in the number of
refugees in West Bengal. Despite a large-scale unwanted influx of Hindu migrants from
East Pakistan to India, no permit system was introduced for that region, which is
puzzling.36 The government’s aim appears to have been to block Muslim evacuees
from returning from West Pakistan, but to discourage (but not altogether block)
Hindu migrants from East Pakistan.

29
Jawaharlal Nehru’s cable to VK Krishna Menon (11 November 1948). See Gopal (n 8), vol. 8, 143.
30
Secret report from Sardar Patel to Gopalaswami Ayyangar (20 June 1949). See Durga Das (ed.), Sardar Patel’s
Correspondence: 1945–1950 (vol. 8, Navajivan Trust 1973) 51.
31
Letter Jawaharlal Nehru to Mohanlal Saksena (19 November 1948). See Gopal (n 8), vol. 8, 149. See also Gopalaswami
Ayyangar “Speech” (Constituent Assembly Debates, vol. ix, 419–420, 12 August 1949).
Ayyangar said that introducing a permit system would prevent the free movement of people between East and West
Bengal which would have disastrous consequences for the economy of West Bengal.
32
Jawaharlal Nehru “Speech” (Constituent Assembly, 3 February 1949). See Gopal (n 8), vol. 9, 257.
33
Letter from Jawaharlal Nehru to Mehr Chand Khanna (6 June 1949). See Gopal (n 8), vol. 11, 80.
34
A passport and visa system was finally introduced for East Pakistan in October 1952. See Roy (n 29) 72.
35
Haimanti Roy, Partitioned Lives: Migrants, Refugees, Citizens in India and Pakistan, 1947–1965 (Oxford University Press,
2012) 62, 71, 92.
36
ibid 192–193.
 INDIAN LAW REVIEW 7

2. The hidden premises of citizenship

The Constitution only set out who would be a citizen of India at its commencement37 but
not thereafter. Parliament would have to subsequently enact a general law concerning
citizenship.38 In the Constituent Assembly, the citizenship provisions of the Indian
Constitution were prepared on the basis of two hidden premises.39 These were that
firstly, among those who had migrated to India from Pakistan prior to the introduction of
the permit system on 19 July 1948, the vast majority were non-Muslims, i.e., mostly
Hindus and Sikhs. Secondly, those who found themselves on the Indian side of the
border at partition, migrated to Pakistan after 1 March 1947 and subsequently returned
to India in order to permanently resettle here, were Muslims. The Constitution treated
these two categories of persons differently. Those who had migrated from Pakistan to
India in the first wave prior to the permit system, presumed to mostly be Hindus and
Sikhs, were given an easy path to citizenship. Among other things,40 all that was required
for them to become citizens was that they had to be staying in India since the date of their
migration to India.41 On the other hand, those who had migrated from Pakistan to India
in the second wave, after the introduction of the permit system, presumed to contain
large numbers of Muslims, had to be registered as citizens by the government prior to the
commencement of the Constitution.42 Likewise, Indian Muslims who had migrated to
Pakistan after partition and sought to return to India could only become citizens if they
had obtained a permit for resettlement, which made it very difficult for them to return to
India.43
On the other hand, a person who found himself on the Indian side of the border at
partition and who had not migrated to Pakistan, had the easiest path to citizenship,
regardless of his religion. All that was required was a domicile in India, and either birth in
India, birth of a parent in India or residence in India for five years leading up to the
commencement of the Constitution.44
The citizenship provisions of the Constitution were debated in the Constituent
Assembly between 10–12 August 1949. Ambedkar explained that these clauses had
“given the Drafting Committee . . . a headache” and he did not “know how many drafts
were prepared and how many were destroyed” while arriving at the final outcome.45 He
explained that migrants from Pakistan to India were placed into two categories: those
who had come before and those after 19 July 1948 (i.e., the date on which the permit
system was introduced). For those who had come before that date, he said, “citizenship is
automatic. No conditions, no procedure is laid down with regard to them.” For those
who had come thereafter, “certain procedural conditions are laid down”.46 As far as

37
Under Article 394, the citizenship provisions of the Constitution came into force at once, i.e., on 26 November 1949.
38
Constitution, Article 11.
39
They were hidden premises because the Constitution did not expressly refer to Muslims and non-Muslims in its
citizenship provisions.
40
It was also required that either they, their parents or grandparents had to be born in the territory of pre-partition India.
See Constitution. Article 6.
41
Constitution, Article 6(b)(i).
42
Constitution, Article 6(b)(ii). In addition, they had to have been resident in India for at least 6 months prior to the date of
their application.
43
Constitution, Article 7.
44
Constitution, Article 5.
45
Constituent Assembly Debates, 10 August 1949, vol. ix, 347.
46
ibid 348.
8 A. CHANDRACHUD

Muslims who had migrated to Pakistan and returned to India were concerned, it was only
those who had been given a permit of resettlement or permanent return under the
“Permit system” who would be given citizenship.47
P.S. Deshmukh,48 an Oxford educated barrister, stood up and sought to introduce an
amendment which would give all Hindus and Sikhs, who were not citizens of any other
country, Indian citizenship.49 “I think that we are going too far in this business of
secularity”, he said.50 “If the Muslims want an exclusive place for themselves called
Pakistan, why should not Hindus and Sikhs have India as their home?” he asked.51
“[W]e the Hindus and the Sikhs, so long as we follow the respective religions, should have
the right of citizenship in India” he said.52 He also asked why returning Muslims were
being given citizenship. “[O]ur people, thinking that Pakistan would be a happy country,
went there and came back”, he said, “[w]hy should we recognise them by means of this or
that provision in the Constitution?”53 Shibban Lal Saksena54 supported Deshmukh. “We
should not be ashamed in saying that every person who is a Hindu or a Sikh by
religion . . . shall be entitled to citizenship of India”, he said.55 “The phrase ‘Secular’
should not frighten us”.56
Pandit Thakur Das Bhargava57 also agreed that returning Muslims should not be given
citizenship. He argued that those who had gone willingly to Pakistan “have now forfeited their
right to become citizens of this country.”58 He suspected the motives of Muslims who had
migrated to India from Pakistan. They had not returned to India for “the love of the country”
but for something else, he said.59 For instance, he believed that Muslims had migrated from
East Pakistan to Assam in order to “make a Muslim majority in that province for election
purposes and not to live in Assam as citizens of India.”60 He said that many Muslims had
migrated to India from Pakistan out of “sinister motives”, i.e., “occupying lands and usurping
the rightful owners by terrorising them and becoming a majority in this country”.61 He also
said that returning Muslims were getting their properties in India back at the cost of non-
Muslim refugees.62 However, he had no objection if Muslims migrated to India from Pakistan
in order to escape “civil disturbances” there.63

47
ibid 348–49.
48
Punjabrao Shamrao Deshmukh was a barrister from Lincoln’s Inn; educated at Oxford University; member of the First
Lok Sabha and Second Lok Sabha; Union Minister of Agriculture (1952–57); Union Minister of Cooperation (1957–58);
Union Minister of Agriculture (1958–62); See profile on the Lok Sabha website <http://loksabhaph.nic.in/writereaddata/
biodata_1_12/691.htm> accessed 23 December 2019.
49
Constituent Assembly Debates, 11 August 1949, vol. ix, 352.
50
ibid 354.
51
ibid 356.
52
ibid.
53
ibid.
54
Saksena was a member of the Constituent Assembly from the United Provinces. He was later a member of the Lok
Sabha (1954–57, 1957–62, 1971–77). See profile on the Lok Sabha website <http://loksabhaph.nic.in/writereaddata/
biodata_1_12/987.htm> accessed 19 May 2019.
55
Constituent Assembly Debates, 11 August 1949, vol. ix, 376.
56
Ibid.
57
Bhargava was a lawyer and a Congressman from Lahore, who represented East Punjab in the Constituent Assembly. He
was later a member of the Lok Sabha between 1952–57. See profile on the Lok Sabha website <http://loksabhaph.nic.
in/writereaddata/biodata_1_12/619.htm> accessed 19 May 2019.
58
Constituent Assembly Debates, 11 August 1949, vol. ix, 381.
59
ibid 381.
60
ibid 382.
61
ibid.
62
ibid 384.
63
ibid 378.
 INDIAN LAW REVIEW 9

Sardar Bhopinder Singh Man argued that “Meos from Gurgaon, Bharatpur and
Alwar” who had demanded the creation of Meostan and been “involved in very serious
rioting against the Hindus” were now returning to India “and demanding their prop-
erty”, under the “very lax permit system”.64 “This is secularism no doubt”, he said, “but
a very one-sided and undesirable type of secularism which goes invariably against and to
the prejudice of Sikh and Hindu refugees.” He made the point that the provision in the
Indian Constitution for those who had migrated to Pakistan and then returned to India65
would only concern Muslims and not others. Christians living in India, he said, would
not go to a “theocratic State” like Pakistan.66 “[T]his proviso relates to those people who
were once nationals of India but at the inauguration of Pakistan went over to Pakistan for
the love of it”, i.e., Muslims.67
Mahboob Ali Baig Sahib, on the other hand, reminded the assembly that Gandhi had,
prior to his assassination, “invited the persons who had gone to Pakistan to return to
their homeland.”68 He could not understand why a distinction was being made “between
persons who go from here to Pakistan and persons who come from Pakistan” in the
citizenship provisions of the Constitution.69
It was Nehru who explained the hidden premises of the citizenship provisions of the
Constitution in the constituent assembly. He said that India accepted “practically without
demur or enquiry that great wave of migration which came from Pakistan to India” and
took them in as citizens “up to some time in July 1948.”70 He explained that those who
came into India in this first wave were mostly Hindus and Sikhs. “You cannot have rules
for Hindus, for Muslims or for Christians only”, he said, “but in effect we say that we
allow the first year’s migration and obviously that huge migration was a migration of
Hindus and Sikhs from Pakistan.”71 “The others”, i.e., Muslims, “hardly came into the
picture at all” at this time.72 On the other hand, “[i]t is possible that later, because of this
permit system, some non-Hindus and non-Sikhs came in.”73 “[P]lease remember”, he
told members of the assembly, “that the whole permit system was started some time in
July 1948, that is to say after large-scale migration was over completely.”74
Nehru explained that “a very great deal of care has been taken” before issuing a permit
for resettlement.75 Rajendra Prasad, president of the Constituent Assembly, had been
worried that large numbers of Muslims would return to India under this system, that
10,000 permits would be issued each month.76 However, by August 1949, Nehru
explained that only around 2,000 to 3,000 such permits had been issued to Indian
Muslims for permanent resettlement in India.77 They were given to “two types of

64
ibid 394 (12 August 1949).
65
Eventually, Article 7 of the Constitution.
66
ibid.
67
ibid.
68
ibid 397.
69
ibid.
70
ibid 399.
71
ibid.
72
ibid.
73
ibid.
74
ibid 401.
75
ibid 399.
76
Letter from Rajendra Prasad to Jawaharlal Nehru (10 August 1948). See Valmiki Choudhary (ed.), Dr. Rajendra Prasad:
Correspondence and Select Documents (vol. 10, Allied Publishers Pvt. Ltd. 1988) 28.
77
Constituent Assembly Debates, 12 August 1949, vol. ix, 399.
10 A. CHANDRACHUD

persons”.78 Firstly, when a family was split up due to partition, a permit was granted to
allow the family in Pakistan to return to India. For example, if a husband remained in
India and sent his wife and children to Pakistan, his wife and children were permitted to
permanently return to India, especially since they did not require any accommodation to
be returned to them.79 This was the “main case” in which permits for permanent
resettlement were given.80 The other type of person was, in Nehru’s words,
a “Nationalist Muslim” who was driven out of India “by circumstances”, was mistreated
there, and expressed a desire to return to India “right through from the beginning”.81
Nehru objected to the word “appeasement” which was being used against him by his
opponents. Some were saying that the government “goes in for a policy of appeasement,
appeasement of Pakistan, appeasement of Muslims”. “I want to know clearly what that
word means”, said Nehru. “Do the honourable Members who talk of appeasement think
that some kind of rule should be applied when dealing with these people which has
nothing to do with justice or equity?”82
The permit system substantially reduced the number of Muslim refugees in India.83
Nehru said that these clauses had “probably received far more thought and consideration
during the last few months than any other article contained in this Constitution”.84

3. The renunciation argument

“We are plighted to the principles of a secular State”, said Alladi Krishnaswami Ayyar in
the debate on the citizenship provisions of the Constitution in the Constituent Assembly.
“We may make a distinction between people who have voluntarily and deliberately
chosen another country as their home and those who want to retain their connection
with this country”, he added, “But we cannot on any racial or religious or other grounds
make a distinction between one kind of persons and another, or one sect of persons and
another sect of persons”.85 However, Ayyar failed to see the hidden premises articulated
by Nehru – the inherent discrimination between Hindu and Muslim migrants from
Pakistan built into the citizenship provisions of the Indian Constitution. Though there
was no formal discrimination between Hindus and Muslims who migrated to India from
West Pakistan (indeed, the citizenship provisions of the Constitution did not speak of
religion at all), in effect, Muslims who wished to return to India were clearly at
a disadvantage as compared to Hindus who wished to move to India.
Like Ayyar, some might argue that the distinction drawn in the Indian Constitution
between those who migrated to India before 19 July 1948 and those who came thereafter
was not discrimination based on religion but on the basis of renunciation of citizenship.
The Hindu and Sikh immigrants who came to India prior to 19 July 1948 voluntarily
chose Indian citizenship over that of Pakistan. On the other hand, the wave of returning

78
ibid 399.
79
Letter from Jawaharlal Nehru letter to Mohanlal Saksena (31 May 1949). See Gopal (n 8), vol. 11, 76.
80
Constituent Assembly Debates, 12 August 1949, vol. ix, 400.
81
Constituent Assembly Debates, 12 August 1949, ibid 400.
82
ibid.
83
Zamindar (n 6) 105. However, many who were denied a permanent permit returned to India on a temporary permit and
overstayed.
84
ibid 398.
85
ibid 404.
 INDIAN LAW REVIEW 11

Muslim immigrants who came after 19 July 1948 had initially decided to permanently
relocate to Pakistan, effectively renouncing Indian citizenship, then changed their minds
and opted to come back to India. Is it not fair, this argument goes, to treat those who
voluntarily chose Indian citizenship and those who renounced Indian citizenship and
subsequently changed their minds differently?
This argument, though attractive, falls apart when one realizes that the choice of
moving to India or Pakistan after partition for most migrants was a tragic, deeply difficult
decision. Those who left their homes and lives behind after the partition of the country
did so out of fear of how they might be treated as religious minorities in a divided
country. It is not possible to compare partition-era migrants to those who voluntarily
decide, say, to renounce Indian citizenship in favour of American or British citizenship
today, in pursuit of more lucrative career opportunities in those countries. The desperate
act of leaving one’s home in India or Pakistan and moving to the other dominion after
partition was hardly a voluntary act of renunciation of citizenship.

III. The Citizenship (Amendment) Act, 2019

1. The CAA is discriminatory
(a) The paths to Indian citizenship
There are several routes to citizenship under the Citizenship Act, 1955: birth, descent,
registration, naturalization and acquisition of a foreign territory.86 Prior to amendments
in 198687 and 2004,88 any person born in India after 26 January 1950 was considered to
be a citizen of India, regardless of whether one or both of his or her parents were illegal
immigrants. After the amendments, a person born in India after 26 January 1950 but
before 1 July 1987 is an Indian citizen regardless of whether one or both of his or her
parents were illegal immigrants.89 A person born in India on or after 1 July 1987 but
before 3 December 2004,90 is a citizen if one of his or her parents was a citizen of India at
the time of his or her birth, even if the other was an illegal immigrant. However, those
born in India after 3 December 2004, are only Indian citizens if both parents are citizens
of India or if one parent is a citizen of India and the other is not an illegal immigrant at
the time of his or her birth.91 This signifies a shift in Indian citizenship law from jus soli
(citizenship by birth) to jus sanguinis (citizenship by descent).92

86
Additionally, the concept of an “overseas citizen of India cardholder” was brought about in the Citizenship Act, 1955, by
virtue of amendments in 2004 and 2015. Overseas Citizens of India are entitled to rights that the central government
may notify, other than rights of holding certain specified constitutional offices and voting rights. See Citizenship Act
1955, Sections 7A-7D. Prior to the Citizenship Act 1955, birth and marriage were the only routes to Indian citizenship.
See Roy (n 29) 2.
87
Citizenship (Amendment) Act 1986. The Act came into force on 1 July 1987.
88
Citizenship (Amendment) 2003 (Act No. 6 of 2004).
89
See Phuntsok Wangyal v. Ministry of External Affairs (2016) SCC Online Del 5344; Tenzin Tselha v. Union of India (2016)
SCC Online Del 6127; Karma Gyaltsen Neyratsang v. Union of India (2017) SCC Online Del 10163.
90
3 December 2004 is the date on which the Citizenship (Amendment) Act, 2003, came into force. See Ministry of Home
Affairs, “Notification” (The Gazette of India, 3 December 2004)
<http://egazette.nic.in/WriteReadData/2004/E_1031_2011_005.pdf> accessed 30 December 2019.
91
Citizenship Act 1955, Section 3.
92
See Mihika Poddar, “The Citizenship (Amendment) Bill 2016: International Law on Religion-Based Discrimination and
Naturalisation Law” (2018) 2 Indian Law Review 108, 110–111; Niraja Gopal Jayal, “Faith-based Citizenship: The
Dangerous Path India is Choosing” The India Forum (New Delhi, 13 November 2019) <https://www.theindiaforum.in/
article/faith-criterion-citizenship> accessed 28 December 2019.
12 A. CHANDRACHUD

The citizenship by descent route applies to those born outside India. Under this path,
a person born outside India after 26 January 1950 can be a citizen if either his father or
mother was a citizen at the time of the former’s birth. There are complicated rules that
govern this route to citizenship. A person born outside India after 26 January 1950 but
before 10 December 1992 can be a citizen under this route if his father was a citizen at the
time of the former’s birth. A person born outside India on or after 10 December 1992 can
be a citizen if either his father or mother was an Indian citizen at the time of the former’s
birth. The rules get a little more complicated if the father or mother were citizens by
descent only.93 After 3 December 2004, a person cannot be registered as a citizen by
descent unless his birth is registered at an Indian consulate within a certain time-frame.94
Generally speaking, citizenship by “registration” was meant for people of Indian
origin, the spouses or children of Indian citizens, and, for a while, the citizens of
Commonwealth countries.95 Naturalization provided a path to citizenship for those
with absolutely no ancestral connection to India.96 If India acquires any foreign territory,
the central government can notify persons connected with that territory as citizens of
India.97
Importantly, by virtue of the 2004 amendment, an “illegal migrant” cannot seek
citizenship by registration or naturalization.98 An “illegal migrant” is a foreigner who
enters India illegally, i.e., without a valid travel document.99 The CAA now carves out an
exception for the members of some religious communities from Pakistan, Bangladesh or
Afghanistan who entered India illegally before 31 December 2014 fearing religious
persecution, and enables them to obtain citizenship by registration or naturalization
despite their illegal entry into India.

(b) Article 14 and the CAA

In 1985, the Citizenship Act was amended to give effect to the Assam Accord.100 The
Assam Accord was an agreement struck between the government of India and leaders of
the “Assam Agitation” which had taken place between 1979–85 to protest voting rights
being given in Assam to illegal immigrants.101 Under this regime, a person of Indian
origin who arrived in Assam prior to 1 January 1966 from Bangladesh and was resident in
Assam since then was deemed to be an Indian citizen. Persons of Indian origin who
arrived in Assam on or after 1 January 1966 but before 25 March 1971 (i.e., the date on
which the Bangladesh War commenced102), and resided in Assam since then, if detected
to be foreigners, were to get all rights to Indian citizenship except voting rights for ten
years, and even voting rights thereafter. Anyone who came to Assam thereafter was to be
93
In such cases, the birth outside India had to be registered at an Indian consulate within a certain time-frame, or the
parent ought to have been an Indian government servant.
94
Citizenship Act 1955, Section 4.
95
Citizenship Act 1955, Section 5.
96
Citizenship Act 1955, Section 6.
97
Citizenship Act 1955, Section 7.
98
Citizenship Act 1955, Sections 5–6.
99
Citizenship Act 1955, Section 2(1)(b).
100
Citizenship Act 1955, Section 6A. For more on the Assam Accord, see Robert G. Gosselink, “Minority Rights and Ethnic
Conflict in Assam, India” (1994) 14 Boston College Third World Law Journal 83.
101
See Gautam Bhatia, “The Constitutional Challenge to S. 6A of the Citizenship Act (Assam Accord): A Primer” (Indian
Constitutional Law and Philosophy, 7 May 2017) <https://indconlawphil.wordpress.com/2017/05/07/the-constitutional-
challenge-to-s-6a-of-the-citizenship-act-assam-accord-a-primer/> accessed 2 January 2020.
102
ibid.
 INDIAN LAW REVIEW 13

deported. However, the process of detecting and expelling foreigners in Assam was never
properly enforced, which is why the Supreme Court eventually stepped in to expedite the
process of its enforcement in Assam Sanmilita Mahasangha v. Union of India103 and
other cases.
Under the Foreigners Act, 1946, a “foreigner” is a person who is not a citizen of
India.104 The government has the power to deport a foreigner who comes to India
without a valid passport.105 In September 2015, after the Supreme Court had stepped
in to enforce the Assam Accord provisions of the Citizenship Act, the central government
issued a notification which said that members of certain minority communities in
Bangladesh and Pakistan (and later Afghanistan106), viz., Hindus, Sikhs, Buddhists,
Jains, Parsis and Christians, who were “compelled to seek shelter in India due to religious
persecution or fear of religious persecution” and who entered India before
31 December 2014 could not be deported for entering India illegally or overstaying.107
In 1951, a National Register of Citizens (NRC) was prepared for all the provinces during
the census, under a direction issued by the Home Ministry of the central government.108 In
2003109 and 2009,110 rules were enacted under the Citizenship Act for preparing an NRC
for India and for Assam respectively. In a series of orders thereafter, the Supreme Court
issued directions to ensure that the NRC would be updated in Assam in order to detect and
deport illegal migrants in the state.111 In the court-monitored NRC exercise in Assam,
19,06,657 people were excluded from the list of citizens while 3.11 crore made it to the
list.112 It was against this backdrop that the Citizenship (Amendment) Act, 2019 (CAA) was
enacted. The CAA gives a path to citizenship to the subject minority communities,113 by
enabling them to apply for citizenship by registration or naturalization, except those in the
tribal areas of Assam, Meghalaya, Mizoram or Tripura.114

103
(2015) 3 SCC 1.
104
Foreigners Act 1946, Section 2(a).
105
Passport (Entry into India) Act 1920, Section 5. The Supreme Court has held that the Foreigners Act vests the central
government with an “absolute and unfettered discretion” to “expel foreigners from India”. Hans Muller of Nuremburg
v. Superintendent, Presidency Jail Calcutta, AIR 1955 SC 367 [35] (SCC Online version).
106
Ministry of Home Affairs, “Notification” (The Gazette of India, 18 July 2016) <http://egazette.nic.in/WriteReadData/
2016/170822.pdf> accessed 25 December 2019.
107
Ministry of Home Affairs “Notification” (The Gazette of India, 7 September 2015) <https://indianfrro.gov.in/frro/
Notifications_dated_7.9.2015.pdf> accessed 25 December 2019.
Prior to this, from 2004 onwards, “minority Hindus with Pakistani citizenship” were not considered illegal migrants.
Poddar (n 93) 111; Jayal “Faith-based Citizenship: The Dangerous Path India is Choosing” (n 93).
108
Assam Sanmilita Mahasangha v. Union of India (2015) 3 SCC 1 [7]. The NRC in 1951 was not a public document. See Anil
Roychoudhury, ‘National Register of Citizens, 1951ʹ (1981) vol. 16(8) Economic and Political Weekly. It was prepared
for all the provinces. See Saikia (n 28) 95.
109
Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003. This was accompanied by the
insertion of Section 14A into the Citizenship Act by the 2004 amendment, which said that the central government could
“compulsorily register every citizen of India and issue national identity card to him” and “maintain a National Register of
Indian Citizens”.
110
Amendment (dated 9 November 2009) inserting Rule 4A into the Citizenship (Registration of Citizens and Issue of
National Identity Cards) Rules, 2003.
111
See e.g., Assam Sanmilita Mahasangha v. Union of India (2015) 3 SCC 1; Assam Sanmilita Mahasangha v. Union of India
(2019) 9 SCC 79; Assam Public Works v. Union of India (2017) SCC Online SC 1885; Assam Public Works v. Union of India
(2018) SCC Online SC 3366; Assam Public Works v. Union of India (2018) 9 SCC 229; Assam Public Works v. Union of India
(2018) SCC Online SC 1014; Assam Public Works v. Union of India (2019) 9 SCC 70.
112
The exercise was carried out by the NRC coordinator, Prateek Hajela. “Assam Final NRC List Released: 19,06,657 people
excluded, 3.11 crore make it to citizenship list” India Today (New Delhi, 31 August 2019) <https://www.indiatoday.in/
india/story/assam-final-nrc-list-out-over-19-lakh-people-excluded-1593769-2019-08-31> accessed 25 December 2019.
113
This is by inserting Section 6B into the Citizenship Act 1955.
114
Citizenship Act 1955, Section 6B(4), inserted by Citizenship (Amendment) Act 2019, Section 3.
14 A. CHANDRACHUD

In its present form, a persuasive argument can be made that the CAA is unconstitu-
tional, for several reasons:

(i) Other religious communities: The CAA only applies in favour of Hindu, Sikh,
Buddhist, Jain, Parsi and Christian immigrants, but not immigrants from other
religious communities. Jews, Bahais, Zoroastrians who are not Parsis by race,115
Muslim minorities like Shias or Ahmadiyas, even atheists or agnostics, may have
been persecuted, on the grounds of religion, in Afghanistan, Pakistan or
Bangladesh. Yet, the CAA turns a blind eye towards them. In covering only
some religious communities and not others, the CAA violates the principle of
secularism which is a part of constitutional morality.116 The fact that Muslim
immigrants in India might not vote in favour of the Hindutva policies of the
regime presently in power at the centre in India renders the CAA even more
suspect.
(ii) Other countries: It is not only “illegal migrants” from Afghanistan, Bangladesh or
Pakistan who may have faced religious persecution in their countries. The CAA
ignores religious asylum seekers from other countries, e.g., Rohingyas from
Myanmar. These may be neighbouring countries like Nepal, Bhutan or Sri
Lanka, or countries that are not India’s neighbours but in which members of
the specified religious groups might still face persecution.
(iii) Cut-off date: Only those who entered India before 31 December 2014 have a right
to seek citizenship in India under the CAA. Those who entered India thereafter
have no such right, even though they may have faced religious persecution in the
subject countries before or after that date. This undermines the ostensibly
humanitarian aim of the CAA.

To be sure, however, bright-line rules generally do tend to be arbitrary. A state may,

for instance, draw an arbitrary line to confer certain rights on its people – e.g., the right to
drive and vote at the age of 18, the right to marry at the age of 18 or 21, or the right to
drink at the age of 25. What makes a person of the age of 17 years and 11 months any less
qualified to vote in a general election than a person who is 18 years and 1 day old, one
might ask. However, despite the arbitrariness of this kind of line-drawing, the law
tolerates such rules because it is imperative that a line has to be drawn somewhere.
There must be a uniform age, for instance, when a state will allow its citizens to vote, an
age at which the state must presume that its citizens will have sufficient maturity to cast
their vote wisely. The rationale for bright-line rules is that public policy necessitates that
a line be drawn somewhere, and therefore the arbitrariness of the place where the line is
drawn cannot really be remedied.
However, the problem with the CAA is that the temporal line which it has drawn
interferes with the ostensible purpose for which the statute was enacted. The aim of the
CAA is to provide shelter and refuge to non-Muslim religious minorities who have

115
The term “Parsi” in the CAA might be a reference to Zoroastrians who are Parsi by race (i.e., descendants of the original
immigrants from Persia to India). For the difference between the religion and the race, see Saklat v. Bella (1925) SCC
Online PC 61; Jamsheed Kanga v. Parsi Panchayat Funds (2011) SCC Online Bom 363.
116
State (NCT of Delhi) v. Union of India (2018) 8 SCC 501 [308]; Indian Young Lawyers Association v. State of Kerala (2018)
SCC Online SC 1690 [189].
 INDIAN LAW REVIEW 15

suffered religious persecution or feared religious persecution in certain defined countries

in India’s neighbourhood. If that is so, why should it matter whether such a person
entered India before or after 31 December 2014? The answer may be that the central
government wishes to limit the influx of asylum seekers into India and does not wish to
keep India’s doors permanently open to those who suffer religious persecution abroad. If
so, this cuts against the ostensibly humanitarian aims of the CAA.

(i) Non-religious persecution: The CAA ignores “illegal migrants” who entered India
because they faced non-religious persecution – e.g., persecution based on sexual
orientation or political views, or race (such as Sri Lankan Tamils).117
(ii) Relaxed Residence Requirement: The CAA relaxes the residence requirement in
India for citizenship by naturalization for the specified religious minorities.
A person who applies for citizenship by naturalization generally has to be resident
in India118 for a twelve-month period prior to the date of his application.
Additionally, he has to be resident in India119 for eleven years out of the fourteen
years prior to the said twelve-month period. However, the CAA reduces the
eleven-year residence requirement to five years.120 In other words, while others
who apply for citizenship by naturalization (including, say, Hindus fleeing reli-
gious persecution from Lebanon) have to reside in India for eleven of the fourteen
years prior to the twelve-month period preceding the date of application, the
groups covered by the CAA have to be resident in India for only five of the
fourteen years preceding the said date.121

India is not a signatory to the 1951 UN Convention Relating to the Status of Refugees and
the 1967 Protocol Relating to the Status of Refugees.122 However, these instruments
require contracting states to provide refugee status to those who have a “well-founded
fear of being persecuted for reasons of race, religion, nationality, membership of
a particular social group or political opinion”. In other words, religious persecution is
not the only reason for granting refugee status.123 Contracting states have to apply these
instruments “without discrimination as to race, religion or country of origin”.124 The
CAA would fall foul of these instruments had India been a signatory to them.125
117
Additionally, McDonald-Norman argues that it will be difficult to determine whether a person from Afghanistan,
Pakistan or Bangladesh does, in fact, belong to the defined religious minority communities that are within the ambit of
the CAA. Douglas McDonald-Norman, “The Citizenship Amendment Act and ‘Persons Belonging to Minority
Communities’” (Lawandotherthings Blog, 28 December 2019) <https://lawandotherthings.com/2019/12/the-
citizenship-amendment-act-and-persons-belonging-to-minority-communities/> accessed 28 December 2019.
118
A person can be in the service of a government in India rather than being resident in India for the said period, or partly
one and partly the other for the said period.
119
Or, in the service of a government in India, or partly one and partly the other.
120
Citizenship Act, 1955, Third Schedule, Paragraphs (c)-(d).
121
It is no answer for the state to say that Indian citizenship is a privilege and not a right. The right-privilege distinction
does not allow the state to arbitrarily dole out privileges. For instance, though no person has a right to enter into
a contract with the government, the Supreme Court has held that the state must act fairly while choosing whom to
enter into a contract with. In the court’s words, “once the State decides to grant any right or privilege to others, then
there is no escape from the rigour of Art. 14”. See Sterling Computers v. M/s M&N Publications (1993) 1 SCC 445 [25].
122
For a discussion of the law governing asylum seekers in India, see Bhairav Acharya, “The Future of Asylum in India: Four
Principles to Appraise Recent Legislative Proposals” (2016) 9 NUJS L Rev 239.
123
See 1951 Convention, Article 1.
124
See1951 Convention, Article 3.
125
Under Article 34 of the 1951 Convention, Contracting States have to facilitate the “assimilation and naturalisation of
refugees”. For a discussion of how the CAA might violate other international law instruments, see Poddar (n 93).
16 A. CHANDRACHUD

The right to equality under the Indian Constitution is not reserved for citizens
alone.126 True, discrimination against returning Muslim immigrants from Pakistan was
a hidden premise prevalent at the founding of the Indian republic. However, those times
were different. Muslim immigrants were, at that time, prevented from coming here
because of partition-era housing shortages and to avoid communal rioting in a charged
environment. Those conditions do not exist today. Further, while the discrimination
against returning Muslim immigrants between 1948–50 was embedded in the
Constitution itself,127 the discrimination inherent in the CAA has no constitutional
basis. While original Constitutional provisions, like the citizenship clauses of the
Constitution, cannot be declared discriminatory or unconstitutional, the CAA certainly
can be.

(c) Classification need not be scientifically perfect

In several cases, the Supreme Court has often invoked Chief Justice Patanjali Sastri’s
words that Article 14 of the Constitution does not require that the classification brought
about by legislation be “scientifically perfect or logically complete”.128 Supporters of the
CAA may use this doctrine to justify the statute. In that case, Chief Justice Sastri held that
Article 14 does not “mean that all laws must be general in character and universal in
application” or deprive the state of its “power of distinguishing and classifying persons or
things for the purposes of legislation.”129 What was required in such cases, he wrote, was
that the classification must be “based on an intelligible principle having a reasonable
relation to the object which the legislature seeks to attain.”130
The petitioner before the court, in that case, had challenged the constitutional validity
of a West Bengal law131 which set up special courts to try certain criminal offences which
were specified in a schedule to the statute. The intent of the act was to efficiently tackle
corrupt public officials who, in the post-Second World War period, were in charge of
essential supplies, food grains, adjustment of war accounts and liquidation of war-time
industries.132 The petitioner’s lawyer argued that the offences which had been clubbed
together by the law, and which were to be tried by the special court, were not all offences
that involved pecuniary gain to the offender. For instance, the counsel argued, offences
like forgery or making counterfeit seals, which were in the schedule, did not always
involve monetary gain to the offender and could not be classified together with other
pecuniary offences in the West Bengal statute. Rejecting this argument, Chief Justice
Sastri held that it was well known that many of the offences in the schedule to the law, like
forgery, were often perpetrated in order to facilitate the commission of other offences in
the schedule, which is why all those offences could justifiably be clubbed together.133 It

126
See Constitution, Article 14. Also See Constitution, Article 15. However, Article 15 of the Constitution does not apply to
this argument because it governs only citizens.
127
Article 7 of the Constitution could not be struck down for violating Article 14 of the Constitution. However, the CAA can
certainly be struck down for violating Article 14 of the Constitution.
128
Kedar Nath Bajoria v. State of West Bengal AIR 1953 SC 404 [9] (SCC Online version). See e.g., Welfare Association v. Ranjit
P. Gohil (2003) 9 SCC 358 [60]; Dharam Dutt v. Union of India (2004) 1 SCC 712 [56].
129
ibid [7] (SCC Online version).
130
ibid.
131
West Bengal Criminal Law Amendment (Special Courts) Act, 1949.
132
AIR 1953 SC 404 [8] (SCC Online version).
133
ibid [9] (SCC Online version).
 INDIAN LAW REVIEW 17

was in this context that Chief Justice Sastri had held that the classification need not be
scientifically perfect or logically complete.
Relying on Chief Justice Sastri’s words, the Supreme Court has, over the years, held
that the classification test must be applied in a “practical” and not “doctrinaire” way,
though “without whittling down the equality clauses”.134 The classification must not be
“palpably arbitrary” and if there is “equality and uniformity within each group”, the law
will withstand scrutiny, though some might “get an advantage over others”, “due to some
fortuitous circumstance arising out of a peculiar situation”.135 However, the court will
intervene if the classification results in “pronounced inequality” or “palpable
arbitrariness”.136 Courts will frown upon an over-inclusive statute (i.e., one in which
benefits or burdens are conferred on members of a group as well as others who are not
similarly situated) but be more tolerant of an under-inclusive one (i.e., a law which does
not “confer the same benefit or place the same burden on others who are similarly
situated”).137 There is also a presumption in favour of the constitutionality of a statute
which is “predicated on the belief that the legislature understands and correctly appreci-
ates the need of its own people and is free to recognise degrees of harm and may confine
its restriction to only those cases where the need is deemed to be the clearest”.138 In
recent years, the Supreme Court has evolved a test of “manifest arbitrariness” under
which a law will be struck down if “a square peg has been forcibly fixed into a round
hole”, rendering the law “excessive, disproportionate or without adequate determining
principle.”139
Applying these tests, on balance, the case against the CAA is compelling. True, the
CAA is under-inclusive in that it leaves out, as we have seen above: (i) other religious
minority communities in Pakistan, Bangladesh and Afghanistan; (ii) other countries,
neighbouring and otherwise; (iii) those persecuted on grounds other than religion; and
(iv) those persecuted after 31 December 2014. True, there is a presumption in favour of
the CAA’s constitutional validity and the court will presume that Parliament based its
distinctions on degrees of harm – e.g., it will be presumed that Hindus from Pakistan are
more in need of asylum than, say, Jews or Ahmadiyas from Pakistan. It is also true that
courts will try and adopt a “practical” approach and ignore the fact that the CAA is not
“scientifically perfect or logically complete”.
However, there is no intelligible reason why the CAA has excluded the categories
mentioned above, and the exclusion of those categories bears no rational nexus with the
object sought to be achieved by the statute. The Statement of Objects and Reasons of the
CAA declares that its object is to protect those who suffered “persecution on grounds of
religion in those countries”.140 The exclusion of persecuted Jews, atheists, agnostics,
Shias, and Ahmadiyas from those countries bears no rational nexus with this object.
The exclusion of countries like Nepal, Bhutan, Myanmar and Sri Lanka is also baffling.

134
Ganga Ram v. Union of India (1970) 1 SCC 377 [2].
135
This principle was initially applied in a taxation law context, Venkateshwara Theatre v. State of Andhra Pradesh (1993) 3
SCC 677 [20]. However, it was then applied to a tenancy law as well, State of A.P. v. Nallamilli Rami Reddi (2001) 7 SCC
708.
136
Namit Sharma v. Union of India (2013) 1 SCC 745 [42].
137
Ram Krishan Grover v. Union of India (2019) SCC Online SC 1469 [46].
138
ibid.
139
Pioneer Urban Land and Infrastructure Ltd. v. Union of India (2019) 8 SCC 416 [49].
140
See Statement of Objects and Reasons, Citizenship (Amendment) Act, 2019.
18 A. CHANDRACHUD

The mere fact that Islam is not the state religion in these countries does not mean that its
citizens necessarily enjoy the right to free exercise of religion. Likewise, countries in
which religions are “established”, by law, can still be secular. The cut-off date is palpably
arbitrary because it leaves out those who might suffer religious persecution after that date
even in India’s neighbouring Islamic countries. The relaxation of the residence require-
ment for naturalization is also palpably arbitrary. After all, why should a Parsi fleeing
religious persecution from Afghanistan have an easier route to naturalization as against
a Zoroastrian fleeing religious persecution in, say, Iran? For these reasons, the CAA lacks
an adequate determining principle and ought to be struck down or read down.

2. The CAA is only a part of the problem

The deeper problems with Indian citizenship law, however, have little to do with the
CAA. The opponents of the CAA argue that its real intent is to disenfranchise Indian
Muslims and to render them stateless. We will examine this argument a little later on, but
let us, for the moment, assume that it is correct. The opponents of the CAA fear that the
government will soon start an exercise to prepare a National Register of Citizens
(NRC)141 similar to the one that was carried out in Assam under the directions of the
Supreme Court. The argument goes that a large number of citizens will be left out of the
NRC because they will be unable to prove their citizenship. Those left out of the NRC will
include Muslims as well as non-Muslims. Many of those left out will not be migrants
from across the border, but genuine Indian citizens who are unable to prove their
citizenship because they lack the necessary documents. The CAA, it is argued, will save
the non-Muslims who are excluded from the NRC, while disenfranchising Indian
Muslims who have been left out of the list.
This argument, however, has little to do with the CAA. This becomes clear when one
realizes that amending the CAA to render it constitutionally valid will not address the
problems outlined in the argument above. Recall that the CAA is discriminatory for five
reasons: it excludes groups like Jews, Shias, Ahmadiyas, atheists and agnostics, who might
face religious persecution in the subject countries; it adopts an arbitrary bright-line of
31 December 2014; it excludes other countries both within India’s neighbourhood (like
Sri Lanka, Nepal and Myanmar) and without; it excludes those persecuted for non-
religious reasons; and it relaxes the residence requirement for citizenship by naturaliza-
tion for the subject groups. Assume that Parliament amends the CAA by rectifying each
of these problems: that the amended CAA now includes Jews, Shias, Ahmadiyas, atheists
and agnostics; it abandons the bright-line date of 31 December 2014; it includes all
countries within its purview; it allows the citizens of those countries to seek citizenship in
India if they are persecuted for non-religious reasons as well; and the relaxation of the
residence requirement is done away with. Now assume that an NRC exercise is carried
out in which a large number of Muslims as well as non-Muslims are excluded because
they lack the necessary documents. Some Muslims left out of the list may be able to prove
that they are Shias or Ahmadiyas who migrated from their home countries in order to flee

141
For a criticism of the Supreme Court’s NRC case, see Gautam Bhatia, “‘A little brief authority’: Chief Justice Ranjan Gogoi
and the Rise of the Executive Court” (Indian Constitutional Law and Philosophy, 17 November 2019) <https://indcon
lawphil.wordpress.com//?s=%22National+Register+of+Citizens%22&search=Go> accessed 23 December 2019.
 INDIAN LAW REVIEW 19

religious or other persecution there. However, most Indian Muslims, who were born here
to parents who were citizens of India, and who are unable to prove their citizenship
because they lack the required documents, will still not be saved by the amended CAA.
This is because they will be unable to prove that they migrated to India from across the
border for fear of persecution.
The CAA does not presume that all Hindus who are illegal migrants in India have
come here from the subject countries fearing religious persecution. Under Section 8 of
the Foreigners Act, 1946, when the nationality of a foreigner is uncertain, the prescribed
authority may presume that he is a national of a country with which he appears to be
“most closely connected for the time being in interest or sympathy”. Using this provision,
it could be presumed that a Hindu who has not made it to the NRC has come to India
from Afghanistan, Bangladesh or Pakistan. However, this still does not allow the pre-
scribed authority to presume that the foreigner has come to India fleeing religious
persecution in the subject country. Likewise, the hypothetically amended CAA will not
presume that an Indian Muslim Shia or Ahmadiya who is left out of the NRC has come
here from the subject countries fleeing religious persecution.

(a) Burden of proof

The deeper problem lies not with the CAA or NRC, but with the manner in which citizenship
has to be proved in India. Under the usual rules of evidence, the burden of proving a fact is on
the person who asserts that fact.142 So ordinarily, if the government prosecuted someone and
asserted that he was not an Indian citizen but a foreigner, the burden ought to have been on
the government to prove that the person was not an Indian citizen. However, as a consequence
of laws enacted in 1939 and 1946,143 this ordinary rule of evidence is reversed in citizenship
cases. In 1964, the central government issued the Foreigners (Tribunals) Order, which
required the question of whether a person is a foreigner or not to be decided by a separate
set of tribunals called foreigners tribunals. In these tribunals, the burden was on the alleged
foreigner to prove that he was a citizen of India.
In 1983, the central government enacted the Illegal Migrants (Determination by
Tribunals) Act (IMDT Act) which sought to place the burden on the government to
prove that a person was not a citizen. The Supreme Court struck this law down in
Sarbananda Sonowal v. Union of India (Sonowal I).144 In that case, the court noted that
the “general rule in the leading democracies of the world” like the U.K., U.S., Canada and
Australia was that the burden of proof is on the foreigner to prove his citizenship of
a country.145 The court relied on Section 106 of the Indian Evidence Act, 1872, which
says that when a fact is especially within the knowledge of any person, the burden of
proving such fact is on him.146 On the other hand, the IMDT Act placed the burden of
proof on the state.147 The court found that it would be easier to secure a conviction of
a person for a capital crime in India than to deport a person under the IMDT Act and that
the IMDT Act was enacted to protect illegal immigrants rather than deport them.148 It
142
See Indian Evidence Act 1872, Section 101.
143
See Registration of Foreigners Act 1939, Section 4; See also Foreigners Act 1946, Section 9.
144
(2005) 5 SCC 665.
145
ibid [24].
146
ibid [26].
147
ibid [40]. This was because it said nothing about whom the burden of proof was going to be on.
148
Sonowal I [47].
20 A. CHANDRACHUD

also found that Assam was facing “external aggression and internal disturbance” on
account of the “large-scale illegal migration of Bangladeshi nationals”,149 and that the
IMDT Act negates the “constitutional mandate contained in Article 355 of the
Constitution” which casts a duty on the central government to “protect every State
against external aggression and internal disturbance”.150 The court also held that
a person who was identified as a foreigner under the Foreigners Act and deported was
not being deprived of his life and personal liberty under Article 21 of the Constitution.151
The decision of the Supreme Court in Sonowal (I) concerning the IMDT Act is flawed
for a few reasons. Firstly, though the burden of proof under the citizenship laws of countries
like the U.S., U.K., Canada and Australia is on the foreigner to prove his citizenship, the
socio-economic condition of the people in these countries is very different from that in
India. Due to a general lack of poverty and illiteracy in these countries, it may be far easier
for their genuine citizens to prove their own citizenship. Secondly, to treat all illegal
immigration as “external aggression” or “internal disturbance” may not have been accurate.
A person who arrives illegally in India may be doing so in order to improve his economic
prospects and not necessarily to invade India or carry out criminal activities here.
“Dreamers” or children who accompanied their illegal immigrant parents to India at
a young age can hardly be considered ipso facto responsible for any “aggression” against
or “disturbance” in India. Thirdly, to hold that a person who is deported from the country is
not thereby deprived of his life and personal liberty is incorrect. The right to life and
personal liberty under Article 21 includes a whole host of rights and is not merely confined
to freedom from physical restraint.152 A citizen of India who is detected to be a foreigner
and deported from the country merely because he is unable to prove his citizenship is
certainly deprived of his right to life and personal liberty.
In 2006, the central government made the Foreigners (Tribunals) Order, 1964
inapplicable to the state of Assam,153 and passed an order bringing about a separate
procedure for foreigners tribunals in the state of Assam.154 The 2006 Foreigners
(Tribunals for Assam) Order tried to circumvent the judgement of the Supreme
Court in Sonowal (I). Under the 1964 order, when the central government referred
the question of whether a person was a foreigner or not to a tribunal, the tribunal
had no option but to serve on the alleged foreigner a copy of the complaint against
him. The 2006 order which set up separate tribunals for the state of Assam,
however, prescribed a different procedure. Under it, when the central government
referred a question to the tribunal, the tribunal had to first determine whether there
was “sufficient ground” for proceeding against the alleged foreigner, and whether
“basic facts” had been “prima facie established”. It was only when the tribunal came
to this conclusion that it could serve a copy of the complaint on the alleged
foreigner. Striking this procedure down, the Supreme Court held in Sarbananda
Sonowal v. Union of India (Sonowal II),155 that the 2006 order placed the entire
burden of proof on the tribunal which was impermissible.
149
ibid [63].
150
Sonowal I [67].
151
ibid [73].
152
See Abhinav Chandrachud, Due Process of Law (Eastern Book Company 2011) 206–238.
153
Foreigners (Tribunals) Amendment Order 2006.
154
Foreigners (Tribunals for Assam) Order 2006.
155
(2007) 1 SCC 174.
 INDIAN LAW REVIEW 21

Thereafter, if a question arose as to whether a person was a foreigner or not, the

burden was not on the government but on the person accused of being a foreigner
to prove that he was, in fact, an Indian citizen. As a consequence of this, if
a person’s name is not listed in the National Register of Citizens, it is his respon-
sibility to prove his citizenship, which is very difficult to do, for the reasons we will
see below.

(b) Transgender persons, orphans, and dreamers

When the Citizenship Act was enacted in 1955, it created a path to citizenship by
birth. Under it, any person born in India after the Constitution came into force, i.e.,
26 January 1950, was considered an Indian citizen,156 regardless of whether or not
his parents were illegal immigrants.157 We have seen that this changed in 1986 and
2004. In those years, Parliament amended the Citizenship Act, 1955, and did away
with citizenship by birth from 1 July 1987. Those born after that date but before
3 December 2004 had to prove that at least one of their parents was an Indian
citizen. Those born after 3 December 2004 had to prove either that both their
parents were Indian citizens or that one was an Indian citizen and the other was not
an illegal migrant.158 This is difficult for many to do. Members of India’s transgen-
der community, for instance, are often abandoned at birth by their parents. It will
be very difficult for them to prove their own birth, or the birth of their parents, in
India.159 The same goes for orphans – how will they be able to prove their own
birth or the citizenship of their parents whom they never knew? While it may be
relatively easier for others to prove their own birth in India, it is far harder to prove
the citizenship of one’s parents.160
These citizenship laws may be excessively harsh against the innocent children of
illegal immigrants, who may now be adults. Children born in India after July 1987 to,
say, illegal Bangladeshi immigrants, who have known only India to be their homeland
their entire lives, would be rendered stateless under the present system. Similarly,
children who accompanied their illegal immigrant parents from Bangladesh to India
at a very young age, having grown up nearly their entire lives here, are considered
foreigners under the prevalent citizenship laws, and are liable to be deported. Such
children, called “dreamers” in the U.S., were entitled to temporary permits to stay and
work in the U.S. under the Obama administration.161 Dreamers in India have no

156
Citizenship Act 1955, Section 3(1). This did not apply to a person whose father enjoyed a certain level of diplomatic immunity
or was an enemy alien (and the birth occurred in a place under enemy occupation). See also, Citizenship Act 1955, Section 3(2).
157
See Home Minister G.B. Pant “Speech” (Lok Sabha Debates, 9464, 5 August 1955).
158
Citizenship (Amendment) Act 2003, Section 3.
159
See Gaurav Das, “The NRC Poses a Two-Fold Predicament for Assam’s Transgender Community” The Wire (Guwahati,
8 October 2019) <https://thewire.in/rights/nrc-exclusions-assam-transgender> accessed 2 January 2020).
160
It has been held that a ration card “cannot be treated as a proof of one’s citizenship”. Saru Sheikh v Union of India,
(2017) SCC Online Gau 872 [16].
161
In the U.S., the “DREAM Act” (i.e., the “Development, Relief, and Education for Alien Minors” Act) was supposed to
confer citizenship on children who were brought there at a very young age. However, it was never passed. The Obama
administration allowed “dreamers” to legally work in the U.S. under a programme called “Deferred Action for Childhood
Arrivals” (or “DACA”). The Trump administration decided to end DACA status, the legality of which is presently being
decided by the U.S. Supreme Court. See Matt Hildreth, “Immigration 101: What is a Dreamer?” America’s Voice
(20 July 2017) <https://americasvoice.org/blog/what-is-a-dreamer/> accessed 23 December 2019; Caitlin Dickerson,
“What is DACA? How Did it End Up in the Supreme Court?” New York Times (12 November 2019) <https://www.nytimes.
22 A. CHANDRACHUD

comparable rights.162 All this has little to do with the CAA.

We have seen that “illegal migrants”, i.e., those who entered India without valid
documentation, are not entitled to become Indian citizens by registration or naturaliza-
tion. A minor who entered India illegally with his or her parents would be considered an
“illegal migrant”. It is unclear whether a child born to illegal migrant parents in India
would also be considered an “illegal migrant” as well. It is arbitrary for the CAA to deny
a path to citizenship by registration or naturalization to these “dreamers” purely on the
grounds of religion and nationality, while carving out a route to Indian citizenship for
others similarly placed.

(c) Foreigners tribunals

The question of whether a person is a foreigner or not has to be decided by Foreigners
Tribunals, constituted under the Foreigners (Tribunals) Order, 1964. There are some
problems with these tribunals163:

(i) Security of tenure: The “members” of these tribunals are not considered to be
judges and have no formal security of tenure,164 i.e., there is no statutory rule
which ensures that they cannot be penalized for issuing decisions that are, say, in
favour of alleged foreigners. Members of these tribunals do not hold their offices
during “good behaviour”165 (e.g., for fixed, non-renewable terms or until
a prescribed retirement age), but do so for fixed, short renewable terms.166 There
is nothing to stop the government from refusing to renew the term of a member
who adopts a consistently lenient attitude towards alleged foreigners. Ensuring that
judges have the security of tenure is one of the hallmarks of an independent
judiciary. The fact that members of foreigners tribunals do not have the security
of tenure, despite the fact that these tribunals exercise quasi-judicial functions,167 is
problematic.

com/2019/11/12/us/daca-supreme-court.html> accessed 2 January 2020; “DACA” National Immigration Law Centre

<https://www.nilc.org/issues/daca/> accessed 2 January 2020.
162
In India, under Section 5(4) of the Citizenship Act, 1955, the central government has the power to register a minor as
a citizen of India if there are “special circumstances justifying such registration”. However, the sense one gets is that this
provision has rarely been used to register “dreamers” as citizens. Further, it may only be used to declare “minors” as
citizens, but is silent over whether the government can declare an adult as a citizen though (s)he may have illegally
entered India as a minor or been born in India to illegal immigrant parents.
163
It has been argued that the Foreigners Tribunals established under the Foreigners (Tribunals) Order 1964, do not have
to provide any reasoning for their opinions. See Gautam Bhatia, “The judicial presumption of non-citizenship” The Hindu
(23 July 2019) <https://www.thehindu.com/opinion/lead/the-judicial-presumption-of-non-citizenship/article28660624.
ece> accessed 2 January 2020. However, this argument does not appear to be accurate. The Supreme Court has held
that though the order of the foreigners tribunal is not a “judgment”, the tribunal must nonetheless give reasons in
support of its conclusions. See Abdul Kuddus v. Union of India (2019) 6 SCC 604 [23]. In this judgement, the court also
held that the tribunal is a quasi-judicial authority and the principle of res judicata applies to it [23]-[24].
164
Rule 2 of the Foreigners (Tribunals) Order, 1964, does not say that the members of the Tribunal have security of tenure.
See also Mamoni Rajkumari v. State of Assam (2017) SCC Online Gau 998 [31].
165
See Abhinav Chandrachud, An Independent, Colonial Judiciary: A History of the Bombay High Court During the British Raj,
1862–1947 (Oxford University Press 2015) 212–219.
166
See Gauhati High Court, “Advertisement” (10 June 2019) <http://ghconline.gov.in/Recruitment/Notification-10-06-
2019.pdf> accessed 4 January 2020.
167
Abdul Kuddus v. Union of India (2019) 6 SCC 604 [23]. See also Union of India v. Namit Sharma (2013) 10 SCC 359 [29],
where it was held that the “constitutional principles of separation of powers and independence of judiciary” can be
invoked for those who exercise judicial, not administrative, functions; Union of India v. R. Gandhi (2010) 11 SCC 1 [106
(b)], [119].
 INDIAN LAW REVIEW 23

In the Assam Sanmilita case, the Supreme Court had directed the Gauhati High Court
to finalize the “process of selection” of the chairperson and members of the foreigners
tribunals in Assam.168 It had also directed the Chief Justice of the Gauhati High Court to
monitor the functioning of the foreigners tribunals by constituting a special bench.169
Accordingly, as far as the foreigners tribunals that have been established in Assam are
concerned, the recruitment of members has been carried out under the supervision of the
Gauhati High Court.170 Advertisements seeking applications for members of foreigners
tribunals are issued by the Gauhati High Court.171 The Supreme Court has, even in other
cases, held that members of judicial tribunals should be appointed in consultation with
the higher judiciary.172
In one case, the government’s decision not to renew the contracts of some members of
foreigners tribunals whose terms had expired, without consulting the High Court, was
held by the Gauhati High Court to be invalid.173 However, this was because the adver-
tisement issued by the Gauhati High Court pursuant to which those members had been
appointed, made it clear that members’ extensions of service would be “subject to
approval by the High Court” and that their tenure in service would be subject to “time
to time assessment done by the Gauhati High Court”.174
However, in a subsequent advertisement issued in June 2019, applicants for the post of
members of foreigners tribunals were informed that they would be appointed initially for
one year, “which may be extended from time to time on need basis”. This advertisement
did not expressly say that members’ extensions would be subject to the approval of the
High Court. Members appointed to foreigners tribunals pursuant to the June 2019
advertisement, therefore, may justifiably wonder whether their jobs are at stake if they
decide cases in favour of alleged foreigners.

(i) Judicial experience: Members of the foreigners tribunals are required to have “judicial
experience”.175 However, the June 2019 advertisement issued for recruiting members
of foreigners tribunals in Assam said that even “retired civil servants (not below the
rank of Secretary and Addl. Secretary)” might have the necessary “judicial experience”
to be appointed to those posts.176 This is despite the fact that civil servants have been
held, in the past, not to qualify as judicial members of tribunals.177

168
At paragraph 46.2.
169
ibid.
170
See Mamoni Rajkumari v. State of Assam (2017) SCC Online Gau 998 [24], [57].
171
See e.g., Gauhati High Court, “Advertisement” (n 167); See also earlier advertisement, Gauhati High Court,
“Advertisement” (2 April 2015) <http://ghconline.gov.in/Recruitment/Notification-02-04-2015-1.pdf> accessed
4 January 2020.
172
See State of Gujarat v. Gujarat Revenue Tribunal (2012) 10 SCC 353 [33]-[34], where it was held that when a tribunal is
subject to the High Court’s supervisory jurisdiction under Article 227, “consultation/concurrence of the High Court, in
the matter of making the appointment of the President of the Tribunal is required”. See also Union of India v. R. Gandhi
(2010) 11 SCC 1 [120(viii)], where the selection committee for the NCLT was required to have a balance of members
from the judiciary and executive, with a casting vote in favour of the Chief Justice of India (or his nominee); Namit
Sharma v. Union of India (2013) 1 SCC 745 [106] and [108.9], where it was held that judges of judicial tribunals should be
appointed in consultation with the judiciary.
173
Mamoni Rajkumari v. State of Assam (2017) SCC Online Gau 998.
174
See Gauhati High Court, “Advertisement”(n 172).
175
Foreigners (Tribunals) Order 1964, Rule 2(2).
176
See Gauhati High Court, “Advertisement” (n 167).
177
Union of India v. R. Gandhi (2010) 11 SCC 1 [119], [120(i)]; Neelkamal Realtors Suburban Pvt. Ltd. v. Union of India (2017)
SCC Online Bom 9302 [153].
24 A. CHANDRACHUD

(ii) No appeal: There is no statutory appeal against the “opinions” delivered by

foreigners tribunals.178 The decisions of foreigners tribunals are subject to the
writ jurisdiction of High Courts and can be challenged there directly.179 However,
this means that the decisions of foreigners tribunals can be challenged on very
limited grounds (e.g., violations of the principles of natural justice, transgressions
of jurisdiction, violations of fundamental rights, contraventions of statute, etc.).
High Courts, in exercise of writ jurisdiction, will not get into detailed factual
analyses as an appellate court would. Generally speaking, though there is no
inherent right to appeal, and the right to appeal is a “creature of statute”,180 the
fact that there is no appeal against the decisions of foreigners tribunals makes the
aforementioned problems even more glaring.

IV. Conclusion
Now let us revisit the chief accusation that has been levelled against the BJP government
for enacting the CAA. The argument goes that the NRC will exclude a large number of
Indian citizens from its ambit, which is what has happened in the NRC exercise in Assam.
The evidentiary burden will then be on Indian citizens to prove their citizenship. A large
number of Indian citizens of various religious persuasions will be unable to do so, since it
is difficult to provide documentary evidence for one’s place of birth and the place of birth
of one’s parents. However, because of the CAA, non-Muslims will be conferred citizen-
ship and Muslims will be the only ones excluded from Indian citizenship. The sum and
substance of the anti-CAA argument therefore is that the CAA and NRC are essentially
intended to strip Indian Muslims of their citizenship.181
This argument is flawed. True, if a National Register of Citizens is operationalized for
the rest of India as it was in Assam, it is possible that a large number of citizens will be left
out of its ambit. True, this will mean that Indian citizens will have to then prove their
citizenship, which many will be unable to do because of a lack of documentation to show
their birthplace and the birthplace of their parents. However, it is a fallacy to think that
the CAA will then automatically confer citizenship on all non-Muslims who have been
left out of the NRC. The CAA confers citizenship on Hindus, Sikhs, Buddhists, Jains,
Parsis and Christians from the subject countries, who were “compelled to seek shelter in
India due to religious persecution or fear of religious persecution” and who entered India
before 31 December 2014. Non-Muslims who have been left out of the NRC will not be
presumed to fall within the ambit of the CAA. According to the evidentiary rules of
Indian citizenship law, non-Muslims who seek refuge under the CAA will have to prove
that they migrated to India from Pakistan, Bangladesh or Afghanistan before
31 December 2014 and that they did so in order to flee “religious persecution or fear of
religious persecution”. Despite the presumption of nationality under Section 8 of the
178
The Foreigners (Tribunals) Order 1964, does not provide for any appeal against the opinions of Foreigners Tribunals.
179
Abdul Kuddus v. Union of India (2019) 6 SCC 604 [24].
180
See Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement (2010) 4 SCC 772 [19].
181
The Economic and Political Weekly, in its editorial, for instance, argued that the CAA “reflects the ideological zeal to
target minority groups in India.” By enacting the CAA, it argued, the government has communicated to the commu-
nities included in it that those excluded by the CAA are “secondary citizens”. See “Interrogating the Citizenship
(Amendment) Bill” (2019) 54(49) Economic and Political Weekly, <https://www.epw.in/journal/2019/49/editorials/
interrogating-citizenship-amendment-bill.html> accessed 28 December 2019.
 INDIAN LAW REVIEW 25

Foreigners Act, 1946, it will be no simple task to prove one’s presence in India for fear of
“religious persecution or fear of religious persecution” in the subject countries. The
CAA/NRC regime is therefore as dangerous to India’s non-Muslim citizens as it is to
India’s Muslim citizens.
While the immediate aim of enacting the CAA may have been to prevent non-Muslim
migrants from Pakistan, Afghanistan and Bangladesh from being excluded from Indian
citizenship as a result of the NRC in Assam, the CAA will not automatically confer
citizenship on resident Indian non-Muslims excluded in an all-India NRC.
The CAA’s preference for non-Muslim immigrants is vaguely reminiscent of India’s
partition-era aversion to returning Muslim refugees from Pakistan, though the condi-
tions in India then were certainly very different from what they are now. However, that
does not mean that it is constitutionally valid. As we have seen, it discriminates against
other religious minority groups in Pakistan, Bangladesh and Afghanistan. It is too
myopic in its recognition of religious persecution as being the only ground for asylum.
The cut-off date of 31 December 2014 is arbitrary (though bright line rules tend to be
arbitrary). Why Afghanistan has been chosen, though it was not a part of colonial India,
while other neighbouring countries like Sri Lanka, Bhutan, Nepal and Myanmar have
been excluded, is also an open question. The fact that Pakistan, Bangladesh and
Afghanistan are all “theocracies” is no answer. Countries with an “established” religion,
like the U.K., can still be secular. Yet, the CAA is only a part of the problem with Indian
citizenship law. The reverse burden of proof which has been in place since 1939 needs to
be re-evaluated in the Indian context. The 1986 and 2004 amendments to the Citizenship
Act, which did away with citizenship by birth, need to be reconsidered. Dreamers, who
arrived in India as minors with their parents, need a safe harbour. The procedural
problems with the foreigners tribunals need to be re-examined.

Acknowledgments
J.S.D. (Stanford), J.S.M. (Stanford), LL.M. (Harvard), LL.B. (Mumbai). Advocate, Bombay High
Court. I am grateful to Sekhar Bandyopadhyay, Ronojoy Sen and the participants of the conference
held at Victoria, University of Wellington, in February 2020, for their comments/suggestions.
I would like to thank Professor R. Ramakumar and the participants at the Mumbai Collective
conference held in January 2020. This paper was presented at the Informal Discussion Group,
NUJS, West Bengal, in January 2020, and I am grateful to the students who attended the talk. I am
deeply grateful to the anonymous reviewers at the Indian Law Review and to Farrah Ahmed and
Tarunabh Khaitan for making this paper possible.