The rules of the Citizenship (Amendment) Act (CAA), 2019, were recently notified. This law has been challenged before the Supreme Court on the grounds that it violates Article 14 of the Constitution. Both opposition to it and support for it have drowned a key aspect of this case. This is an opportunity for the Court to fundamentally reshape not just the citizenship law, but also the way in which it judges alleged violations of the constitutional guarantee of equality.
The classification test
The classical test to judge these violations is the ‘reasonable classification’ test, where the Court asks whether there is a clear way to differentiate members of one class from another, and then whether there is a clear relation between making this distinction and achieving the goal that the government wishes to achieve. When the Bill was being debated in Parliament, the Home Minister had declared that it was consistent with the test given above — it applied to persecuted minorities who had fled to India from geographically connected nations, and the purpose was to provide these minorities with full citizenship rights in India. His argument is not legally unsound. One could, of course, argue that the ‘persecuted minorities’ argument ought to extend to, say, the Ahmadiyya Muslims in Pakistan as well. This would ordinarily be fatal to the Home Minister’s argument. But the Court has generally allowed a great deal of latitude to the state while dealing with a potential equality law violation. In Charanjit Lal Chowdhury v. Union of India (1950), for instance, the Court declared that “the Legislature is free to recognise degrees of harm and it may confine its restrictions to those cases where the harm is deemed to be the clearest.” If we go by this standard, the CAA might be constitutional. And that is where the problem lies.
The classification test is a judicial import from the U.S. dating back to 1950. It has since been crystallised, refined, developed, and critiqued to the point where it has become an inseparable part of equality jurisprudence. Indeed, from being a way of interpreting our equality guarantee, it has almost become our equality guarantee.
What is forgotten is that the classification test is a tool that the Court employs to decide what state action would violate equality. The real protection afforded by the Constitution, however, is not the test; it is what the test is used for. Equality is a moving target, and the reasonable classification test was developed to hit it most accurately. But this does not always happen. The CAA may pass this test, and yet not satisfy our constitutional conscience. The source of our pain is the fact that there are some persecuted minorities who are excluded for no apparent reason. This is unsettling also because the discrimination here is on the basis of religion, which is against any understanding of secularism.
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The classification test, in its most repeated form, does not necessarily account for any of this. This is not to say that it never can. While reading down Section 377 of the Indian Penal Code, Justice D.Y. Chandrachud, as he was then, stated that Article 14 contains “a powerful statement of values”, and that to “reduce it to a formal exercise of classification may miss the true value of equality”. Other judges have also attempted to augment the classification test with more teeth. But these responses are stopgap. The test is either bent to suit more just outcomes, or a new test is developed. The ‘manifest arbitrariness’ test developed by the Court in recent cases is a response of the latter kind, and is unfortunately too broad to provide any concrete guidance. Unlike the reasonable classification test, it has no shape or form. The most that the Court has said about the content of this test is that what is “without adequate determining policy or principle” is manifestly arbitrary. These concepts are, on the face of it, susceptible to multiple interpretations — hardly a suitable fit for a judicial test which is supposed to crystallise an ethereal concept like equality.
What is required instead is a comprehensive re-understanding of what the right to equality promises. This does not necessarily mean that the old test needs erasure, but it needs a radical redevelopment. The Court needs to go beyond asking the questions it already does. It will have to develop the constitutional idea of equality more thoroughly. The old idea of ‘treating equals equally and unequals unequally’ has shown its deficiencies. This will be a deeply theoretical exercise, but it is necessary for a more robust constitutionalism.
The Court will also have to ask more probing questions of the state, such as why Ahmadiyya Muslims have been excluded and the exact number of immigrants who have come from each of these countries (from each religion). Each of these will test the state’s purported justifications against the new idea of equality. These questions may be asked in the classification test as well, but are not its core components. Their application depends upon active judicial engagement with the values flowing from Article 14. Leaving crucial questions of constitutional law open to such discretion is incorrect. This is the core of the problem.
Opportunity for a clear break
The legal and constitutional challenge to CAA is a timely opportunity for this task because the Act goes against many of our beliefs of what equality entails, and what the Constitution requires from the government. Questions of this magnitude are better answered with a clear distinction between the right and the test. Only the former is inviolable.
Aditya Phalnikar is a Research Fellow at the Vidhi Centre for Legal Policy. Views expressed are personal
