The Citizenship Amendment Bill 2019 was passed by Rajya Sabha today. It was passed in Lok Sabha a day earlier. This Bill is being said to be the last nail on the coffin, passed patently in violation of the Constitution. Various reactions are coming from many directions. Assam is protesting vehemently, but the government knows how to crackdown on citizen’s protest. They already tried the model in Kashmir and Assam didn’t speak up. Now they have come for Assam.

The legal fraternity is pouring in opinions, and most of them are saying the amendment is in violation of the Constitution. But Harish Salve had a different opinion. He was on NDTV speaking to Sreenivasan Jain and I am sorry to say this, I truly am, but I could have argued and interjected with Mr. Salve far better than Mr. Jain. Sreenivasan appeared nervous and/or overawed in front of a stalwart like Salve and it seemed like he is not able to time his response, he was delayed in making counter arguments. There were 2 precise points where very strong counter arguments could have been made and Harish Salve could have been confronted with a well articulated direct question. Salve said the amendment will pass the test of ‘reasonable classification’ because govt only have to show that they have considered a logic and taken a decision.

Salve is right about only a logic to be shown, but a basic principle of law is test of ordinary prudence or in this case reasonableness. Your logic or rationale behind a decision cannot be arbitrary and / or biased, because then it would fail the test of equality under Article 14.

Passing the reasonable classification test

You should be coherent and unbiased in your classification, it cannot be arbitrary. There are three elements in your classification which creates a ‘class’, 1/Islamic countries 2/Minorities 3/Persecution.  Unless you show a common rationale in these 3 elements the classification is arbitrary.

Government have to show why they chose these 3 countries, Pakistan, Afghanistan and Bangladesh. If they chose Islamic countries around us, then why not Maldives? If Islamic but only those sharing border, then also why not Maldives (is the sea not border?) and how come Afghnaistan? (One argument is that PoK shares border with Afghanistan and since we consider PoK as part of India so AGN shares border with us, but this is far fetched) If countries which persecute why not China or Myanmar? If countries which are products of Partition, then how come Afghanistan? There seem to be nothing common. Now if govt says, these countries because we don’t like them, that’s an arbitrary classification.

Secondly, there is no common thread in choosing only these 4 religion facing persecution when it is a matter of public record that other communities in these nations also face persecution. A natural question to ask is, why would you not have same sympathy for other persecuted people from these countries? You cannot say because they are not Hindus. Or that they can go to other Muslim countries, these are arbitrary reasons.  Test of reasonability fails if you cant show a common rationale and rely upon different logic each time for each community and pick and chose.