Day: August 9, 2022

“Utterly Failed To Prove Linkage”: The Discriminatory Barriers To Women’s Citizenship Claims in Assam 

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Gayatri Gupta is a law graduate from NALSAR University of Law, Hyderabad, India and is currently working at the Supreme Court of India. She has a keen interest in human rights law and refugee and citizenship law. She worked at Parichay Legal Aid Clinic from January 2020 to March 2022. She may be reached at guptagayatri14@gmail.com.

Introduction

Nivedita Menon has argued that the foundation of citizenship “is primarily based on proof of birth in a heterosexual patriarchal family, an institution that structurally undergirds caste, class, and gender injustice” [emphases mine]. It is this unquestioning acceptance of the heterosexual patriarchal family—based on marriage and the sexual division of labour—that has helped produce and maintain a particular notion of the nation-state and citizen. Menon identifies the familial foundation of citizenship to be the reason why citizenship is exclusionary towards women and is thus an inherently feminist issue. In this article, I examine the legality of the sui generis citizenship determination regime in Assam against the standard of gender equality and anti-discrimination law.[1] Through a qualitative study of Gauhati High Court (‘Gauhati HC’) cases relating to the Foreigners’ Act, 1946,[2]I critically analyse the impact of the seemingly ‘neutral’ rule of demanding documentary evidence to prove citizenship on women proceedees.[3] I conclude that the Foreigners Tribunals (‘FTs’) in Assam operationalise these evidentiary rules to have a discriminatory effect on women litigants.

Understanding indirect discrimination

Articles 14, 15 and 16 of the Indian Constitution form the equality code. The scope of this code is not limited to the formal conception of equality but embodies a substantive notion, whereby existing individual, institutional, and systemic barriers are taken into account to ensure equal protection of the law.Anti-discrimination law, specifically the concept of indirect discrimination, is closely linked to the concept of substative equality [see Nitisha v. UOI, Anuj Garg v. Hotel Association of India, Jeeja Ghosh v. UOI, Vikash Kumar v. UPSC]. Indirect discrimination occurs when a seemingly ‘neutral’ provision, criterion, or practice puts persons belonging to a specific group (having one or more protected characteristics[4]) at a particular disadvantage by not considering the underlying effects of the provision on that group.

Many Supreme Court decisions have affirmed the existence of indirect discrimination. Justice Chandrachud in Navtej Singh Johar, while assessing the constitutionality of Section 377 of the Indian Penal Code,  observed that what is relevant is the “effect” the impugned provision “has on affected individuals and on their fundamental rights”. Thus, state action which is facially neutral but has a disproportionate impact upon a particular protected class of persons is prohibited by indirect discrimination. Most recently, in  Lt. Colonel Nitisha v. Union of India, indirect discrimination under Articles 14 and 15 was expressly recognized, and the Supreme Court adopted the two-pronged test laid down in Fraser v. Canada for an indirect discrimination enquiry. The first step is to assess whether the impugned rule disproportionately affects a particular group; the second step is to see if this rule has the effect of reinforcing, perpetuating, or exacerbating disadvantage.

Having explained the contours of indirect discrimination law in India, the next section will analyse how apparently neutral procedures, such as those currently employed in Assam’s citizenship determination regime, disproportionately impact women proceedees, and end up excluding them from public participation.

Operation of Foreigners’ Tribunals in Assam

A separate legal regime focused upon ‘kaagaz’ (papers)has been created in Assam to identify ‘foreigners’ and ‘illegal immigrants’. Under the Assamese citizenship determination regime, inserted via Section 6A of The Citizenship Act, 1955 in the aftermath of the Assam Accord, persons of Indian origin who came from Bangladesh before January 1, 1966 and have been ordinarily resident in Assam since then are considered as Indian citizens. Those who came between January 1, 1966 to March 25, 1971 would have to register themselves with the Central Government, and their names would be cut off from electoral rolls for a period of ten years. At the expiry of ten years from their date of registration, they would be considered Indian citizens.

The Foreigners’ (Tribunals) Order, 1964 is a subordinate legislation under the Foreigners’ Act, through which FTs are set up by the Central Government to determine the legal question of whether a person is a foreigner. In 2005, FTs became extremely critical after the Supreme Court struck down the Illegal Migrants (Determination by Tribunals) Act, 1983, and transferred all pending IMDT citizenship cases to FTs. Subject to the limited procedural requirements mentioned in the 1964 FT order, FTs are empowered to regulate their own procedures, raising concerns about due process and rule of law. With the publication of the final NRC list, a case can now come before an FT in three ways: cases referred by the Assam Border Police, ‘doubtful’ voter cases referred by an Election Registration Officer, and the appeals process in the NRC (which is yet to start).

It is important to note that under the Foreigners’ Act, the burden of proof is reversed and placed on the individual to prove that she is not a ‘foreigner’. Due to this reversed burden of proof, an individual is expected to discharge a higher standard of proof by supporting her citizenship claim with a wide variety of documentary evidence. The documents required in FT proceedings can be broadly understood in two categories of legacy and linkage: legacy documents showing the individual or her ancestor’s presence in Assam before March 25, 1971 (such as electoral rolls, land and tenancy records, the 1951 NRC); and linkage documents showing a link between the individual and her ancestors mentioned in the legacy document (such as birth certificates, school leaving certificates, gaonburah certificates).It is this seemingly ‘neutral’ requirement of producing documentary evidence to prove citizenship that is being challenged in this article.

Indirect Discrimination faced by Women in Assam

To test how the ‘neutral’ rule of demanding documentary evidence to prove lineage imposes an onerous burden on women, I analysed a total of 48 Gauhati HC cases from the year 2020. Out of the 48 cases analysed,[5] 30 cases (i.e. 62.5%) had female litigants. Within these 30, more than half (17 cases i.e. 56%) were argued on evidence,[6] and the remaining cases were challenges to ex-parte FT orders. I analysed the 17 cases which were argued on evidence, where the women litigants exhibited documents from as few as two to as many as fourteen.  Yet in all the cases except one, the documentary evidence exhibited was held to be ‘insufficient’ and the women were declared foreigners due to a failure in proving linkage. This means that although women litigants were able to exhibit documents showing the presence of their ancestors in Assam before March 25, 1971, they still failed in proving their lineage from these ancestors.

This difficulty in proving lineage is quite understandable considering the socio-economic status of female proceedees. Sexual division of labour and historical public-private divide has identified a  man’s role in the public world of politics and paid employment, and a woman’s role in caring and child-rearing at home.Thus, a man’s access to the public sphere is privileged, whereas barriers are placed on a woman’s entry to this public sphere. Consequently, women’s access to documentation used to prove linkage—such as voter lists with both their names and their parents’ names, birth certificates, school leaving certificates etc.—is abysmal.

Intersectional barriers to the access of documentary evidence

As per the National Family Health Survey-5, Assam is one of the twelve states showing a higher prevalence of child marriage than the national average. This indicates that a substantial number of Assamese women, especially in rural areas, get married and move to their matrimonial houses even before they can vote. This assumes significance because married women litigants struggle to produce any documents which link them to their father, and voter lists are one of the very few options available to litigants for this purpose. However, married women’s voter lists end up becoming worthless, since their names are reflected as ‘wife of’ (their husband) instead of ‘daughter of’ (their father) in the records.  In all the 17 cases I surveyed, the women litigants had been married for decades, with one of the cases specifically mentioning that the woman was married at puberty.

Despite these ground realities, judges still draw adverse inferences from female litigants’ inability to produce electoral rolls with both their and their parents’ names. For instance, Momila Khatun exhibited as many as 11 documents, including voter lists with her grandparents’ and parents’ names since the year 1966, and her own name in the 2017 voter list, written alongside her husband’s name. She specifically pleaded that“due to lack of knowledge and ignorance of the implications of the voting right she has not been able to enroll her name with the parents.”Yet, after twenty two years of her case referral, Momila Khatun was declared a foreigner as she was unable to show any connection with her parents through “cogent, reliable, and admissible” documents. Despite having no control over the documentation of her life and no agency on when and where her name was entered in the electoral rolls, she was heavily penalised for the same.

The discriminatory impact is exacerbated when we consider the status of women living in poverty belonging from marginalized and oppressed communities. According to the 2011 Census, 86% of Assam’s population lives in rural areas, with the female literacy rate in rural areas being 63%. Consequently, poor rural women are forced to drop out of school at a young age, resulting in the absence of their names on crucial documents such as school leaving certificates. Women’s access to such educational board certificates—which generally record the name of the student along with her parents’ names at the time of 10th/12th Standard—becomes very difficult. From the cases analysed, school certificates were exhibited in only 4 of the 17 cases, with women litigants having generally studied till primary school.[7] In only one case, Shahida Khatun was able to produce her 10th Standard HSLC admit card, showing a link between herself and her father. However, this was still held to be insufficient as the father could not depose to support her case.

For poor, rural, married Assamese women, faced with the impossibility of producing school certificates and voter lists, gaonburah certificates (issued by the village Panchayat Secretary to prove linkage between the daughter and her parents) are commonly presented to prove linkage. However, FTs often impose a higher evidentiary burden on women to produce these documents, and rarely accept them. From the cases surveyed, 12 female litigants exhibited gaonburah certificates and all of them were disregarded. FT members insist that for gaonburah certificates to be admissible (as held by the Supreme Court in Rupajan Begum v. Union of India), their contents must be proved by legal testimonies of the issuing authority i.e. the Panchayat Secretary herself. At this first stage itself, ensuring the presence of the issuing authority to depose becomes an uphill task,[8] as FTs rarely use their power to summon.[9] In the selected cases, even when the litigant was able to secure the gaonburah’s presence, their testimonies were held to be unreliable, with FTs citing non-production of contemporaneous records[10] or insufficiency of knowledge.[11] This shows how the deck is stacked against women in FT proceedings. The uncertainty around how an FT will consider a piece of evidence creates a ‘design of exclusion‘, heightening the precarious citizenship status of Assamese women.

Complete disregard of oral evidence

Lastly, even when one of the parents or a close relative comes forward to orally testify to prove the fact of linkage, their testimony is disregarded in the absence of any documentary evidence about the relationship. I identified 8 such cases in which either a father, mother, brother, or step sister deposed towards the existence of a relationship.[12] Dhiljan Nessa was able to show the presence of her father, Kitab Ali, through electoral rolls of 1966 and 1971. To prove linkage, she submitted a gaonburah certificate and her father even deposed as one of the witnesses, but his testimony was rejected. In 7 of the 8 cases, the Court held that oral testimony sans documentary support was not sufficient to prove linkage. Such a disregard of oral evidence of family members, who directly possess knowledge as to the existence of a parental relationship, goes against Indian Evidence Law. Section 50 of the Indian Evidence Act clearly states that oral evidence and conduct of someone who has “special means of knowledge” for proving the existence of a relationship between two persons is relevant and admissible. Thus, when the oral evidence tested on cross-examination is found to be credible and trustworthy, the tribunal should not insist on documentary evidence to corroborate each and every fact spoken. These basic evidentiary rules are being violated by FTs’ uninformed insistence on documentation.

In a series of identical cases challenging the FT orders, the Gauhati HC disregarded the oral testimonies of close relatives which were brought in to prove linkage in the absence of supporting documentary evidence.[13] However, another two-judge bench of the Gauhati HC insisted that all facts cannot be proved by documentary evidence alone, and that it was essential for FTs to appreciate oral evidence as well. This ratio remained lost in the chaos of FT proceedings until 2021; the bench led by Justice Kotiswar Singh in Haidar Ali v. Union of India held that it is unreasonable to expect people in adverse socio-economic conditions, especially in rural Assam, to have documents like registered birth certificates and in such cases, oral evidence may be led to prove relevant facts for citizenship claims. The bench unequivocally stated that “it is nowhere mandated that he [the litigant] must prove all these facts by documentary evidence only.” [emphases mine] The insistence on considering oral evidence has been reiterated in Md. Sujab Ali v. Union of India and Puspa Khatun v. Union of India.

The Haidar Ali judgment has not been challenged by the State; however, since these contradictory judgments on oral evidence are given by coordinate benches (benches of the same strength), the State can still cherry-pick an older judgment pre-Haidar Ali to argue against litigants. Until the matter is resolved by a full bench (of three Justices) of the Gauhati HC, FTs can continue to devise their own procedures and insist upon documentary evidence, operating in complete darkness from public scrutiny. Thus, documentary evidence has become an elusive piece of the citizenship puzzle, especially for women litigants in Assam.

Conclusion

The case laws reviewed show how the requirement of documentary evidence for proving lineage may appear to be neutral, but when considered in light of historical disadvantages and disenfranchisement faced by women, it places an undue burden upon them. Women are denied the exercise of their right to access justice because of a failure to take into account the pre-existing gender-based disadvantages that they face. When laws do not account for gendered social norms in participation in the public arena, documentation practises, literacy levels, and access to necessary legal processes, the effect of so-called neutral citizenship determination procedures is exclusionary.

The author would like to thank the Editorial Board at Parichay Blog, Arunima Nair, Arushi Gupta, Darshana Mitra, and Rupali Samuel for their suggestions and comments.

[1] Also see Ditilekha Sharma, Determination of Citizenship through Lineage in the Assam NRC is inherently exclusionary, Economic & Political Weekly (Vol 54, Issue 14), April, 2019; Amnesty International, Designed to Exclude: How India’s courts are allowing foreigners tribunals to render people stateless in Asssam (2019); Trisha Sabhapandit & Padmini Baruah, ‘Untrustworthy and unbelievable’: Women and the Quest for citizenship in Assam, Statelessness and Citizenship Review (2021); Saika Sabir, Gender Discrimination in the Indian Citizenship Regime, presented at https://law.unimelb.edu.au/news/alc/video-recordings-research-roundtable-on-citizenship-and-statelessness-in-india

[2] For the case study methodology, the author used the search word “Foreigners Act, 1946” on the SCC database, and narrowed down the results by the court (Gauhati High Court), and the time period (2020). The entire list of 49 cases accessed from SCC can be found here: https://drive.google.com/file/d/1fcSyrRMLNJuigOCjKCedUqiq-vVZS2I6/view?usp=sharing.

[3] ‘Proceedee’ is a word used commonly in the Foreigners Tribunal proceedings to refer to  the individual who is alleged to be a ‘foreigner’.  Another term that is commonly used is ‘Opposite Party’.

[4] ‘Protected characteristic’ is a term in equality law that refers to the personal characteristics, defined in the applicable law (such as race, caste, gender, age etc.), that are legally protected from discrimination.

[5] Serial no. 33 [XXX v. Union of India] has been excluded from the count since it was a suo moto writ petition dealing with decongestion of prisons and detention centres during the pandemic, and did not have any identifiable writ petitioner.

[6]  The list of 17 cases are as follows: Jarful Khatun v. Union of India, Raina Begum v. Union of India, Dhiljan nessa v. Union of India, Jayeda Begum v. Union of India, Shahida Khatun v. Union of India, Momila Khatun v. Union of India, Tapuran Bibi v. Union of India, Abia Khatun v. Union of India, Jamala Begum v. Union of India, Farida Khatun v. Union of India, Anur Bibi v. Union of India, Jahanara Begum v. Union of India, Surabala Namasudra v. Union of India, Shipa Begum v. Union of India, Amina Khatun v. Union of India, Golap Banu v. Union of India and Mohila Begum v. Union of India. Available at: https://drive.google.com/file/d/1fcSyrRMLNJuigOCjKCedUqiq-vVZS2I6/view?usp=sharing.

[7] Raina Begum v. Union of India, 2020 SCC Online Gau 4873[Class II]; Fardia Khatun v. Union of India, 2020 5 SCC Online Gau 4735 [“Class I”]; Shahida Khatun v. Union of India, 2020 SCC Online Gau 3097; Shipa Begum v. Union of India, 2020 SCC OnLine Gau 482 .

[8] Jarful Khatun v. Union of India, 2020 SCC Online Gau 3835; Tapuran Bibi v Union of India, 2020 SCC Online Gau 2977; Abia Khatun v. Union of India, 2020 SCC Online Gau 2774; Anur Bibi  v. Union of India, 2020 SCC Online Gau 1269; Surabala Namasudra v. Union of India, 2020 SCC Online Gau 473.

[9] Para 4, The Foreigners (Tribunals) Order, 1964. See Jarful Khatun v. Union of India, 2020 SCC Online Gau 3835 wherein the FT rejected the proceedee’s application to summon the Gaonburah.

[10] Dhiljan Nessa v. Union of India, 2020 SCC Online Gau 3668 [“Gaonburah issued the certificate on verbal request though he never maintained official memo number/reference to issue such type of certificate”];

[11] Golap Banu v. Union of India, 2020 SCC Online Gau 202 [“He (Gaonburah) issued the Certificate only on the basis of personal knowledge and not from any records. DW-2 stated that he has known the petitioner when she was about 10 years old”]; Jahanara Begum v. Union of India, 2020 SCC Online Gau 1393 [“Gaonburah admitted to the fact that he does not know the father of the petitioner and further that the petitioner is known to him only since 1996, which is much after the cut-off date of 25.03.1971”]; Amina Khatun v. Union of India, 2020 SCC Online Gau 4191.

[12] Jarful Khatun v. Union of India [brother], Raina Begum v. Union of India [mother], Dhiljan Nessa v. Union of India [Father], Tapuran Bibi v. Union of India [Brother], Jamala Begum v. Union of India [Brother], Farida Khatun v. Union of India [Brother], Jahanara Begum v. Union of India [Brother], Anur Bibi v. Union of India [Step sister].

[13] Rahima Khatun v. Union of India, 2021 SCC Online Gau `106, ¶6; Jarful Khatun v. Union of India, 2020 SCC OnLine Gau 3835, ¶6; Tapuran Bibi v. Union of India, 2020 SCC OnLine Gau 2977, ¶6; Anur Bibi v. Union of India 2020 SCC OnLine Gau 1269; Jahanara Bibi v. Union of India, 2020 SCC OnLine Gau 1269, ¶6. Two-judge benches led by J. Manojit Bhuyyan.

The CAA and Article 15 – A Thought Experiment

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John Sebastian is a Ph.D. candidate at Melbourne Law School and Assistant Professor at Jindal Global Law School. His research interests include constitutional law, criminal law, and legal and political theory. This blog post is a summary of an argument developed in greater detail in an article in the Socio-Legal Review, which can be accessed here.

Introduction

There is little doubt that the Citizenship (Amendment) Act, 2019 (‘CAA’) makes a classification on the basis of religion—it explicitly mentions that its benefits are for persons ‘belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communit[ies] from Afghanistan, Bangladesh or Pakistan.’ It would prima facie, therefore, seem to breach the requirements of Article 15(1) of the Indian Constitution, which prohibits the State from discriminating on the ground of religion, amongst other grounds such as race, caste, sex, and place of birth. However, this is often countered by the argument that Article 15 specifically applies to citizens i.e., the persons who are eligible for citizenship under the CAA are not currently citizens, and therefore, cannot claim rights based on Article 15. In my article I interrogate this claim, and argue that due to the inherent nature of the CAA as a law which determines the conditions of entry into the political community of citizens, Article 15 should apply to it. In doing so, I also analyse the scope of the anti-discrimination guarantee in Article 15, demonstrating how the application of Article 15 impacts the constitutional analysis (and validity) of the CAA.

Situating the Article 15 Argument

The specification of certain grounds of discrimination as prohibited makes Article 15 a uniquely powerful tool in discrimination law. At the very least, as Khaitan notes, courts are expected to subject laws which classify or distinguish between citizens on any of the grounds mentioned in Article 15 to a higher standard of scrutiny when compared to other classifications. A claim that Article 15 applies to the CAA, hence, implies a more rigorous standard of scrutiny by the court, which in turn raises the justificatory burden on the state.

Of course, Article 15 is only one instantiation of the principles in the equality code within the Indian Constitution, and several other principles of equality—notably Article 14—are not conditional upon citizenship. Hence, it has rightly been argued by many that the CAA breaches the reasonable classification and manifest arbitrariness tests within Article 14. In brief, the state argues that the CAA aims to enable the grant of citizenship to those who have been forced to seek shelter in India due to religious persecution. It justifies its choice of countries—Afghanistan, Bangladesh and Pakistan—on the grounds that these countries are in India’s neighbourhood and have an official state religion (Islam), which leads to the persecuted religious minorities mentioned in the CAA seeking refuge in India. The CAA has, however, been challenged as a violation of Article 14’s guarantee of equality due to its inapplicability to other equally persecuted groups such as (a) other religious minorities within the three countries specified, (b) those persecuted for non-religious reasons, (c) those persecuted in other countries in our neighbourhood, and (d) those who arrive in India after the CAA’s cut-off date of 31 December 2014.

The state, in response to these challenges, has repeatedly claimed that the scope of judicial review over the choice of countries and communities is limited. It further argues that it is up to the legislature to decide whether to enact a law which is all-embracing, or to focus on certain groups alone. The claim is, therefore, that the CAA meets the threshold requirements of Article 14 and that the judiciary’s ability to review the law is limited. Of course, those who challenge the constitutionality of the CAA (correctly) argue that the unequal impact of the law is substantial enough to be a violation of Article 14 even under the reasonable classification test. However, if Article 15 applies, the court will require the state to produce stronger reasons and evidence to explain why it could not include other equally persecuted groups within the ambit of the CAA. The higher scrutiny of Article 15 requires less deference to be shown to ‘legislative wisdom,’ and will require the state to go beyond its bare assertions of ‘foreign policy’ and ‘reasons of state’ in defending the CAA. Essentially, it will enable courts to demand greater justification from the state, failing which the law will be declared unconstitutional.

It has also been argued that, even within Article 14, courts should apply a relatively higher standard of scrutiny to the CAA since the interests involved—the very ‘right to have rights’—are sufficiently serious in nature. Further, it has been strongly argued by Ahmed that the CAA breaches the requirements of Article 15’s ‘anti-subordination’ principle due to its unique signaling value that lowers the status of Muslim citizens in the polity. As a caveat, my arguments do not detract from but rather add to these other arguments about the correct standard of review to be applied to the CAA.

In addition, I limit myself to the argument that Article 15 ought to apply to the CAA, and do not further analyse whether, once Article 15 applies, the CAA would or would not meet its higher threshold of justification. That would be out of the scope of this piece. However, as mentioned above, many have cogently argued that the CAA fails to meet even the relatively lower requirements of Article 14.  These very arguments will apply, even more forcefully, once the CAA is subjected to the higher scrutiny of Article 15.

Article 15 and Conditions of Entry – Nergesh Meerza and Navtej Johar

In Air India v Nergesh Meerza, certain service conditions of Air India, which discriminated between Air Hostesses (who were female) and Assistant Flight Pursers (who were male), were challenged by many Air Hostesses. Among the many grounds of challenge was a claim that the classification, being based on sex, was in violation of Article 15(1). The Supreme Court negated this claim, observing that Air Hostesses and Assistant Flight Pursers constituted two separate classes which were ‘governed by [a] different set of rules, regulations and conditions of service.’ Being separate categories of employment or cadres, they could not be compared (much like apples and oranges, presumably). In addition, the court observed that Article 15(1) could not apply to this case as that prohibited discrimination only on the grounds of sex, whereas this was a classification on the basis of sex and employment cadre (though the Court itself noted that the functions discharged by Air Hostesses and Assistant Flight Pursers were the same). This reasoning, termed the ‘sex-plus’ argument, has been rightly criticised by many.

However, one of the criticisms of Nergesh Meerza throws a sharp light on the perils of ignoring conditions of entry into a group in an analysis of discrimination. In Navtej Singh Johar, Chandrachud J. observes that one of the many flaws in the reasoning of Nergesh Meerza is that the judgment failed to enquire as to whether the ‘initial classification’ itself was based on sex, as women could only become Air Hostesses and not Assistant Flight Pursers i.e. ‘the very constitution of the cadre was based on sex’ [emphasis mine].      

In other words, it might be logically correct to claim that within the classes of Air Hostess and Assistant Flight Pursers, respectively, there is no discrimination on the grounds of sex, since all persons within the category of ‘Air Hostesses’ are being subjected to the same treatment (since, by default, they all are women). However, as correctly observed in Navtej Singh Johar, the condition of entry into the class of Air Hostesses was itself discriminatory, and this, in turn, coloured the entire class with the vice of discrimination, even if, after entry into the class in question, there is no further discrimination. This makes sense—otherwise, Article 15 could be completely subverted by the creation of groups with different entry conditions based on the very grounds it prohibits, as is demonstrated in Nergesh Meerza.

I term this the ‘conditions of entry principle’ (‘COE principle’). The COE principle states that when a law prohibits discrimination on a certain ground within a group, then it also necessarily prohibits discrimination on the same ground in the determination of who can be a member of the group in question. The COE principle is, in many ways, a manifestation of the commonly-accepted principle of the Supreme Court, that ‘the State cannot do indirectly what it cannot do directly.’ If the state is prohibited from discriminating on certain grounds, it cannot subvert this prohibition through indirect means. In the next section, I apply and justify the application of the COE principle to the CAA.

Application to the CAA – A Thought Experiment

The CAA, while not applying to current citizens, is a law which determines who eventually constitutes the class of citizens, since it regulates the conditions of entry for a person who seeks Indian citizenship. Extending the logic of Chandrachud J., I argue that to not apply Article 15 to the CAA would be to repeat the mistakes of the court in the Nergesh Meerza case. It is important to note that Navtej Johar does not formally overrule Nergesh Meerza since the other judgments in Navtej Johar do not mention the case. However, for reasons I explore in greater detail in my full article, I contend that while Nergesh Meerza does not apply to the CAA anyway, Justice Chandrachud’s judgment in Navtej Johar nevertheless demonstrates strong reasons in favour of the applicability of Article 15 to the CAA.    

In order to draw a clearer picture, let us consider an example: imagine that Parliament passes a New Citizenship Act (‘NCA’), which recognises all those who are currently Indian citizens as citizens under the NCA. However, the NCA has a provision which states that only male children born after the commencement of the Act will be entitled to citizenship. As a result, females or persons of other genders born after the commencement of the NCA will not be granted citizenship. Now, I assume that most of us would find such a law to be abhorrent. Here, it is important to interrogate the reasons why we would consider this law as unconscionable, and how it sheds light on the CAA.

In defence of the NCA, it might be argued that this is not a law which discriminates against citizens on the grounds of sex as prohibited under Article 15 of the Constitution, as the persons it covers, i.e. children who have not been born, are clearly not citizens. This law, much like the CAA, deals with persons who are not yet citizens, and more importantly, with the qualifications through which citizenship can be gained. Does this mean that this law will not be subject to the scrutiny of Article 15? Surely not—as the implementation of such a law, over time, would lead to a situation where only males are citizens, rendering nugatory the entire purpose of the prohibition of discrimination on the grounds of sex in Article 15(1). In purely formal terms, of course, this law does not discriminate between persons who currently are citizens on the grounds of sex. In fact, adopting such a line of reasoning will eventually lead to a situation where discrimination on the grounds of sex between citizens will become a logical impossibility since there will be no non-male citizens left after all those in the current generation pass away. But such an interpretation can clearly reduce the guarantee of Article 15(1) to a hollow shell.

The Difference between Grounds of Discrimination and the Subject of Discrimination

It might be argued, to the contrary, that the distinction between the NCA and the CAA is that children in question (in the NCA) will be born to parents who are currently citizens of the country and thereby, discriminates against them. However, the discrimination in question, while being on the grounds of sex, is not on the grounds of the sex of the parents i.e. those who are currently citizens. A single father (a citizen) of a girl child (not a citizen) is not discriminated against because of his sex. Therefore, it could be countered, this again is not discrimination between citizens on the grounds of their sex. It is pertinent to underline that this is not a trivial distinction, and is precisely the distinction advanced by those who support the idea that Article 15 does not apply to the CAA i.e., they do not claim that the CAA does not classify on the grounds of religion (which it obviously does), but rather that it does not classify on the grounds of the religion of those who are currently citizens. In other words, their argument is that Article 15 has two conditions: (a) that the discrimination be on the grounds specified, and (b) that the subject of the discrimination be someone who is currently a citizen, and not someone who potentially can be.

My NCA example clearly brings out the flaws of this reasoning advanced commonly in defence of the CAA. Even though, formally, the NCA (a) does not discriminate between those who are currently citizens on the grounds of sex, and (b) only discriminates between those who can potentially be citizens, its effects could be devastating and undermines the very purpose of Article 15. A purely formal construction of Article 15 would lead to absurd results. Entry conditions are, hence, clearly relevant to Article 15.

Anti-subordination and the Question of Numbers

Let us continue with the NCA example. Another way in which the NCA violates Article 15 is that it does in fact affect current citizens who are women (and those of other non-male genders). Even though their citizenship continues to be recognised, the NCA would send a message to non-male citizens that persons who share their gender are not equally worthy of citizenship as men. The law signals that a fundamental part of the identity of women is not equally worthy of recognition in the future generation. This is precisely the ‘anti-subordination’ argument proposed by Ahmed who argues that Article 15 would accordingly apply to laws like the CAA which determine conditions of entry into the polity. This essay furthers Ahmed’s argument by claiming that the violation of Article 15 stems not just from its impact on current citizens, but also from its ability to change the nature of the body politic itself.

Of course, supporters of the CAA may argue that it only deals with a minor number of persons, and does not substantially change the nature of the polity the same way as my NCA example does i.e. there still will be Muslim citizens in India after the CAA. But any such assertion ignores the fundamental premise of my argument – that Article 15 is relevant to any law which determines who is to be a citizen. We can tweak the example of my NCA so that it now states that, while all males born after its commencement will be citizens, only one in two non-male persons born after its commencement will be citizens. This new version of the NCA (‘NCA 2.0’) clearly also suffers from the same flaws as the first NCA. It cannot be claimed that, just because now there will be some women in the polity, NCA 2.0 need not meet the requirements of Article 15. The nature of the group composed of citizens will still be disproportionately men due to the conditions in NCA 2.0, and not identifying this as discrimination under Article 15 will suffer from the same flaws as in my discussion above.

It is important to note that this interpretation does not reduce the word ‘citizen’ in Article 15 to a nullity. My argument will only apply to a law which lays down the conditions for citizenship and thereby affects the composition of the citizenry as a consequence. As I discuss in my full article, a law which, for example, classifies non-citizens on the grounds mentioned in Article 15 for some other purpose,     while keeping intact their status as non-citizens, would not be affected by my argument. This does not, however, mean that such a law will be valid, as there might be other constitutional principles at play—such as Article 25 and the general principle of secularism—but just that it is outside the scope of this piece. Additionally, my full article also discusses the manner in which my argument would deal with laws which determine citizenship by place of birth. Several examples can easily be constructed to further demonstrate my argument. Imagine a law which specifically grants citizenship to only white persons who immigrate to India. Imagine alternatively if the Citizenship Act, when it was passed in 1955, recognised only upper caste men as citizens. The underlying problem with such laws is the same, which implies that conditions of entry matter to Article 15.

Conclusion

Fundamentally, citizenship is a bundle of many rights including the rights to share in the common resources of a community. If laws based on the grounds prohibited in Article 15 can alter who can share these resources and exercise these rights, without being subjected to its heightened scrutiny, it would deprive that great anti-discrimination safeguard of much of its force. Much like Article 14 has been liberated of the constraints of the formalistic reasonable classification test in recent case law, it is time for us to liberate Article 15 from formalistic arguments which take away from its essence as a safeguard, for both those who are citizens as well as the many who will become citizens in the future.