ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
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Test of Judicial Independence

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This is in response to the editorial “Interrogating the Citizenship (Amendment) Bill” (EPW, 14 December 2019). It has rightly identified the politics behind the destruction of the social fabric in present times by responding to the passage of an insidious legislation. This bill marks a turning point in the history of India, sending out a clear message that the nation is only for the majority community. It has signalled the victory of Hindutva over the Constitution enacted under the guidance of chief architect B R Ambedkar and is violative of the principle of the basic structure laid out in the famous landmark judgment of Kesavananda Bharati v State of Kerala (1973).

The whole idea behind the discussion of the Right to Equality (Article 14) in the context of the heated debate regarding the Citizenship (Amendment) Bill, 2019 is to find out whether it passes the test of reasonable classification or not. To start with its applicability, we must know that Article 14 is applied to both citizens as well as non-citizens of this country. This article has two connotations, that is, equality before law (borrowed from the British idea of rule of law) and equal protection of law (borrowed from the 14th Amendment of the United States Constitution). Here, the former expression of law is used in a generic and philosophical sense (normative laws), while the latter speaks for specific laws. So, the Citizenship (Amendment) Act (CAA) is a special law, and therefore, equal protection of law is in question. Its passage in Parliament is against the non-discriminatory norms and secular credentials of the Indian Constitution.

The Supreme Court, in the case of Kedar Nath Bajoria v State of West Bengal (1953), has taken a stand by stating that equal protection of laws guaranteed by Article 14 of the Constitution does not mean that all the laws must be in general character and universal in application, and that the state is no longer to have the power of distinguishing and classifying persons or things for the purposes of legislation. Therefore, it is required in the special legislation to have a legislative classification without any arbitrariness, but it should be based on an intelligible principle having a reasonable relation to the objective that the legislature seeks to attain. However, the classification made in the present CAA is contrary to this said principle. Moreover, in the Chithra Ghose v Union of India (1969) case, the Supreme Court has explicitly said that any classification based on language, religion, race, sex or place of birth is not reasonable classification. And therefore, this classification which is based on religion must fall.

Time and again, it is the test of the apex court to protect the sanctity of its law of the land by giving a just and rational interpretation to the statute in question. When the Court decides to hear the petitions of the CAA, it must understand that the term “persecution of minorities” is not a phenomenon that is prevalent only in the Islamic countries, as the government is trying to establish. If we are giving special treatment to the refugees of the three nations mentioned in the CAA, then refugees from other neighbouring countries too should deserve the same consideration. The expression “unity and integrity of the nation” must be understood in its entirety in order to know the very purpose of its existence. Drafting rules and implementing regulations that are not practical and are in conflict with the very law of the land certainly erode the secular fabric of our democracy, on which it zealously stands today.

Rajesh Raj

Buxar

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