CAA & the Doctrine of under-inclusivity: Can’t do little because you didn’t do enough?

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Recently, the Supreme Court of India agreed to list a batch of petitions challenging the constitutionality of the Citizenship Amendment Act, 2019 (for short “CAA”) to hear the parties on whether there should be an interim stay on the legislation. This has brought the issue regarding CAA’s validity into sharp focus, particularly its alleged conflict with Article 14 of the Constitution. While several manifestations of Article 14 discrimination argument have been developed to question CAA’s validity, the principal objection that has been at the front and center of the debate is that the legislation is underinclusive. This article explains why this under-inclusivity argument must fail.

CAA’s under-inclusivity, it has been argued, stems from the fact that while the CAA offers protection and fast track citizenship to certain religiously persecuted communities from Afghanistan, Bangladesh, and Pakistan (for short “ABP”), it does not extend the same protection to other communities facing persecution in these countries, as well as countries sharing its borders with India, due to their faith, sex, or race (for short “non-protected communities”).

To drive this point home, the makers of the under-inclusivity argument rely on CAA’s Statement of Objects and Reasons, which is to protect communities facing persecution in ABP due to their religion. Given the CAA’s stated purpose, they argue that the exclusion of non-protected communities lacks any reasonable justification and is, therefore, violative of Article 14 of the Constitution. 

The argument that a law is discriminatory because it is underinclusive has long been a staple of reasoning in constitutional law. In the Indian context, Charanjit Lal Chowdhury v. Union of India, 1950 INSC 36, is one of the first cases to deal with the doctrine of under-inclusivity. In this case, the Supreme Court was confronted with a challenge to a legislation that was enacted to regulate the management and administration of the Sholapur Spinning & Weaving Company (for short “the Company”). The most striking aspect of the case was that the impugned legislation had singled out the Company and its shareholders to strip them of the rights they previously held in managing the company’s affairs. Because the legislation at issue specifically targeted this single Company and its shareholders, the petitioners argued that the law contravened Article 14 of the Constitution as it impermissibly left out various other textile companies in India, which stood in a similar situation as the Company.  

The majority of the Court, without hesitation, dismissed this argument. In doin so, the majority recognised an extremely vital constitutional principle, that in determining the subject matter of its laws, the legislature enjoys a wide discretion. This “wide [legislative] discretion” attributes the law with a presumption of constitutionality in the sense that the court must uphold the law as long as there are “reasonable grounds” to do so. To draw this presumption, the Court ruled that “reasonable grounds” would encompass all facts which can possibly be “imagine[d]” or “conceive[d]” to justify a distinctive treatment meted out to the company. Finding that such a basis existed, it rejected the challenge to the impugned legislation on grounds of Article 14.

In constitutional law, this standard for judicial review of legislation accepted in Charanjit Lal Chowdhury is commonly referred to as “conceivable basis” review. This standard suggests that if the Court can imagine any “hypothetical” rationale for the legislative intervention, the legislation must be upheld. At the same time, it demands that those who seek to challenge the presumption of constitutionality must refute every conceivable or imaginable reason that supports the law. 

The “conceivable basis” review has now become well-established principle of our equal protection jurisprudence. For long, it has given legislatures the breathing space to “recognize degrees of harm” and “confine its restrictions [or benefits] to those cases where the need is deemed to be the clearest”. Subsequent cases have affirmatively recognized this legislative freedom in matters of classification (See, herehere, and here). And the Electoral Bonds Case, 2024 INSC 113, is the most recent iteration of this principle.  

​In the context of CAA, the rationale for the legislative classification for the purpose of expediting the grant of citizenship is two-fold: Firstly, the selection of ABP, to the exclusion of other countries sharing borders with India, is based on the fact that these chosen countries have an official state religion. Secondly, the rationale behind selecting certain communities to benefit from the CAA is that they constitute a religious minority in these countries, due to which they have suffered religious persecution, either at the hands of state or non-state actors. The classification, therefore, has a clear and reasonably “conceivable basis”. Imbedded in this two-fold classification is the legislative assumption that there is something “peculiar” about the communities protected by the CAA which warrants a differential treatment compared to other communities who might have faced persecution in these countries of a different degree and kind. And this assumption, it is contended, is as valid as the contrary assumption made by critics of the CAA that the circumstances of communities protected by the CAA are “similar” or “identical” to those of non-protected communities.

In any event, what these conceived “peculiarities” are, need not be spelled out by the legislature along perfect lines as the classification can be justified on the basis of broad generalisations. As explained before, these peculiarities may be the subject matter of rational speculation or imagination. This means they could also be justified by reference to reasons other than those which motivated the legislature at the time of enacting the statute. As Clarence Thomas, J., explained in FCC v. Beach Communications, Inc., 508 U.S. 307 (1993): 

“…because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. United States Railroad Retirement Bd. v. Fritz, supra, at 179. See Flemming v. Nestor, 363 U. S. 603, 612 (1960). Thus, the absence of “legislative facts” explaining the distinction “[o]n the record,” 294 U. S. App. D. C., at 389, 959 F. 2d, at 987, has no significance in rational-basis analysis. See Nordlinger v. Hahn, 505 U. S. 1, 15 (1992) (equal protection “does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification”). In other words, a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”

What the above boils down to is this: CAA’s application to a narrowly defined category of specified communities, while excluding others, may be justified on the basis of rationally conceived or imagined bases, even if they find no support infacts or empirical evidence. These justifications could either be those provided in the CAA’s Statement of Object and Reasons or any other justification that is rationally imagined or conceived.

These arguments fairly address and account for the challenge of under-inclusivity. However, in recent years, the Court has started embracing a more heightened form of judicial review. Some might argue that CAA does not pass muster under this heightened standard as the exclusion of non-protected communities creates serious “doubts about whether the government is in fact pursuing the interest it invokes”. In this regard, cases from the Supreme Court of the United States are quite instructive in understanding on whether a legislation isunder-inclusive. Although most of these cases have been rendered in the context of the Free Speech Clause and viewpoint discrimination, they are still significant for understanding discrimination in the context of equal protection. After all, “First Amendment is a kind of a Equal Protection for ideas” (Williams Yulee v. Florida Bar, 575 U.S. 433, Scalia, J. dissenting).

Typically, a legislative classification is underinclusive, when the under-inclusion is substantial (See, Church of LukumiBabalu Aye, Inc. v. Hialeah, 508 U. S. 520.). In other words, it must be “hopelessly” (See, Reed v. Town of Gilbert, 135 S. Ct. 2218) or “wildly” underinclusive (See, Williams Yulee v. Florida Bar, 575 U.S. 433). In this sense, under-inclusivity can violate the Constitution “only when the State decides to regulate one aspect of the problem, while declining to address a different aspect of the problem that affects its stated interest in a comparable way”. This means that, an under-inclusion would prove to be fatal, when the unregulated activity or the categories left out from the classification undermine or endanger the asserted state interest in a similar or greater degree.  

CAA, however, poses no concern that under-inclusivity implicates. First, the CAA extends its protection to almost every religious minority, which can be found in ABP, upon the fulfilment of certain terms and conditions. Therefore, by no measure, it can be claimed that the CAA is “hopelessly” or “wildly” underinclusive. The implied exclusion of certainreligious minorities from CAA, for example, the Ahmadis could be for the reason that the precise number of Ahmadis who fled Pakistan on account of persecution isn’t fully known (See, here). The lack of data on the Ahmadis might give rise to issues of identification and administration. Hence, in the process of delimiting the benefits of the CAA, it may be that Parliament thought that the objectives of CAA would be better fulfilled,without undue cost, by the inclusion of the specified communities, in preference to others.  

Quite apart from the specific cases of exclusion, there is a larger foreign policy argument that must be taken into account while adjudging the validity of the CAA. As a general matter, the conduct of foreign affairs involves hard policy choices. These policy choices, which are dictated by various considerations, may have significant influence on the classifications and distinctions a sovereign makes while regulating the conditions of entry or grant of citizenship to aliens. As the Supreme Court of United States noted in Fiallo v. Bell, 430 U.S. 787, “Congress has broad powers [over matters of immigration and naturalisation] to determine which classes of aliens may enter the country” and decisions in these mattersimplicate “relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary”. Based on this reasoning, the Court held that regardless of how differently the legislature might have drawn the lines for the purpose of giving preferential immigration status to some, while denying it to others, its own prior cases made clear that such issues fall solely in the congressional domain and the court has no power to second guess the “political judgment” of the Congress. Even Fiallo’s dissent took no issue with majority’s proposition and held that “political judgments by Congress as to which foreigners may enter and which may not deserve deference from the judiciary”.

In matters related to citizenship, Indian courts are of the same view as their American counterparts. In Izhar Ahmad v. Union of India, a five-judge bench of the Supreme Court considered the scope of law making power enjoyed by the Parliament under Article 11 of the Constitution in matters related to citizenship. There, challenge was laid to Section 9(2) of the Citizenship Act, 1955, which conferred power on the Central Government to terminate the Indian citizenship of a person, who acquires a foreign citizenship after the commencement of the Constitution. It was argued that Section 9(2) is repugnant to the provisions of Part II of the Constitution, including Article 11. Rejecting this contention, the majority heldthat the powers conferred on the Parliament under Article 11 are of an extremely wide nature and are “not fettered by the provisions of Articles 5 to 10 of Part II of the Constitution”. Indeed, in the majority’s opinion, these powers were held to be so wide that no violation of Article 19 could be laid against a law enacted in exercise of these powers to terminate the citizenship of a person. Hence, like Congress’ broad powers over naturalisation and immigration in the United States, Izhar Ahmad affirms the broad sweep of Article 11 in matters pertaining to grant and termination of citizenship. Most notably,this interpretation aligns with the intent of the constitutional framers, who envisioned Article 11 of the Constitution as granting Parliament the wide breadth to create “altogether a new law embodying new principles [of citizenship].”

Tied to the issue of powers enjoyed by the Parliament under Article 11 is the question regarding judicial review over issues of granting citizenship to foreigners when no legislations exists. As explained before, grant of citizenship, especially when no legislation exists, is a “political question” to be decided by political branches of the government.  When “political questions” are involved, the Supreme Court of India has consistently held that judicial oversight over such matters is extremely limited, and deference must be paid to the wisdom of the political branches. (See, Rosiline George v. Union of India, (1994) 2 SCC 80, holding that “[w]hether a treaty has been terminated by the State is essentially a political question. The governmental action in respect to it must be regarded as of controlling importance”; Marie-Emmanuelle, Verhoeven v. Union of India, (2016) 6 SCC 456 holding that “…the reason for terminating an extradition treaty would be a political question, so also whether India should enter into an extradition treaty with a foreign State…”). As explained above, when Parliament exercises its expansive law making powers under Article 11, the issue of whether a person or group of persons should be included or excluded for the purpose of citizenship is a “political question”. Being a “political question”, judicial control over this area becomes limited and, wisdom of the political branches receives “controlling importance”. 

The upshot of the above discussion is that the Parliament’s decision to exclude certain non-protected communities from the CAA represents a “political judgment”. As explained before, under-inclusivity is lethal when the state interest asserted is endangered by the activities or groups left unregulated, or when the benefits provided by the law are denied to a certain person or group of persons. But when political judgments are at stake, there are no judicially manageable and discoverable standards for a court to assess them. Hence, just as parliamentary judgment on “political questions” is given significant weight, the government’s assertion that its stated interests are not comparably affected by excluding non-protected communities, such as the Parsis from Iran, should also be given considerable weight during the under-inclusivity inquiry. In any event, it is hard to understand how legislation like the CAA, which benefits rather than disadvantage certain communities, could be perceived as undermining the stated goal of integrating persecuted communities with full rights attached to Indian citizenship into the Indian polity, merely because others have been excluded.

Before concluding, there is one final point to be made regarding the level of scrutiny applicable to the CAA-classification. It has been argued that a lower standard of review is applicable only when the nature of the law at issue is an economic one. CAA, by contrast, is a law which affects a bunch of civil and human rights and, must therefore, be subject to a heightened scrutiny. This argument is obviously misplaced for the simple reason that the predicate for the application of a heightened scrutiny is that the law at issue must affect the rights of the citizens. CAA, on its face, does not implicate the rights of any citizen. It is a special law enacted to address a unique problem related to a narrow category of immigrants who have been residing in India for several years. Recently, in Anushka Rengunthwar & Ors. v. Union of India, the Supreme Court of India acknowledged this distinction while addressing a challenge to a notification issued by the Government of India under Section 7B of the Citizenship Act, 1955 which took away the right of OCI cardholders, who are foreigners as per the Foreigners Act, to compete for seats reserved for Indian citizens in medical entrance examinations. Noting this clear distinction between citizens and non-citizens, the Court declined to apply the doctrine of non-retrogression expounded in Navtej Singh Johar to the issues at hand mainly in light of the fact that Navtej Singh Johar implicated the rights of the citizens.

​Drawing from the aforesaid constitutional principles, the argument that CAA violates Article 14 because it is under-inclusive may not be sustainable. The Court must weigh all the arguments directed at under-inclusivity in the proper context of the applicable standard of review and the broad powers exercised by the Parliament over citizenship related concerns. More importantly, the Court should be mindful that asking the government to justify the law on the basis of heightened scrutiny “may lead it to refrain from acting at all” in the future on these matters (See, Cleburne v. Cleburne Living Center, Inc., 473 US 432).


Opinions of the Author are personal