TEXTBOOKS ON THE INDIAN CONSTITUTION state that the crucial test to determine the constitutionality of any legal provision is that all persons subjected to it are treated alike under like circumstances and conditions. The corollary of this test is that equals have to be treated equally and unequals ought not to be treated equally. Thus, Article 14 of the Constitution, which states that the state shall not deny any person equality before the law or equal protection of the laws within the territory of India, forbids discrimination against any class of persons. But it does not bar classification of persons for the purposes of implementing the right of equality guaranteed by it.
For permissible classification, the Constitution lays down two conditions: one, it must be founded on an intelligible differentia, which distinguishes persons or things that are grouped together from those left out of the group; and two, that differentia must have a rational relation to the object sought to be achieved by the statute in question. In other words, there must be a conection between the basis of classification and the object of the Act under consideration.
The CAB seeks to turn this well-recognised principle of the Constitution upside down. Clause (b) under subsection (1) of Section 2 of the Citizenship Act, 1955, defines an “illegal immigrant” as follows:
“‘Illegal immigrant’ means a foreigner who has entered into India (i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or (ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time.”
The CAB inserts a proviso to qualify this definition. The proviso says:
This story is from the January 3, 2020 edition of FRONTLINE.
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This story is from the January 3, 2020 edition of FRONTLINE.
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