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JUDGING THE CONSTITUTIONAL VALIDITY OF THE CAA, 2019 ON THE TOUCHSTONE OF CONSTITUTIONAL CONVENTIONS

Updated: Jul 29

[Authored by Jehosh Paul, a 5th Year Law Student at School of Law, CHRIST (Deemed to be University), Bangalore.]

The Citizenship Amendment Act, 2019 has been widely contested and criticized for being violative of Article 14 – Right to Equality, Article 25 – Right to equal freedom of conscience and religion and the Basic Structure Doctrine of the Indian Constitution. These are some of the grounds on which the Citizenship Amendment Act is contested to be unconstitutional. However, this article contests that the Citizenship Amendment Act is unconstitutional for an another equally significant reason as well, i.e., for breaching a Constitutional Convention. Sir A.V Dicey described constitutional conventions as those understandings, habits or practices which, regulates the conduct of the sovereign power. This means that the constitutional conventions are unwritten rules that inhibit or constrain the actions of the sovereign power.


When the Indian Parliament legislated the Citizenship Amendment Act, 2019 it breached a core constitutional convention, that is the practice of not mentioning religious markers while legislating the eligibility criteria for granting citizenship. The idea of employing religious markers in citizenship laws have been previously debated, contested and rejected by the Constituent Assembly as well as the preceding Lok Sabha Assemblies. Part I of the article establishes the presence of a binding constitutional convention through the Jennings test and Part II sheds light on the precedents set by Supreme Court of India which makes constitutional convention a valid ground for quashing a law as unconstitutional.


Sir Ivor Jennings, an eminent jurist, in his book The Law and the Constitution (1959), laid down the three-pronged test to determine if there exists an established constitutional convention. In the words of Sir Jennings, “We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?”


Test I: What are the Precedents?


To answer this question, one has to revisit Part II of the Constitution of India, 1950 as well as the Citizenship Act 1955 and the string of six amendments till date to establish that there exists a precedent of Parliament strictly rejecting religious markers while formulating citizenship laws.

1) Citizenship: Part II of the Constitution of India, 1950

Part II of the Constitution of India which lays down the grundnorm for Citizenship law in India encapsulates in itself a two year long Constituent Assembly debates wherein the idea of using religious markers for determining citizenship was thoroughly debated and rejected by a majority. Thereby, the Constituent Assembly laid down the foundation stone for Indian citizenship law which would be based on civic rather than religious markers and would conform itself to the core constitutional obligation of secularism.


2) The Citizenship Act, 1955

The Citizenship Act in 1955 provided for acquisition and termination of Indian citizenship based on civic markers and there were no traces of religious markers for acquiring or terminating Indian citizenship.


3) The string of amendments to Citizenship Act, 1955

The Citizenship Act, 1955 was amended 6 times but the amendments which altered the eligibility criteria for citizenship were in the year 1985 and 2004. The Citizenship (Amendment) Act, 1985 declared all persons in India before 1966 as citizens, migrants entering India between 1966 and 1971 had to wait for 10 years to apply for citizenship and those entering Indian territory after 1971 were illegal immigrants. Citizenship (Amendment) Act, 2004 declared that even if a person was born in the territory of India, he would still not be eligible for gaining citizenship by birth if one of the parents were to be an illegal migrant. However, there was no mention of religious markers at all.


Therefore, there is nothing in the Constitution of India 1950, Citizenship Act 1955 and string of amendments to the Citizenship Act dealing with the eligibility criteria for conferring citizenship or other general amendments to Citizenship Act that employed religious markers in dealing with the citizenship law, thereby setting a precedent of not using religious markers in citizenship laws.

Hence, Test I which questions that what are the precedents is answered above.


Test II: Did the actors in the precedents believe that they were bound by a rule?


In order to answer if the Parliament believed that it was bound by the rule of not employing religious markers while legislating the Citizenship laws, one has to revisit the grand constitutional values of secularism and non-discrimination. Article 14 coupled with the secular spirt of the Constitution laid down express as well as implied restrictions or constrains upon the Parliament from using religious markers.

Hence, Test II which questions that whether the actors in the precedents i.e., the Parliament in this case believe that they are bound by a rule to not use religious markers is answered in the affirmative.


Test III: Is there a reason for the rule?


The reason for the rule of Parliament not employing religious markers while legislating citizenship laws were the Constituent Assembly debates wherein the employment of religious markers was contested and expressly rejected. Further, the non-employment of religious markers must also be conceived as an integral part of that Constitution which endorses grand principles such as republicanism, secularism, equality, non-discrimination and inclusion.

Hence, Test III which questions that whether there is a reason for the Parliament to not employ religious markers for legislating citizenship laws is answered.


Therefore, on the touchstone of Jennings Test, it is established that there exists a valid constitutional convention which restricts or constrains the Parliament from using religious markers while legislating citizenship laws.


The only question that now begs to be answered is that whether the violation of a Constitutional Convention is a valid reason in the eyes of law to be struck down as unconstitutional. The article shall establish the same by elucidating the view taken by the Hon’ble Supreme Court of India on constitutional conventions as a touchstone to strike down laws as unconstitutional and what are the precedents set by the Hon’ble Supreme Court.


In the case of Supreme Court Advocates on Record Association v. Union of India (1993), the view taken by the Supreme Court while striking down the judicial appointments by the Executive without the concurrence of the Chief Justice on grounds of constitutional conventions was that “Once it is established that in court of law that a particular convention exists and constitutional functionaries are following the same as a binding precedent then there is no justification to deny such as convention the status of law... if someone comes to court seeking to enforce a convention, then the only question for the court is whether the convention exists. If it does, then the convention becomes a part of the ‘constitutional law’ of the land and can be enforced in the like manner.”


In the case of Madras Bar Association v. Union of India (2015), The National Tax Tribunal Act, 2005 had established National Company Law Tribunal and National Company Law Appellate Tribunal but the hitch here was that the eligibility criteria, appointment procedure of the President of the aforesaid tribunals did not meet the judicial standards. The Supreme Court held that the ‘essential characteristics of courts’ were an established constitutional convention and since the Act violated the constitutional convention it will be struck down.


Lastly, in the case of Supreme Court Advocates on Record Association v. Union of India (2016), the Constitution (Ninety Ninth) Amendment Act, 2014 had devised a different mechanism for judicial appointments to the higher judiciary. The mechanism devised had effectively subverted judicial primacy. The Supreme Court held that the judicial primacy was an established constitutional convention and since the Constitutional Amendment violated the constitutional convention it will be struck down.

Therefore, the Supreme Court has established a precedent of striking down Constitutional Amendments as well as Legislations on the grounds of it being violative of the established Constitutional Conventions.


Therefore, in the light of the Jennings test which establishes the constitutional convention of Indian Parliament not using religious markers for legislating citizenship laws and the precedents set by the Supreme Court of India which struck down laws for being violative of the constitutional convention; one can conclude that the Citizenship Amendment Act, 2019 Act is unconstitutional for not just being violative of Article 14, Article 25 and Basic Structure Doctrine but also for an equally significant reason of breaching the Constitutional convention of not mentioning religious markers while legislating citizenship laws.


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