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1.    Introduction:

The Act passed by the parliament is presumed to be constitutional. It is the enforceable within the territory of India unless, the application of the Act is exempted in the Act itself for specified territory. If any person aggrieved by any of the provisions of the Act passed by parliament, claiming it to be an unconstitutional the person is free to challenge the same before, the Hon’ble Supreme Court of India or the High Court. The constitutionality of the Citizenship Amendment Act, 2019 is challenged by some of the persons and same is subjudice. However, there is so much noise and chaos instigated against the government specially in the minds of minority community and in university campuses without understanding the background, object, provisions and the constitutionality of the Citizenship Amendment Act, 2019. In fact, the peaceful protest turned into riots in some parts of the country. The only solution, to the problem is to spread awareness about the Citizenship Amendment Act, 2019 as to how the act is intended to give justice to the religious persecuted minorities who were part of undivided India and now residing in neighbouring countries whose foundation itself based on Islamic religion.

The CAA, 2019 deals with the foreigners who came to India before 31st December 2014 from Afghanistan, Bangladesh and Pakistan belonging to identified six communities viz., Hindu, Sikh, Buddhist, Jain, Parsi or Christian. The identified communities are in the minority in mentioned three countries who survived and migrated in India due to religious persecution. The Act only enables and facilitates the section of the foreigners to acquire Citizenship of India. However, some groups in the Indian society are consistently propagating that the Act violates the Rule of Equality as it excludes the Muslims or other religions, atheist etc. The other argument would be the Act is an attempt to force Democracy to give way to majoritarianism. There are several Articles claiming CAA, 2019 is an attack on Indian minority communities with Hindutva Agenda and to isolate Muslims. The veracity in the allegations and accusations can be answered by investigating into constitutionality of the CAA, 2019 and more particularly answering the  questions such as: Is the CAA, 2019 qualify the test of equality? Does the amending act affects the citizenship of the ‘Indian Minorities’? Is the argument as to enforce majoritarianism tenable? With the understanding of the concept of Citizenship. The Constitutional and statutory scheme of as to acquire citizenship in India.

2.    What is Citizenship?

The Black’s Law Dictionary defines the term Citizen as ‘A member of a free city or jural society, (civitas,) possessing all the rights and privileges which can be enjoyed by any person under its Constitution and Government, and subject to the corresponding duties. “Citizens” are members of community inspired to a common goal, who, in associated relations, submit themselves to rules of conduct for the promotion of general welfare and conservation of individual as well as collective rights.’[1] Further, it defines the term ‘Citizenship’, as a status of being Citizen.[2]

The term “citizen” as understood in Indian law is precisely analogous to the term “subject” in the common law, and the change of phrases has entirely resulted from the change of Government. The sovereignty has been changed from one man to a collective body of the people, and the person who was before a subject of the King is now a citizen of the State.[3] The term citizen is employed in a republican form of Government. The republican model is based on the principle of Civic Self-Rule having its origin in the Greek era, and the liberal model is based on Citizenship as legal status having its origin in the Roman era. The Idea of Citizenship can be traced back to the Greek era. Aristotle defines the Citizen as a person who has the right to participate in deliberative or judicial offices. Aristotle also distinguishes the citizens from other inhabitants, resident aliens and slaves, children and seniors.[4] The concept of Citizenship was limited to political rights, and there was a clear distinction between the Citizens and other subjects of the State. The concept of Citizenship expanded with the expansion of the Roman Empire, which expanded its territory beyond city walls. In the Roman era, the meaning of ‘Citizenship’ expanded from political status to legal status and privileges attached to such status. Therefore, the concept of Citizenship is based on two models, viz., republican and liberals. In the modern era, there is another element attached to the concept of Citizenship, i.e. membership in the political community, which gives a source of identity.[5] For example, British, Indian, American, Italian, Pakistani, and so on. Thus, there are three elements attached to the term ‘Citizenship’:

  1. ‘Political Agent’ who participates in political structure,
  2. ‘Legal Status’ which confirms legal rights, and protection of laws including liability, and.
  • A source of ‘Identity’.

The idea of Citizenship underlines protection of the socio-political and legal rights of the individual as well as State as a community within the defined territory.

The essential requirement of any Nation is the political community in the defined territory. The law of Citizenship deals with the individuals who are entitled to civil rights and to have a status of membership, i.e. citizenship, in the political community. Therefore, it is the prerogative of the State to articulate the terms and conditions to acquire Citizenship. Globally, there are three principles for acquisition of Citizenship. Firstly, by birth within the territory of Nation which is based on the Latin principle jus soli, Secondly, by Decent from a state National which is based on Latinprinciple jus sanguinis and, thirdly by naturalisation which means the residence for longer period and further intention to reside permanently. The different countries have adopted different approaches for acquiring Citizenship or Nationality either in isolation or in a combination of these principles.[6]

The Indian Constitution at its commencement recognises the individual as Citizens of India on the parameters of these three principles, i.e. jus soli, jus sanguinis and naturalisation. In addition to these principles, the Indian Constitution also grants the status of Citizenship to migrants from Pakistan i.e. the persons came from undivided India. Subsequently, the Indian Parliament enacted the law, i.e. The Indian Citizenship Act, 1955 as stipulated under Art.11 of the Constitution of India. The Act recognises the principles mentioned above for acquiring Citizenship in India from the date of enforcement of the Constitution. In addition to these principles, the Act also facilitates the acquisition of Citizenship by registration. Moreover, the Act recognises the status of Citizenship of people on the incorporation of territory because of their connection to such incorporated territory.

The status as a citizen can be acquired by Birth, Decent, Naturalisation, Registration or incorporation of territory. Once the individual acquires such status, the status entrusts the legal rights and duties being a citizen of that country, which establishes his relationship with the State. The relationship between Citizen and State is for mutual benefits. The mutual benefits can co-exist only when there is an element of allegiance of individual towards State. Therefore, the allegiance towards State is one of the essential criteria for the acquisition of Citizenship. The allegiance is mental state to show the real intention to settle permanently with affection towards the State.

The status of illegal migrants remains unaccounted while exploiting natural and economic sources of the country. Illegal migrants in a State do not give mutual benefits to each other.  Therefore, any country must take strict action against the illegal migrants by deporting to their country of origin. Wherever, deportation is not possible due to apprehension of gross violation of Human Rights by way of discrimination based on race, religion or any other factors; the country can consider to grant Asylum and in some cases status of Citizenship.

3.    Acquisition of Citizenship in India

The second part of the Constitution of India deals with Citizenship. The right to acquire Citizenship at the commencement of the Constitution were recognised on the three grounds. Firstly, by birth in Indian territory. Secondly, by descent, i.e. either of whose parents born in the territory of India. And, Thirdly, ordinary resident in India at least for five years on the date of commencement of Constitution of India. The Art. 6 and Art.7 deals with the persons migrated from Pakistan to India due to partition. Art.8 deals with the rights of Citizenship to a particular person residing outside India who is of Indian origin. Art.9 restrict the right to acquire Citizenship and excludes those who have voluntarily acquired Citizenship of any other foreign state. The Art.10 protects the Citizenship acquired under Art.5 to Art. 8 subject to the law made by Parliament. Therefore, the right to acquire Citizenship is not a fundamental right but a constitutional right which is to be governed by Separate statute. The Art.11 empowers the Parliament to regulate the right of Citizenship by a separate statute. The Art.246(1) read with the Entry No.17 of Union List in Seventh Scheduled of the Constitution of India empowers the Central Government to make laws with respect to Citizenship, Naturalisation and Aliens. Accordingly, the Parliament enacted legislation known as the Indian Citizenship Act, 1955.

The Indian Citizenship Act, 1955 provides five categories to acquire Indian Citizenship from the date of enforcement of the Constitution of India. The Act of 1955 provides acquisition of citizenship by birth, by descent, by registration, by naturalisation and by incorporation of territory. In addition to these five categories, the special provision was added under the category of naturalisation to give effect to the Assam Accord.[7] Another special category was added as Overseas Citizen of India, i.e. the persons who were citizens of India after the commencement of the Constitution of India and later acquired Citizenship of foreign State excluding Pakistan and Bangladesh or any other foreign State as notified by the Central Government.[8] The Act provides termination and deprivation of Citizenship. Further empowers the Central Government to consider the Application for Citizenship by registration and naturalisation as well as Overseas Citizens. The act makes adequate provision for revision on any orders passed on such application including powers to review. The Act also prescribes punishable offence in case of false information given for procuring any benefit under the Act. Originally there were four schedules to the Act. However, the first and fourth Scheduled were omitted by the amending Act No.6 of 2004. The second schedule prescribes the Oath of Allegiance who wants to be a citizen either by registration or naturalisation. The third scheduled prescribes the qualifications to acquire Citizenship by naturalisation.

4.    Citizenship Amendment Act, 2019

The roots of the amendment goes back to the pre-independence era. The amendment cannot be read in isolation without understanding historical perspectives. The term ‘India’ was defined under Section 311 of the Indian Government Act, 1935 where the existing Pakistan and Bangladesh were part of India till independence. After a long struggle India got independence with the enactment of the Indian Independence Act, 1947 where British Parliament divided India into two dominion i.e. India and Pakistan. The partition took placed on the basis of religion as the then section of Muslim Community propagated two nation theory based on religion. The Partition unsettled the non-Islamic community within the territory of then east and west Pakistan. The large number of non-Islamic persons migrated into India by leaving behind almost everything they had. Similarly, large number of Muslims also migrated from India to then Pakistan. Subsequently those Muslims who migrated to Pakistan, some of them were returned to India with the permit of Indian Government. The Constitution of India grants the deemed citizenship on the date of constitution to all those people who migrated on or before 19th July 1948 into India from the territory of undivided India as mentioned in the Act of 1935. However, some non-Islamic communities could not be migrated into India from Pakistan immediately after partition and later on the borders were closed to legally migrate into India.

After post-independence, the religious persecution became a norm in East and West Pakistan. Only with intent to protect minorities ‘Liaquat – Nehru Pact‘ was entered into as bilateral treaty between India and Pakistan. India continued its commitment to protect religious minorities in India but Pakistan measurably failed with its commitment to protect religious minorities. The religious minorities in Pakistan continued to suffer religious persecution and kept away from basic human rights by treating them as secondary citizens. Due to religious persecution or with the apprehension of persecution, the only option left with the religious minorities either to suffer or migrate into neighbouring countries. From Pakistan major chunk of the religious minorities moved into India. Though the religious persecuted minorities migrated from neighbouring countries into India their entry into India were not legal being illegal migrants and thus subjected to criminal prosecution. Therefore, the Government of India issued notifications dated 7thSeptember 2015 and 18th July 2016 as to amend the Passport (Entry Into India) Rules, 1950 and  Foreigners Order, 1948, thereby exempted the persons belonging to the identified minorities from Afghanistan, Bangladesh and Pakistan from the applicability of the Foreigners, Act 1946 as well as Passport (Entry Into India) Rules, 1950. In short, the 2015 and 2016 Notifications issued by the Ministry of Home Affairs articulated the religious persecuted minorities i.e. Hindu, Sikh, Buddhist, Jain, Parsis and Christians from three neighbouring Islamic countries.

The issuance of notifications dated 7th September 2015 and 18th July 2016 does not served the purpose as the religiously persecuted minorities as categorised in the said notifications remain as illegal migrants under the Indian Citizenship Act, 1956 and thus despite of longer stay in India, would not have enabled them to become citizens of India which otherwise available to any foreign nationals on valid entry and longer stay in India either by registration or naturalisation. Therefore, necessity was felt to amend the Indian Citizenship Act, 1955. Accordingly the Citizenship Amendment Bill, 2016 was introduced in Parliament which were lapsed due to lack of majority in Rajyasbha. Hence again, the Citizenship Amendment Bill, 2019 was introduced in November 2019 which was passed by the thumping majority.

The CAA, 2019 brought four amendments in the Indian Citizenship Act, 1955. Firstly the amending Act has added an exception to the definition of ‘illegal migrant’ by introducing proviso. The term ‘Illegal Migrant’ means a person who entered into India without a passport or valid travel document, or a person entered into India with passport or valid travel document for a specified period and remained on Indian territory after the expiry of such period. The proviso to the definition carves out an exception stating that any person migrated to India on or before 31st December 2014 from Afghanistan, Bangladesh and Pakistan belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community, who is exempted under the provisions of Passport (Entry into India) Act, 1920 or exempted from Application of the Foreigners Act, 1946 shall not be treated as illegal migrant.

Secondly, the amending Act introduced Section 6B, which is an enabling provision to acquire Citizenship to the class of persons who carves out an exception to the definition of illegal migrant. The sub-section 1 of the Section 6B enables the Central Government to grant a certificate of registration or certificate of naturalisation with such conditions and restrictions as specified by the Government. The sub-section 2 declares that upon fulfilment of criteria for registration or naturalisation, if the certificate is granted, then such person deemed to be a citizen of India. The sub-section 3 nullifies any pending proceeding being illegal migrants or Citizen upon granting a certificate of registration or naturalisation. Further, it provides that pendency of any proceeding being illegal migrant or Citizen, it shall not be a bar for making an application for acquiring Citizenship. The sub-section 4 exclude the application of the Act from notified triable areas of North-Eastern States as well as States wherein inner-line permit is required.

Thirdly, it amended the third scheduled of the Act wherein the criteria for acquiring Citizenship for naturalisation have been prescribed. The amending Act relaxes the condition of 11 years of residence to 5 years for the exempted per persons from the definition of illegal migrants.

Fourthly, the amendment brought for Overseas Citizen of India Cardholder by adding additional criteria for cancellation of registration of Oversea Citizen of India, i.e. violation of any provisions of the Citizenship Act or any other provisions of law as notified by the Central Government after giving reasonable opportunity of hearing.

5.    Constitutionality of the Citizenship Amendment Act, 2019

In ‘Indian Democracy’ Constitution recognises the power of the Parliament to make laws.[9] The laws made by the Parliament must be consistent with the Fundamental Rights guaranteed under the Constitution of India.[10] The Fundamental Rights guarantees the Right to Equality which puts an obligation on State that not to deny equality before the law or equal protection of the laws to any person. Further Constitution restrains the State from making any laws discriminatory against any citizen based on religion, race, caste, sex, place of birth or any of them. The cultural and educational rights of the minorities[11] are protected under the Constitution of India in addition to the freedom of religion.[12] Therefore, though the Constitution recognises the right to equality, in the same breath it protects the interest of the minority section of the society to protect its distinct culture, language, script, or religion and administer their educational institutions. These exclusive rights or status available to minorities is otherwise not available to the majority section of the society. Exclusive rights and protection in favour of the minority section of society is an exception to the rule of equality. This exception can be defined as ‘positive discrimination.’ The positive discrimination enshrined under Art.15(4) and 16(4) which protects the citizens as affirmative action based on their historical injustices and social status by way of an exception to the rule of equality. The scheme under the Constitution of India is aiming to protect the interest of every Citizen of India. The Indian Constitution not only protects the rights of individual Citizens in India but also guarantees equal treatment and equal protection of laws including the right to life enshrined in Art.14 and Art.21 to every person irrespective of his status as Citizen of India. In simple words, the protection of the right to equality and right to life is available to the foreigners within the territory of India. Therefore, the challenge to CAA, 2019 may be limited under Art.14 and 21 of the Constitution of India as it does not deal with the existing citizens of India but a class of foreigners who entered into India on or before 31st December 2014. The doctrine of equality is incorporated under Art.14 of the Constitution. The Art.14 forbids discrimination in general and assures equality before the law to all the persons. The underlying object of Art.14 is to secure to all persons, citizens or non-citizens, the equality of status or opportunity referred to in the preamble of Constitution.[13] However, the right to equality as enunciated in Art.14 has very wide amplitude, and it cannot read to treat unequal as equals. Any treatments of equals unequally or unequal as equals is in violation of the basic structure of the Constitution of India.[14] As all persons are not equal by nature or circumstances, the varying needs of different classes or sections of people require differential treatment. This leads to classification among different groups of persons and differentiation between such classes. Accordingly, to apply the principle of equality in a practical manner, the courts have evolved the principle that if the law in question is based on rational classification, it is not regarded as discriminatory.[15]

Now, it is well settled and cannot be disputed that Article 14 of the Constitution guarantees equality before the law and confers equal protection of laws. It prohibits the State from denying persons or class of persons equal treatment; provided they are equals and are similarly situated. It, however, does not forbid classification. In other words, what Article 14 prohibits is discrimination and not classification, if otherwise, such classification is legal, valid and reasonable.[16] For valid and legal classification, after considering several judgments, the apex court laid down twin test:

 (i) the classification must be founded on an intelligible differentia which must distinguish persons or things that are grouped together from others leaving out or left out; and

(ii) such a differentia must have rational nexus to the object sought to be achieved by the statute or legislation in question.[17]

The main contentions against the CAA, 2019 is twofold. First allegation is concerning constitutionality, alleging that the Act violates the principles of equality. It discriminates Citizenship based on religion. The Act does not offer Citizenship to Rohingya Muslims, Ahmadiyya Muslims, Tamil Hindus who are also religious persecuted communities from Myanmar, Pakistan and Sri Lanka, respectively. It is forced Hindu Majoritarianism violating the basic structure doctrine. So far, the basic structure doctrine is concerned; the doctrine itself relates to the power of the Parliament in amending the Constitution. In the present case, there is no constitutional amendment but a statutory amendment. The second allegation is limited to Assam as the allegation that the Act violates the Assam Accord. The rest of the allegations are purely political propaganda without having any legal basis. The present Article is restricted to the first allegation i.e. constitutionality of CAA, 2019.

The CAA, 2019 carves out an exception to the definition of illegal migrant. It distinguishes the migrants from Afghanistan, Bangladesh, and Pakistan belonging to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian community who entered into India before 31st December 2014. The main controversy revolves around the amendment to the definition which facilitates the migrants who entered into India on or before the datum line from three countries with identified communities as one class distinguishing it from rest of the illegal migrants. Therefore, the legal question is why the persons mentioned in the Amending Act singled out from the other illegal migrants? Is the classification reasonable? Does this amendment pass the twin test as laid down by the apex court?

The ‘intelligible differentia’ is the foundation of reasonable classification. Prima facie intelligible differentia between the three countries and other countries is based on territorial condition and their political structure. There are total eight adjacent Nations connected to Indian territory, viz., Afghanistan, China, Nepal, Bhutan, Myanmar, Bangladesh, Sri Lanka and Pakistan. The significant difference between ‘Afghanistan, Bangladesh & Pakistan’ on one side and the rest five countries on the other side. The foundation of the three countries is based on a particular religion. The official name of Afghanistan and Pakistan starts with ‘Islamic Republic‘ which is evident that the Nation is based on one particular religion. Though the name of Bangladesh starts with the People’s Republic, the Art.2A of the Constitution prescribes the State’s official religion as Islam.[18] The Art. 2 of the Constitution of Afghanistan also indicates Islam as its official state religion.[19] The Art.2 of the Constitution of the Islamic Republic of Pakistan provides that Islam shall be the State religion of Pakistan.[20]  In short, the three Nation mentioned in the CAA, 2019 indicates State Religion as Islam.

So far, other states are concerned; the Constitution of the People’s Republic of China is silent about religion. Neither officially, China does recognise any religion, nor it gives freedom of religion. The Chinese Constitution does not give any special status to religious minorities. It only recognises minority based on Nationality.[21] In the Chinese Constitution, the term Nationality is not synonymous to Citizenship, but the term is associated with racial meaning.

The Constitution of Nepal prescribes that the State of Nepal is an independent, indivisible, sovereign, secular,inclusive, democratic, socialism-oriented, federal democratic republican state. Further, it explains the term “secular” which means religious, cultural freedoms, including protection of religion, culture handed down from the time immemorial.[22]

The Constitution of Bhutan, which is based on Monarchy, recognises the dual principle of religion and politics. The KingKing is the upholder of Chhoe-sid, i.e. religion and politics (Temporal & Secular).[23] The Constitution of Bhutan recognises Buddhism as Spiritual Heritage of Bhutan but it castes duties on the KingKing to protect all the religion.[24] Therefore, the cumulative reading of the Constitution highlights the secular political structure of Bhutan.

The Constitution of the Republic of Union of Myanmar recognises the freedom of religion.[25] The Constitution of Myanmar further bars the discrimination of any person on the ground of religion.[26]

The Constitution of the Democratic Socialist Republic of Sri Lanka gives Buddhism first place in Sasana. It also protects the freedom of religion as granted under the chapter of fundamental rights in Art.10 and 14 (1) (e).[27] Therefore, the Sri Lankan constitution indicates that it shall protect and foster the principles of Buddhism in Sasana, i.e. administration. However, it maintains the secular structure by granting freedom of religion as a fundamental right.

The close analysis of the Constitution of the eight adjacent Nations to India with whom India shares her territorial boundary indicates that the Afghanistan, Bangladesh and Pakistan are the only Nations which indicates one particular religion as State Religion, i.e. Islam. This factor of State Religion distinguishes the said three Countries from the other five countries.  The Pakistan and Bangladesh, then East and West Pakistan were part of Undivided British India. However, the two-nation theory was based on religion. Pakistan proclaimed itself as an Islamic country. Based on religious partition many non-Muslims migrated to India. However, some of them who could not afford to migrate or may have remained in the territory of the East and West Pakistan became a part of religious minorities. On this backdrop of partition, the religious minorities in India and Pakistan were subjected to atrocities and religious persecution. India and Pakistan entered into bilateral treaty popularly know as ‘Nehru Liaquat Pact’ to protect its minorities.[28] India fulfilled its promise and its commitment to protecting the rights of minorities. However, Pakistan and Bangladesh, i.e. erstwhile east Pakistan utterly failed to protect its minorities. There are many Reports in the UN which establishes the religious persecution of minorities in Afghanistan, Bangladesh and Pakistan. The recent report claims that in Pakistan, citizens belonging to religious minorities get a status of second-class citizens due to legislative, administrative and judicial discrimination.[29]In the year 2018, the Asian Resource Legal Centre also submitted its report in the United Nations and given the following recommendation:

  1. a) The Government of Pakistan should ensure the security of the country’s religious minorities from injustice and attacks by militants. The only deterrence to violence is accountability. Only when the Government ends impunity can the tide of militancy, extremism and sectarianism in the country recede.
  2. b) The Government of Pakistan must stop forcing religious minorities into degrading jobs. It should also work on sensitising society, to encourage a pluralistic and egalitarian atmosphere, where the rights of minorities are equally protected. It is imperative for a strengthened Pakistan that all its citizens, regardless of caste, colour, ethnicity, political or religious association, be treated on an equal footing by the State. The Government of Punjab in particular, should immediately stop the policy of discrimination and bias against its beleaguered Christian community.[30]

Moreover, the religious minorities, i.e. non-Muslims in Pakistan, were dropped down from 23%  since 1947 to less than 3% as on today. Either these people killed or forcibly converted to Islam or migrated into adjacent State, e.g. India. The 2015 report set-out the gravity of religious persecution and gives an example of Asia Bibi Blasphemy Case. Aasiya Noreen is a Pakistan Christian woman and a mother of her five children, who was convicted of blasphemy under Section 295-C of the Pakistan Penal Code by a Pakistan Court and received a sentence of death. In June 2009, she was convicted of insulting Mohammed after having a dispute with Muslim co-workers for the reason that she took a drink with a cup set aside for Muslims, which is forbidden to Christians. In November 2010, she was sentenced to death. The Lahore High Court confirmed the conviction and death sentence in October 2014. The persons who supported in favour of Aasiya Noreen was killed. The bodyguard of the Governor of Punjab killed the Governor. The cabinet minister, who was a Christian, was killed for supporting Aasiya Noreen.[31]

Bangladesh got its Independence in the year 1971. The Art.2A declares that the State Religion shall be Islam. However, the Constitution does have features of inclusive secularism on paper.[32] In reality, the report claims a severe problem at the implementation level.[33] The 2011 census of Bangladesh shows that the minority population dropped to 9% from 23% during 1971. The religious persecution of minorities is an open secret. Report submitted by Bangladesh Minority Council claims that there is silent ethnic cleansing in Bangladesh. The rape and forced conversion used as a cleansing tool. Since Independence of Bangladesh there are thousands of religious idols and temples are destructed.[34]

The position of religious minorities in Afghanistan is not different from that of Pakistan and Bangladesh. The report submitted in the United Nations reflects that there is consistent violence against Non-Muslims, especially Sikh and Hindu community. One upon a time the Sikh and Hindu were the trading community spread across Afghanistan. However, always targeted by a group of militants. During the Soviet Intervention of 1979 and the Civil War of 1992, there was a mass migration of the Sikh and Hindus to neighbouring countries, i.e. India, Iran and to some extent in the west. It is mentioned in the report that there were about 60000 Sikhs in the year 1992. However, as on date, there are less than 2000 Sikhs, and Hindus constituting 0.3% of the Population remain in Afghanistan.[35]

The consistent religious persecution of non-Islamic community from the Islamic States caused migration to the adjacent countries for their safety and livelihood. The classification of the persons mentioned in CAA, 2019 is based on the practical considerations, geographical considerations and historical considerations. The Supreme Court of India while considering the validity of Section 213(1) and 57 of the Indian Succession Act which was challenged on the ground of religious discrimination as the provision only applies to the Indian Christian. The Apex court held that the historical reasons may justify differential treatment of separate geographical regions provided it bears a reasonable and just relation to the matter in respect of which differential treatment is accorded.[36]  In Parents’ Association v. Union of India, the Supreme Court upheld the distinction between pre-1942 settlers and post 1942 settlers at Andaman Islands on historical considerations.[37]

The ‘intelligible differentia’ in the present facts is based on practical, territorial and historical considerations. Eight countries share the common border with India. Out of eight countries, the three countries have State religion as Islam, where the Non-Islamic communities are being persecuted on the ground of religion other than Islam. The rest five countries are secular in a sense that it does not treat any religion as State Religion. Out of three Countries, the present two countries were part of undivided India, wherein after partition the then Prime Minister of India and the then Prime Minister of East and West Pakistan, by way of the pact agreed to e protect the religious minorities within the respective States. The utter failure to protect the religious minority triggered the massive scale of migration into India. The persecuted migrants belonging to the six communities cannot be pushed back to these three countries from where they migrated.   Therefore, the Act protects to six communities who are religious persecuted minorities from Islamic states who have already entered into India before 2015 and does not treat them anymore as illegal migrants under the Indian Citizenship Act, 1955. The object is to protect the human rights of individuals who have entered into India due to Religious persecution from adjoining State. In such circumstances, the classification is not based on religion but based on territorial, historical, practical and other considerations.

The questions raised that the Rohingya Muslims from Myanmar, Ahmadiyya Muslims from Pakistan, and Hindu Tamils from Sri Lanka who are also religious persecuted minorities who entered into India are not brought within the ambit of CAA, 2019 hence discriminatory.  Before dealing with each class of persons; it may be noted that the basis of classification in CAA, 2019 is based on the territorial considerations, i.e. countries which are adjacent to India having a State religion. Therefore, other minorities tend to migrate to India due to religious persecutions. Secondly, while dealing with the question why other foreigners are not brought within the purview of the amending Act, it is settled law that so long as classification could withstand test of Article 14, the same could not be questioned why one subject was included and other left out and why one was given more benefit than the other.[38]

Myanmar is a secular country and does not have a state religion, and thus Rohingya Muslims are not brought within the purview of the CAA. Similarly, Sri Lanka is also a secular country, and therefore the Tamil Hindus are not brought within the purview of the Act. Ahmadiyya Muslims is one of the sects of Islam. Though Pakistan discriminates with them, it is the Ahmadiyya Muslims who identify themselves with the State Religion. It is purely a problem between Islamic sects. Hence Ahmadiyya Muslims cannot be treated as religious persecuted minorities. The Act intended to protect those religious minority who have suffered a lot only on the ground of belongingness from a particular religion which is not a State religion.

The second test for reasonable classification is rational nexus with the object sought to be achieved. The very object is to facilitate for entitlement of all the benefits for leaving dignified life to the religious minorities who came to India either persecuted based on religion or with the fear that they will be persecuted. The Act is enabling provision keeping in mind the reality. The CAA, 2019, which deals with the identified communities, is enabling provision with a humanitarian approach.  The persons illegally migrated from States can be deported if they are carrying the identity of religion which is the official religion of the State. In that case, there will not be an apprehension of violation of Human Rights after deportation. However, the religious persecuted minorities if deported again back to their homeland would be inhuman and cruel! India is not a shelter to accommodate all the religious persecuted minorities. However, it is very natural to these communities to migrate in the adjacent countries to save their life from physical and mental cruelties, atrocities.

Moreover, India is a welfare state. The budgetary and natural resources allocation is planned to benefit every Citizen of India. The unaccounted share of illegal migrants built-up pressure on the allocation of budgetary provisions as well as natural resources. It affects the rightful entitlement of the Citizens of India, which has been aimed to benefit the most vulnerable section of society. In such circumstances, granting benefits of the Citizenship to the migrants of identified communities from the three Countries who cannot be pushed back to their respective countries, will cause to take them into account of planning in allocation of budget and natural resources, which is entirely in the interest of existing Citizen’s entitlement.

Therefore the nexus between the classification of illegal migrants into India and class of migrants to whom the Citizenship is enabled with an object to facilitate the human rights and protect the interest of India in planning and implementing welfare schemes.

6.    Conclusion

The CAA, 2019 enables the class of foreigners who were migrated in India. The act no more treats them illegal migrants as belonging to identified six communities of three countries if entered into India on or before 31st December 2014. Therefore, it distinguishes the persons belonging to the six communities from rest of the illegal migrants who entered into India. The classification is based on the territorial, historical, present situation and other factors which is permissible and reasonable classification. The classification is nothing but positive discrimination. The CAA, 2019 is an affirmative action to heal up the wounds of religious minorities across the borders who have faced enormous discrimination in every sphere of life, including physical and mental cruelty. Moreover, once the test of reasonable classification is satisfied, the argument as to why another class of persons are left out is immaterial and does not have any legal bearing. It is the prerogative of the State and policy decision.

The Act does not deal with the existing Indian Citizens. Therefore, there is no question of violating the rights of any of the Indian Citizens by excluding some sections of foreigners not covered under the Act. Irrespective of its non-application to Indian citizens, the protest seems to be continued with political motives with larger conspiracy which is against the interest of India. The Indian minority communities are being misguided about CAA, 2019 with political motives. The fear-mongering and deception about the amending act is planted and spread with ulterior motives as there is nothing to fear about the CAA, 2019 as the act is within the constitutional limits.

Pravaratak Suhas Pathak,

Advocate, Mumbai.




[1] Black’s Law Dictionary, 310, (4th Ed., rev-6, 1971).

[2] Ibid, at 311.

[3] DD Basu: Commentary on the Constitution of India, Vol 1, Article 5, (9th ed, 2014)

[4] Miller, Fred, “Aristotle’s Political Theory”, The Stanford Encyclopedia of Philosophy (Winter 2017 Edition), Edward N. Zalta (ed.), available at, last seen on 18/01/2020.

[5]  Leydet, Dominique, “Citizenship”, The Stanford Encyclopedia of Philosophy (Fall 2017 Edition), Edward N. Zalta (ed.), Available at, last seen on 18/01/2020.

[6] Citizenship & Nationality, International Justice Resource Center, available at seen on 19/1/2020.

[7] S.6A, Indian Citizenship Act, 1955 (amended through Act 65 of 1985, S.2 w. e. f. 7/12/1985)

[8] S.7A & 7B, Indian Citizenship Act, 1955 (amended through Act 6 of 2004 S.7 w. e. f. 3.12.2004)

[9] Art.245 read with Art.246(1), the Constitution of India.

[10] Art. 13 of the Constitution of India

[11] Art.29 and 30, the Constitution of India

[12] Art.26 the Constitution of India.

[13] Natural Resources Allocation, In Re Special Reference No.1 of 2012, (2012) 10 SCC 1.

[14] M. G. Badappanawar v. State of Karnataka, (2001) 2 SCC 666

[15] Ashitosh Gupta v. State of Rajasthan, (2002) 4 SCC 34

[16] The State of Bihar v. Bihar State ‘Plus-2’ Lecturers Assns., (2008) 7 SCC 231

[17] Confederation of Ex-Servicemen Assns. v. Union of India, (2006) 8 SCC 399

[18] Constitution of Peoples Republic of Bangladesh, Art.2A, available at, last seen on 26/01/2020.

[19] Constitution of Afghanistan, Art.2, available at,  last seen on 26/01/2020.

[20] Constitution of Islamic Republic of Pakistan, Art.2, available at, last seen on 26/01/2020.

[21] Constitution of the People’s Republic of China, Chapter I General Principles, Art.4, available at:, last seen on 26/01/2019

[22] Constitution of Nepal, Art.4, available at, last seen on 26/01/2020.

[23] Constitution of Bhutan, Art. 2 (2) available at, last seen on 26/01/2020.

[24] Constitution of Bhutan, Art. 3(1) & (2) available at:, last seen on 26/01/2020.

[25] Constitution of the Republic of Union of Myanmar, Art.34, available at:, last seen on 26/01/2020.

[26] Constitution of the Republic of Union of Myanmar, Art.348, available at, last seen on 26/01/2020.

[27] Constitution of the Democratic Socialist Republic of Sri Lanka, Art.9, available at, last seen on 26/01/2020.

[28] Nehru Liaquat Agreement, New Delhi, 8th April 1950, available at:, last seen on 27/01/2020

[29] Written statement submitted by Christian Solidarity Worldwide, a non-governmental organisation in special consultative status, Human Rights Council, 22nd February to 22nd March 2019, U. N. General Assembly, Official Record, Sess. 40, U. N. Document A/HRC/40/NGO/129 (20/02/2019), available at, last seen on 27/01/2020.

[30] Written statement submitted by the Asian Legal Resource Centre, a non-governmental organisation in general consultative status, Human Rights Council, 26th February to 23rd March 2018, U. N. General Assembly, Official Record, Sess. 37, U. N. Document A/HRC/37/NGO/91 (12/02/2018), available at:, last seen on 27/01/2020.

[31] Written statement submitted by the Jubilee Campaign, a non-governmental organisation in special consultative status, Human Rights Council, February – March, 2015, U. N. General Assembly, Official Record, Sess.28, U. N. Document A/HRC/28/NGO/140, available at:, last seen on 27/01/2020.

[32] Constitution of Peoples Republic of Bangladesh, Art.12, available at:, last seen on 27/01/2020.

[33] Report of the Special Rapporteur on freedom of religion or belief on his mission to Bangladesh, Human Rights Council, U. N. General Assembly, Official Record, Sess. 31, U. N. Document A/HRC/31/18/Add.2 (22/01/2016) available at:, last seen on 27/012020.

[34] Mr Barua and S Arun Jyoti, Minority Youth towards Inclusive and Diverse Societies, Human Rights Council, Forum on Minority Issue, Sess.10, 29th November 2017. Available at:, last seen on 27/01/2020.

[35] Written statement submitted by Coordination des Associations et des Particuliers pour la Liberté de Conscience, a non-governmental organisation in special consultative status, Human Rights Council, 10 – 28 September 2018, U. N. General Assembly, Official Record, Sess. 39, U. N. Document A/HRC/39/NGO/67 (05/06/2018) available at:, last seen on 27/01/2020.

[36] Clarence Pais v. Union of India, (2001) 4 SCC 325, Pg 333.

[37] Parents’ Association & Another v. Union of India, (2000) 2 SCC 657

[38] Ombalika Das v. Hulisa Shaw, (2002) 4 SCC 539

The Status of Legal Person Defined Under Private International Law

1.   Introduction:

The legal system recognises two kinds of persons viz., Human Being and Legal Persons identified by law, whereas the International Law recognises several personalities. They are mainly categorised into two: the state actors and the non-state actors. The state actors include the nation-states, governments, consulates, the authorities which are sovereign bodies. On the other hand, non-state actors include International, Transnational and Reginal Organizations, Corporations, Non-Government Organizations, cultural groups and associations, and Individuals. In short, non-state actors include non-sovereign bodies. With the development of International Law, though the state actors continue to play a significant role, in the contemporary States are no longer the exclusive subject of International Law and the non-State actors have emerged as the primary focus of international law. Today, non-state actors are also attributed to international personality, which further recognised under International law.

The Private International Law is applied whenever there is a conflict of laws or conflict of jurisdiction concerning more than one country. Even though the private international law has an international aspect, is necessarily a branch of municipal law. Therefore, every country has its private international law. However, private international law or a branch of municipal law, does not deal with any one branch of law, but is concerned practically with every branch of law and thus has a vast ambit.[1] The concept of legal personality and its recognition under the Private International Law is primarily depending upon the Municipal Law. However, the difference between foreign and the domestic juristic person requires to be taken into consideration to seeking the status and definition of Juristic or Legal Persons under the Private International Law. The Nationality of a person plays an essential factor to make a distinction between a domestic person or foreigner under the Municipal Laws.

2.   Juristic/Legal Person

Historically, the word ‘Person’ was used to refer to individual human beings. However, the Indian Penal Code[2] and General Clauses Act[3] defines a person as “Person” shall include any company or association or body of individuals whether incorporated or not. The word person is also defined under the Consumer Protection Act, also defines the ‘Person’ as “person” includes,— (i)   a firm whether registered or not; (ii)   a Hindu undivided family; (iii)  a co-operative society; (iv)  every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not.[4] Thus in a legal context, the person includes not only individual human beings but various categories as recognised by the law as a person as to refer to collective individuals or institutions. The Concept of Juristic person necessitated for the actions of the collective groups, which is pure fiction of law. The collective will of a group of men and women so acting and holding property, when recognised as a subject of law, or as having legal subjectivity, or more plainly, when recognised as capable of holding certain legal rights, is no more fiction than is the personality of any human being.[5] When the artificial element of juridical capacity was united to an abstract entity, this became a person. It was not such a person has had as the basis of its being the real existence of the individual; its foundation was the will of the law, by which it was created, and it was, therefore, called a “juristic person.”[6]

The rights and responsibilities are the main attributes to the Personality. A legal person is any subject matter other than a human being to which the law attributes personality.[7] The Legal Persons, being the arbitrary creation of the law, maybe as many kinds as the law pleases. The Salmond has argued that conception of legal personality is not so limited in its application and that there are several distinct varieties. According to Salmond there are three unique classes of persons firstly Corporations which are constituted by the personification of groups or series of Individuals; secondly the institutions such as church, library etc., and thirdly the corpus where the fund or estate is devoted for particular purpose, e.g. a trust estate or the property of dead human or of a bank corrupt.[8]  Unlike an individual, the corporations or institutions are having an element of perpetuity which survives even after the death of its official, which often replaced by other human beings.

The Dias argues that the purpose of corporations (legal persons) is to organised, concerted activities and to ascribe collective responsibility, therefore; so, there is, on the other hand, emphasise on the collective powers and liabilities.[9] Therefore, to summarise, the Juristic person is the creation of a law to govern and ascribe the collective activities, and its liability with perpetuity as the law pleases.

3.   The Definition of Juristic Person under the Private International Law

The different International Organisation defined juristic persons differently. The United Nations enjoys the status of Juridical Person having the capacity (a) to contract, (b) to acquire and dispose of immovable and movable property, (c) to institute legal proceedings.[10] The world intellectual property Organisation defines a Juridical Person:  A juridical person is a resident in any State or States in which: (a) it has a statutory seat; (b) it is incorporated or formed; (c) its central administration or chief executive office is located, or (d) it maintains its principal place of business.[11] The Art. 1 of the Inter-American convention defines the Juristic Person as ‘juridical person being understood to mean any entity having its existence and being responsible for its actions, separately and distinctly from those of its members or organizers, and classified as a juridical person in accordance with the law of the place of its organization.’[12]

From the above definitions, the following characteristics of Juristic/Legal persons can be drawn under the private International Law:

  1. The person has the capacity to contract,
  2. The capacity to acquire and dispose of the property
  3. The Capacity to institute legal proceedings.
  4. The legal person shall be a resident of one particular state.
  5. The state under its statute recognises such juristic person,
  6. The juristic Person must have been incorporated or formed
  7. The Person maintains in continuation its central office or principal place of business
  8. The person has its separate existence which is distinct from its members or organisers,
  9. The Person shall be responsible for its action separate and distinct from its members or organisers.
4.   The Application of Private International Law

The Private International Law applied in a case where a foreign element is involved while dealing with the cases under the Municipal Laws. If the person is domiciled in a country, the Municipal Law of the said country would be applied in a case cause of action arose. However, the circumstances arise wherein the cause of action accrues against a person related or domiciled in another country. The involvement of person domiciled in another country is a foreign element under the Municipal Laws, where the cause of action originated. In such a case, the Private International Law is applied. The Purpose of Private international law is to determine the jurisdiction where a foreign element is involved. The Application of Private international law depends upon the personal status of the person.

The Application of Private international law depends upon the personal status of the person. The status of the person can be determined based on Nationality, Citizenship, and domicile of the person. The Person may be a human being or Juristic Person. Since a Juristic Person is a personification of collective individuals or institutions, the individual human being who is representing the Juristic Person may having deferent nationality or citizenship or may have domiciled in deferent States/Nations. The term Nationality, Citizenship and Domicile have different and distinct meanings from each other. The term Nationality represent the spirit of a person towards the nation. It implies the relationship of a person with a State and its people. Whereas, the citizenship underlines the legal status of an individual which the state recognised as its citizen. The Domicile is the phenomenon which defines the origin of a person or his birth and clarifies if the person absents his intention to have a permanent attachment to the country of origin and Resides in place for the certain period. The domicile may change if there is no intention to return.

Since the Juristic Person has separate legal existence from its members, the determination of Jurisdiction under the Private International Law may lead to absurdity and confusion if the jurisdiction is determined by the Nationality, Citizenship or Domicile of the individual human beings representing the juristic persons. Therefore, it is essential to determine the status of Juristic Person for Private International Law.

5.   The Status of Juristic Person under the Private International Law

The Status of Juristic Person can be determined based on Municipal Laws of the Country as the Private International Law is essentially a branch of Municipal Laws. The two different systems of law, viz; Common Law and Civil Law are having a different approach towards the status of Person based on the domesticity and nationality. The common law applies the law of State where a person is domiciled. Whereas, under the civil law irrespective of the domicile of person, the law of Nation of which the person is national applies to it. However, the situation arises when the common laws and civil laws come into conflict, which becomes the subject matter of the Private International Law. Paras Diwan and Peeyushi Diwan relied on the Judgement of Gasque v. Inland Revenue Commissioner[13] and thereby drawn the fundamental distinction between the domicile of natural person and domicile of a corporation is that of the domicile of origin or domicile of birth in respect of company clings to it throughout, and it cannot have a domicile of choice.[14]

E. Helton Young, in its article on The Nationality of Juristic Person, have considered the various theories in respect to the status of Juristic Person viz., Firstly, A juristic person is domestic in the state in which its members, or a majority of them (or the owners of the more significant part of its capital), are domestic. Secondly, a juristic person is domestic in the state by which it created (or by which it was expressly authorised). Thirdly, A juristic person is domestic in the state in which the acts (or someone of them) by which it came into existence were performed. Also, fourthly, a juristic person is domestic in the state in which it is domiciled. [15] The author E. Hilton Young relying upon the American Doctrine of Rule of Incorporation concluded that a juristic person is a creature of law, exists only in contemplation of the law which created it, and the same juristic person cannot be contemplated by two laws at once. If it seeks to pass from the contemplation of one law to that of another, it must obtain some express authorisation or recognition in the second state, which is, in reality, nothing less than a recreation. Domicile cannot affect its domesticity, for it can never be domestic in any state but that in which it first came into existence, either by express authorisation or by mere registration. The actual character and practical circumstances of modern juristic persons tend to increase the importance of natural domicile amongst their legal characteristics and to diminish that of the process by which they came into existence.[16]

The Institute of International Law adopted and recommended specific rules[17] to its members as to adopt in Municipal laws.  The recommended rules fall into four groups: (A) Rules on “the law governing the company; (B) Rules on recognition; (C) Rules on “places of business; and (D) Miscellaneous rules. Under the rules, “the law governing the company” is the law of the State of incorporation, while under English private international law the law of the State of incorporation similarly determines the domicile of the company. The result is that, as has been shown, the same system of law governs the most important topics relating to any company, such as its incorporation, the powers of its organs and its dissolution. The rules demonstrate that no reference to “domicile” is necessary for a draft on the systems of law governing companies and their places of business, but the concept is deeply established in the English authorities.[18] The Art. 4 and 5 of the rules refer to the principal centre of control and management as its actual seat of a company for recognition under the law of the state in which territorial jurisdiction seat exists subject to in conformity with the law of the state if the territorial jurisdiction is other than its incorporation. The Art. 9 of the Rules refers to the place of business in the State other than the State of its incorporation; the other State may impose certain obligations with regards to its financial activities, management and conformity with the local laws limited to the activities in a State.[19]

Thus, under the Private International Law, the juristic personality subjected to the jurisdictions of the municipal laws based on (a) its incorporation, (b) its actual seat of central management, and (c) its place of business.

 The Residence of Artificial person is equally essential for taxation. Under the English Law as well as the Indian laws, the person who is resident of the Country has liability to pay income tax irrespective of his source of income from domestic or a foreign country. The juristic person may have a residence in one State, and it’s business entirely or partly in another State/States. Therefore, the residence of an artificial person under the English Private International Law, a company is a resident of a country where its central management or control is exercised.[20] If Central management and control are exercised from more than one country, the company may become a resident of those countries.[21]

The Indian Private International law following the similarity with the English Law. The Companies Act, 2013 defines the ‘Foreign Company’ means any company or body corporate incorporated outside India which,— (a) has a place of business in India whether by itself or through an agent, physically or through electronic mode; and (b) conducts any business activity in India in any other manner.[22] The chapter XXII of the Companies Act, 2013 deals with the Companies Incorporated Outside India. The said chapter applies to all the foreign companies having a place of business in India or conducting business activity in India through an agent, physically or through electronic mode or in any other manner.[23] In case of a company incorporated outside India, not less than 51 percent paid-up share capital held by any Indian citizens or any Company incorporated in India in aggregate then, the entire provisions of the Companies Act apply to such foreign company.[24]

6.   Conclusion

The International Law recognises, several International Personalities inclusive of state actors and non-states actors. The State Actors enjoys the immunity under the municipal laws being sovereign personalities. However, the other (non-state) International Juristic Personalities, which possesses its essential characteristics under the legal system are subjected to Private International Law. The material factors to determine the status of juristic person are: (a) its Incorporation, (b) place of business through an agent, physically or through electronic mode, (c) business activities within the territorial jurisdiction in any manner, (d) the shareholding or ownership by the residents of a country. The consideration of all these factors controls the status of the Juristic Persons under the Private International Law. The law relating to juristic persons in the 19th Century was restricted to the domicile or nationality of the person. In the 20th Century, the scope of juristic persons gone beyond the rule of incorporation. The place of central management and control of a juridical person or its business activities in other than the place of its incorporation came within the purview of Private International Law. At present, due to the technical advent of the internet, the status of the Juristic Persons gone beyond the territorial place of its incorporation, or its place of central management and control, or it’s business activities by physical presence, or through its agent. The remote activity from one state to control of management or business activity in any other State has been made possible without any physical presence or through its agent. Thus, now under the Indian Private International Law, it has been made possible to bring any juridical person under its jurisdiction if the person is found to be involved in any business activity in India through electronic modes of communications.


[1] Paras Diwan, Peeyushi Diwan, Private International Law Indian and English, 37 (4th Revised Edition, 1998)

[2] S.11, Indian Penal Code,1860

[3] S. 3 (42), General Clauses Act, 1897

[4] S.2 (m), Consumer Protection Act, 1986

[5] George F. Deiser, The Juristic Person – 1, [57 O.S. 48 N.S.] Vol. 3, University of Pennsylvania Law Review and American Law Register, 131 (December 1908)

[6] Carlo Calisee, Private Law: Persons, 310, in History of Italian Law, Book III, Part – 1 (1928)

[7] P J Fitzgerald, Salmond on Jurisprudence, 305 (Indian Economy Reprint, 2007)

[8] Ibid at 308.

[9] R.W.M. Dias, Jurisprudence, 270 (5th Edition, Reprint 2017)

[10] UN General Assembly, the Privileges and Immunities of the United Nations, 22A (I), 1, (13/02/1946, available at, last seen on 18/02/2019 2.30 pm.

[11] Intellectual Property: Principles Governing Jurisdiction, Choice Of Law, And Judgments In Transnational Disputes,, last seen on 18/02/2019, 2.40 pm.

[12] Inter-American Convention On Personality And Capacity Of Juridical Persons In Private International Law, Third Inter-American Specialized Conference On Private International Law, LA PAZ, BOLIVIA, 24/05/1984,, last seen on 18/02/2019, 3.00 pm.

[13] (1940) 2 K.B. 80

[14] Supra 1, at 382

[15] E. Hilton Young, The Nationality of Juristic Person, Vol. 22, Harvard Law Review, pp 1-26, November 1908, last seen on 18-02-2019 2:40 pm.

[16] Ibid at 26.

[17] Companies in Private International Law, The Institute of International Law, Session of Warsaw, 1965,, last seen on 18/02/2019 7.00 pm.

[18] Thomas C. Drucker, Companies in Private International Law, 17 Int’l & Comp. L.Q. 28 (1968), downloaded from HeinOnline 18/02/2019, 5.55 pm.

[19] Supra 14.

[20] Supra 1, at 389.

[21] Supra 1, at 390.

[22] S.2 (42), Companies Act, 2013.

[23] S.379 (1), Companies Act, 2013 notified on 9th February 2018.

[24] S.379 (2), Companies Act, 2013

Why lawyers should oppose – ‘The Higher Education and Research Bill, 2011’?

We should be thankful to BCI to attract the attention of All Indian lawyers on ‘The Higher Education and Research Bill, 2011’ (herein after referred as Bill) and thereby spread awareness about the upcoming bill which is already introduced in the Rajyasabha. Of course, I won’t enter into the controversy over the legality of strike called by the BCI but I would like to throw light upon the Bill.

The Bill defines Higher Education as “such education, imparted by means of conducting regular classes or through distance education systems, beyond twelve years of schooling leading to the award of a degree or diploma; and includes research associated with such education.”

Further, Bill also defines Higher Education Institution as “an institution of learning including a university, an institution deemed to be university, a college, an institute, an institution of national importance declared as such by an Act of Parliament, or a constituent unit of such institution, a polytechnic or other institutions in vocational education, which is imparting by means of conducting regular classes or through distance education systems, higher education or research therein.”

In short the Bill is applicable to all the Universities, Deemed Universities, colleges and such other educational institution providing post 12th Education.

The present Bill will establish ‘National Commission for Higher Education and Research’ (NCHER) which shall be a corporate body having its Headquarter at Delhi.

The commission will consist of Chairman, three whole time members and three part time members appointed by the President. Further, the member of the National Commission of the Human Resources for health will also be a ex-officio member of the NCHER. The term of the Chairman and members shall be for period of five years or until attaining the age of 70. At this juncture, I must point out that the National Commission of Human Resource for Health Bill also is in controversy and widely opposed by the medical practitioners of our country.

There shall be Selection Committee for the Members of NCHER, which will consist the PM, the Speaker of Loksabha, the leader of Opposition in Loksabha, Ministers in charge of Higher Education and Medical Education. In short the appointments shall be political appointments subject to qualifications laid down under the Bill.

Most importantly the act or procedure cannot be challenged on the ground of defect in the constitution of commission or defect in appointment of person or irregularity in the procedure. That means the Commission shall be holding immense autonomy in its functions.

Following are further features of the Bill: (Source from the Mr. Kaushik Sanyal’s Article published on the

  • The Bill establishes a General Council to advise the NCHER on issues such as access, adequacy of funding and quality.  The Council shall consist of members of the NCHER, representatives of State Higher Education Council, heads of each professional body and research council, one Director of each  IIT,  IIM and National Law Universities etc.
  • The Bill also establishes a Collegium, which shall consist of 30 Fellows who are citizens or overseas citizens of India, a National Research professor or recipient of specified awards.  The Selection Committee shall consist of five members including the Prime Minister, Speaker of the Lok Sabha and the Leader of the Opposition in the Lok Sabha.   It shall recommend a vision on the emerging trends in different fields of knowledge, recommend persons for inclusion in the directory of academics eligible to be appointed as Vice Chancellors, and assess the performance of the NCHER based on the reports filed by it.
  • The functions of NCHER include (a) promotion of autonomy in educational institutions; (b) promotion of a curriculum framework with specific reference to emerging or inter-disciplinary fields of knowledge; (c) promotion of coordination between educational institutions and industry for innovation; and (d) taking measures to enhance access and inclusion in higher education.
  • The NCHER may, with prior approval of the General Council, make regulations specifying standards of higher education and research.  The regulations may specify requirements for award of a degree or diploma, specify norms of academic quality for accreditation, specify norms for establishment and winding up of educational institutions, regulate entry of foreign educational institutions, and specify standards for appointment of Vice Chancellors.
  • The NCHER shall maintain a directory of academics eligible for appointment as Vice Chancellors or Head of a central educational institution.  The directory shall be prepared by the Collegium. NCHER shall recommend a panel of three names from the directory when asked to do so by the central government or a central educational institution.
  • Every educational institution which intends to enroll students for the first time shall inform NCHER along with its accreditation report.  NCHER has to notify the institution within 120 days whether it can proceed with the enrolment.  The NCHER also has the power to revoke such permission.  An order of the NCHER can be appealed in the National Educational Tribunal (to be established under the Educational Tribunals Act, 2011).
  • The central government shall establish a Board for Research Promotion and Innovation to recommend measures to the NCHER to facilitate research.  The Board shall consist of a Chairperson and 12 members appointed by the NCHER on the recommendation of the Collegium.
  • The central government shall establish the Higher Education Financial Services Corporation, which shall disburse grants to educational institutions based on norms to be specified by the NCHER.
  • The central government shall establish Qualifications Advisory Councils in vocational education.  Each Council shall be headed by a Chairperson and eight members.  Each Council shall be appointed for a specific skill area and shall made recommendations on qualification framework, accreditation norms etc.
  • Any difference of opinion between the NCHER and the National Commission for Human Resources for Health shall be referred to a Joint Committee.
  • Each financial year, the NCHER shall furnish a statement of estimated expenditure for development of higher education and research.  The accounts shall be audited by the Comptroller and Auditor General of India.
  • The central government has the power to supersede the NCHER, General Council, Board or Corporation for a maximum period of six months if any of them are unable to discharge their functions or persistently defaults in complying with directions of the central government.


Now let us consider why the BCI is opposing the Bill.

The Advocates Act 1961 provides the functions of the BCI with consultation to the State Bar Council. The following provisions are overriden by the present Bill which directly affects the BCI and the Advocates of our country:


(e) to promote and support Law reforms

(h)  to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils;

(i) to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf;


In short, the elected members of Bar Council who are the representative of the Advocates in India won’t be able to influence policy decisions or won’t be able to take decisions on the Legal education for lawyers, and it will become merely a toothless body as far as legal education is concerned.

Recently, discussion was triggered whether national law schools are serving the purpose to provide better advocates for our country? Indeed, they are providing best lawyers for non-litigation purpose or to serve the corporate sector but not better Advocates to deal with litigation in all the courts throughout India.  Similarly, the present bill may be helpful to produce best lawyers but won’t be able to produce best advocates as there is no participation of the Advocates in country. In the present Bill, the director of the National Law School may have his say to influence legal education but the democratic body of the Advocates won’t be able to influence and/or guide legal education system in any manner. In short, the persons who are not advocates will decide the fate of persons who are aspiring advocates. What can be the worse than this?

Challenges faced by environmental activist

An activist is a person who takes participation actively to bring in social change, to change and direct the policies of the government and to change the mindset of people. Environmental activist is a very special category. The environmental activist puts all his efforts to maintain the status-quo of the nature and the minimum exploitation of natural resources like air, water, soil, trees and so on. This effort of environmental activism has been always against those who are willing and attempting to change such a status-quo of natural resources in the name of “development”. Indeed, I believe the development is the basic instinct of human beings. Therefore, we have adopted the principle of sustainable development. We cannot afford development at the cost of unreasonable exploitation of natural resources. Unfortunately, for a short time gain we are overlooking the aspect of sustainability. And this is the juncture where the environmental activist needs to step in and take initiatives to protect the environment.
My dear friends, unfortunately in our kind of society, activism and especially environmental activism are hardly taken in non-adversarial manner. We often see that the activists are threatened by the so called developmental lobby. We have a number of examples where life threats given to the activist and many have suffered in terms of the loss of their life, social character and their own property. This is very serious, concerned for any environmental activist to stand against the unsustainable development.
Many a times there are organized attempts to oppose such activism. We have a recent example in Nasik it. A lady activist who approached court of law against abatement of river pollution, person having vested interest tried to demoralize her character by circulating obscene messages citing her name through social media like whatsapp and Facebook. Moreover, life threats were given to her, agitations were made by a group of people who actually exploited river bed for their small business. How long are we going to tolerate this? My friend and the activist, Rajesh have also gone through such a kind of situation while protecting trees of the city.
The major problem we face is the criminal prosecution, and many a times while doing an agitation, activists get arrested and put behind the bars on the charges of unlawful assembly. I’m sure that every one of us is aware about such kind of cases. In some cases even the environmentalist advocates are also put behind the bars. If this is the situation of the advocates, not to speak about the common activists. To protect the environment is not just a fundamental duty, but it is our fundamental right. Under such circumstances, government agencies should act very cautiously and carefully and not to become puppets of in the hands of persons having vested financial interest.
Many environmental activists waste their bottles of ink and billions of megabytes on the internet by writing representations to the government as well as private agencies for the protection of environment against particular development projects or any instances. But in 90% cases, what they get return is absolute frustration for want of any response. I believe it is easy to wake up Kumbhakarna but not the government agency. Many a times, activists also get a fade-up due to improper information received under the RTI Act. Now-a-days, without availing appellate remedies it has become difficult to get the right information. I think this is also a great challenge for the environmental activists to have access to the information and knowledge.
After making agitations, gathering information, writing representations and after letting struggle beyond imagination activists are left with no option but to approach the court of law seeking justice for the protection of natural resources from exploitation and pollution. In a lighter way, approaching the court of law is itself a challenge. Now days the entire judicial system is not only considerably costly for ordinary litigants but also time consuming.
In the Bombay High Court, we have Public Interest Litigation Rules, which make it compulsory to disclose the source of information. Often we do not get the information by the official means, but few persons help us unofficially to provide proper information. In such circumstances, it has also become challenging to disclose the source and many a time activists get exposed to the adversarial parties of the litigation. Further challenge is that we don’t have sufficient protection for the whistleblower neither we have a witness protection program in the environmental matters in the High Court and at the National Green Tribunal. In such circumstances, it is only the courage of the activists which protects them.
Non-availability of the green bench in the High Court is another challenge we face. When we challenge environmental clearance or file Petition against abatement of Pollution, adversarial parties make it a point to create more complications and obstacles in the matter. They have a very simple principle – if you can’t convince, make them confess. No doubt we have great judicial activism in Environmental Laws. But many judges have technical approach and for want of expertise in environmental sciences, matters get dragged towards undesirable ends. When finally we get the opportunity, to take the court in the right directions, what we succeed to achieve is nothing but sympathy of the court because meantime, the developer succeeds to portray about completion of the projects and high expenditures towards the cost of the project. As the result, gets the judicial relief in his favor. The expenses often are in 100s and 1000s of crore rupess.
In my opinion, ambiguity in the legislative policies is also one of the reasons causing challenges to the environmental activism. There is a lack of co-ordination between various statutes and authorities established under the statutes. For example, in many cases we find that the cases get delayed because of lack of co-ordination between CRZ and MRTP act, the Mines Act and labor laws, Municipal Laws and environmental laws and so –on…. We have to keep in mind that the co-ordination of all these statutes is necessary for the protection of the environment and suitable amendments are required for this effect.
Even in case of the environmental laws, some amendments are required. For example, individual cannot put the law into motion by directly making a complaint of abatement of pollution to the police authorities. The law expects individuals to approach the State Pollution Control Board and then if state pollution control board fails to prosecute accused within the period of 60 days then only a citizen can approach the magistrate. Why? There can be co-ordination between the MPCB and the police authorities.
Now we have the National Green Tribunal for Western Zone of the country which is situated in Pune. In some matters activist approaches to the tribunal and in case of any pending petitions before Hon’ble High Court adversarial parties take the benefit of it. This leads to the multiplicity of the proceedings leading to increasing costs and delay in achieving the ends of justice. Therefore, co-ordination between these judicial establishments is also the challenge we face while dealing with the environmental matters.
The Biodiversity Act of 2002 is one of the most neglected statutes along with other environmental laws. This Act restricts the access to the biological resources. However, in many interior parts of the country we can see clear violations of the Act resultantly which exploits biological resources and causes imbalances in the ecological system.
The major challenge for any environmental activist is the attitude of the Government agencies and lack of clarity on their part in implementing the environmental laws. The pollution control board has to play a very significant role in the protection of the environment. Similarly, Town Planning Authorities like corporations, municipal councils, special economic zones, and such other local, state and central government authorities are playing an important role towards development. But in many cases their attitude towards development is unsustainable, which actually triggers the struggle between the activists and the government.
Public awareness is also one of the challenges in the era where public opinions are formed by the media of various kinds guided by the market forces, instead of individual awareness towards pollutants which directly and indirectly cause air, water, soil or sound pollution. For example, use of plastic bags, washing vehicles in the river bed and so on…
For the protection of the environment and to clear the pollution there is always a problem related to the availability of the funds. It is the first hue and cry of the government agencies before the courts that they don’t have the funds to work out the problems. So the pretentious lack of availability of funds for the protection of the environment is also a challenge.
Recently, the Hon’ble Supreme Court observed[i] that the environmental principles are based upon anthropology i.e. they are human centric. However, we forget that human beings are themselves a part of nature. And therefore, I believe that eco-centrism is the right approach towards the environmental laws. I think to convince the government agencies as well as the judiciary to adopt transformation from human centric approach to eco-centric approach will be the new challenge to be faced by the environmental activists.
To sum up challenges are many for environmental activists, but there is one thing which ignites the mind of people to protect the environment. The nature.