Understanding what the right to equality promises

​Understanding what the right to equality promises

The Court has an opportunity to reshape not just the citizenship law, but also the way in which it judges alleged violations of our constitutional guarantee of equality

The rules of the Citizenship (Amendment) Act (CAA), 2019

This law has been challenged before the Supreme Court on the grounds that it violates Article 14 of the Constitution. 

This is an opportunity for the Court to fundamentally reshape not just the citizenship law, but also the way in which it judges alleged violations of the constitutional guarantee of equality.

The classification test

Home Minister in debate :

it applied to persecuted सताए minorities who had fled to India from geographically connected nations, and the purpose was to provide these minorities with full citizenship rights in India. 

One could, of course, argue that the ‘persecuted minorities’ argument ought to extend to, say, the Ahmadiyya Muslims in Pakistan as well.

In Charanjit Lal Chowdhury v. Union of India (1950)

https://youtu.be/4pxp4Cl9_PU?si=bwT8UOwAj9TYTvM2

1 Court declared that “the govt  is free to make degrees of harm and it may confine its restrictions to those cases where the harm is deemed to be the good for other .”

2  If we go by this standard, the CAA might be constitutional. And that is where the problem lies.

The classification test 

It is a judicial import from the U.S. dating back to 1950. It has since been crystallised, refined, developed, and critiqued to the point where it has become an inseparable part of equality jurisprudence.

 Indeed, from being a way of interpreting our equality guarantee, it has almost become our equality guarantee.

The real protection afforded by the Constitution, however, is not the test; it is what the test is used for.

. The CAA may pass this test, and yet not satisfy our constitutional conscience

 there are some persecuted minorities who are excluded for no apparent reason. 

This is unsettling also because the discrimination here is on the basis of religion, which is against any understanding of secularism.

Other judges have also attempted to augment the classification test with more teeth

But these responses are stopgap. The test is either bent to suit more just outcomes, or a new test is developed. 

What is required instead 

1 It is a comprehensive re-understanding of what the right to equality promises. This does not necessarily mean that the old test needs erasure, but it needs a radical redevelopment. 

2 The Court needs to go beyond asking the questions it already does. 

3 It will have to develop the constitutional idea of equality more thoroughly. 

4 The old idea of ‘treating equals equally and unequals unequally’ has shown its deficiencies. This will be a deeply theoretical exercise, but it is necessary for a more robust constitutionalism.

5 The Court will also have to ask more probing questions of the state: 

• why Ahmadiyya Muslims have been excluded and 
• 
  
• the exact number of immigrants who have come from each of these countries (from each religion)
  

6 Each of these will test the state’s purported justifications against the new idea of equality. These questions may be asked in the classification test as well, but are not its core components. 

Opportunity for a clear break

The legal and constitutional challenge to CAA is a timely opportunity for this task 

because the Act goes against many of our beliefs of what equality entails, and what the Constitution requires from the government.

 Questions of this magnitude are better answered with a clear distinction between the right and the test. Only the former is inviolable.

Source the hindu