Thus far on this blog, the challenge to the Citizenship (Amendment) Act (hereinafter referred to as ‘CAA’) based on violation of the evolving idea of equality, principles of reasonable classification, the basic structure of the Constitution (secularism) et al. have been discussed. Nevertheless, in this post, I would like to discuss the challenge to CAA based on Article 355 of the Indian Constitution.
‘External Aggression’ and ‘Internal Disturbance’
If CAA has been implemented then the persecuted minorities (belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community) from Afghanistan, Bangladesh or Pakistan will enter India and obviously in large numbers which might cause an internal disturbance in India due to migration of such a large number of people. It will be a hurdle in identifying and recognising whether a person who claims to be a minority is really from a minority community or not. Further, under Article 355 of the Indian Constitution, it is the Constitutional duty of the Union to protect the States against external aggression. Whether the influx of people from different countries into the territory of India is external aggression or not. The word ‘external aggression’ is not defined in the Constitution. It is of a far-reaching import, and it must not be confused only with ‘war’. The term war has been defined by L.C. Green in his book as,
“war is a contention between two or more States through their armed forces, to overpower each other and impose such conditions of peace as the victor pleases.” [L.C. Green, Essays on Modern Law of War, 56 (2nd Edition, 1985)]
Furthermore, the stand of our country before the U.N.O. was that influx of a large number of persons from across the border into India would be an act of aggression as the Indian representative in the Sixth Committee of the General Assembly argued that:
“For example, there could be a unique type of bloodless aggression from a vast and incessant flow of millions of human beings forced to flee into another State. If this invasion of unarmed men in totally unmanageable proportion were not only to impair the economic and political well-being of the receiving victim State but to threaten its very existence, I am afraid, Mr Chairman, it would have to be categorised as aggression.” [Christopher O. Quaye, Liberation Struggles in International Law, 358 (1991)]
That is why the framers of the Constitution have chosen the word “aggression” instead of war. Further, in the case of Sarbananda Sonowal v. Union of India, the Supreme Court has used a very liberal approach in interpreting the words “external aggression”. Giving a very liberal interpretation of the term ‘external aggression’, the court held that the presence of a large number of illegal migrants from Bangladesh was ‘external aggression’. The three-judge bench, in the course of the judgement (in paragraph 32), quoted Kautilya who in “The Arthashastra” has said that a King had two responsibilities to his state, one internal and one external. Raksha or protection of the State from external aggression was one of the primary responsibilities of the King.
In this case of Sarbananda Sonowal, a PIL filed by the current CM of Assam praying for declaration of IMDT Act as unconstitutional. IMDT Act, in the words of Shri K.K. Venugopal, who appeared for the State of Assam, provided a very fair procedure for determining whether a person was an illegal migrant or not. However, still, the Court held that the IMDT Act is unconstitutional going by a unique logic that it violates the provisions of Article 355 of the Constitution. The Court did not make any distinction based on the religion of any individual.
“The provisions of the IMDT Act and the Rules made thereunder clearly negate the constitutional mandate contained in Article 355 of the Constitution, where a duty has been cast upon the Union of India to protect every State against external aggression and internal disturbance. The IMDT Act which contravenes Article 355 of the Constitution is, therefore, wholly unconstitutional and must be struck down.”
Although, the Central Government, under the CAA, has the authority to create conditions and restrictions while granting the certificate of citizenship, but still this will cause a burden of the states. Notably, there will be an issue of housing, education and employment. All the burden will fall on the states which will cause ‘internal disturbance’ within the states. Migration of Indian workers only is a big problem during COVID-19, we do not know how those migrants from different countries will be managed. There arises a lot of questions which must be answered by the Union: [a] will the states accept those migrants from different countries and if not, then will it be a federal issue? [b] Will the problem of unemployment increase due to influx of migrants and if yes, will they be paid minimum wages or else it will become an issue of violation of Article 21 (Right to life with dignity)?
The influx of such a large number of people is undoubtedly a form of internal disturbance which causes a grave threat to the life of people and hampers the growth and economic prosperity of the States. Furthermore, it is the duty of the Union to protect states from “external aggression” and “internal disturbances”. The centre must take stringent steps to make sure that the states are duly protected. Therefore, going by the logic of Sarbananda Sonowal case, CAA must fail as it prevents the Union Executive from discharging its constitutional duty under Article 355.
Let the Courts decide whether the CAA prevents the modern “Kautilyas” from performing their responsibilities!
An edited version of this article was published on Nyayshastram Blog here in June 2020.