‘Proviso in amended citizenship legislation is unconstitutional’: Justice Madan Lokur

Article 14 of the Constitution is not limited only to reasonable [actually rational] classification. What is important is that the rational classification must have a reasonable nexus with the object sought to be achieved by the legislation, says Justice Lokur

Justice Madan Lokur, a former judge of the Supreme Court, says the proviso to the definition of illegal immigrant in the amended citizenship act is unconstitutional if one agrees with the law laid down by the Supreme Court in 1952. In an email interview with Bhadra Sinha, he says there is a twin requirement of rational classification and reasonable nexus to pass the test of Article 14 of the Constitution, which deals with equality. And this is unfortunately forgotten in the present debate, Justice Lokur, who is now a Supreme Court judge in Fiji, adds. He speaks on the encounter death of four people accused of raping and murdering a young woman in Hyderabad and pollution in Delhi, among other subjects. Edited excerpts:

Justice Madan Lokur, a former judge of the Supreme Court, says the proviso to the definition of illegal immigrant in the amended citizenship act is unconstitutional if one agrees with the law laid down by the Supreme Court in 1952.(HT File)

The Citizenship (Amendment) Act has come under criticism for being a piece of legislation that critics say violates the secular spirit of the Constitution. The government justifies it on the ground of reasonable classification, as read by the Supreme Court under Article 14 of the Constitution. How do you view this Act? Don’t you think it is also an indirect commentary on the internal administration of the countries where India claims minorities are being persecuted?

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The proviso to the definition of “illegal migrant” inserted in the Citizenship (Amendment) Act is clearly unconstitutional provided one agrees with the law laid down by the Supreme Court way back in 1952 in State of West Bengal v. Anwar Ali Sarkar. Article 14 of the Constitution is not limited only to reasonable [actually rational] classification. What is important is that the rational classification must have a reasonable nexus with the object sought to be achieved by the legislation. In other words, there is a twin requirement of rational classification and reasonable nexus to pass the test of Article 14, and this is unfortunately forgotten in the present debate. Justice SK Das of the Supreme Court clearly held:

“The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation.

In order to pass the test, two conditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them.

In short, while the Article forbids class legislation in the sense of making improper discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense I have just explained.”

This view has been followed hundreds of times by the Supreme Courts and thousands of times by all the high courts. Applying this classic test, the proviso is unconstitutional.

The Statement of Objects and Reasons accompanying the Act casts aspersions on Afghanistan, Bangladesh and Pakistan. I think this is diplomatically unwise.

The encounter of the alleged rapists in Hyderabad has raised questions over justice delivery system in India. A blame game began, with the administration saying judicial process is slow and tardy, while the parents of the Hyderabad victim and rape survivors welcomed the police action. Are encounters at the stage of investigation a remedy to quick justice?

Obviously not. There is a distinction between an encounter death and extrajudicial killing. What happened in Telangana is extrajudicial killing. Whether it was the result of an encounter that endangered the life of the policemen and whether all four accused were required to be killed is being inquired into.

You were part of the press conference on January 2018. What disturbed you so much then that you were forced to take such a step? Were your concerns addressed after the presser? Do you feel it brought reforms that you had sought within the institution? Was the then CJI Ranjan Gogoi able to implement the reforms as were desired when the presser took place?

It wasn’t a press conference in the traditional sense. That apart, yes it did bring about some change, but not enough and not in a broader sense of reform.

Judges of the Supreme Court often speak about a communication gap between them and the CJI. Is this true? Was this one of the reasons for you going public? Do you ever regret holding the presser?

I don’t think there is any communication gap between the judges of the Supreme Court and the Chief Justice. No, I do not regret the so-called press conference.

Supreme Court is often criticised for being selective in fast-tracking hearing of cases — for example Ayodhya—while the important ones involving rights of people don’t get quick attention. Do you think this is true?

This is only a matter of perception. In my view, all cases should be fast-tracked. Litigants ought not to be expected to wait for years for a decision. Drastic reforms are absolutely necessary for providing expeditious and equal justice to all. There is enough empirical evidence today to justify immediate attention to judicial reforms.

You wrote an article criticising the panel that gave a clean chit to former CJI Ranjan Gogoi in the sexual harassment case for not providing a copy of the report to the complainant. How could the panel do so if the rules do not permit it? Also, can we have separate set of rules just because a sitting CJI is involved in the matter?

Which rule prohibits supplying a copy of the report to the complainant? On the contrary, in a sexual harassment complaint, a Bench over which I had presided directed that the report should be given to the complainant. As far as I remember, a copy of the report was available in court and it was handed over to the complainant then and there.

As a part of the green bench, you issued innumerable orders to control rising pollution levels in Delhi. Do you think judiciary overstepped and, if it did not, then has it done enough or does it need to keep nudging the executive to do its job? Who is lacking and where?

I have always asked the question: What is a citizen to do if the Executive does not perform its obligations mandated by a law solemnly enacted by Parliament? Either the citizen takes to the street or approaches a court of law. If the citizen approaches a court of law, the court is obliged to require the Executive to perform its statutory obligations. This is the essence of the rule of law. If this amounts to overstepping, it’s a perverted understanding of statutory and constitutional obligations. If the laws are not faithfully implemented by the Executive, an independent judiciary will and must act to maintain the rule of law and fulfil its constitutional obligations.

With the government approving unauthorised colonies for regularisation, do you think the court’s efforts to clean the city’s mess has been set at naught. It was your bench that re-started the sealing drive and revived the monitoring committee to put a stop to unauthorised construction and illegal use of residential properties.

Rest assured, regularisation of unauthorised colonies will not clean the city’s mess.