The government clarifies that Pakistan, Afghanistan and Bangladesh are Islamic countries where Muslims are in majority hence they cannot be treated as persecuted minorities. It also assures that the application from any other community will be examined on a case-to-case basis.
The argument made by the Union government is that this is a ‘reasonable classification’ permissible under the Constitution. Although the Constitution does not use these words, the test goes back to the State of West Bengal vs Anwar Ali Sarkar (1952), in which the Supreme Court was interpreting the scope of Article 14, which guarantees equality before the law.
However, this argument of the government goes against the grain of constitutional law developed by the Supreme Court since the 1950s and fundamentally misunderstands what the court said in Anwar Ali Sarkar. What the court actually said was (in the words of Justice SR Das): “Article 14 does not insist that every piece of legislation must have universal application and it does not take away from the State the power to classify persons for the purposes of legislation, but the classification must be rational, and in order to satisfy this test (i) the classification must be founded on an intelligible differential which distinguished those that are grouped together from others, and (ii) that differential must have a rational relation to the object sought to be achieved by the Act.”
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