The Trump administration has repeatedly stated that the Executive Order signed by US President Donald Trump, titled Protecting the Nation From Foreign Terrorist Entry Into the United States, which imposes an immigration ban on citizens of seven Muslim majority countries, is not a “Muslim ban”.
Indeed, this order has been carefully worded because, out of the seven countries whose citizens are affected, it only mentions Syria explicitly. It says: “the entry of nationals of Syria as refugees is detrimental to the interests of the United States.”
Cryptic cross-references to the Immigration and Nationality Act, which deals with countries whose citizens are subject to restrictions under the Visa Waiver Program, confirms that the Executive Order applies not merely to Syrians, but also to citizens of Iraq, Iran, Libya, Somalia, Sudan, and Yemen.
Does the American Constitution, however, reward legal sleight of hand? Can state action, which invidiously discriminates against a particular group, marking out individuals within that group for a special disfavour, avoid constitutional repercussions with a nudge and a wink so long as the group being singled out is not identified by name?
The answer, quite simply, is “no”, and the reason for this can be found in a judgment of the US Supreme Court dealing not with Islam, but with the syncretic Caribbean religion called Santeria.
‘A religious gerrymander’
Central to Santeria is animal sacrifice and, in 1993, the US Supreme Court was looking into a set of city ordinances that, though appearing neutral at first glance, essentially looked to end the ritual sacrifice practiced by adherents of the Santeria faith.
Justice Anthony Kennedy, who is still on the US Supreme Court, in striking down “government hostility which is masked, as well as overt”, christened laws that discriminated on the basis of religion under a veil of neutrality as “religious gerrymanders”, using the effect and operation of the law (and not merely its text) as proof of the real purpose behind it, apart from using “circumstantial evidence” of events preceding the enactment of the ordinances to ascertain their true object. According to him, the object of the law, in that case, was the “suppression of Santeria’s central element.”
Trump’s Executive Order is clearly a “religious gerrymander”.
First, even though the Executive Order does not mention Islam, it allows the US Secretary of State, for instance, to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”
This is nothing short of an official preference given to Christian immigrants, which is backed up by President Trump’s own public position.
On the other side of the coin, it clearly shows that Muslims, forming part of the religious majority of these seven countries, are being singled out, and are virtually being labeled by the executive government as foreign terrorists by virtue of their faith.
Second, and more important, is the fact the Executive Order cannot be divorced from events surrounding its promulgation, pointing towards its real object, and I would argue that this would include all of Trump’s anti-Islamic invective on the campaign trail. We need to remember here that, when it comes to this Executive Order, we don’t need to grapple with deep philosophical questions as to whether one can ascertain the real purpose or motive behind the acts of a collectivity like the legislature.
The Executive Order is the act of one human being, granted wide powers under Article 2 of the US Constitution, and the ends sought to be achieved by such an individual can definitely be extrapolated from his words and conduct.
This is not merely about the disproportionate impact on Muslims, or about trying to guess a hidden motive. This is a case where the real object of the Executive Order is conspicuous from a close reading of its text, from an analysis of context and on mapping its actual impact, yet the mere absence of the word “Muslim” is being used to emphasize neutrality.
Why India should care
However, why should we in India concern ourselves with this Executive Order or follow the developments in the US, where Federal Courts are stepping in to mitigate its effects? Why should we care about whether this Executive Order is violative of the American Constitution, which prohibits the unequal treatment of people and as well as preferences given to one religious group over another?
First, as a people, we should be aware of how easy it is for a populist leader to undermine constitutional principles with the stroke of a pen, and how important it is for us to closely scrutinise both the form and substance of official attempts to interfere with liberties and discriminate against groups, uniting in defence of the Constitution regardless of our political valence.
Second, for our courts, it is a reminder that their role is to protect individual liberties against the onslaught of officially sanctioned discrimination, regardless of whether such discrimination is overt or covert.
Our courts have recently taken the easy way out when it comes to facially neutral statutes, and nowhere is this more evident that in Suresh Kumar Kaushal vs Naz Foundation, where our Supreme Court concluded that Section 377 of the Indian Penal Code, which criminalises same-sex love, “merely identifies certain acts which if committed would constitute an offence”, but “does not criminalise a particular people or identity or orientation”.
The role of constitutional courts, above all else, is to go behind the chicanery of facially neutral laws, and strike them down if, both in impact and in overt purpose, a law singles out a group for unfavourable treatment, looking upon them with “an evil eye and an unequal hand.” Anything less amounts to the abdication of the judiciary’s role as the guardians of the Constitution.
Karan Lahiri is an advocate practicing in the Supreme Court of India, with an academic background in American constitutional law.