not provided any clear or convincing justification for these differentiations. On the contrary it states in its counter affidavit that ‘conferment of citizenship is a sovereign function’. 61 And the government ‘…further submit[s] that inclusion of one particular country in the list and non-inclusion of other(s) cannot be subject-matter of judicial review.’ 62 41. In our view, the Supreme Court should consider the following factors in assessing whether the legislation is justified: 41.1. There is no evidence in the Act nor in the Statement of Objects and Reasons or Counter Affidavit to establish that the protected groups are empirically in greater need of protection than those who are not protected. On the contrary, India hosts over 200,000 refugees and asylum seekers, originating from Tibet and Sri Lanka, registered with the Government of India. 63 Additionally, there are 40,000 persons of concern registered by the UNHCR in 2019 within India; 60% are Rohingya (compared to 27% from Afghanistan, or 1.4% of the entire refugee and asylum seeker population within India). 64 Even in 2015 when the first amendment was made to the Passport (Entry into India) Act, there were 209,234 total persons of concern, and persons from Myanmar made up 54% of those assessed by UNHCR (and 9% of the total) while those from Afghanistan made up 38% (or 6% of the total). 65 41.2. There is no evidence to support the notion that ‘[t]he illegal migrants [as confined by the CAA] who have entered into India up to the cut-off date of 31.12.2014 need a special regime to govern their citizenship matters’. 66 For example, there is no evidence that the specified groups are currently disproportionately excluded from naturalisation in India such that these provisions are necessary. On the contrary they have already been singled out as being provided with exemptions from the Passports (Entry into India) Act 1920 and Foreigners Act 1946. 41.3. Further, there is no evidence that the key group that has been left out, namely people of the Muslim religion from the three countries and all those from other relevant countries such as Myanmar, have historically been given any form of advantage in terms of naturalisation in India. 41.4. Hence there is no rational connection between the stated aim, namely protection of those who have been persecuted, and the mechanism of the act, namely, facilitation of naturalisation to a sub-set of individuals who are defined neither by reference to their need for protection nor their historical disadvantage in their country of origin or indeed in India. C Legitimate End? Rationale/Justification: ‘Undivided India’ 61 Counter Affidavit (n 23) at [22]. Ibid at [28]. 63 UNHCR, ‘Fact Sheet: India’ (31 January 2020) (n 51) 1. 64 UNHCR, 2019 Year-End Report – Operation: India (Report, 30 July 2020) <https://reporting.unhcr.org/sites/default/files/pdfsummaries/GR2019-India-eng.pdf> 4. 65 UNHCR, ‘Fact Sheet: India’ (February 2016) 1. 66 Statement of Objects (n 44) [5]. 62 13