Analysis: CAA in Supreme Court

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The Supreme Court, on the 18th of December, decided to examine probes which challenged the constitutional validity of the controversial Citizenship Amendment Act.

The act states that “any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan (subject to certain conditions) shall be deemed a citizen of India”.

This act and the bill which gave rise to it, both, were in the limelight due to the harsh criticism they faced for being in the critics’ words “patently unconstitutional”, “non-secular” and “a threat to equality”.

The apex court of the nation has issued a notice to the Centre to respond to the plaints by the second week of January. A bench comprising of the Chief Justice SA Bobde, and honourable Justices B R Gavai and Surya Kant would be hearing the 59 petitions on January 22nd, 2020. They did not stay the law because, as explained by them, an Act once passed and notified as a law cannot be stayed.

Upon the court’s suggestion, the Centre made a video explaining the Act and its complicities for the ordinary citizens to make them aware of it.

Background: Why was CAB introduced?

The Citizenship Amendment Act was initially introduced as the Citizenship Amendment Bill in the Parliament. The CAB was introduced with the aim of providing citizenship to illegal immigrants from Pakistan, Afghanistan and Bangladesh who have been residing in India for the past 5 years, rather than the earlier requirement of an 11 year stay in the country, belonging to the Hindu, Parsi, Jain, Sikh, Buddhist or Christian community. The legislation is applicable to groups who arrived in India on or before December 31, 2014.

 The bill states that it will not only grant citizenship to the said people but will also exempt them from all legal proceedings and action against them for illegal immigration. The bill exempts the tribal areas of Assam, Meghalaya, and Tripura from its applicability.

It also exempts the areas regulated through the Inner Line Permit, which include Arunachal Pradesh, Mizoram, Nagaland and Manipur. The amendment has exempted those Overseas Citizens of India (OCIs) who, in any act, violated the provisions of CAA and also gave them a right to be heard before doing so.

The main reason for introducing this bill was to safeguard the minorities of these countries from the years of physical, mental and social suffering they’ve bared. The bill was criticized by the opposition for being divisive and something which could lead to communal violence. However, it was passed in Parliament on December 11th with a clear majority.

Grounds on which CAA is being challenged:

The CAA faced and continues to face harsh criticism from both ordinary citizens along with people in power including politicians, reporters, legal professionals, tech pioneers and many others. It has been starkly criticized and some of the main grounds challenged are enlisted.

The Indian Union Muslim League has challenged the CAA, contending that it violates the Fundamental Right to Equality guaranteed under Article 14 and 15, stating that it grants citizenship to a part of illegal immigrants while excluding others, here, Muslims.

It explicitly discriminates against Muslims, according to them, and only benefits Hindus, Christians, Buddhists, Jains and Sikhs. It is violating the Fundamental Right to Equality by placing people belonging to the Muslim community and others on different pedestals and in a way also violates the Right against discrimination by discriminating them on the basis of primarily religion in a country which is secular, i.e., has no official religion and welcomes all to profess, practice and propagate their respective religions.

Congress leader Jairam Ramesh has filed a plea challenging the amendments of the act to be “a brazen attack on core fundamental rights” and claimed that it treated the “equals as unequals”.

Jairam has challenged the two bases for classification made in this act, which are geography and religion, neither of which are, according to him, logical to take into consideration and a rational nexus to the aim of the act which is providing shelter, citizenship and security to innocent refugees who face torture, discrimination and bear the brunt of belonging to a community which their home nation does not associate itself with.

A group of civil rights activists have filed a plaint in the Supreme Court censuring the Act for not only threatening equality but also the Right to Life and Personal Liberty which is a Fundamental Right granted under Article 21 of the Constitution.

The Act, in a way, debars those persecuted minorities that do not belong to the aforementioned countries and communities not mentioned as they would be deprived of enjoying a life of human dignity solely on the basis of their religious affiliation.

Many have come forward to condemn the legislation for exclusion of Sri Lankan Hindus from this bill as they have been facing serious human rights violations, violence and discrimination for years and many of them have fled to India to seek safety but now, with only the persecuted minorities of Pakistan, Bangladesh and Afghanistan being considered, the Tamil Hindus in Sri Lanka remain in the dark.

The same goes for the long-suffering Rohingya of Myanmar, a Muslim-majority ethnic minority in their home nation which endlessly deprives them of their rights, going as far as excluding them from their nation’s census.

Arguments favoring CAA by eminent personalities:

According to an IANS-CVoter poll, about 62.1% of the citizens of India support the CAA while 36.8% don’t. This data excludes Assam which had a separate poll conducted according to which 31% are in favour of the act and approximately 68.1% are against it.

The results of this poll makes it clear that a huge chunk of the nation’s citizens form the supporters of the act as compared to the smaller chunk of those against it. The protests, media coverage and social media make it seem the other way around, however, the poll gives the true picture, which then again can be questioned for how truthful it is indeed.

Amongst this community of supporters are some very notable personalities with immense knowledge and experience. A group of around 1100 research scholars and pioneers in academics have come forward with a signed statement of support to the controversial bill.

They’ve touched the facets of the bill which came into light for being problematic and explained how they are far from that. In the statement of support they accolade the government for securing the forgotten minorities and upholding the civilizational ethos of India” and “providing a haven for those fleeing religious persecution”.

They bring to notice that this feat, which had earlier tried to be achieved by other parties through failed attempts such as the Congress-led Liaquat-Nehru Pact of 1950, could finally now be fulfilled. The statement went on to convey that the Act in no way stops or exempts any members of a particular community, here Muslims, from accessing citizenship.

They could still acquire citizenship through any of the other prescribed methods of acquisition of citizenship in the Act. It has not, in any way, changed the mandates for becoming a citizen but rather provided a special expedited redress, under special circumstances, for minorities fleeing religious persecution from the said nations.

This group of scholars includes some well-known personalities such as Journalist and MP Swapan Dasgupta, Chairman of IIM Shillong and Industrialist Shishir Bajoria, Vice Chancellor of Nalanda University Sunaina Singh, Senior Fellow, Institute of Peace and Conflict Studies and journalist Kanchan Gupta, and J Sai Deepak, Advocate, Supreme Court.

Similar law in other countries:

Pew Research Centre conducted a survey on religion and its play and power in different nations. The survey brought to light the substantial influence religion has over various nations, either clearly by having an official state religion (43 nations) or by other means such as preferential treatment of certain religious communities over others by giving them an advantage through tax status, ownership or real estate (40 nations).

Russia belongs to the latter group of nations. It recognizes Christianity, Islam, Judaism and Buddhism as the country’s “traditional” religions, yet emphasizes the “special contribution” of Russian Orthodox Christianity to Russian history.

Members belonging to the recognized religions shared the following benefits: Students choosing to take a religious education course may choose between courses on the four traditional religions or a general course on world religions, and a government program funding military chaplains is restricted to chaplains of these four religions.

Yet, the government passively favours the Russian Orthodox Church particularly. For example, the State provided the Church patriarch with security guards and access to official vehicles, and an investigation found that major presidential grants given to organizations controlled by or associated with it provide more proof for the allegation.

Though this is not in every way the same to the CAA of India, it is in a way quite similar as both of them do not affiliate themselves with a particular religion but passively favour one over the other, there Christianity and here the others over Islam.

Conclusion:

The nation has been divided into groups, one favouring the Citizenship Amendment Act, the other dissenting it for its supposed discriminatory nature and yet another group which is still lost amidst the chaos.

The only probable solution here being informing the nation’s people of what the Act and its intricacies are and how it will affect each person, after that it is ultimately upto the people and our honourable Supreme Court would soon be giving its stance and most probably handling the situation in such a manner that peace prevails. Till then, we citizens must remain informed.

Author: Aastha Mittal from National Law University, Odisha.

Editor: Tamanna Gupta from RGNUL, Patiala.

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