Constitutional Validity of CAA

The Indian parliament passed a contentious bill introduced by home minister and BJP President Sri Amit Shah in 2016 on December 9th, 2019.  The Citizenship Amendment Act (CAA) modifies the Indian constitution’s Citizenship Act of 1950. On the basis of religious persecution in Pakistan, Afghanistan, and Bangladesh, the Act grants Indian citizenship to members of the Hindu, Sikh, Buddhist, Jain, Parsi , and Christian religions. If these particular groups arrive in India before December 14, 2014, they will be granted citizenship under the bill. Furthermore, the CAA provides an expedited route to citizenship for these groups of people who adhere to the faith that the CAA requires. At first glance, the bill seems to be a generous gesture to people who have been persecuted in their own countries because of their religious beliefs. It does not explicitly exclude Muslims, so it does not seem to be racist on the surface. However, through closer examination, the amendment’s exclusion of Muslims seems to be controversial.

ITS UNCONSITUTIONAL ON THE FOLLOWING GROUNDS-

SECULARISM[1]

The preamble of the constitution says that India is a Secular Nation. The word ‘secularism’ means that there is no state religion, the state does not promote or demote any group on the lines of religion. However, in this amendment the granting and non-granting of citizenship is based on religion, which is clearly evident from the absence of muslims in the proviso under Section 2 of the Amended Act. However, in recent years, “secularism” in India has come under fire. It has been linked to previous regimes’ opportunistic vote-bank politics, in which religious minorities, especially Muslims, were “appeased” at the expense of and against the Hindu majority’s interests.

It claims that, contrary to common opinion, prejudice against Muslim immigrants, which appears to be a part of the CAA, is not a new phenomenon. Leaders with otherwise unmistakably secular credentials, such as Nehru and Ambedkar, put in place provisions that discriminated against Indian Muslims who had migrated to Pakistan and wished to return to India. It contends that articulating aThe CAA is vaguely reminiscent of policies introduced by the Indian government during the partition of the country and the drafting of the Constitution, as it gives priority to non-Muslim immigrants while discriminating against Muslim immigrants. The CAA helps refugees who have left their homelands to become citizens more quickly. This legislation appears to be a generous act of the Indian government in passing it through its Parliament in order to assist oppressed groups in its neighbouring countries. This rule, however, only refers to people who are native to one of the three countries: Afghanistan, Pakistan, or Bangladesh, and who practise Hinduism, Sikhism, Buddhism, Jainism, Christianity, or Parsi Islam.

AGAINST THE NOTION OF EQUALITY

Part III (Articles 12 to 35) grants human rights, while Articles 14 and 15 discuss Equality Before the Law and the prohibition of discrimination, respectively. This Amendment Act, on the other hand, is a product of the government’s violation of Articles 14 and 153, in which the government discriminated against Indians on the basis of religion, thus violating equality.

RELIGIOUS TOLERANCE 

India is regarded as one of the world’s most religiously accepting countries. It is a well-known case of ‘unity in diversity.’ However, it seems that this legislation was passed with religious politics in mind, enacting racist laws in order to advance extremist ideology.[2]

Article 14 holds that if a welfare state’s government segregates citizens on some basis and then grants equal treatment to all members of the segregated community, the agreement is true. This argument may be correct in principle, but when a government segregates on the basis of religion, as the CAA does, demonstrations and civil unrest are inevitable. People argue that the CAA and NRC are two initiatives of what appears to be President Narendra Modi’s great vision of Hindutva, upholding India as a Hindu country, and that the CAA and NRC are two initiatives of what appears to be President Narendra Modi’s great vision of Hindutva, upholding India as a Hindu nation.

IT VIOLATES THE LAW

The CAA excludes Muslims from three majority Muslim countries: Pakistan, Afghanistan, and Bangladesh. This is a religious-based law which is expressly contrary to the ethos of the Indian constitution and to the democratic secularism of present-day India. The Preamble of the constitution of India begins by securing secularism in its republic, We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens: justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the nation.[3]

The CAA was passed to help oppressed minorities observe, profess, and spread their faith in India, as well as seek refuge even if they did not have valid travel documents. Shah’s reasoning is merely an assumption without any supporting statistics.

The number of persecuted religious minorities from Afghanistan, Pakistan, and Bangladesh who sought asylum in India on or before December 31, 2014 is unknown. Perhaps more worrying is the fact that the CAA actively discourages Muslims from applying for Indian citizenship. There is a bias for granting specific religions preferential status over others, leading to the conclusion that India’s secular government simply prefers one religion over another.

India has denied individuals equality before the law and equal protection under the law on the basis of faith by adding Articles 14 and 21 to the CAA under the principle of due process. On the basis of their faith, Muslim refugees would be denied equal status before the law and equal rights.

Despite the fact that the Indian Constitution does not explicitly grant due process as a fundamental right to its citizens, the Supreme Court of India has interpreted due process to exist through Articles 14 and 21 of the Indian Constitution. “No one shall be deprived of his life or personal liberty except in accordance with legal procedure,” says Article 21.

“No one shall be deprived of his life or personal liberty except in accordance with legal procedure,” says Article 21. “The State shall not deny to any individual within the territory of India equality before the law or equal protection of the laws,” says Article 14.

Religious persecution may have occurred in the countries of “illegal migrants” from Afghanistan, Bangladesh, and Pakistan. Religious asylum seekers from other nations, such as Myanmar’s Rohingyas, are ignored by the CAA. It’s possible that these are neighbouring nations, such as

Nepal, Bhutan, or Sri Lanka, or other countries that are not India’s neighbours but are on the Indian subcontinent which members of the designated religious groups can still be persecuted

ARBITRARY-CAA

The issue of whether a law is arbitrary was decided by the Supreme Court decision of Navtej Singh Johar v. Union of India[4]. In its landmark decision, the court utilizes Article 14 and 20  of the Constitution as a framework in its decision. Again, Article 14 states, “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

“The state shall not discriminate against any person solely on the basis of religion, race, sex, place of birth, or any combination of these factors,” notes Article 15. Article 15 only applies to Indian people, not to any foreigner or illegal migrant in the country.

In E. P. Royappa v. State of Tamil Nadu[5]

When an act is arbitrary, it implies that it is unequal both in terms of political logic and in terms of constitutional law, and therefore violates Article 14. The CAA is inherently unfair in its treatment of people based on their religious beliefs.

As a result, it fails to meet the Supreme Court’s definition of arbitrariness under Article 14 of the constitution, which guarantees fair treatment before the law and equal security within India’s borders. Former Supreme Court Justice Madan Lokur has claimed that the CAA was enacted in violation of Article 14 of the Constitution.

WHAT DOES CAA DO ?

Allows such illegal migrants to qualify for citizenship if they meet four requirements:

  • They arrived in India before December 31, 2014.
  • The Union government granted them exemptions from the Passports Act and the Foreigners Act.
  • They are Afghans, Bangladeshis, or Pakistanis.
  • Hindus, Sikhs, Christians, Parsis, Jains, and Buddhists are among them. According to the government’s own figures, only about 31,313 individuals – those who meet the above four criteria, according to the Intelligence Bureau’s submission to the Joint Parliamentary Committee –
  • The law’s aim is to protect members of the three countries’ minority groups who have been persecuted for their religious beliefs. At least, that’s how the government portrays it, but the law’s kindness in this regard is stingy.

The Union government claims that this is a “fair classification” that is allowed under the Constitution. In the absence of these terms in the Constitution, the test dates back to the Supreme Court’s interpretation of Article 14, which guarantees equality before the law, in the case of State of West Bengal vs Anwar Ali Sarkar[6]

However, the government’s claim runs counter to the Supreme Court’s development of constitutional law since the 1950s, and it fundamentally misunderstands what the court said in Anwar Ali Sarkar.

Article 14 does not require that any piece of law be universally applicable, nor does it strip away the State’s right to classify people for legislative purposes; however, the classification must be fair, and in order to pass this test, the classification must be rational.

1)The grouping must be based on a discernible difference that separates those who are grouped together from those who are not.

2) The differentia must have a reasonable relationship to the Act’s goal.

Home Minster-Shri Amit Shah views

The CAA’s aim, according to Amit Shah, is to encourage the immigration of religiously oppressed people from majority Muslim countries. He said that non-Muslim people of Pakistan, Afghanistan, and Bangladesh face daily persecution and even forced conversions because Islam is the state religion of these countries. According to him, many of these refugees lack the necessary travel documents needed by the Passport Entry Act of 1920. The CAA did not need to include Muslims, according to Shah, because Muslims in Pakistan, Afghanistan, and Bangladesh are not persecuted because they reside in Islamic countries. However, Shah’s logic falls short since many Muslims of different minority sects, as well as non-Muslim religious groups, are persecuted in these countries.[7]

Impact on People of Assam[8]

People in Assam are protesting in large numbers and holding public demonstrations. They argue that the Citizenship (Amendment) Act, 2019 has broken Assam  rules. The date of deportation and identification of immigrants/foreigners was after March 24, 1971, according to Clause 5(3) of the Assam  However, this provision also has a new cut-off date of December 31, 2014, which is a point of conflict. This amendment is illegal because it violates Article 16 of the Constitution, which promotes equality of public jobs.

However, Hindus, Parsis, Sikhs, Bhuddhists, Jains, and Christians will be qualified for government service and residency after 5 years under this Amendment. A Muslim, on the other hand, must wait eleven years for government residency and service. Thus, this amendment is not uniformly applicable in whole of India.

Cutt of Date –[9]

 Only those who entered India before December 31, 2014 are qualified to apply for citizenship under the CAA. Even if they had experienced religious persecution in the subject countries before or after that date, those who entered India after that date have no such right. The CAA’s ostensibly humanitarian goal is thus jeopardised.

The CAA’s aim is to provide sanctuary and refuge to non-Muslim religious minorities who have faced or are facing religious persecution in some countries in India’s immediate vicinity.

Young Generations- Views on CAA

Students protested the Citizenship  Act of 2019. The CAA was seen by students as an anachronism in and of itself. There was nothing directly or indirectly influencing the interests of students in particular, it can be said. The CAA is widely regarded as anti-Muslim, which may be one of the major reasons why students from Jamia Millia Islamia and Aligarh Muslim University have taken the lead in the agitation, with the politically JNU joining  in as well. Students from most universities lifted their voices in protest of CAA. Jamia, Aligarh Muslim University , Maulana Azad National Urdu University , and Nadwa College are all well-known universities.[10]

Poverty, malnutrition, unemployment, and overpopulation are still problems in India. In terms of population, India is the world’s second largest. Furthermore, it lacks sufficient resources and job opportunities for its own citizens; how can it give any of these to immigrants of any caste or religion.

The majority of people believe that this government’s ideology is founded on Hindutva. And the Citizenship (Amendment) Act of 2019 is a step toward turning a democratic country into an extremist one.

Conclusion-

It would be naive to believe that repealing the CAA or enacting a regular refugee law in India would be a solution for the country’s problems. There is a more serious problem than the one addressed by the CAA provisions, which is the persecution of religious minorities in the pursuit of an ideal Indian identity and home. The burden of proof would then fall on Indian people to establish their citizenship. A significant number of Indian people of different religious persuasions would be unable to do so because documenting one’s place of birth and place of residence of one’s parents’ birth. The CAA was created to allow groups of religiously oppressed migrants to flee Muslim countries. Since India is secular, at least in principle, its government must seek advice from the international community on the CAA. Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from the subject countries who were “forced to seek asylum in India due to religious persecution or fear of religious persecution” are granted citizenship under the CAA who entered India before December 31, 2014 . Non-Muslims who are not included in the NRC would not be considered to be covered by the CAA. Non-Muslims seeking asylum under the CAA would have to show that they migrated to India from Pakistan, Bangladesh, or Afghanistan before December 31, 2014, and that they did so to escape religious persecution, according to Indian citizenship law’s evidentiary guidelines. The CAA’s preference for non-Muslim immigrants is reminiscent of India’s aversion to returning Muslim refugees from Pakistan during the partition, though the circumstances in India at the time were unquestionably different than they are now. Nonetheless, However, this does not imply that it is constitutionally sound. Only time will say how the CAA will affect Muslims in India and India itself in the short and long term. Still, for the world’s largest democracy, the CAA’s passage opens the door to India being a less secular and more theocratic state; the CAA’s passage is the very reason it was passed. For example, genocide in Germany did not occur as a result of gas chambers, but rather as a result of Adolf Hitler’s “hate speech.” Similarly, the arbitrary provisions of the Citizenship (Amendment) Act, 2019 in India are the product of communal hate and religious politics. The CAA’s preference for non-Muslim immigrants is reminiscent of the previous administration’s preference for non-Muslim immigrants. Despite the fact that India’s aversion to returning Muslim refugees from Pakistan dates back to the partition, Conditions in India were unquestionably different back then than they are now.


[1] See, Abhinav Chandrachud, Republic of Religion: The Rise and Fall of Colonial Secularism (Gurgaon: Penguin Random House, forthcoming in 2020).

[2] Religious Composition of India, https://www.pewresearch.org/fact-tank/2015/04/21/by-2050-india-to-have-worldslargest-populations-of-hindus-and-muslims/ft_15-04-17_indiashare/ (last visited May 10, 2021).

[3] https://www.deccanherald.com/specials/sunday-spotlight/citizenship-amendment-act-an-unconstitutional-act-785638.html (last visited on May 10, 2021)

[4] Navtej Singh Johar v. Union Of India Ministry Of Law, 2018 SCR 4321 (India).

[5] E. P. Royappa v. State of Tamil Nadu, 1974 SCR 348.

[6] 1952 AIR 75, 1952 SCR 284

[7] Here is what Amit Shah said in Rajya Sabha on NPR and CAA | India News,The Indian Express (Last Visted  on May 10, 2021)

[8] Shubhanshu Das, The Citizenship Amendment Bill, 2019 and Its Impact Over State of Assam, II Int. L. Of Mgmt. and Human (2019).

[9][9] Cutt of Date -31 December 2014

[10] https://blog.ipleaders.in/validity-citizenship-amendment-act-2019-in-the-light-of-indian-constitution/- Student Views (Last Visited on May 11, 2021)

Author: Dhruv Sikka from VIPS, Delhi.

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