CONSTITUTIONAL VALIDITY OF CAA

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The Citizenship Amendment Act passed in the parliament of India on December 11, 2019 aims to amend its citizenship amendment act of 1955. Through the new Citizenship Amendment Bill, Indian Citizenship is granted to illegal migrants of specific communities viz. Hinduism, Christianity, Jainism, Parsi, Buddhism, Sikhism from neighboring nations—Bangladesh, Pakistan and Afghanistan and also aims to invite these minorities into India in the oncoming years.                                                         

Prima facie the act seems to be humane in nature aiming to respect minorities in the surrounding nation. But upon in-depth analysis it aims to have excluded the only Muslim community in the nation and have opened its doors for other communities. The general concern of Muslim community is that they would become minorities in their own homelands. Other concern pestering the nation is the implementation of National Register of Citizens in India where every citizen would be required to show a proof of citizenship supported by any document specified by the Government. Majority citizens were never prepared of this harsh step to be taken by government all of a sudden and thus never prepared or kept a record of their documents and as a result of same many would be declared illegal immigrants even if they’re not.

First thing first India doesn’t have any refugee laws till date, as such. India is not a signatory to UNHCR either reason being security threat. The line of argument is that borders in South Asia is extremely porous and India doesn’t hold a very good relations with its neighboring nations. Refugee crisis may arise because of many reasons most common being war at Bangladesh, domestic conflicts in Tibet and Sri Lanka, natural disasters and emerging environmental issues and crimes such as trafficking etc. The law fails to define the status as well as the fate of citizens-to-be migrating into the India subcontinent post-Citizenship Amendment Act implementation. There are innumerable possibilities firstly there’s no guarantee of jobs, resources and shelters to the migrants that might be walking in a nation already having a population of 1.30 billion. There might be another majority crisis arising in the country that might discriminate the fresh migrants just like Rohingyas (migratory Bangladeshi fled Muslim population taking refuge in India currently) were never wholly accepted in the India subcontinent. Several non-BJP states have made a symbolic threat of non-cooperation because the Citizenship Amendment Act is a constitutional travesty and violates cooperative federalism thus, safety of these migrants in such states cannot be guaranteed although the Centre has an upper hand in India federal but CAA introduced numerous clashes between the Centre and the State and so cooperation can be least expected.

Secondly, the act does not define the extent of prosecution. Needless to say it might constitute anything from refusal to dine with a person or lynching him, raping them or murdering them just because they align with any faith related to the marginalized and targeted community. Thus, the legislators haven’t related it to the gravity of the act. Moreover, there are innumerable minorities who are legally a citizen of the nation but have faced prosecution at innumerable levels and of all extent. Argument remains that a nation of such vast population must at priority be saving its own citizens rather than opening its doors for others irrespective of the ground. Although there are certain classes in these nations itself who have been prosecuted despite their faiths in religious majorities.

The Hon’ble Supreme Court in the case of Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr[1],  (1973) 4 SCC 225 outlined the basic structure doctrine of the constitution. The thirteen judge Constitution bench of the Supreme Court deliberated on the limitations, if any, of the powers of the elected representatives of the people and the nature of fundamental rights of an individual. In a sharply divided verdict, by a margin of 7-6, the court held that while the Parliament has wide powers; powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.

Thus, India must have a define refugee law if not collaboration with UNHCR, proper prosecution law and must aim to define the terms specifically.

The act also stands in contradiction with Article 14 and 15 of the Constitution of India.

The act violates Article 14 of the constitution of India which creates a couple of unreasonable classifications on the basis of religion and geographic extent and shares no rational nexus to the object of the proposed Act. This act shall provide citizenship to all individual migrated to India except for Muslim community and other than them all citizens and non-citizens will be required to prove their citizenship via a proposed all India Pan NRC. The petition stated that “… the Act wants to create a class of refugees on the basis of religion which cannot be treated as permissible/reasonable classification. In order to pass the test of permissible/reasonable classification, two conditions as propounded by this Hon’ble Court in the case of State of West Bengal Vs Anwar Ali Sarkar[2], have to be satisfied: “the classification must be founded on an intelligible differentia which distinguishes person or thing that are grouped together from other left out;

the differentia must have a direct nexus to the object sought to be achieved by the statute in question”.

The Hon’ble Supreme Court in the case of E P Royappa v State of Tamil Nadu[3], observed that “equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined within the traditional and doctrinaire limits. From the positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies… where the act is arbitrary, it is implicit that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.”

 THE PROPOSED ACT ALSO STANDS IN CONTRADICTION WITH ARTICLE 15 OF THE CONSTITUTION OF India.

The Act treats equals as unequal, all persons facing religious persecution in their native country are not being treated the same. The Act is arbitrary as it groups only three countries and six religions and expressly excludes specific religions and other neighboring nations. The Act fails to provide all persons, including those residing in India, the fundamental right of equality before the law guaranteed under Article 14.

The Hon’ble Supreme Court in the case of S. R. Bommai v. Union of India[4], while discussing the concept of secularism, held:-

“These provisions by implication prohibit the establishment of a theocratic State and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination. The State is enjoined to accord equal treatment to all religions and religious sects and denominations.”

“Secularism is a part of the basic structure of the Constitution. The acts of a State Government which are calculated to subvert or sabotage secularism as enshrined in our Constitution, can lawfully be deemed to give rise to a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.

Articles 5 to 11 of the constitution provide details of various categories of individuals who are entitled to citizenship of India. Article 11 empowers Parliament to regulate citizenship. But this power given to the parliament does not mean that Parliament through an ordinary law can destroy the fundamental values or the basic structure of the constitution. The religious basis of citizenship would be a negation not only of secularism, but also of liberalism, equality and justice. This Act in whole surpasses the entire preamble.

The Act violates Article 21and Article 19 by creating a separate class of individuals who would be rendered stateless and will not be considered the citizens of the country.


[1]  Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr,  (1973) 4 SCC 225

[2] State of West Bengal Vs Anwar Ali Sarkar  AIR 1952 SC 75

[3] E P Royappa v State of Tamil Nadu 1974 AIR 555 1974 SCR (2) 348 1974 SCC (4) 3 ACT

[4]  S. R. Bommai v. Union of India ([1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1)

Author: MOHD SHAAZ PEERBAKSH

Editor: Kanishka VaishSenior Editor, LexLife India.

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