Introduction
Why it is always about Hindu-Muslim, why always about religion, why always about caste, why always about secularism and democracy, why not we are one? In simple words it can be said that it started with cultural identity and turned communal, it started with peaceful protest with a genuine interest of Northeast and shifted to violent political interest of Delhi. The idea of secularism is burning like the buses torched by the sick minded people. Citizenship Amendment Act which came on the 9th day of December which specifically seeks to grant Indian Citizenship to persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi, and Christian communities on basis of religious oppression in Pakistan, Afghanistan, and Bangladesh.
The Central government promises to protect the rights of each citizen of the country. So, there is no such right or religion which is taken here for guaranteed under any circumstances. By supporting Narendra Modi, Amit Shah also said that this bill is not going to put any stake on any religion and said that this bill directs at giving a noble life to those people who have suffered religious persecution for decades by granting Indian Citizenship to them, if they fulfil the conditions then they would be granted with citizenship. The motive of this bill is not to put questions on any religion or discriminating against any religion with the other or superior one. The Citizenship Amendment Act which seeks to provide citizenship to the specific communities and also aims to change the very definition of illegal migrants. The 2019 act also aims to amend the citizenship amendment act, 1955. The central government on the other hand argues that the Act aims to protect the religious
persecuted communities and provide them with citizenship. The government of several states refused to implement the act in their respective states and also passed resolutions against it claiming it to be discriminatory and violative of the principles of secularism, freedom, democracy, and the constitution itself. The Kerala government also filed a lawsuit in the supreme court against the CAA. The process of acquiring citizenship in India has also been amended under this bill. The bill aimed to expand the laws on migration in our country.
Historical Perspective
It is a historical fact that the migration of people from India to Pakistan, Bangladesh, and Afghanistan has always been a controversial topic. These countries provide their citizens with a particular state religion and the people of other religions, Hindu, Sikh, Buddhist, Parsi, Jain, and Christians are the persecuted communities because of their minority status in the respective countries. In 1947, during India-Pakistan partition more than 1 crore people migrated which led to further migration in 1961-71 during the Bangladesh freedom movement, and also after 1979 Soviet-Afghan war, Afghans in large numbers migrated to India due to religious persecution. In the 1920 riots, people from East Bengal started
migrating to Assam in large numbers and the people living in Assam slowly lost their livelihood and resources. To control this, Assam accord was passed and CAA violates the Assam Accord making lakhs of illegal migrants into legal migrants.
A Historical Study of Pakistan’s Religious Minorities explained the predicament of not only Hindus, Christians and Sikhs but also Shias. We must not select and target our Muslim minority because Pakistan did not live up to the Nehru-Liaquat pact.
As the most highlighted questions were why only the 3 countries specifically Afghanistan, Bangladesh and Pakistan and only why Muslims were not included in this bill. So, according to the past, the Citizenship was given to their refugees coming from Sri Lanka and Uganda. The refugees coming from Pakistan, Bangladesh, and Afghanistan were not considered. The Congress and the rebellions of the 1920s and 1930s, in spite of some fundamental ideological differences, spoke in one voice on the issues of comprehensive nationalism. These two decades were important for the spread of the communalism of both tinctures.
Our nation is considered as the collective pride of all Indians, no citizen felt left out from its range due to religion, caste, language or region. As said by Gopal Gandhi- “India is for all Indian’s and Indian’s are for India”. Any departure from this fundamental atmosphere will cause unease among people who constitute this nation.
Constitutional Validity of CAA
The Citizenship Amendment Act of 2019 is unconstitutional, this has been said from the moment the first draft of the bill was made public in 2016. The same can be said for the latest draft that had cleared both houses of Parliament and has now become a law. When any law is passed in India, it is so done with respect to the constitution. The sole reason why the CAA is unconstitutional is because it represents a fundamental drift from the core principles of the constitution, namely citizenship being open to all without discrimination on the basis of religion, language, caste, race, ethnicity, or gender. The CAA primarily allows illegal immigrants to apply for citizenship in India provided they meet the four criteria:
- Came to India before 31 December 2014.
- They got exemptions from the Passport Act and Foreigners act from the union government.
- They are from Afghanistan, Bangladesh, Pakistan.
- They are Hindus, Sikhs, Jains, Buddhists, Parsis, or Christians.
This law is meant to serve the purpose of protecting the members of minority communities of the three countries mentioned above who have suffered religious persecution. However, the law’s generosity on this front is niggardly as it excludes Muslims. It has been assumed by using a territorial skeleton that Muslims are one big standing stone and that religious persecution between dominant and less dominant sections of Islam is not worthy of consideration. Ahmadiyya and Shias are at the sustaining end of majoritarian violence in Pakistan and heretic in Bangladesh even though born in Muslim families are subjected to utmost violence.
The Union government in response has argued that it uses a reasonable classification permissible under the constitution. But the test goes back to the case State of West Bengal v Anwar Ali Sarkar (1952)[7] where the Supreme Court was interpreting the scope of article 14, which guarantees equality before the law. However, it is evident that the argument of the government goes against the grain of constitutional law developed by the Supreme Court since the 1950s and also fundamentally misunderstands what the court held in the case of Anwar Ali Sarkar. What the court actually said in the words of Justice SR Das, the court held that “Article 14 does not insist that every piece of legislation must have universal application and it does not take away from the state the power to classify persons for the purpose of legislation but the classification must be rational and in order to satisfy this test”.
The CAA is also a smack on the constitution’s basic feature of secularism. Since it’s judgement on the case Kesavananda Bharati v State of Kerala (1974)[8] secularism has always been regarded as one of the core basic principles of the constitution. Citizenship is supposed to be open to all with no discrimination towards anyone based on religion, caste, race, gender, etc. was the most revolutionary and radical idea of the Indian constitution. The proposition of secularism is non-negotiable and the CAA mounting an attack on it, is an attack on not just the postulates of equality and secularism, but on Constitutional rule in India itself.
Relevant Provisions
The basic provisions of the Citizenship Amendment Act, 2019 however it aims to hasten citizenship for six persecuted minority communities- Hindus, Parsis, Sikhs, Buddhists, Jains, and Christians- who came in India on 31st December or before December 31, 2014 from Muslim-majority Afghanistan, Bangladesh and Pakistan. The expulsion process of any foreigner disregarding of his religion or country is executed as per the directions of the Foreigners Act, 1946, or The Passport (Entry into India) Act, 1920[9]. The central government says that Pakistan, Afghanistan and Bangladesh are Muslim-majority countries, so Muslims can’t be served as persecuted minorities. Article 30 of the Indian Constitution tells about the rights of the minorities based on religion and language. Where in the same place “Entry 17, list 1 under 7th schedule” tells about citizenship, naturalization and aliens. Thus, parliament has absolute authority to legislate with respect to citizenship.
Article 14 assures equality to all people, including citizens and immigrants. It only allows laws to distinguish between groups of the individual if the rationale for doing so treats a reasonable purpose. The question is whether this provision violates the right to equality under Article 14 of the Constitution[10] as it provides different treatment to illegal migrants on the basis of (a) their country of origin, (b) religion, (c) date of entry in India, and (d) place where they are residing in India. The apex court has held that while consigning powers to an executive jurisdiction, the legislature must specify a policy, standard, or rule for their guidelines, which will set limitations on the authority’s powers and not give them erratic discretion to decide how to frame the rules.
Conclusion
Here this article argues that the NRC will prohibit a large number of Indian citizens from its extension, which is what has happened in the NRC exercise in Assam. The evidential burden will then be on Indian citizens to manifest their citizenship. A large number of Indian citizens of different religious convictions will be unable to do so since it is hard to provide registered confirmation for one’s place of birth and the place of birth of one’s parents. However, because of the CAA, non-Muslims will be conferred citizenship and Muslims will be the only ones prohibited from Indian citizenship. The essence or outline of the anti-CAA argument, therefore, is that the CAA and NRC are centrally deliberated to devastate Indian Muslims of their citizenship. This argument is wrong.
True, if a National Register of Citizens is initiating an operation for the rest of India as it was in Assam, it is conceivable that a large scale of citizens will be left out of its extension. True, this will mean that Indian citizens will have to then prove their citizenship, which many will be potential to do because of a lack of registration or documentation to show their birthplace and the birthplace of their parents. However, it is a misconception to think that the CAA will then automatically confer citizenship on all non-Muslims who have been left out of the NRC. The CAA considers citizenship on Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from the subject countries, who were “forced to seek shelter in India due to theological persecution or fear of religious oppression” and who invaded India before 31 December 2014.
Non-Muslims who have been left out of the NRC will not be supposed to fall within the range of the CAA. While the instantaneous objective of enacting the CAA may have been to avert non-Muslim migrants from Pakistan, Afghanistan, and Bangladesh from being prohibited from Indian citizenship as a result of the NRC in Assam, the CAA will not spontaneously converse citizenship on resident Indian non-Muslims were prohibited in an all-India NRC. As we have seen, it differentiates against other religious minority groups in Pakistan, Bangladesh, and Afghanistan. It is too short-sighted in its identification of religious oppression as being the only ground for mental institution. The cut-off date of 31 December 2014 is debatable and unpredictable.
The reverse implication of proof that has been in place since 1939 needs to be re-examined in the Indian environment. The 2004 amendment to the Citizenship Act, which did aside with citizenship by birth, needs to be reconsidered. Dreamers, who arrived in India as minors with their families, need a safe dockyard. The procedural difficulties with the foreigners committee need to be reconsidered again.
References: –
- R.S. Morkhandikar, “The Supreme Court and Federation in India, The India Journal of Political Science, Jstor 1964
- Narendra Nagarwal – The Citizenship Amendment Act, 2019- December 2019- Delhi University- The Poisonous Law.
- Center for policy research “How democratic Processes Damage Citizenship Rights” 16 December 2019.
- Dr. B.K.Roy, “ On the questions of migration in India- Challenges and Opportunities”.
- Citizenship Amendment Act, 2019- “Why is it seen as a problem?”- 31st December 2019.
- The Hindu, “Can States challenge the validity of central laws?”, January 2020
- https://indiankanoon.org/doc/1270239/
- https://indiankanoon.org/doc/257876/
- https://www.manifestias.com/2019/12/18/passport-entry-into-india-act-1920/
- https://timesofindia.indiatimes.com/blogs/blunt-frank/caa-article-14-of-indian-constitution/
Frequently Asked Questions
Q1. Whether the Apex court has jurisdiction under article 131 to solve the dispute between the centre and the state?
Yes, as the Apex court is the interpreter of the constitution of India. It acts as the middleman to resolve any dispute arising out between the center and the state.
Q2. How come this act is violative of the Indian Constitution?
As due to this act basic structure is being violated which was established by SC in case Kesavananda Bharati. Article 14, 15 and 21 are basic principles which violate this act.
Q3. Is any Indian citizen affected due to CAA?
No, this act has nothing to do with Indian citizens and does affects at all, neither the Muslim citizens are going to be affected in present or future.
Q4. What is NRC?
The National Register of Citizens is a register containing names of all original Indian citizen. Which was mandatory by the 2003 amendment of the Citizenship Act, 1955.
Q5. What are the basic documents by which citizenship can be acquired?
The citizenship can be acquired by birth, by registration, by incorporation of territory, by naturalization or by descent.
