CAA: The Biggest Assault on Indian Constitution

This blog is inscribed by Kapil Devnani.

CAA, 2019was one of the most controversial topics in the past few months before the arrival of COVID-19. A detailed analysis of this amendment Act is presented in this Article. The author of this article is not in the support of this amendment and provides various reasons for declaring it unconstitutional. So, those who are interested in understanding this amendment from its roots are invited to give it a read.

Introduction

Our country has witnessed a massive revolt against the biggest mistake of this government which was the implementation of the Citizenship Amendment Act (CAA). This epidemic of COVID-19 has diverted the minds from this issue but, the matter is only postponed and not yet solved.

CAA was an amendment to the law related to citizenship that is the Citizenship Act, 1955. This Act tells us:

  • Who can become a citizen of India,
  • What are the ways to become an Indian citizen, and
  • How a person can lose Indian citizenship

This act was amended in 1986, 1992, 2003, 2005, 2015, and most recently on 4th December 2019 which was the most controversial amendment in recent times.

Key Provisions of the Citizenship Amendment Act, 2019

The main purpose of this amendment was to grant Indian citizenship to the illegal migrants of Hindu, Sikh, Buddhist, Jain, Parsi or Christian community coming from Pakistan, Bangladesh or Afghanistan on or before 31st December 2014.

The illegal migrant for this purpose is defined as:

  • Any foreigner who has entered into India without a valid passport or a travel document.
  • Any foreigner who has entered India with a valid passport or a travel document, but he is staying beyond the permitted period.

This amendment also reduced the duration of residence from the existing 11 years to 5 years for people belonging to these 6 communities coming from these 3 countries.

Critical Analysis

CAA was one of the most contentious topics before the arrival of COVID-19 and this issue is not yet solved. So there arises a need to understand how the critics are calling this amendment as unconstitutional and discriminatory.

This Amendment violates the provisions of Article 14. Article 14 of the India Constitution states that:

“The state shall not deny to any person equality before the law and the equal protection of the laws within the territory of India.

In Re Special Courts Bill, 1978 Justice Chandrachud observes: “The underlying principle of the guarantee of Article 14 was that all persons similarly circumstanced should be treated alike both in privileges conferred and liabilities imposed.”

Article 14 of the Indian Constitution also permits the scope for reasonable classification and the government has taken this as a defense to protect the constitutionality of CAA and provided the reason that it is for the betterment of the said communities because these communities are “persecuted minorities” in those three nations.

This act creates two classifications, one based on religion and one based on geography, but both of these classifications are unreasonable and there is no rational nexus present between the classification and the object of the Act i.e., to provide shelter and citizenship to minorities who are facing persecution on the ground of religion in their native countries.

Article 14 permits only for “reasonable” classification, but the classification made by the government is not at all reasonable from any point of view.

If the classification is based on the fact that those countries have state religion then why Sri Lanka was not included in those countries because Sri Lanka is also a Buddhist state and Article 9 of the Constitution of Sri Lanka says that promoting Buddhism is the part of Constitutional principles of Sri Lanka.

The classification of those six communities is also not at all reasonable because there are no proper grounds for selecting those religions.

If the aim was to grant citizenship only to those who have run away from persecution then why Rohingyas were not included in the list.

If the classification is based on the fact that only religious minorities of those countries are included in the list then why were Ahmadiyyas not included in the list which is a minority in Pakistan, why Shias were not included in the list which is also a minority community in Pakistan and why Hazara community which is a minority in Afghanistan was not able to find its place in the list. Around 40 minorities are residing in Bangladesh at present, but they are not able to find their name in the bucket.

So there is no valid basis for the classification of those 6 communities and 3 countries and this is just clear cut discrimination against the Muslim community.

The reason which the government has provided is that those migrant belonging to Muslim community can go to any other Islamic nation which can shelter them. This reason is vague and does not provide any strength to the classification.

North-East Issue

One of the provisions of this amendment is that this law shall not apply to inner line permit which includes Nagaland, Arunachal Pradesh, and Mizoram which means if a Hindu Bengali who came to India in 2010 and currently residing in Tripura can apply for the Indian citizenship whereas the same Hindu Bengali who came to India in 2010 and currently residing in Nagaland is not able to apply for Indian citizenship.

The implementation of this Act will affect the Northeast region of the country drastically, especially to Assam. In the Northeast the issues are different. People here fear to lose their native identity to a possible influx of refugees. The region saw widespread protests when the Act was passed. It is mentioned in the Act that it will not be implemented on the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, but only 7 out of 33 Districts of Assam comes under Tribal Area. So anyhow this Act will affect the state. For years the Ahoms (natives of Assam) have feared that Bengali migrants will take over their resources and jobs. There is a long history of this.

In 1836, the British made Bangla the official language of Assam. This remained in force for 37 years. When the Partition took place, several Bengali migrants came and settled in Assam. This created more resentment among the locals. After a long struggle, the Assam Accord was signed in 1985. Under this, 1971 was set cut-off year for granting citizenship to illegal migrants in the state. With the CAA, the government has now extended the deadline for non-Muslim migrants to 31st December 2014. Protesting groups in Assam say that this is a clear violation of Assam Accord and they are afraid that there will be an influx of refugees into the state.

There is also another element of this protest,  NRC (National Register of Citizens) which was released on 31st August 2019 by the order of the Supreme Court. Around 19 lakh people were identified as illegal immigrants by NRC and many of them were Hindus. Under this Act, these illegal immigrants who are Hindus can apply for Citizenship. So the original purpose of NRC was to identify the illegal immigrants and to deport them, but with the implementation of CAA, many of the identified illegal immigrants can apply for Indian citizenship and because of this the Ahoms see the CAA as a betrayal and are protesting against it.

The protests in Assam were justified because there was a fear in the mind of the people of Assam that the influx of Bengali migrants will lead to the domination of Bengali people over the Assamese and the recent example of this situation is also present in the state of Tripura.

Conclusion

All these arguments confirm that the CAA was one of the biggest assaults on the Indian Constitution that we have witnessed in the last 70 years. It was discriminatory against the Muslim community and violates Article 14 of the Constitution. There was no proper basis for the classification which this Act has made by including 3 countries i.e., Pakistan, Afghanistan, Bangladesh, and 6 communities i.e., Hindu, Sikh, Buddhist, Jain, Parsi, Christian. There is also no need for this Act at present when our country is facing Economic Slowdown, Inflation, Rural Distress, and unemployment is at its peak. Thus, citizenship should not be a topmost priority of the present time.

The government tried to control the protests by saying that this Act does not take away anyone’s citizenship. This is true, but this matter is not about the citizenship of the citizens. This matter is about those migrants who are living in India illegally. Article 14 of the Indian Constitution uses the word “people” and not “citizens”. So, the state has to provide equality before the law and the equal protection of the laws to every person and not only to the citizens within the territory of India.

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