India: Is CAA constitutionally valid?

The Citizenship (Amendment) Act 2019 has been at the centre of debate for over three weeks now. Several petitions have been filed challenging its constitutional validity. Article 13 empowers the Judiciary to strike down parliamentary laws that violate Fundamental Rights. On December 18, the Supreme Court while refusing to stay the implementation of the Citizenship (Amendment) Act 2019 agreed to examine its constitutional validity. The apex court issued notice to the Centre and sought its response by the second week of January and has fixed January 22 as the date of hearing these petitions.

For CAA to be unconstitutional, some provision of Part III-Fundamental Rights (Article 12–35) has to be violated. Violation of Article 14-Right to Equality becomes the moot point in determining the constitutionality of CAA

.Article 14 of the Constitution of India reads as under:

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

There are two concepts under this article-

  1. Equality before the Law- It commands the State not to deny to any person ‘equality before law’ and prohibits discrimination. It is a negative concept and denies special privileges on any ground. All individuals are treated equal before law.
  2. Equal protection of the Laws- It requires the State to give special treatment to persons in different situations in order to establish equality among all. It is positive in character. Therefore, the necessary corollary to this would be that equals would be treated equally, whilst unequals would have to be treated unequally. It is as per this concept that reservations or special laws for any community/women/children and affirmative action policies are possible in India.

While Article 14 forbids class legislation it does not forbid reasonable classification of persons and objects for the purpose of achieving specific ends. This classification must fulfill two conditions-

  1. Intelligible differentia- to distinguish persons or things that are grouped together from others left out of the group.
  2. Rational nexus- the differentia/grouping must have a rational relation to the object sought to be achieved by the act.

Applying the test Of Reasonable Classification to CAA-

  1. The differentia is intelligible because the three neighboring countries whose state religion is Islam have been identified. Article 2 of the Pakistani Constitution, Article 2A of the Bangladeshi Constitution and Article 2 of the Afghanistan Constitution state that Islam is the official/state religion of those three countries. The religious minorities in these countries have been clearly identified.

2. Para 2 of Statement of Objects and Reasons in the Act states as follows-

The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries. Some of them also have fears about such persecution in their day-to-day life where right to practice, profess and propagate their religion has been obstructed and restricted.

The context signifying the intent behind the Act is clear and there is a rational nexus between the group of religious minorities included and the object sought to be achieved by the Act. In simple terms, the ‘who’, ’why’ and ‘for what’ are clear and have a rational nexus.

In the Joint Committee Report on the CAB, the Intelligence Bureau has stated that 31,313 people will benefit from this Act. It has also been stated that all of them belong to either of the six communities specified in the Act.

Why exclude ethnic, linguistic, religious minorities and victims of sectarian violence from all countries bordering India? (Read this)

Firstly, exempting six minority communities of the three chosen countries from the definition of “illegal migrant” does not translate into granting of citizenship automatically. Section 6B and Section 18(2)(eei) inserted through CAA 2019 make it abundantly clear that they will have to apply for naturalisation and satisfy “the conditions, restrictions and manner for granting certificate of registration or certificate of naturalisation under sub-section (1) of section 6B”.

Secondly, the only relief CAA provides to the six minorities is that they have to show a 5-yr aggregate period of residence in India instead of the prescribed 11-yr period. The law is merely relaxing certain norms for minorities from some countries.

Muslims are only excluded from the amendment to the Act, not the Act itself. They can still apply under the normal rules and procedures of Citizenship Act 1955.

It is a policy decision of the government to relax norms for minorities facing religious persecution from three Islamic countries. The government reserves the right to choose whom to grant citizenship to and on what basis. The Supreme Court in its past judgements has held that it is not necessary for all laws to be general in character and have universal application.

In the future, the government may decide to accord citizenship to minorities of any country of its choice based on linguistic or ethnic persecution and that shall also be legal. The government is not obliged to solve all problems in order to solve one. The Supreme Court will only do the intelligible differentia + rational nexus test to see if it violates article 14. It will not interfere with the policy decision of the Legislature.

Criticism from the United Nations-

The primary objective of the 1951 Geneva Refugee Convention was to protect the European refugees in the aftermath of WWII. In 1967 additional protocol to deal with refugees throughout the world. India is not a signatory to either of these refugee conventions.

The United Nations called the Act fundamentally discriminatory while conveniently ignoring the ‘positive discrimination’ concept used to guarantee equality. Personally, I don’t care what the UNHRC thinks of India. The Council has Saudi Arabia, China, Egypt, Venezuela, Sudan, Libya, etc as member countries which have the worst human rights records.

What is the urgency and necessity to implement CAA and NRC despite nationwide protests?

As a precursor to CAA, amendments were made as early as September 2015 to two laws: Passport (Entry Into India) Act, 1920 and Foreigners Act, 1946. These amendments gave immunity to refugees from six minority religions from proving the possession of a valid unexpired passport or travel document. The cut-off date of December 31, 2014 was stipulated in amendments which were noted in the legislative books in September 2015.

Para 4 of Statement of Objects and Reasons of the Act also mentions this-

The Central Government exempted the said migrants from the adverse penal consequences of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946 and rules or orders made thereunder vide notifications, dated 07.09.2015 and dated 18.07.2016. Subsequently, the Central Government also made them eligible for long term visa to stay in India, vide, orders dated 08.01.2016 and 14.09.2016. Now, it is proposed to make the said migrants eligible for Indian Citizenship.

This article from Firstpost mentions several occasions on which CAA was spoken about by the PM. It was a part of BJP’s manifesto in both 2014 and 2019.

Were the University students, Social-media influencers, YouTubers and Media sleeping through 2014–2019? They woke up from their slumber after the Bill was passed on December 11, 2019 and became legal and constitutional scholars overnight, misleading the rest. These ‘Scholars’ and ‘historians’ are building the Nazi-Hindu-Modi’s India narrative to build an atmosphere of fear by carelessly using the Hindu Swastika and Om.

The hatred for Hinduism is repeatedly displayed under the garb of protests to uphold the ‘secular’ values of India. Secularism is not achieved by deriding Hinduism or by insulting its religious symbols in order to please another community. The tolerance shown is under-appreciated and often taken for granted.

Also, part of BJP’s manifesto is a major revamp in the educational policy of India and the CAA-NRC protests have justified the dire need of these reforms. How a student of political science/law fails to understand the essence of Article 14 while calling CAA discriminatory is beyond me. In general, people seem to have major comprehension issues regarding CAA and NRC. Their comprehension capability is probably restricted only to “Why did Katappa kill Bahubali?”

Fear mongering, violence and damage to public property are not answers to complex issues that demand legal and constitutional scholarship. In 2009, in case of Destruction of Public & Private Properties v. State of A.P., Supreme Court gave guidelines to recover compensation for damage done to property during protests. It is to be recovered from organisers & those who caused damage. State Governments are well within their rights to initiate action for damage recovery. It is for the Supreme Court and not the mindless, ill-informed protestors on the streets to decide on the constitutional validity of CAA.

Jai Hind!

(Click here to read my previous article on CAA-NRC)

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