Introduction
The
President late night, amidst the huge uproar, on Thursday, December 12th
gave assent to the controversial Citizenship Amendment Bill (CAB) and it became
a reality, which is by far and there is no exaggeration in it if I say the stepping stone to New India, when
India prepares to grant citizenship to certain minorities of three specific
countries coming in its territory but on the basis of ‘religion’. The Act is a reality which was vehemently opposed when
it was conceived in the Cabinet, passed in both houses of Parliament and
discussed on streets with the pretext of notorious NRC (National Register for
Citizen) and this government’s Hindu
Nationalist Agenda however the
government has claimed it to be moral, legal, constitutional and most
importantly ‘Inclusionary’. The constant explanation by government has
not been able to convince its people across the country especially in North East
and consequently the region including Assam, Tripura and some places like
Aligarh has witnessed the dissent being muzzled down when they took their
protest on streets witnessing internet services discontinued in above places to
ensure peace and kill the dissent but the voices are loud enough to reach deaf ears in Delhi and
shake the dead consciousness of people of this country.
These
protest is not confined to particular places to name but has taken a nation-wide
shape with Delhi, Mumbai, Karnataka, Lucknow etc. joining in with high spirits.
The displeasure for such step has taken an international turn with Bangladesh
Foreign and Home Minister cancelling their visit to India amidst protest[1]
and UNHRC expressing concerns as it is ‘Fundamentally
Discriminatory’ in nature. It also
received a strong opposition by fellow parliamentarians like Manish Tiwari,
Sanjay Singh, Shashi Tharoor, Sanjay Raut, Manoj Jha, Owaisi, Kapil Sibbal and
P Chidambaram.
The
protests, therefore, can be viewed in two different but related spectrum which is
ethical/moral and legal. While the debate may be unending on the moral values of a
government (if any) are truly in lines with the rich culture of Vasudev Kutumbakham which we graciously
took pride in, it is relatively easier to break down the CAB( Now CAA) with a
legal understanding. However, It is important to understand and debunk first
and foremost the factual inaccuracy premised on which the Home Minister while
presenting the bill called out that “If
it was not for Congress’s misdeed of doing partition on religion, we would have
not required this legislation”[2]
This
is patently inaccurate and misleading as per the “Object” of the Constituent Assembly read out by J. L Nehru which later on became the preamble no ‘State
religion’ was declared. The idea of state religion was not only rejected by Dr
B R Ambedkar as it will bring chaos and apathy but also despised by him and
hence even on multiple resolutions, the preamble did not accommodate any
religion in itself. Contrarily it was V D Savarkar who inclined with Jinnah [3]in
1937/1938 demanding two separate nations for Hindus and Muslim “Who are essentially different that co-existence
is not possible” Fortunately in history we did not subscribe to that
opinion until now.
The Amendment:
The
Act amends Section 2 (b) of the Citizenship Act – which defines 'illegal
immigrants' – by excluding "persons belonging to minority communities,
namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from
Afghanistan, Bangladesh and Pakistan"[4]
from the ambit of "illegal immigrants". It also reduces the period of residence in
India for the acquisition of Indian citizenship through naturalization to six
years from the earlier period of twelve years.
It
therefore makes classification of “Illegal migrants” on basis of religion
includes Hindus, Sikhs, Buddhists Jains Parsis and Christians but excludes only
Muslim. The justification given by the Hon’ble Home minister in house is that
firstly the illegal migrants applying shall be religiously persecuted and
secondly these three countries are Islamic countries and the Majority community
which is of Muslim will not be persecuted. It becomes now important to
understand that the Act in its essence nowhere talks of Persecution and
secondly the government’s idea was based on flawed logic of minority not being
persecuted while we have examples of Ahmadis in Pakistan. It also does not
strategically includes countries like Sri Lanka and Myanmar. This howsoever is
a policy decision and shall not be of problem to defend in the court of
law.
The Validity
It
was argued by two experts in the JPC report tabled this January that CAB in its tessence is violative of Constitution[5]
and the government however proceeded with it. My central argument revolves around two major
points which can be broken down further, on its constitutional validity Firstly It is violate of Article 14 of
the Constitution which applies to all “person” in its territory and is manifest
arbitrariness by the legislature. Secondly,
Secularism is a basic feature of our Constitution and it is against
Doctrine of basic structure. Thirdly, it
is colourable legislation to give effect deeds which were not otherwise
possible in NRC.
. ⚫Violates
Article 14
Article
14 can be identified as the cornerstone of our constitution which bars and
discrimination and prohibits discriminatory laws which are applicable to
everyone in the territory of India whether or not a citizen. It is always also
read with the preamble and Article 15 and not in isolation. The underlying
object of Article 14 is to provide and secure all persons equality of status
and opportunity.[6]
It runs as follows, “The State shall not
deny to any person equality before the law or equal protection of law within
the territory of India” The first concept is a negative concept ensuring no
special laws in favour of anyone and the second concept of equal protection is
a positive content which means persons who are in the like circumstances shall
be treated alike.
It
also allows distinction therefore in ‘Class’ and even a person may be qualified
to be a class but here are the twin test to determine the classification which
shall be reasonable as devised in Laxmi Khandasari
v. State of Uttar Pradesh[7]
⚫Classification
shall not be arbitrary, artificial or evasive and based on intelligible
differentia based on some real and substantial distinction
⚫ The
differentia adopted as the basis of classification must have a rational or
reasonable nexus with the object sought to be achieved by the statue in question.
Also
in Navtej[8]
the court ruled that “Where a legislation discriminates on the basis of an
intrinsic and core trait of an individual it Can not form reasonable classification
based on intelligible differentia. Here the classification based on religion is
Impermissible classification (Article
15) and has no reasonable nexus with the object of the Act which is to ‘protect
those who have faced religious persecutions in Afghanistan, Pakistan, and
Bangladesh'. However, by excluding Muslims from the category of 'persecuted',
the amendment is based on the false premise that only minorities face religious
persecution in a Muslim-majority country. The amendment makes an easy – but
untrue – classification between minority and majority religion[9] the
persecuted minorities, therefore, are principally at same pedestal irrespective
of the religion
The
pronouncement of J. Nariman in Triple Talaq[10] the case has clarified that the legislative actions ought to meet the test of arbitrariness
thus evolving the ‘manifest arbitrariness’ where the classification shall be
based on adequate determining factor. The classification of countries of which
minorities are persecuted may be a determining factor which also includes Sri
Lanka etc. and hence can be challenged.
The
government has argued it to be an inclusionary and real which satisfies the
test of classification and arbitrariness and the court unless proved otherwise
shall consider it valid but the likelihood of it not being struck down seems
thin and it is perhaps an “Exclusionary Inclusionary law”
⚫Secularism
and Basic Structure
The factor which was making round was anti-secular regime of the other countries
which are persecuting their minorities and that there is nowhere to go but
India is suggestive of India being a nation of those six community but not Muslim
and that essentially is anti-secular. There can’t be law in the territory which
hurts the basic structure of the constitution and is anti-democratic and
anti-secular. Justice B P Jeevan Reddy, in S
R Bommai v Union of India[11]
ruled “Secularism is more than a passive
attitude of religious tolerance. It is a positive concept of equal treatment of
all religion. It is material that is a constitutional goal and basic feature of
constitution as affirmed in Kesavanada Bharti”
The current law which
derives its authority from Article 11 of the constitution is not only arbitrary but
also hurts the secular nature of the country and in is a perverse attempt to
undermine the communal hegemony.
⚫Colourable Legislation
⚫Colourable Legislation
It
will be foolish to understand and read the Act in isolation and not in
concurrence with ongoing NRC. NRC has its statuary force under citizenship rule
of 2003. This prima facie seems to be a case of colourable legislation which
mean “What you cannot do directly, cannot
be done indirectly”. With cut-off Date of 31st December 2014 the
Citizenship Amendment Act intends to give citizenship to atleast 13 Lakh Hindu
migrants otherwise who would have faced threat of being state less in the
country. It also provides or enable the
exclusion of only Muslim migrants who would have otherwise been included in the
list. Multiple statement by the HM over last few days has been a clear
indicator of a Nation-wide NRC to be implemented, while NRC does have statuary
backing but the intent is not of accommodation.
Conclusion
The
Citizenship Amendment Act has been challenged on constitutional grounds in the
Supreme Court through multiple petitions. The object and the intent of the
legislature does not promises a reasonable nexus to the classification as per
the Courts own ruling and on multiple issues it appears to be a case of
arbitrariness by not treating similar ‘person’ in its territory similarly. The
brute majority has shown the might and its last chance for India to redeem
itself, its Idea, harmony and secular nature through the supreme court upto which millions of Indians have pinned there hope to take it away from the
‘New India’ which is communal and divisive.
[1] Bangladeshi FM cancels India
visit amid protests, The Frontier Post https://thefrontierpost.com/bangladeshi-fm-cancels-india-visit-amid-protests/.
[2] See Page 333, Transcript of the
Debate, Shri Amit Shah 9th December 2019 Available at Loksabha.in
"Provided that any person
belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from
Afghanistan, Bangladesh or Pakistan, who entered into India on or before the
31st day of December, 2014 and who has been exempted by the Central Government
by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry
into India) Act, 1920 or from the application of the provisions of the
Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated
as illegal migrant for the purposes of this Act.
[5] https://economictimes.indiatimes.com/news/politics-and-nation/two-experts-had-warned-cab-will-violate-constitution/articleshow/72578039.cms
[6] Seervai, Constitutional law
[7] AIR 1981 SC 873.
[9] Niveditha K, The Citizenship
(Amendment) Bill is Unconstitutional, Live Law https://www.livelaw.in/columns/the-citizenship-amendment-bill-is-unconstitutional-150496.
[10] Shaiyra Bano v. Union of India
(2017) 9 SCC 1
