The CAA also violates Article 21 of the Constitution, which ensures the right to life and liberty of all persons.
The Citizenship Amendment Act (CAA) has caused an uproar across the country in the past week. Even the United Nations itself has expressed concern. Why is this bill such a cause of fear, anger and concern?
As per the law, there are four modes of acquiring citizenship in India – Citizenship by Birth, Citizenship by descendant, Citizenship by registration - for each of these, a prior link with India is required, whether it is birth or through an Indian citizen. The fourth, Citizenship by Naturalisation, is a provision applicable to those individuals who have no link with the country by way of blood, soil or marriage. This was applicable to various people who were not illegal immigrants, who had stayed in India for around 14 years. None of the above provisions depended on matters like religion or caste.
The recent amendment to the bill has added a proviso –
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 there under, shall not be treated as illegal migrant for the purposes of this Act;
The first problem with this bill is evident: It denies a person an opportunity to become a citizen if they profess Islam. For the first time in an Independent India, we have introduced a legal provision where citizenship is based on a category like religion and which has then proceeded to exclude only one religion.
The government has defended this amendment by saying it is being made to offer refuge to persecuted people in Islamic states. Why then, are Madhesis of Nepal or the Rohingyas not included? To this, the government says the amendment only includes Pakistan, Bangladesh and Afghanistan because they are not secular countries but nations with one dominant religion. Why then, have Sri Lankan refugees been excluded? After all, Buddhism is the dominant religion of Sri Lanka and many Hindus, Muslims and Christians are persecuted there, too. Ahmadiyas in Pakistan are also persecuted, why don’t we offer them refuge?
Article 14 of the Indian Constitution says, “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
The Supreme Court has further held that Article 14 prohibits the state from engaging in irrational classification of persons from arbitrary action and from treating people in a manner that discriminates against them for no legitimate reason. The CAB seems to violate each of the above – by first excluding only Muslims and denying them equality, then by arbitrarily choosing countries and excluding certain persecuted minorities with no reason. Thus, it is clear that this amendment violates Article 14 and is thereby unconstitutional.
The CAA also violates Article 21 of the Constitution, which ensures the right to life and liberty of all persons. As per refugees and asylum seekers registered under the UNHCR’s mandate of August, 2019, around 8,50,001 Tibetans, roughly 9,52,302 Tamils from Sri Lanka (both Hindus and Muslims), around 5,20,00 Chakma and Hajong from Chittagong Hill Tracts in Bangladesh and around 15,559 Afghan Muslims are residing in India. All these persons have been residing in India due to development-induced displacement and religious persecution. Strangely, the CAB offers them no respite.
That is not the only problem with CAB. There is nervousness among Indian Muslims, who worry they may lose their citizenship. The Police Commissioner of Bengaluru recently tweeted that Indian Muslims have nothing to worry about as CAA concerns illegal immigrants only. Is that really the case though?
We all know what happened with the Assam NRC. Indian citizens, including war veterans, Hindus, Muslims and Adivasis have been left out of NRC on reasons like name spellings being mismatched, parents’ documents not being found and so on. Home Minister Amit Shah and BJP leaders of Assam have repeatedly asserted that the CAA will be used to rescue five lakh Hindus excluded from NRC (which means that Muslims excluded will be sent to detention centres). The Home Minister also said that we will soon have a nationwide NRC. Muslims fear that a nationwide NRC could result in them being deemed non-citizens for reasons like spelling mismatches. While the government may use the CAA to include Hindus, Muslims who don’t have the same opportunity may be rendered stateless.
The North East is also protesting the CAA. North Eastern states have had a problem with illegal migration and have been opposed to illegal immigrants from Bangladesh, whatever be their religion. However, now, because of the CAB, the government will allow illegal immigrants, or those who are not Muslim at least, to settle in some North Eastern states. This has angered the indigenous people of the North East, who feel cheated and violated.
The government has thus succeeded in creating anger and fear through its immoral, arbitrary and unconstitutional amendment. An amendment for the government has failed to demonstrate a sufficient need. The ensuing chaos is being used to push through Orwellian legislations like the Data Protection Bill 2019, and has succeeded in distracting us.
—The authors are both advocates