This article is written by Sayani Das and Pubali Chatterjee, second year student pursuing BBA.LLB(H) from Amity Law School, Kolkata.

Abstract

133.92 Crores in dilemma!

In literal sense what dilemma means can actually be subsumed into innumerable kinds of interpretations.

But, in this current scenario it is not possible for any researcher to put forward the numerous interpretations, rather the method of deduction can be applied and 3 deduced views can be put forward:

1. the first form of deduction can be in the form of some being against;
2. the second form can be so that some can be in favour; and,
3. the last category being neutral talking about the pros and the cons.

Society itself is dynamic in nature and law being the part and parcel of the society has to polish its adaptive side. Society is comprised of humans, so whatever law is made has to be in compliance to the needs and requirements of humans. Therefore, the lawmakers has to keep in mind that if people reside, then only law can reside. 

Actually it is high time that people should become more welcoming to new laws and the lawmakers understand that formation and implementation of a law is totally a different concept altogether.

Introduction

The 42nd Amendment Act of the Constitution, 1976 is the most questionable and debatable amendment of India.

It happened to change the Preamble of India which was earlier the “Sovereign, Democratic, Republic” to “Sovereign, Socialist, Secular, Democratic, Republic”.

It was done by the Indian National Congress headed by Indira Gandhi and it is referred to as the most controversial amendment because it had wholly come up to meet the personal ambitions at the period of emergency.

This emergency era had been widely unpopular and the 42nd amendment was the most controversial issue.

For a bill to pass it requires a two thirds majority but the whole Act was done during the emergency period without the majority vote.

SECULARISM is now challenged after citizenship amendment bill came in but the question arises that whether the establishment of that very secularism had any legal validity or not?

India should not be talking about Secularism because India already divides the communities into different castes and provided reservation for those who are backward.

There is no equal protection of the rights of individuals, how can it establish secularism?

How can CAA be against a concept which is actually not validated?

The concept of secularism is questioned then and there when reservations were fixed according to the caste divisions. Thus, CAA is not only the reason where Secularism is questioned it has already been questioned much before this.

Breaking myths

1) Will the citizenship amendment bill provide citizenship to Hindus?

Ans) The citizenship amendment bill not only talks about the people from Afghanistan, Pakistan, and Bangladesh but also about the communities which belong to Buddhists, Jains, Sikhs, Hindus, Christians, and Parsis who have immigrated before 31st December, 2014.

The Citizenship amendment bill doesn’t refer to any person who is already a citizen of India and have inherited it legally.

2) Will the Bill enhance infiltration from Bangladesh?

Ans) The fact standing that most of the minorities who had come from Bangladesh have already migrated to India.

Benefits any of such that the under the citizenship amendment bill was not available for members of the religious communities.

Another pertinent question that arises is whether the citizenship amendment bill has to pass through Article 14 test or not?

It is said that the bill discriminates Muslims. It is more specifically said that CAA is specifically being unconstitutional under Article 14.

Article 14 quotes that the state should not deny any person equality before the law or the equal protection of laws within the territory of India.

Equal protection refers to any person being treated the same before the law.

The very link must be traced to the Partition of India in 1947.

Muhammad Ali Jinnah demanded a totally separate country for the Muslim community.

But the Indian leaders declared India a Secular country without making it a Hindu nation. Thus there was a need for a fundamental right to give equality to everyone under Article 14 and the right to profess any religion as the freedom.

It has to be kept in mind while scrutinizing Article 14 carefully that any person does not refer to any citizen of India but actually it refers to any person within the territory of India.

Citizenship Amendment Bill: the other side

Just the way a coin has two sides, i.e., a head and a tail, the same way the Citizenship Amendment Bill which has now become an act after getting the President’s assent also has both pros and cons attached to it. 

Basically, the Citizenship Amendment Bill (Act) grants citizenship to Non-muslims of Afghanistan, Pakistan and Bangladesh. Bharatiya Janata Party which is the ruling party of India was the main advisor as well as a supporter of the proposal. Along with them, the bill was also supported by the JD(U), SAD, AIADMK, BJD, TDP and YSR-Congress. The CAB paves way of Indian citizenship to lakhs of immigrants who identify themselves with Hindus, Sikhs, Christians, Buddhists, Jains and Parsis- from Afghanistan, Pakistan and Bangladesh who arrives in India before 31st December, 2014. 

Despite everything the Citizenship Amendment Bill has created a total fuss in the country and nothing else. To point out the ‘fuss’, it has to be substantiated with points which are explained below:

1. The Central Government have spelled out their own logic behind the passing of the bill, but the logic is absolutely not relevant to what they have actually done in reality. The bill totally goes against the spirit and essence of the Constitution. To quote the lines of Mr. Shashi Tharoor- “cynical political exercise to single out and disenfranchise an entire community in India into Hindutva version of Pakistan”. 
2. As it is mentioned earlier as well that it totally destroys the essence of the constitution, to emphasize more on this fact it is relevant mention here that it surpasses the tenets of equality and religious non-discrimination allocated to Article 14 and 15 of the Constitution.
3. Taking reference from the above mentioned point, it is very much pertinent to specify that how the centre created the inequality by granting citizenship to members of all persecuted religion except Islam. 

Let us go a bit deeper into the definition of religious persecution. Religious persecution is the ill-treatment offered to an individual or a group of individuals as a response to their religious beliefs or affiliations or their lack thereof. Therefore, the main concept around which the religious persecution revolves is the ‘ill-treatment received’ and this needs to be curbed. But, the centre has created a bigger space for this ‘ill-treatment’ by barring the Islamic religion.

4. The bill (rather it can be referred to as an act because it already came into effect from 10th January, 2020) introduced a multiple rules for citizenship, which has proved to be anti-constitutional and anti-tribal. 

Anti-constitutional, which has been discussed earlier as well because it goes against the essence of the constitution and violates the Article 14 and Article 15 of the Constitution and anti-tribal because the Citizenship Amendment Act does not apply to sixth schedule of the Constitution – which deals with autonomous tribal-dominated regions in Assam, Meghalaya, Tripura and Mizoram. The bill will also not apply to states that have the inner-line permit regime (Arunachal Pradesh, Nagaland and Mizoram).

Another reason behind CAA being called as anti-tribal is because of the fear and trauma that is being faced by the North-eastern people especially by the people of Assam about the threat to their linguistic and cultural identities by the Bengali Hindu migrants from Bangladesh, if they are regularized under CAA. This is a grievous situation that has been put upon the state of Assam and identity-crisis is the one thing that can destroy anybody very quickly.

5. According to the Citizenship Act of 1955, an illegal immigrant is one who enters India with fake or forged documents and/or does not have a valid passport and also a person who stays beyond the visa limit.

The mention of this ‘illegal immigrant’ is important because now in India the concept of ‘Citizenship by Naturalisation’- the Constitution of India provides for people who have lived in India for the past 12 months and for 11 of the past 14 years. It also provides for people whose parents or grandparents were born in India to become Indian citizens. Therefore, when the Government has implemented this CAA to give a space for the persecuted religion in turn it has also smoothed the way for illegal immigrants to become a citizen of India.

6. Before the mention of this issue, the agenda of linguistic and cultural differences has already been discussed with respect to the state of Assam. But, this agenda is not only restricted to the North-eastern states, especially the state of Assam, rather it has spread like fire to the whole of India as they are fearing that this might work against the cultural and linguistic identity of the indigenous people.
7. Another great disadvantage that the CAA poses is that of wrong signalling. This means that through the implementation of CAA, the Muslims are being categorised as 2nd rated citizens of our country which in turn is destroying the essence of Preamble of the Constitution wherein it is mentioned that India is sovereign, socialist, secular, democratic and Republic country. CAA in reality is disfiguring the Republic of India. 

Scenario all over

Fights against the Citizenship Amendment Act had raised the nation over the previous week. Thursday saw various dissent rallies in the Capital and in urban communities the nation over. There have been detainments of political pioneers and erudite people voicing their dissent against the CAA. 

The blood vessel streets in the Capital were blocked with nonconformists rampaging and the police protesting in the streets. IndiGo Airlines needed to drop and reschedule flights, with team and travelers trapped in congested driving conditions. Sixteen metro stations over the Capital were shut. 

The fights against the CAA and the police activity in Jamia Millia Islamia likewise reverberated the nation over. 

In Delhi, Internet suppliers were asked to close down certain applications somewhere in the range of 9AM and 1PM. Telecom/Internet specialist co-ops, for example, Bharti Airtel, Reliance Jio and Vodafone-Idea have been advised by the Center to close down their Internet till 1PM, sources affirmed. 

While authoritatively, the administrators including Airtel, Voda-Idea and Jio have declined to remark, sources from the organizations have affirmed the improvement. 

“Voice, information, SMS shutdown from 9AM to 1PM in certain parts just” said one of the sources from an administrator.

The spots where the Internet has been closed down incorporate Jamia Nagar, Shaheen Bagh, Okhla, Seelampur, Jaffrabad and Mandi House, sources said. 

The fights in Delhi-NCR have ascended in the course of the most recent two days and as indicated by reports Section 144 has likewise been forced in the Capital.

Hyderabad: Several understudies and nonconformists from the Universities of Osmania, Maulana Abul Kalam Azad and Hyderabad Central were arrested as they were challenging the Citizenship Amendment Act (CAA) and in solidarity with understudies in Delhi and different pieces of the nation. 

The Hyderabad Police has precluded authorization for holding from claiming any type of dissent or rallies and parades inside as far as possible. 

In the interim, conspicuous essayists, scholastics, columnists and social equality activists organized a ‘Quiet Protest’ against the CAA, which they guaranteed damaged the common and fair soul of the constitution. The dissenters accumulated at the Makhdoom Mohiuddin statue on the Tank Bund in Hyderabad under the flag of the Progressive Writers’ Association and Urdu Writers’ Association, Telangana.

Conclusion 

The CAA has created a space which can be criticized on many levels and in reality it has also been criticized on a multifarious level. But to add a positive angle to the CAA, it can be interpreted in a different way.

The CAA does not snatch away the status quo of any present citizen of India. In simple terms it provides a legal authority or in other terms a kind of legitimacy to the persecuted religious minorities who are already residing or have been forced to seek refuge in India and were compelled to flee from their “home” countries after facing religious persecution. Since, Muslims are not considered to be minorities in Afghanistan, Pakistan and Bangladesh, therefore, they have been excluded from the purview of CAA. People of our country are exploiting the essence of Right to Protest by burning trains, going on strike, blocking the roads and destroying the public property unnecessarily.

In any event, in a democracy, protest and a recourse to the judiciary are options that are legitimately available to the people. Indeed, to dissent or protest is the lifeline of a democracy. But, what is the judiciary supposed to do when society as a whole is protesting? In such a scenario, as is playing out now, there is no clear line that can be drawn between declaring protestors as good or bad.

Last, but not the least, the people of our country should be more open to changes with respect to any law and should also give a good thought to anything and everything before perceiving a notion and reacting to the same.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.