This Article is written by Divyanshi Shrivastava, a student of MNLU, Nagpur. 

Introduction

The Citizenship Amendment Act is a law aimed at facilitating the acquisition of Indian citizenship by the minorities of three of our Islamic neighbours. It is a narrow-tailored law specifically meant for religiously persecuted minorities of Pakistan, Bangladesh and Afghanistan.

History of Barbaric Religious Persecution

“It is a historically proven fact that trans-border migration of population has been happening between the territories of India and the areas presently comprising Pakistan, Afghanistan and Bangladesh”. [1] Also, millions of citizens belonging to different faiths had been living in said areas of Pakistan and Bangladesh, when partition took place in India in 1947. And this is also, a much-known fact that “Pakistan, Afghanistan and Bangladesh constitution provide for a specific state religion, hence people belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced and are facing persecution on grounds of religion ”. This persecution has been long and painful. This is because not every nation respects religious liberty, and therefore on humanitarian grounds [2] to curtail religious persecution other civilized nations have to step in. Moreover, the hegemony gets atrocious, preventing people even to profess their religion and hence, many run away to shelter in India but what we actually do to these migrants, nothing instead they are made to suffer under the obliterating system.

There are various instances from which legitimacy of the amendment can be deciphered, these instances are facts that prove religious minorities in the three selected countries are being persecuted, deprived of basic rights and hence being denied human rights. “A recent December 2019 UN report, shows Pakistan’s atrocities towards its minority community” [3] as Islam being their state religion and majority population belongs to Islam, no one dares to advocate the rights of these sufferers. The exclusion of other neighbouring countries has not been done with any cliché propaganda but just because India cannot overburden its resources and capacity by widening the horizon of the act to include all. There has been various classic legislation, based on this similar rationale and have passed the test of legality. This is because the limited scope of an act does not inherently make an act arbitrary and unreasonable [4] until discrimination is not a piece of inequality treatment. [5]

The minorities in these three countries have been facing barbaric treatment for a long time and even the law of these countries have done minimal to protect their human rights. A rise in forced marriages and conversions, abductions and rapes of Hindu girls and women, and false blasphemy accusations; in addition, the state’s failure to deal with violations has increased the sense of insecurity within the community, is one instance.

Another instance is discriminatory education to the minority community, “on the basis of religion or belief in education’ found strong anti-Hindu and anti-India rhetoric in textbooks, and detailed the discrimination that Hindu students face in the classroom from Muslim students and teachers.”[6]

The Christian community, another most suffering community is deliberately targeted and continues to face sectarian militancy from extreme religious groups hence churches are protected by high walls, security barriers and security guards. [7]

The blasphemy laws in these countries violate multiple rights: freedom of thought, conscience and religion, the right to life and freedom of opinion and expression. The situation of human rights in these countries is bad and worse for minority communities.

These egregious human right violations need to be curbed and as per International Law principle of sovereignty India can definitely not intervene but this ongoing practice mockeries humanity. However, the weak judicial system and rule of law of these countries cannot be challenged, only help which we can afford is the amendment of 2019. [8]

CAA is Narrowly tailored Law

The purpose and the scope of CAA are not to provide answers to all or any kind of purported persecution”, but it has a narrow scope given that the legislation is a “narrowly tailored legislation seeking to address the specific problem which awaited India’s attention for a solution, the affidavit adds further. This benign law is a narrowly tailored law and measure ought to be tested within that legislative domain and should not be conflated to extend beyond that object. It is a devised legislative policy to deal with the acknowledged problem of persecution of the particular communities in the specified countries who are, by their very Constitutions, theocratic countries.

Universal Declaration of Human Rights (UDHR), the grund norm on international human rights recognises religious liberty at a very large spectrum, the 1989 Vienna Concluding Document, Forms United Nations Declaration on the Elimination of All of Intolerance and of Discrimination Based on Religious Belief, enacted in 1981 and many more to state aim at religious liberty [9] protection but on large scale, still, there is a mass human right violation on the ground of religion. Therefore civilized nations actually need to integrate their legal system with these conventions to protect humans around the globe, to make religious liberty a reality.

On realization, this amendment, a benevolent human project has been brought to minimize the formalities and harsh regulations. This step is not a legislative colour to favour non-Muslims or ignore the rights of Muslim community, instead, it is an attempt to allay the sorrows of thousands of migrants who have been persecuted from decades because of their historical background. And hence this paper attempts to discuss the legality of Citizenship Amendment Act, a much-criticised law.

Purview of CAA Constitutionality and Congruity with Equality doctrine

This act does not violate the equality principle which adorns the basic structure doctrine. Article 14 [10] which provides for equality under the law and Article 15 which prohibits discrimination including on grounds of religion are the grains of the basic structure of the constitution. Hon’ble Supreme Court from decades has validated a law which classifies on grounds of intelligible differentia and rational nexus. [11]

And this act actually has rational nexus and is not based on arbitrary or discriminatory grounds. [12] CAA aims to provide the persecuted minorities in these 3 countries a special status in the naturalization process and it does not mean in any way that other communities or people will not be naturalized at all, for other communities the rules of the general asylum process will be followed. The classification here caters a narrowly tailored purpose and that is the rehabilitation of religious persecuted minorities.

The laws of equality do not mean having the same law for lions and lambs, the obligation is to treat equals equally, and in the present case, the object is to aid those tortured, victimized, oppressed especially on the basis of religion and the minorities in the specified Islamic countries and hence political or economic asylum seekers like Muslims are not catered in this law. This justifies as not all evils can be tackled by one weapon, in one law we cannot objectify sheltering all communities and all purposes arising from different connotations.

When the classification is reasonably done, it cannot be invalidated on any obnoxious ground. “Article 14 prohibits class legislation and not reasonable classification and the test for a permissible classification is that it should be based on an intelligible differentia” [13] and “that differentia should have reasonable nexus to the object sought to be achieved by the statute” [14]. The putative purpose in the statement of objects forms the basis of intelligible differentia for the classification between the migrants belonging to six religious communities and those left out.

As nothing has been done by the legislature capriciously, irrationally and/or without adequate determining principle it will gross to call the law manifestly arbitrary. [15] There have numerous legislations like Special courts act [16] to recent Muslim Women (Protection Of Rights On Marriage) Bill, 2018, which are a mere manifest exercise of arbitrariness. But CAA is not amongst those who have mocked the rule of law or political logic and constitutional norms. It has just attempted to classify, to correct the past mistakes and mollify the sufferings of migrants suffering for dignity a very basic human right in the era of transformative constitutionalism. Hence the amendment is in consonance with the equality principle.

Constitutionality and Congruity with Article 21

It is vehemently being argued that this law violates Article 21. [17] As per Constitution Article 21 not only protects citizens but all persons residing in Indian Territory. This is upheld by Indian judiciary as well, like in the Chakma tribe cases, [18] the court said that “the fundamental right to life and liberty guaranteed by Article 21 of the constitution is also available to Chakmas, though they were not Indian citizens.” [19] It is pertinent to mention Mr Louis De Raedt & Ors, [20] one of the initial cases where Indian Judiciary expanded the horizon of Article 21 but clipped all other fundamental rights to only citizens. So it can be deciphered that Indian law should respect life and liberty to every human residing in India but definitely not one aiming to live in India, hence this act is not in violation of Article 21 as it has no duty to protect life and liberty of persons outside India.

As it has been aptly held in Kesavananda, [21] an amendment to the constitution can be only tested on grounds of the basic structure, the two most important gems that are equality and freedom and life of an individual, are in no way being derogated by this law, hence the debate that this law is foul or draconian actually needs to kept aside and the noble purpose which this law is trying aim should be glorified. This law actually aims to reduce religious persecution being faced by minorities by modifying the citizenship laws for better, this positive action is in no way anti-humanistic to minorities of India; this parochial thought should urgently be shunned from society.

Moreover, the central government is well within its competence to frame laws on citizenship as it is a sovereign prerogative, the subject citizenship falls within the ambit of list 1, Entry 17. Also, India is not signatory to the 1951 Refugee Convention or 1967 Protocol, therefore the government has not committed any internationally wrongful act. There are the various European States which have previously implemented such legislation to halt illegal migrants.

Conclusion & Suggestions

“Discussion and dissent are the very life-breath of democracy”. But no true democracy can afford or support violence. The vendetta against the country and the Central Government being carried out by various political parties is destabilizing our nation and causing a disturbance in its peace. The first of all laws is to respect the laws, but rampant violence is a mockery in the spirit of protest which our father of nation Gandhi taught us in the spirit of non-violence. This moral turpitude being catered in various parts of the nation is nothing but a display of vested interest where the oblivion crowd is being unnecessarily dragged.

India urgently needs a uniform refugee law, to prevent further intricacies to erupt. India owes a duty to the international community; its any arbitrary step can actually mar the humanistic image. Therefore incongruence to Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR), there is a need to develop comprehensive refugee law enabling the controlled migration of the persecuted to India that would not jeopardize national security and would enable the migrants to live in India with safety and dignity till their return home.

In conclusion, there is an urgent need to shun the parochial thought that Citizenship Amendment Act is anti-Muslim; this thought itself is a moral obliquity [22] as the basic objective of the said law is nothing but the protection of religious liberty being presently persecuted in Pakistan, Bangladesh and Afghanistan.

Reference

[1] The Citizenship (Amendment) Act, 2019.

[2] Murry Harstn, “Intervention to Prevent Religious Persecution in International Law”, 1 St. John’s L. Rev. 30 (1926).

[3] UN Commission on status of women, Pakistan: Religious Freedom under Attack, (December 2019), https://www.sadf.eu/wp-content/uploads/2019/12/2019-12-pakistan-religious-freedom-under-attack-final-compressed-single-pages-1.pdf.

[4] Garg R.K. v. Union of India, AIR 1981 SC 2138.

[5] State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284.

[6] CSW (2018), Faith and a Future: Discrimination on the basis of religion or belief in education http://faithandafuture.com/wp-content/uploads/2018/02/Faith_and_a_Future_HR.pdf.

[7] CSW, ‘Pakistan: Suicide attack targets Christians’, 29 March 2016 www.csw.org.uk/2016/03/29/press/3037/article.htm.

[8] Supreme Court of Pakistan, ‘Suo moto actions regarding suicide bomb attack of 222.9.2013 [sic] on the Church in Peshawar and regarding threats being given to Kalash tribe and Ismailis in Chitral’ www.supremecourt.gov.pk/web/user_files/File/smc_1_2014.pdf.

[9] Derek H. Davis, “Thoughts on Religious Persecution around the Globe: Problems and Solutions”, 40 J. Church & St. 279 (1998).

[10] The Constitution of India, art.14.

[11] Seshachalam v. Chairman, Bar Council of Tamil Nadu, AIR 2015 SC 816, the State of Bihar v Bihar State Plus-2G Lecturers Association, AIR 2007 SC 1948.

[12] Chiranjit Lal Chowdhuri v. The Union of India And Others, 1951 AIR 41.

[13] Budhan Chowdhary v. the State of Bihar, AIR 1955 SC 191.

[14] EP Rpyappa v. State of Tamil Nadu, AIR 1974, S.C. 555.

[15] Shayra Bano v. UOI,(2017) 9 SCC 1.

[16] Anwar Ali Sarkar v. The State of West Bengal, AIR 1952 Cal 150.

[17] The Constitution of India, art 21.

[18] National Human Rights Commission vs State of Arunachal Pradesh, 1996 SCC (1) 742.

[19] Ibid.

[20] Mr Louis De Raedt & Ors v. Union Of India And Ors,1991 AIR 1886.

[21] Kesavananda Bharati v. the State of Kerala, (1973) 4 SCC 225.

[22] Jack C. II Dolance, “U.S. Asylum Law as a Path to Religious Persecution”, 53 Va. J. Int’l L. 467 (2013).