CAA Challenge: Divergent Views

Adv. Saji Koduvath

Introduction

The Citizenship Act, 1955 is amended by the Citizenship (Amendment) Act, 2019 . The controversy triggered out on Citizenship (Amendment) Act, 2019 (CAA) is that the Muslims are purposefully excluded, when citizenship is provided to persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities who entered into India, from Afghanistan, Bangladesh or Pakistan, on or before the 31st day of December, 2014.

The controversial amendments are the following:

1. Proviso added to Sec. 2 (1) (b): “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 ….. …. shall not be treated as illegal migrant for the purposes of this Act;”

2. New Section, Sec. 6B, added: “6B. (1) The Central Government or an authority specified by it in this behalf may, subject to such conditions, restrictions and manner as may be prescribed, on an application made in this behalf, grant a certificate of registration or certificate of naturalisation to a person referred to in the proviso to clause (b) of subsection (1)  of section 2. (2) Subject to fulfilment of the conditions specified in section 5 or the qualifications for naturalisation under the provisions of the Third Schedule, a person granted the certificate of registration or certificate of naturalisation under sub-section (1) shall be deemed to be a citizen of India from the date of his entry into India. (3) …

Indian Union Muslim League vs Union of India

Constitutional validity of Citizenship Amendment Act is challenged before the Supreme Court of India, in Indian Union Muslim League v. Union of India and other connected cases. It is pending consideration.

Criticism Raised by the Petitioners

The petitioners before the Supreme Court challenge the CAA mainly enkindling the following criticism:

1. Violates Secularism: The humanitarian approach to accept refugees should not be discriminated on the basis of religion. It violates the principles of  Secularism.  
2. Violates Art. 14: Classification based on both religion and country, contained in the impugned Act, is unconstitutional. It violates Art. 14 (Equality of Law) as the amendment excludes one significant religion (Muslims) purposefully.  
3. Against the basic structure: Violation of principles of  Secularism in the CAA is against the basic structure of the Constitution.  
4. Violation of rights of people of Assam, under Constitution: The Impugned Act is in direct violation of the rights of the people of Assam contained in Articles 14, 15, 19, 21, 25, 29, 325, 326 and 355 of the Constitution of India.  
5. Against “Assam Accord”: During 1971, when war broke out and the East Pakistan became secular “Bangladesh” there was an exodus of Hindus from East Pakistan to Assam. A treaty was presented to the people of Assam giving the deadline which was midnight of 24.03.1971. The Hindus and Muslims having the commonalities to being “Bengalis” who left during the struggle of Bangladesh entered Assam; and the electoral role inflated. The Assamese identity was in great threat.  On 8.06.1979, the people of Assam answered to a call of agitation. This was the biggest agitation till date in independent India. The entire State of Assam became standstill, and almost all Assamese people took part in the agitation. The multifaceted agitation continued till the signing of “Assam Accord”, i.e. the Memorandum of Settlement on 15.08.1985 by the Union Government, the AASU, the AAGSP and the Government of Assam in presence of the then Prime Minister of India, Late Rajiv Gandhi. The Assam Accord mandated, amongst others, that the foreigners who came to Assam on or after March 25, 1971 ‘shall continue to be detected, deleted and practical steps shall be taken to expel such foreigners‘. It also directed ‘Constitutional, legislative and administrative safeguards‘, as may be appropriate to protect, preserve and promote the culture, social, linguistic identity and heritage of the Assamese people. CAA violates this ‘Assam Accord’.

Answers to the Criticism in Union’s Reply, in Nut-shell

The response of the government, on the criticisms raised by the petitioners is divulged in the ‘Preliminary Counter Affidavit on Behalf of the Union of India’ filed in the Supreme Court.

1. Historical facts and Persecution: It is pointed out in the ‘Preliminary Counter Affidavit’ that the following is stated in the ‘Statement of Objects and Reasons’ of the Citizenship (Amendment) Act, 2019: “It is a historical fact that trans-border migration of population has been happening continuously between the territories of India and the areas presently comprised in Pakistan, Afghanistan and Bangladesh. Millions of citizens of undivided India belonging to various faiths were staying in the said areas of Pakistan and Bangladesh when India was partitioned in 1947. 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. Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.”
2. Amendment does not take away right of any other person: The history clearly depicts that persecuted minorities in the said three countries were left without any rights and the said historical injustice is sought to be remedied by the amendment without taking away or whittling down the right of any other person.
3. ‘Benign legislation’: CAA is a ‘benign legislation’ to tackle religious persecution. It deals countries with a theocratic constitution.  Object of this amendment has to be viewed through narrow lens. Though  CAA selects a certain communities, it does not impinge on anyone’s existing rights. The State’s power is extremely wide. Subject matter of CAA is outside the power of judicial review. Constitutional courts have no expertise-parameters on which the legislative policy is framed in this matter. Even if judicial review possible, it should be limited. State has wide discretion in devising policies on citizenship.  
4. CAA corrects a historical injustice: CAA gives relaxations to certain religious communities – Hindus, Sikhs, Buddhists, Jains,  Parsis and Christians from certain countries (Pakistan, Bangladesh and Afghanistan). These communities share a common trait – they are minority religions in those theocratic countries, constitutionally.
5. India is the sole feasible place to seek shelter, for the said communities: CAA concerns ‘historically’ persecuted people because-of their religious identity. What CAA does is to recognize this historical fact; and to correct a historical injustice, without whittling down the rights of anyone else. In the ‘Preliminary Counter Affidavit’ it is stated: “Considering the totality of factors, including factors of international geopolitics, the demographic profile of nations surrounding the particular neighbouring countries, the situation of or the presence of other persons of classified communities in other nations surrounding the neighbouring classified countries and the presence of state religions/theocratic regimes in other countries surrounding the neighbouring classified countries, makes it amply clear that India represents the sole rational and logically feasible place to seek shelter for the said communities“.
6. Issue of other minorities persecuted in these countries: Indian Parliament is not bound to consider other persecuted minorities, who are not covered under CAA in the three countries. In other words, the Parliament is competent, taking into consideration the historic background to earmark the religious minorities in the said three countries and is not be bound by the declaration of minority status to any other community or sect by the said three named countries.
7. Conferment of citizenship is a sovereign function. It is up to the Indian Parliament to decide who should be conferred the benefits of the ‘benign legislation’, on. CAA is not meant to be an omnibus solution. Intra-religious persecution cannot be equated to the persecution faced by the communities identified in CAA. Indian Parliament cannot take note of all persecutions across the world. If the under-inclusiveness is accepted, there will always be some left out.
8. Classification: Inclusion and exclusion of countries: Courts cannot intervene within the legislative wisdom . The union has taken note of the fact that the circumstances in these countries — of military regimes in Pakistan, civil war in Bangladesh, invasions and civil wars in Afghanistan — accentuated the persecution in these communities. The classification under CAA is logically complete and made in light of the prevailing geo-politics in the region.
9. CAA is a restatement of India’s secular values: CAA does not exclude people from any country in the world from applying for citizenship in India. They can continue to apply for citizenship and CAA does not operate as a bar on this. CAA excludes even Tibetan Buddhists from China and Tamil Hindus from Sri Lanka. The contention that CAA is designed to exclude Muslims is unfounded. Giving protection to persecuted minorities is a restatement of India’s secular values rather than an abdication.  
10. No other rights violated: Other fundamental rights, including Article 21 (right to life and personal liberty), Article 15 (prohibition of discrimination), Article 19 (right to freedom), Articles 15 and 19 etc. are available only to citizens and won’t be applicable in the case of non-citizens. Judicial review cannot be based on international conventions. Since no fundamental rights are violated, question of constitutional morality being violated does not arise at all.

What will Eventuate?

Two diametrically opposite views are possible:

 I. Court will not discard the following Fundamental Principles

1. Basic structure theory: The basic structure theory is an indestructible hardcore characteristic of our constitutional jurisprudence. If it is applied in its full vigour, the CAA will be held unconstitutional, as it is patently against secular distinctiveness upheld by our courts hitherto.
2. Discrimination, unconstitutional: Both religion-based classification and country-based classification, done in the CAA, are unconstitutional. India cannot be ‘protector’ of certain people of particular religions, disregarding the Constitutional mandates and the proclaimed principles of secularism enshrined in the Constitution.
3. Religion cannot be basis for citizenship: Religion or ‘religious persecution’ cannot be a ground for citizenship. It is not secret that this Amendment Act will harshly work against a group (Muslims), though not named in the Act.
4. Goal can be achieved even without CAA: Inasmuch as the State has wide discretion in devising policies on citizenship, as stated in the Counter Affidavit filed by the Government itself, it can confer citizenship to any one or any group, pointing out any realistic circumstance whatsoever, even without brining forth CAA which leads to political ramifications. 

II. Policy decision of State on ‘ground realities’ is outside Judicial Review.

1. CAA Deals with people ‘concerned historically’ to India: CAA tackles religious persecution of people, who are ‘concerned historically’ to India, in the neighbouring countries which are administered under theocratic Constitutions.
2. ‘Ground realities’ cannot be discarded: When these ‘ground realities’ are brought to the Court, it cannot discard them; and when the Court is satisfied with these ‘ground realities’ it will not interfere in the State’s legislative power which is extremely wide. Even if judicial review is possible in this matter, it should be limited.
3. State has Wide Discretion: State has wide discretion in devising policies on citizenship.  
4. Not impinge on anyone’s existing rights: Though CAA selects certain communities, it will not impinge on anyone’s existing rights.

Conclusion

It is definite that the matters involved in these cases as to the Constitutionality of CAA will be disposed of by the Supreme Court fully realising true political and historical intendments behind the enactment. In all possibility, the outcome will be the craft-skill of rhythmically conjoining the apparent divergent views on (i) the ‘historical injustice’ suffered by the ‘citizens of undivided India’ and (ii) the indestructible characteristics of the basic-structure theory brought out and nourished by the Apex Court of India.