CITIZENSHIP AMENDMENT ACT 2019: TAINT ON INDIAN SECULARISM
India recognizes an individual as a citizen by virtue of birth, descent, registration, and naturalization pursuant to the Citizenship Act of 1955, which takes effect from Part II of the Constitution, namely Articles 5 to 9. Under the previous regime, the Citizenship Act was amended 5 times i.e. in the years of 1986, 1992, 2003, 2005 and 2015. Another amendment was broached by the current Modi Government which triggered protests all around the country. The amendment made by the Government of India to the Citizenship Act of 1955 is being hotly debated throughout all platforms. The advocates of the Citizenship (Amendment) Act, 2019 (CAA) have vigorously argued in favor of its constitutionality as well as its importance, thus ignoring all apprehensions and concerns relevant to its possible detrimental impact on the country and its people. Similarly, the exclusion of Sri Lankan Tamils from the citizenship law has created outburst in the state. [1]
WHAT WAS THE LAW PRIOR TO CAA?
An individual may be granted citizenship in four forms under the Citizenship Act, 1955, namely i) by birth; (ii) by descent; (iii) by registration,and (iv) by naturalization. The CAA has amended the provisions and procedures relating to the granting of citizenship by naturalization. Before the CAA was implemented, any legitimate migrant (i.e. a person who entered India with a valid passport and visa) living in India for a cumulative period of at least 12 years from the date of application was qualified for Indian citizenship. This privilege was obviously not related in any way to the immigrant's beliefs pursuing Indian citizenship. The Act does not grant citizenship to any illegal immigrants regardless of their religion.[2]
WHAT HAS CAA CHANGED?
The CAA seeks to provide fast track Indian citizenship to illegal migrants belonging to the Hindu, Catholic, Jain, Sikh, and Parsian sects who migrated to India from Afghanistan, Pakistan and Bangladesh before 31 December 2014. Furthermore, the CAA excludes Muslims from the application of the Act. Since the CAA mandates that these non-Muslim illegal migrants remain in India for a period of at least 5 years from the date of registration, on and after 31 December 2019, they will be eligible for citizenship.
The purpose of the legislation is likely to provide shelter to the above-mentioned community of non-Muslim illegal migrants who have endured religious persecution in Afghanistan, Pakistan, and Bangladesh as a consequence of their minority status. Notably, the CAA does not include Pakistan's Ahmadiyas and Shias or Myanmar's Rohingya Muslims who are also subject to religious persecution in their respective countries.[3]
The law has exempted many north-eastern states which fall under Inner Line Permit as per Bengal Easter Frontier Regulation. 1873. But among the north-eastern states, Assam's indignation against citizenship law was the most serious. While a chunk of these states is exempt from the law, this lawovershadows a large part of Assam. The demonstrations derive from the belief that unauthorized Bangladeshi Hindu refugees would threaten the cultural and linguistic heritage of the State if they are regularized by this law.[4]
WHY IS THE CAA UNCONSTITUTIONAL?
The proviso which is inserted for the definition of citizenship to the present act is clearly unconstitutional keeping in mind the rule laid down by the Hon’ble Apex Court in the case of State of West Bengal v. Anwar Ali Sarkar[5]in 1952. Article 14 provides for both reasonable and rational classification. What is vital is that the rational classification needs to have a reasonable nexus with the objective sought to be achieved by the legislation. In other terms, there is a twin prerequisite for rational classification and a reasonable nexus to meet the standard of Article 14, and this is regrettably ignored in this discourse. Justice SR Das in this case explicitly mentioned that in short, while the Article forbids class legislation in order to discriminate unfairly by granting privileges or imposing liabilities to individuals arbitrarily selected from a large number of other persons similarly situated in relation to the privileges sought or the liabilities proposed to be imposed, it does not preclude classification for the purposes of legislation.[6]
In short, despite their arrival to India without valid documents and permission, the Citizenship Amendment Bill will grant illegal migrants the status of legal migrants. This clearly indicates that the intent of the legislature is to create discrimination against Muslims which is clearly forbidden under Article 14 of the Indian Constitution. Article 14 is one of the foundations of the Constitution. It states, "No person shall be denied equality before the law or equal protection of laws within the territory of India by the State." Equality before the law means that the State shall treat all classes of persons without discrimination. Equal protection of the law means that the State will not lay down laws or rules which discriminate between two persons.
Among other things, the preamble describes India as a secular state, that suggests that the state cannot feel a greater duty to support one religion over another as a matter of policy. Consequently, a statute that aims to expedite the awarding of citizenship to non-Muslim illegal migrants on account of their religious persecution from thus ignoring the religious persecution of Muslims in neighboring countries is against the fundamental principle of secularism reflected in our Constitution.
Center claims that these minority communities have fled from the persecution of these Muslim-majority nations. The reasoning is not clear, however–the bill does not cover all religious minorities and it does not extend to all neighbors. The Muslim Ahmedia sect and even the Shia are being discriminated against in Pakistan. In neighboring Burma, Rohingya Muslims and Hindus face persecution and in neighboring Sri Lanka, Hindu and Christian Tamils.The government agrees that in Islamic nations, Muslims are able to receive asylum but did not respond to other issues.[7]
IS THERE AN NRC LINK?
The claim that the CAA and the NRC are completely separate or that the CAA will have no direct or indirect effect on the NRC mechanism to be followed by the State is like living in a fool's paradise. It would be foolish to claim that the CAA must be seen in isolation and that its repressive essence becomes increasingly evident when perceived holistically, especially from the wider perspective of the government's established philosophy and the long-held policy of the incumbent government, which is nothing but a slow and gradual ethnic cleansing of the nation. It was also clearer from the tweet of BJP Official handle that the current regime when the NRC exercise in the state of Assam is connected with CAA. More than 19 lakh Hindus were eliminated from the NRC when this process was done in Assam under the guidelines of Hon'ble Apex Court. Some claim that the Citizenship Amendment Act is a method of obtaining citizenship of these 19 lakh Hindus in Assam.[8]
IS THERE VIOLENT USE OF SECTION 144 OF CrPC?
With demonstrations against the Citizenship Amendment Act intensifying in multiple locations across many nations, governments have enforced Section 144 of the Criminal Procedure Code (CrPC) banning demonstrators from assembling against or in support of the controversial legislation passed by Parliament. The administration is empowered under Section 144 to impose restrictions on the personal freedoms of individuals. This ensures that the government can restrict the fundamental right to peaceful assembly provided for under Article 19 of the Constitution if the executive magistrate considers the condition at any given location with the potential for disruption of law and order.
The Karnataka High Court questioned the legality of Section 144 of CrPC which was imposed in Bengaluru by the State Government which was planned for the controversial act. It questioned the assumption of the State Lawmakers that every protest could not be turned into violence. The right to protest is enshrined under Article 19 (1)(a) of the Indian Constitution. It grants all citizens the right to "assemble freely and without violence." Citizens hitting city streets across states against the Citizenship Amendment Act practice their constitutionally guaranteed fundamental right. But when the State is arbitrarily using Section 144 of CrPC to prohibit the gathering of protestors, it is violating their right to protest.[9]
LESSONS FROM NAZI GERMANY
The new oppressive Citizenship Amendment Bill passed by the Indian Parliament and it's related NRC form part of Hindu nationalism, whose supporters have always praised the racist policies of Nazi Germany.In this way, India became a country that includes religion as a basis for citizenship, perhaps the only one. Of note, the bill is only designed for refugees from 3 countries [Pakistan, Afghanistan, and Bangladesh]. Yet Home Minister Amit Shah once more claimed in Parliament that there is soon to be a national exercise to demonstrate citizenship. It'll be called the National Register of Citizens (NRC).[10]
This massive and portentous effort, taken together, leads to a future full of extreme risk to religious minorities in the world. They too had begun to prejudice against the Jews with changes in the law. Although India is still not like Germany in the 1930s and 1940s, it would be foolish to not remember how the Nazis succeeded at killing an approximate six million Jews. It began with legislative changes, complemented by street violence.In 1920, the 25-point plan of the Nazi Party laid out its aim of removing Jews from the 'Ariean' community and putting an end to their cultural, social and political freedoms. After the turmoil of 1933, the Nazis immediately began to achieve this aim by introducing laws and regulations in order to isolate Jews. The number of such statutory changes is estimated to be nearly 2000 at every level, from domestic to regional to national.
It should be remembered that the RSS [the socio-political and paramilitary right-wing, which is the theoretical father of the governing Bharatiya Janata Party] has important insights as to what the Nazis have achieved. Rashtriya Swayamsevak Sangh (RSS) supremo and chief ideologue M.S. Golwalkar had quoted in his infamous book “We– Or Our Nationhood” that Germany made headlines by purifying the Jewish Country. Here was seen ethnic unity at its peak. Germany also showed that it is almost impossible to assimilate races and cultures, which are root differences, into one united whole, which is good lessons to learn from and benefit from Hindustan. The Hindu Union is further described by Golwalkar and states that "all of those are not considered Indians if their Hindu caste, philosophy, culture and language naturally fall out of real 'ethnic' existence," he suggests that those citizens would be deemed foreigners if their racial, religious and cultural distinctions were preserved.India is not similar to this, of course – at the moment.However, as is currently happening with CAB, there will be massive resistance to all such measures, with demonstrations erupting in several parts of the country.
IRRESPONSIBILITY BY APEX COURT
The Supreme Court of India holds a special privilege in the hearts and souls of the Indians. They look it up to it when it comes to maintaining the essence of the country alive and isolated from the assaults by the executive. Over the last seven decades, the Court has developed an elevated status by assuming the role of the sentinel on the Qui Vive.
Part III of the Constitution of India provides for fundamental rights and Article 13(2) of that Convention states that "The State shall not, as far as contravention is concerned, make any law that takes or abridges the rights granted by this Party and that any law made against that Clause shall be invalid." Article 14 provides a strong injunction against the State: ‘The State shall not deny any equality of persons within the jurisdiction of India before the law or equal protection of law’.
Within the paradigm of liberal democracy, affirmative action by a state in support of marginalized segments of society. The Equity Clause requires socio-economic justice. Equal protection often implies the right of citizens to equal treatment: This is the nature of Article 14, an integral provision of the Constitution, which implores the courts, and in particular, the Supreme Court, to examine and, where it seems to have been identified, to find that state legislation is unconstitutional or not. The Court cannot abandon the obligation to assess the validity of the Statute under appeal.And so it is, to say the least, shocking that the decision of the SC, headed by the Chief Justice himself, to pause the review of the appeal to the well-known Citizenship (Amendment) Act, 2019.
The Court ought to have disregarded the relevance of this ex-facto unconstitutional law in other cases and addressed the body of petitions. Its vacation is hardly an excuse or reason to postpone such an obstacle. While judges decided to spend their much-deserved winter break, their failure to abide by the law is even more deeply troubling.Such an order might instantly have detonated the outbursts heightened across the nation and might have sighed with relief. Rather, the judges placed us in our city streets to struggle for ourselves. The Court will only be able to see the burden of this decision over time.This is not an absolute rule, however. If the ex-facie Act breaches citizen's fundamental rights, the legislation could not be protected by a mere assumption that specifies the burden.
A stay order would not have been adverse to the interest of the public in the application of that citizenship law On the contrary, in fact, it believes that the public interest would have been actually served. It is absolutely true because, practically speaking, there is a perception in terms of constitutionality of the law.
The decision of the High Court in Delhi to suspend writs in the cases of Jamia abuse represents a stunning deterioration in its constitutional obligation. It seems that judges across the board are reluctant, however unconstitutional they may be, to challenge the actions of the executive. One only has to assume that the Court would inevitably introspect and act to put an end to any violence in the nation and to relieve the fears of a huge part of society that they do not want anymore.The Preamble is the permanent contract for a "Sovereign, Socialist, Secular, Democratic Republic" between State and nation, "to guarantee liberty, dignity, fraternity, and freedom of thought, language, religion and worship to all its people."[11]
In the famous Keshavandana Bharati case, the great judge, H R Khanna, ruled that the "State shall not discriminate against any person on religious grounds alone" and interpreted Articles 15(1) and 16(2), even before the term "secular" was added to the Preamble.[12]
SUGGESTIONS
The Bill says in the declaration of objects and reasons mentions that countries like Pakistan, Afghanistan, and Bangladesh have a state religion. As a consequence, many individuals from Hindu, Sikh, Buddhist, Jain, Parsi and Christian sects in those countries have faced persecution on religious grounds. As per the current Government, it forms the basis of intelligible differentia among non-Muslim immigrants and provides the legal and constitutional ground for keeping Muslim immigrants without legitimate documentation who have reached India or remained in India. In creating such a differentiation, it would be difficult to prove who, out of religious persecution or for the sake of a better economy, entered India among the illegal immigrants. In some other countries, the government cannot examine a few million cases to verify the claim of religious persecution.
It also means that the Citizenship Amendment Bill advances the line of argument brought forward by Muhammad Ali Jinnah contributing to India's 1947 Partition. He created a Muslim nation Pakistan, and therefore, Article 14 is the foundation stone of the Indian Constitution which states not only right to equality but also somewhere freedom of religion. Hence, the Act is an assault on Indian democracy which is affecting the secularism of India.
The following can be suggestions given for this controversial act are-
· The Government should take the advice fromthe judiciary before making any bill that is related to language, religion, and culture, so that it does not affects society at all.
· The Supreme Court should hear those matters urgently which are violating many provisions of the Constitution. The present Chief Justice should not act as a remote-controlled CJI for the ruling regime and should preside over the crucial constitutional cases.
· The use of Section 144 should be minimal by lawmakers and should only be used in extraordinary circumstances. The present regime should not suppress the voice of dissent who are criticizing the bill.
· Since India is a secular nation, therefore, citizenship can’t be given on the basis of religion, otherwise, it would destroy the constitutional fabric of the country.
[1]Prabhash K. Dutta New DelhiDecember 9, 2019UPDATED: December 9 & 2019 15:55 Ist, Why Citizenship Amendment Bill needs to pass Article 14 test, India Today, https://www.indiatoday.in/news-analysis/story/does-citizenship-amendment-bill-violate-fundamental-right-to-equality-1626641-2019-12-09 (last visited Dec 26, 2019).
[2]Citizenship (Amendment) Act: An unconstitutional Act, Deccan Herald (2019), https://www.deccanherald.com/specials/sunday-spotlight/citizenship-amendment-act-an-unconstitutional-act-785638.html (last visited Dec 26, 2019).
[3]‘Explainer: How Does One Become an Indian Citizen? What Changed with the CAA?’ <https://factly.in/explainer-how-does-one-become-an-indian-citizen-what-changed-with-the-caa/> accessed 26 December 2019.
[4]Arabhi Anandan, ‘Explained : What Is Inner Line Permit (ILP)?’ (29 December 2019) <https://www.livelaw.in/know-the-law/what-is-ilp-151145> accessed 31 December 2019.
[5]The State Of West Bengal vs Anwar All Sarkarhabib, AIR 75 (1952).
[6]‘A Premature Denouncement of the Citizenship Act - The Hindu’ <https://www.thehindu.com/opinion/op-ed/a-premature-denouncement-of-the-citizenship-act/article30362045.ece> accessed 26 December 2019.
[7]‘Resist CAA in the Name of the Rohingya | Dhaka Tribune’ <https://www.dhakatribune.com/opinion/op-ed/2019/12/25/resist-caa-in-the-name-of-the-rohingya> accessed 31 December 2019.
[8]‘Everything You Wanted to Know about the CAA and NRC - India Today Insight News’ <https://www.indiatoday.in/india-today-insight/story/everything-you-wanted-to-know-about-the-caa-and-nrc-1630771-2019-12-23> accessed 26 December 2019.
[9]‘Citizenship Amendment Act: Imposition of Section 144 to Prevent Democratic Protests Smacks of Colonialism; Shows Inability to Handle Dissent’ (Firstpost) <https://www.firstpost.com/india/citizenship-amendment-act-imposition-of-section-144-to-prevent-democratic-protests-against-law-smacks-of-colonialism-shows-govts-inability-to-handle-dissent-7801111.html> accessed 26 December 2019.
[10]‘CAB/NRC – What Can We Learn From Nazi Germany? | NewsClick’ <https://www.newsclick.in/CAB-NRC-What-Can-we-Learn-From-Nazi-Germany> accessed 31 December 2019.
[11]‘Shame, Shame: Lawyers Heckle Delhi High Court Judges during Jamia Protest Hearing - India News’ <https://www.indiatoday.in/india/story/delhi-high-court-jamia-violence-hearing-judges-heckled-shame-shame-1629787-2019-12-19> accessed 31 December 2019.
[12]‘Supreme Court Has Not Acted with Urgency to Protect Citizens from Executive Excesses’ (The Indian Express, 24 December 2019) <https://indianexpress.com/article/opinion/columns/caa-citizenship-amendment-act-supreme-court-constitution-of-india-6181772/> accessed 31 December 2019.
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