In words of Justice Learned “Any democracy which looks to the court to save it is probably already doomed!”
For the past few months country has witnessed protests which spread like Molotov cocktail as soon as parliament enacted The CAA (citizenship amendment act) while examining any legislation it’s a matter of ideologies and matter of unbiased law (Judiciary) like the left wings would oppose it unequivocally due to it’s obvious ideological rivalry with the right and the right wings are supposed to defend it due to their political inclination adhering to the state. Now when we consider matter of unbiased law (Judiciary). Law would examine the constitutionality of this legislation whether it’s logical or arbitrary. We can analyse the legislation either confining our research only to the technical factors of its constitutional validity or else as a law student we can also mull over other influencing factors and consider their effects which directly affect the enactment of the act and gradual repercussions this legislation will have socially, politically, psychologically, economically as well as legally.
As any law notwithstanding is enacted by legislation, however it’s social, political and other factors are considered while enacting them. The apt examples of this would be on 6 September 2018, the Court ruled unanimously in Navtej Singh Johar v. Union of India that Section 377 was unconstitutional stating it’s “irrational, indefensible and manifestly arbitrary” Also On 27/07/2018, case of Joseph Shine vs. Union of India a 5 Judge Bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code as being violative of Articles 14, 15 & 21 of the Constitution. Now same acts which were considered illegal and immoral back then are now moral and had become legal eventually due to dynamic morality of ever-changing society. The crux of my argument is social factors (here morality) are influencing factors for enacting new laws or amending old ones. And that’s the very reason emphasis should be made to consider all the influencing factors not only legal but also social, political, economical and other factors while enacting any new law even if it’s not exhaustive and framed to target specific objects of legislation It’s ambit should not be confined but ensure all specifically considered entities are protected equally and reasonably under that newly framed legislation.
Before getting into support or opposition of The Citizenship Amendment Act, 2019 (The CAA) it is necessary to understand what exactly is mentioned in CAA and then the debate starts. Clause 2 of The Citizenship Amendment Act, 2019 states 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. Point to be noted in here is the word “Persecuted Minorities” has not been mentioned in the act but it is intended to be assumed impliedly which is susceptible to be struck down by the court since without mentioning “Persecuted Minorities” how are they going differentiate between illegal immigrants who had faced persecution before granting them citizenship? Also before considering religious minorities one has to remember that there can be minorities within a religion itself. So while rejecting an entire religion the minorities within that religion would be ignored blatantly and that would be absolutely arbitrary. Clause 4 of the Act states, that this section shall not be applied to tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873. In Assam the final NRC (National Register of Citizens) was published where 19, 06,657 people were excluded as illegal immigrants out of 3, 30, 27,661 applicants. The question which arises here is that when CAA would not be applied according to clause 4 of the Act to grant citizenship to illegal immigrants residing in parts of Assam, Meghalaya, Mizoram or Tripura who had fled their homelands for the reason of religious persecution would still not get citizenship even when the law of protecting “Persecuted Minorities” has been enacted? Clause 6 of the Act has reduced the aggregate period of residence of illegal immigrants to “Not less than 5 years” from 11 years which is not substantially justified and it raises the question that how logical and reasonable is it that the cut off date of 31st of December 2014 is a parameter of judging persecution of those minorities in their countries. Did these countries stop persecuting their minorities after 31st of December 2014? Or if they do we don’t care?!
Ever since The Citizenship Amendment Act, 2019 was passed it has been a vexed issue nationwide. So far 144 petitions have been filed under Supreme Court challenging constitutional validity of the Act. And the matter has been open to debate thenceforth. Hearing straight from the horse’s mouth according to Senior Advocate and Former Solicitor General of India Harish Salve The Citizenship Amendment Act, 2019 will stand the test of constitutional validity as it’s mere relaxation for illegal immigrants who are belonging to “Persecuted Minorities” he also went on saying that the act is not a violative of Article 14 since intelligible differentia has been applied i.e. rational classification has been made. “Persecuted Minorities” are nothing but this substantive classification and other people who want to apply for citizenship can still apply through the standard procedure. Also, he acknowledged that not all neighbouring countries are considered under this legislation but he relegated it as “Matter of Policy” This makes us ponder that there is a possibility that the CAA can stand the test of constitutional validity in court. However Former Supreme Court Judge Justice Madan Lokur said, “Proviso in amended citizenship legislation is unconstitutional” He also added that Article 14 is not limited only to rational classification but what is important is that rational classification should have reasonable nexus with the object sought to be achieved by the legislation. In addition to this Former Chief Justice of Delhi High Court Ajit Prakash Shah said that, “The CAA completely negates the ideals of secularism, equality and justice enshrined in the constitution.” Furthermore he added, in the case Kesavananda Bharati v. State of Kerala in 1973 The Supreme Court ruled that the secularism is the “Basic Structure” of the constitution and it cannot be altered by the parliament. He also added, there’s a mistaken belief that the word “Secularism” has been added into constitution in 1976 and therefore constitution was not secular prior to 1976. But, our constitution is actually been founded on the ideals of freedom of religion, faith and belief so secularism is the basis of our constitution.
Considering The Citizenship Act, 1955 section 3, 4, 5, and 6 gives criterion to get citizenship by birth, descent, registration and naturalisation respectively. Nowhere in erstwhile provisions religion has been made as eligibility criteria for granting citizenship. Nevertheless, if we consider the objective is to grant citizenship to “Persecuted Minorities” We have to consider that when we have 7 neighbouring countries then why only 3 of them are considered for granting citizenship? The Defendants argument would be, it is for countries who were occupying areas of British India. i.e. countries which share historical background with us Pre-independence. But then again question arises, Afghanistan wasn’t part of British India while Myanmar was. If persecuted minorities from Afghanistan are considered then why not persecuted Rohingya Muslims from Myanmar. In September 2018, the U.N. Independent International Fact-Finding Mission on Myanmar released a report stating that at least 392 Rohingya villages in Rakhine state had been razed to the ground since 25 August 2017. The Tamil Eelams are persecuted in Sri-Lanka but they are also excluded from the ambit of legislation which intends to protect “Persecuted Minorities” In spite of being Hindus due to it’s “Matter of Policy”. When persecuted Hindus in countries mentioned in legislation are getting relief, the confined purview of CAA won’t give justice to persecuted Hindus in Sri-Lanka i.e. Tamil Eelams. The state just can’t evade this unreasonable partisanship under the banner of “Matter of Policy”. As this same “Matter of policy” has framed unreasonable arbitrary legislation which has to stand the test of constitutional validity in court. Now the question is why the state has overlooked such obvious persecution and not made any provisions for them? Even if it’s a “Matter of Policy” The legislation has to be reasonable while framing laws. It cannot be arbitrary. Now comes the question who is actually persecuted in aforementioned neighbouring countries in the Act? What about persecuted minorities in aforementioned neighbouring countries which are not included in the Act but are still persecuted in these countries? In Pakistan, “The Second Amendment to the Constitution of Pakistan and Ordinance XX” declared Ahmadis to be “Non-Muslims” and further deprived them of religious rights. Hundreds of Ahmadis were assassinated in the 1953 Lahore riots and the 1974 Anti-Ahmadiyya riots. The May 2010 Attacks on Ahmadi mosques, infamously known as the Lahore Massacre is suffice data to comprehend that Ahmadiyya’s are a persecuted minority who had faced not only aghast persecution in their homelands but declared as Non-Muslims which is the sole prominent factor to identify members of this community. Senior Advocate and founder of the Human Rights Law Network (HRLN) Colin Gonsalves told that the version of the Bill that we are told about and one that the Lok Sabha has passed, have huge differences. In Pakistan, there are Ahmadiyyas who are persecuted. In Afghanistan, there are the Hazaras who are persecuted. These two communities are also present in India as refugees. They have come to India and the United Nations Human Rights Commissions (UNHRC) has recognised them as refugees, which means that the UN has recognised that they are persecuted. The State started off by telling everyone that they are taking care of persecuted minorities but actually they are excluding persecuted minorities and ordinary minorities, he added. So if state denies Muslims in general, the Muslim minorities who are facing persecution in these countries would be rejected outrightly and that would be a flagrant violation of article 14 of our constitution. as first of all it’s available to both citizens and non-citizens second the rational classification of “Persecuted Minorities” doesn’t have reasonable nexus by “Omission of Ahmadiyyas, Hazars and Balochis inspite of being persecuted minorities for just being Muslims” to object to be sought by legislation i.e. “Protection of Persecuted Minorities”.
Considering other ignored persecuted minority by the legislation “The Atheists” are more vulnerable to violent persecution as these countries (Pakistan, Afghanistan and Bangladesh) are countries with fundamentalism as their basic idea and being Atheist is considered as blasphemy in fundamentalist states. So we can conceive the potential persecution faced by Atheists in these countries. One such example of persecution is faced by physician, feminist and secular-humanist Taslima Nasreen who was exiled just for the fact she is an Atheist. She had to keep moving to different countries due to forced exile and multiple fatwas calling for her death. The newly framed legislation has no provisions for atheists fleeing from persecution, reason unknown. The defendants have argued that their numbers are negligible but that’s the very point of bringing this legislation i.e. to ensure people who belong to minorities (negligible in numbers) who are vulnerable to be persecuted are protected and granted citizenship here. So if India is being generous to provide national asylum to illegal immigrants fleeing persecution it should be equal for everyone. Any unreasonable partisanship would amount to repeal the Act, under violation of Article 14 of our constitution. Intelligence Bureau (IB) provided the Joint Parliamentary Committee (JPC) the number of immediate beneficiaries on the Citizenship (Amendment) Bill, 2016. The JPC report, citing the IB, was tabled in Parliament on January 7. Around 31,313 immigrants would stand to immediately benefit from the proposed amendment. Then what about others? Assam alone estimated to have 1.9 million illegal immigrants. The number would amplify multiple times when enumerated throughout the nation. If approximately only 31,000 going to be benefited then where will others go? Hopefully not in detention centres as that would violate their human rights and then UN will interfere into this. We have tragic reports of 29 people who died in Assam detention centres after application of NRC in the state. Judging from such scenarios The Socialist and Democrats groups in the European Parliament has submitted a resolution denouncing The Citizenship Amendment Act, as “discriminatory” and “dangerously divisive” with the potential crisis to create “the largest stateless crisis in the world” This has definitely affected India’s global reputation. The state might have brought this legislation with good intentions but in words of Jim Collins “Bad decisions made with good intentions, are still bad decisions.”
Apart from the legal technical fallacies of the Act and albeit CAA being a debatable legislation itself. In my opinion, it’s a “Premeditated Diversion from Developmental Issues” The country’s deplorable condition in various fields would make my argument stronger. Unemployment rate at 45 year high, report from labour ministry data. The data showed 7.8% of all employable urban youth being jobless, while the percentage for the rural was 5.3%. The continuous deceleration of GDP which declined to 4.5% is lowest in last six years. In a global survey by Thomson Reuters Foundation found India as most dangerous country for women with sexual violence rife. Still prolonging justice for Nirbhaya Gang Rape Case of 2012 in 2020 is itself a justification of the global survey. Out of 180 countries India’s rank on 2019 World Press Freedom Index slipped to 140. The transition of watchdogs of democracy into lapdogs/spin doctors has resulted into this. According CNN reports 22 of the top 30 polluted cities in the world are in India. Retail inflation for the month of December 2019 has sharply spiked to 7.35 % from 5.54 % in November. It is the highest rate of retail inflation recorded since July 2014, triggering further growth concerns amid slowing economy. Rupee became one of the weakest currency in Asia. Consumer spending dropped for the first time since 1973 on weak rural demand, according to National Statistical Office (NSO), indicating towards an increase in poverty in India in recent years. According to (IMF) International Monetary Fund India is midst of major economic slowdown, urgent actions needed. IMF in it’s annual review said declining consumption and investment accompanied by falling tax revenue have arrested India’s GDP growth, which was one of fastest in the world just year ago.
This data is suffice to understand that newly framed legislation is nothing but a masterstroke diversion from developmental issues only intended to deviate people’s attention from damp squib administration of the state. After two decades communal issue of Ram Mandir was resolved. People were questioning state’s accountability for unemployment, financial crisis. Then state brought a game changing communal legislation. The people who were questioning state’s accountability together are now engaged in long debates among themselves contemplating whether religious minorities should get citizenship or not. Protestors have been tainted with a blot of anti-nationals most of them belonging to student sections. About anti-national narratives headlined by various spokespersons and spin doctors, replying to a Right To Information (RTI) filed by Saket Gokhale, the Home Ministry said “Ministry of Home Affairs has no information concerning Tukde-Tukde Gang.” Overusing the anti-national term to anyone who criticises state has been condemned by the High Court judges as well. In my opinion threat by the said “Anti-nationals” is equivalent to the delusional antagonist of Hounds of Baskerville from novels of Sherlock Holmes. India has legacy of being a generous nation to it’s refugees, and thus India will have to provide asylum to illegal immigrants fleeing from persecution. Just like it is said “Love should be unconditional or it’s not love” India should consider all the persecuted minorities unconditionally, equally, without any religious, linguistic or regional partisanship or The Citizenship Amendment Act, 2019 would merely be “India’s conditional love for Persecuted Minorities.”