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Citizenship Amendment Act (CAA): A Case Study By An American! (Part 2)

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Continued from Citizenship Amendment Act (CAA): A Case Study (Part 1)

Introduction

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In this second chapter of the article “Citizenship Amendment Act (CAA): A Case Study By An American!“, we will take on this controversial issue, with more facts.

Let’s dive into the topic without wasting any more time.

The Emergency of 1977 and Indian Secularism

1975 to 1978 saw an 18 month period, when the then Prime Minister of India, Mrs. Indira Gandhi imposed s state of Emergency in the country.

Political leaders and intellectuals were arrested and incarcerated. Dissent was suppressed with force.

Under such circumstances, Mrs. Gandhi’s government passed the 42nd Amendment to the Constitution wherein the words Socialist and Secular were forcibly inserted into the Preamble.

As a result India became a Sovereign, Socialist, Secular, Democratic Republic.

This raises certain questions that remain unanswered to this day.

  1. Can a Constitutional amendment be enacted under a state of National Emergency? Will such an Amendment be deemed lawful?
  2. When Dr. B. R. Ambedkar and Nehru, both agreed on that one thing that India cannot be turned into a secular nation, then what compelled Nehru’s daughter to force the word “Secular” into the preamble of India’s Constitution?
  3. After becoming a secular nation, should religious minorities in India continue to receive special treatment under the provisions of the Constitution?

However, one thing was certain after the 42nd Amendment.

Politicians could now use secularism, to favor one religion over the other under the pretext of maintaining a balance of equality and citing the secularism of the Indian constitution at the same time.

What is the Citizenship Amendment Act (CAA)?

The Citizenship (Amendment) Act, 2019 was passed by the Parliament of India on 11 December 2019.

It amended the Citizenship Act of 1955 by providing an expedited path to Indian citizenship for members of Hindu, Sikh, Buddhist, Jain, Parsi and Christian religious minorities, who had fled persecution from Pakistan, Bangladesh and Afghanistan before December 2014.

Members of these persecuted minorities will now have to live or work in India for 6 years instead of 11 years before becoming eligible to apply for Indian citizenship.

It amends India’s 64-year-old citizenship law, which currently prohibits illegal migrants from becoming Indian citizens.

Illegal immigrants to India who are Muslims, are excluded from this bill.

And that exclusion has wreaked havoc in the minds of those who believe in the Indian model of secularism.

Does the CAA violate Article 14 of the Indian Constitution?

This is a charge wherein critics contend that the CAA goes against the secular nature of the Indian constitution.

Article 14 of the Indian Constitution states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

This equality of protection is extended to Indian citizens as well as to foreigners.

Therefore, the assumption is that the CAA law is discriminatory towards illegal Muslim immigrants to India, and therefore violates the equality guaranteed under Article 14.

The Concept of “Reasonable Classification” under Article 14

If you read deeper into Article 14 it becomes evident that Article 14 does not mean that all laws must be general in character or that the same laws should apply to all persons or that every law must have universal application.

This is because all persons are not, by nature, attainment or circumstances in the same positions.

Thus, the state can treat different persons differently if circumstances justify such treatment.

Further, the identical treatment in unequal circumstances would amount to inequality. So, Article 14 permits classification, so long as it is

  • “Reasonable” based upon intelligible differentia, and
  • The differential has a rational relation with the objective of the act.

The street protesters in present day India would not be interested in drilling down to the two bullet points above, as it could unravel some of the charges of discrimination levied on the CAA.

I am not an expert on the Indian constitution, but I hail from a democratic country which is very similar to India, from a constitutional aspect.

From what I see, the reasonable differentia specified under the CAA is that it serves to bring reprieve to 6 religious communities in 3 foreign countries, where these communities consistently face persecution for belonging to a religion other than the declared state religion.

And if that were not enough, these communities have no recourse to justice, as a norm of life.

Now, does this differentia have a rational relation with the objective of the act?

The objective of the Citizenship Amendment Act is to provide refuge, a safe haven in India to men, women and children identified by the reasonable differentia, so they can be promised a safe and promising life and future which was otherwise denied to them in their countries of origin – Afghanistan, Pakistan and Bangladesh.

The case of West Bengal versus Anwar Ali, 1952

There is also a powerful judicial precedent that strongly supports the case of positive discrimination, as provided for and approved by the Indian Constitution.

In the case of the State of West Bengal versus Anwar Ali, the Supreme Court of India had ruled that positive discrimination is not prohibited by the Indian constitution, but negative discrimination is barred.

The Court cited the example that one group of Indian citizens (backward classes) have extra privileges (reserved jobs) over those ordinarily available to all other citizens.

But, no one can be denied ordinary rights (government jobs) if it is available to all citizens.

Thus the Citizenship Act of 1955 ensured that no illegal immigrant would be granted Indian citizenship.

The CAA makes a case for positive discrimination to that Act by allowing 6 religions from 3 foreign countries to be granted an accelerated path to citizenship as there is universally available data on their persecution and discrimination in their countries of origin.

I have no premonition on which way the Supreme Court of India will place its judgement on the numerous petitions filed against the CAA.

My gut feeling says the Supreme Court will uphold the CAA on the grounds of reasonable differentia and its relation with the objective of the act.

However, in my mind, the CAA is a law that does not violate Article 14 of the Indian Constitution.

Excluding illegal Muslim immigrants from the benefits of the CAA violates Article 14?

Does it? Let’s see.

Critics say that Shias, Hazaras and Ahmadiyyas in Pakistan are persecuted as well.

Why should India not extend accelerated citizenship to them? And why not to illegal Muslim immigrants from Bangladesh?

The response to that is so obvious that many fail to see the dots and how they connect with each other.

All Muslims that are in Afghanistan, or Pakistan or Bangladesh today, are there because of 2 reasons,

  1. that is where they were born to families living in that land for generations, or
  2. that is where their ancestors chose to migrate to when India was partitioned

Since all three of these countries profess Islam to be their state religion, the Muslims in those countries are deemed to have settled down in their home states any reported persecution to them cannot be classified as persecution on the grounds of religious differences and therefore fails to meet the criteria of reasonable differentia specified by the CAA under Article 14.

Let’s take a case from the Ahmadiyyas

On a side note, think of some famous Ahmadiyyas from Pakistan.

Let’s take the case of Chaudhry Muhammad Zafarullah Khan. Khan was one of the most vocal proponents of Pakistan and led the case for the separate nation for Muslims in the Radcliffe Commission which drew the countries of modern-day South Asia.

He moved to Karachi in August 1947 and became a member of Pakistan’s first cabinet serving as the country’s debutant foreign minister under the Liaquat administration.

From 1961 through 1964, he served as Pakistan’s Permanent Representative in the UN. He was vociferous in his argument of the cessation of Kashmir from India and its accession to Pakistan during his tenure at the UN.

As a neutral reader, close your eyes and decide for yourself, which side of the border does the loyalty of Ahmadiyyas lie?

I do not have the time and space, to delve into the Hazaras and the Rohingyas of the world. I will reserve another article for that, if needed.

Lastly, on a Humanitarian Level

However, for the non-Muslim minorities living in these 3 countries, their ancestors could never have foreseen the calamity brought about by the Partition of the sub-continent.

Lines were drawn on the basis of religion across a land that knew no religious boundaries.

If religious differences then become the reason why non-Muslim teenage girls are abducted and forcibly converted to Islam before getting married off to Muslim men, then the only country they can look up to for safety and refuge would be India, where the Indian model of secularism grants them freedom and privileges that no other nation in the subcontinent does, to the same extent.

If I were a Hindu or a Christian or a Sikh mother with teenage daughters in those circumstances, I would risk my life and everything I have, to get my daughters into an Indian refugee camp in Punjab. And then with folded hands in prayer, thank the Almighty that my daughters can have a safe and secure future under the Citizenship Amendment Act (CAA).

Note:-

Without the word “Secular” or “Secularism” how did the Constitution ensure Religious Equality?

Someone had once asked an intelligent question – if the word secular is removed from Constitution, won’t it make the state more favorable towards one religion over other as per their convenience and party’s ideologies?

Let me rephrase this question slightly differently.

When the Constituent Assembly realized that secularism as a term cannot be incorporated in the (first draft of the) Constitution, how did they ensure that the state would not favor one religion over other based on political convenience?

Although long and perhaps overly weighted down with detail, the Indian Constitution is rightly seen as a progressive charter not least with regard to matters of faith.

Article 25 (1) enables all Indian citizens, equally, one to another, the right ‘to profess, practice and propagate religion’.

Under Article 26 (a) citizens are at liberty ‘to establish and maintain’ religious institutions.

Article 27 prohibits the state from raising taxes for specifically religious ends.

Under Article 28 (1), state-run schools are barred from religious teaching; while Article 28 (3) forbids schools run by religious sects from compelling students to attend religious instruction classes.

Discrimination on religious grounds is expressly prohibited in admission to educational institutions by Article 29 (2), in recruitment to the public services by Article 16 and in respect of all ‘places of public resort maintained wholly or partly out of State funds’ by Article 15.

On the face of it, these three clauses offer extensive protection to religious liberty on the one hand and against religious compulsion on the other.

Article 25, note, makes no mention of ‘worship’ but speaks instead of ‘practice’, which theoretically extends the guarantee of the state to public rituals such as processions and festivals.

What is more, it specifically gives people the right to ‘profess’ religion. India’s is virtually unique among the modern world’s constitutions in this respect.

It is apparently with these provisions in mind that Chandra B. wrote in his book “India After Independence”: ‘the spirit embodying the Constitution was secular’.

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Team Explicit Facts would like to Thank Ms. Carla Stewart in granting permission to publish her article on our website.

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