LOOKING AT THE CONSTITUTIONALITY OF CAA AND NRC
Author: Kanak Purohit, pursuing BALLB from O.P Jindal Global University
Co-author: Gurkirat Kaur, pursuing BALLB from O.P Jindal Global University
CAA (Citizenship Amendment Act) and NRC (The National Register of Citizens) have always been in the news ever since they were introduced. It was because of the elements of them. CAA is the Citizenship Amendment Act that was introduced in 2016 by the Bharatiya Janata Party amended the Citizenship Act, 1955 it provided a pathway for Indian Citizenship for persecuted religious minorities that were from countries like, Afghanistan, Bangladesh, and Pakistan. Due to being included in the 6th schedule of the constitution, the tribal areas of Tripura, Mizoram, Assam, and Meghalaya are not included in the purview of this act. The National Register of Citizens on the other hand tells us who is a legal Indian citizen on records. Database for the same was only limited to Assam until in the year 2019 the Home Minister Amit Shah declared in a parliamentary session that they would extend it to the entire nation. In all the basic definitions and explanations, the real problem is being hidden. The two acts are unconstitutional to the very core and violate many fundamental rights.
One of the main contentions of those protesting against CAA is that this act violates Article 14 of the Indian Constitution. Article 14 of the Constitution reads, “Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. This article not only applies to the citizens of India but also to foreigners. CAA has provisions to provide citizenship to the migrants of three countries This act is prima facie discriminating against a particular community as the act does not include Muslims.
According to the Test of Reasonable Classification, the classification must be built on intelligible differentia that differentiates those who are grouped from those who are not. There should be a connection between the differentiation and the classification object.
The CAA makes three distinct classifications. First, it separates migrants from Pakistan, Bangladesh, and Afghanistan from all other nations. Second, it creates a sub-classification that separates people who follow the Hindu, Jain, Sikh, Buddhist, or Christian religions from anyone else, including Muslims. Third, it only provides benefits to migrants who meet the above conditions and arrived in India on or before December 31, 2014.
To determine if these classifications are appropriate, it's necessary to first understand the CAA's goal. The law itself does not specify an aim. The following argument appears in the bill's Statement of Objects and Purposes [SOA], which was adopted in both Houses of Parliament:
“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 the 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”(Parthasarathy).
However, taking this SOA as reflecting the law's stated goal, the CAA would breach Article 14 because it treats individuals in disparate ways. If one assumes that the aim of this SOA is only to protect minorities from neighbouring countries with a state religion, Bhutan and Sri Lanka are excluded. Both of these countries' constitutions recognize Buddhism's special status. Even assuming that the State has the authority to provide special protection to people persecuted in neighbouring countries with a state religion at the expense of all other persecuted migrants, the absence of Bhutan and Sri Lanka removes any connection between the laws object and the classification system. The SOA also implies that CAA aims to shield migrants from countries that were initially a part of pre-partition India. If this were the case, the addition of Afghanistan and the exclusion of Myanmar (which, like Burma, was ruled by the British India administration until 1937) would imply that the classification has no rational relation to the aim of the CAA.
Apart from that, there is no rationale for limiting the CAA's application to migrants who arrived in India on or before December 31, 2014. Certainly, the State cannot claim that migrants who have since arrived are not eligible for an accelerated path to citizenship because their persecution has been less serious. As a result, whatever the State wants to call the CAA's goal, the classifications it creates are unsustainable. Even if one aspect of the test is satisfied, namely that it is easy to differentiate between migrants who are given protection by the law and those who are not, the classification would still have no objective relationship to the law's aims and objectives.
Article 15(1) of the Indian Constitution reads, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.The Citizenship Amendment Act (CAA) is also violative of Article 15(1) of the Constitution as it only claims to provide citizenship to people belonging to religions of Hindus, Sikhs, Jains, Parsis, Christians, and Buddhists and does not include Muslims. Thus, the act is discriminating on the grounds of religion. Not only that Indian-Muslims could also be endangered by the effect of CAA+ NRC because the ones who do not have the required documents could be declared illegal migrants under the NRC and they will not be able to get citizenship under CAA the way non-Muslim Indians could get citizenship by lying and claiming that there are migrants from Bangladesh, Pakistan, and Afghanistan.
"The law laid down by the Supreme Court Constitution Bench judgment in 1994 in S. R. Bommai's case (S.R. Bommai v. Union of India) says that no law can be enacted by the Parliament or by a state legislature based on religion. According to me, the CAA, distinguishing between persons based on religion, as per Bommai, is unconstitutional,” said Justice V. Gopala Gowda(Jain)
According to the preamble, India is a secular country. The term "secularism" implies that there is no state religion and that the state does not encourage or banish any community based on their religious beliefs. However, in this provision, citizenship is granted or denied based on religion, as shown by the exclusion of Muslims in the proviso under Section 2 of the Amended Act. The CAA is also an attack on the fundamental characteristic of the Constitution which is secularism. Secularism has always been considered as one of the central, essential elements of the Constitution as the Supreme Court recognized certain basic features of the Constitution in Kesavananda Bharati v State of Kerala. As a result, the CAA is an effort to dismantle one of India's greatest accomplishments as a democracy: a nation dominated by Hindus but welcoming to citizens of all faiths. The concept of secularism is not negotiable, and the CAA's infringement on it is an attack not only on the ideals of equality and secularism but also on Indian constitutional law. Justice Ajit Prakash Shah, in an interview, said that “The Citizenship Amendment Act unquestionably violates secularism and, therefore, the basic structure of the constitution”(Shah)
Two protests were being carried out in the. The protest that was being carried out was in the northeastern parts of India because of a different reason than it being unconstitutional. It was due to its implementation in the north-eastern areas as most of them feared that if this act was implemented in their area it will cause an influx of immigrants that may disrupt their demographic and linguistic uniqueness.
NRC when implemented on the Supreme Court orders was a longstanding demand of Assam as it identified and eliminated illegal immigrants from Assam. After the implementation in Assam, there was a growing nationwide demand for its implementation in the entire country. Back in the 1980s, there was unrest in Assam. This was the time when there was a fear in the Assamese-speaking residents that they would be overpowered by Bengali-speaking residents after Bangladesh’s liberation in 1971. From a constitutional point of view, NRC violates Article 14 and Article 21 (Right to Life and liberty). Both of these articles are not just limited to citizens but all persons and hence even if a person through NRC is considered not to be a citizen still has these two rights which are being violated.
The Supreme Court of India also gave its judgment on the matter of CAA and NRC and its constitutionality. A bench comprising Chief Justice S A Bobde and Justices B R Gavai and Surya Kant fixed 59 petitions. One of the petitions was filed by Indian Union Muslim and Congress leader Jairam Ramesh. The bench also agreed to the submission of lawyer Ashwini Upadhyay that common people should be made aware of the aim, objects, and the contents of the CAA and asked Attorney General KK Venugopal, representing the Centre, to consider using audio-visual medium to make citizens aware of the legislation. Another senior advocate Kapil Sibal agreed with Dhavan's submission.
The Indian Union Muslim League (IUML), one of the petitioners who have challenged the CAA, said in its plea that it violates the fundamental Right to Equality and intends to grant citizenship to a section of illegal immigrants by making exclusion based on religion.
Several other petitioners include Muslim body Jamiat Ulama-i-Hind, All Assam Students Union (AASU), Peace Party, CPI, NGOs 'RihaiManch' and Citizens Against Hate, advocate M L Sharma, and law students have also approached the apex court challenging the Act. (The week)
NRC is a grave threat to the right of life, as the Court famously declared in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, “the right to life enshrined in Article 21 cannot be restricted to mere animal existence…it means something more than just bare physical survival.” The scope of which was extended in the Olga Tellis v Bombay Municipal Corporation where the court included “the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.” The entire existence of a person is dependent on him being able to prove that he is a legal citizen of the country which is made clear by the NRC.
There are plenty of other examples of why the CAA's classifications are inequitable. For example, the law distinguishes between evident religious persecution and other types of persecution. But is there any evidence that a Tibetan persecuted on political grounds is in a better situation than a Christian or Buddhist persecuted on religious grounds in Pakistan or Bangladesh? The legislation also assumes that religious discrimination can only occur in countries with a state religion. However, as the case of Myanmar's Rohingya Muslims demonstrates, this belief is not only erroneous but also unfair.
Discrimination based on one's religion, faith, or nationality is not only irrational, but it also harms fraternity. Adama Dieng, the UN's advisor on the prevention of genocide, said in a press release that while the act's aim of providing security to minorities is admirable, “it is concerning that this protection is not extended to all groups, including Muslims”. “This is contrary to India’s obligations under international human rights law, in particular on non-discrimination,” he stated(UN Expert Thinks CAA Has Sparked More Hate Speech, Discrimination Against Minorities).
Kapur, Manavi. "India’s new Citizenship Act and national register of citizens are both inspired by “paranoia”." 2019.
S.R. Bommai v. Union of India. The Supreme Court. 1994.