Citizenship Amendment Act, Threat To India’s Secularism

What is the Citizenship Amendment Act, and why there is a nationwide protest against it?

The Citizenship Amendment Act gives Indian citizenship; to six non-Muslim religious refugees (Hindus, Sikhs, Parsis, Christians, Buddhist and Janis), from Pakistan, Bangladesh and Afghanistan, who fled to India before December 31, 2014, to avoid religious persecution.

In simpler words, religious minorities from Pakistan, Afghanistan and Bangladesh, who fled to India because of religious persecution before a cut off date will be given Indian citizenship.

There are many questions which can be asked, for example, why only these three countries? Why only these six religions? And why a cut-off date? But the most important question, “Is Citizenship Amendment Act constitutionally valid?”

The opinion is mixed, many will say that the Citizenship Amendment Act is legally correct and many say that the Citizenship Amendment Act violates the principles of our constitution.

Let us start with the preamble of the Constitution. It declares that the Republic of India is a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC. This means India as an ideology is supposed to be sovereign, socialist, secular, democratic and a republic country.

Now, does the Citizenship Amendment Act violates the principles mentioned in the preamble?

But first, let's understand what CAA aims to achieve and what's being left out.

An Act, for granting Indian citizenship to non-Muslims from Pakistan, Afghanistan and Bangladesh who entered India before December 31, 2014, because of religious persecution or if they fear religious persecution.

Muslims are not included in this act. What about those who don’t have any religion? The Act is silent. Maybe in the eyes of the Indian government, every human has a religion, if not two religions or no religion.

This act is clearly against the Constitutional fabric of India. It is clearly against the basic principles of the Indian ideology.

Article 11. Parliament to regulate the right of citizenship by law. Nothing in the foregoing provisions of this Part (Part 2 which deals with citizenship) shall derogate from the power of Parliament to make any provision concerning the acquisition and termination of citizenship and all other matters relating to citizenship.

This provision allows the parliament to make any law for taking or granting Indian citizenship. Citizenship Amendment Act is because of Article 11.

Article 13. Laws inconsistent with fundamental rights.

This makes everything more interesting. According to this any law in force which is inconsistent with the fundamental rights are void. It also imposes a duty on the state that it should not make any law which is inconsistent with the fundamental rights.

If the Citizenship Amendment Act is inconsistent with any of the fundamental rights, as per Article 13 it is void.

Does the Citizenship Amendment Act violate any fundamental rights?

Article 14 talks about equality, equality before the law and equal protection of the law.

Article 14. 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.

If you read this you might think CAA is against Article 14, because it does not provide for equal treatment of the refugees. Some of them are more equal than others.

Article 14 is for everyone, even non-citizens. Every human being inside the Indian territory is entitled to equal protection of the law and equality before the law.

Equality before the law and equal protection of the law does not mean equal treatment to all. It guarantees similar treatment but not equal treatment. Article 14 is based on the principle of Reasonable Classification, equals must be treated equally and unequal must be treated differently.

Citizenship Amendment Act discriminates on the bases of religion by excluding Muslims.

Are Muslim illegal immigrants equal to non-Muslim illegal immigrants? Are Muslim refugees equal to non-Muslim refugees? Are immigrants equal to locals?

Everyone is entitled to equal treatment as humans, as all humans are equal as humans.

Muslim immigrant, legal or not, is equal to non-Muslim immigrant, legal or not. Allowing some communities the right to citizenship and excluding others is discriminatory and a violation of Article 14.

Even if the government tries to cover this up by claiming that the CAA is to give citizenship rights to religious minorities facing religious persecution.

Why not protect all the refugees coming from all the neighbouring countries facing religious persecution?

Restricting the CAA to just three countries is arbitrary when there is evidence of religious persecution in several neighbouring countries. Tamils in Sri Lanka and Rohingya Muslims in Myanmar, for example, face religious persecution and have taken refuge in India.

Apart from fundamental rights, CAA violates Human Rights and other international customary laws.

“To protect the human rights of refugees, in 1951, under the aegis of the United Nations, countries adopted a convention relating to the status of refugees (Refugee Convention), which was later amended by the 1967 Protocol. These two global legal instruments, now ratified by 145 countries, constitute the major international legal framework on the treatment of refugees globally. India is not a party to either the Refugee Convention or the 1967 Protocol.” – Prabhash Ranjan (Senior Assistant Professor, South Asian University’s Faculty of Legal Studies)

Citizenship should never be given on the bases of religion. All religions are equal, religious people are equal to non-religious people.

By explicitly not including Muslims, the state has reinforced the Hindutva’s belief that India is the sacred land of Hindus, not of Muslims.

Religious discrimination hurts economic development. In July 2018, researchers from the Universities of Bristol (UK) and Tennessee (US) published a study, 'Religious change preceded economic change in the 20th century', clearly establishing the causal relationship between secularism and economic growth.

This is CAA in isolation. If we see CAA with NRC (National Register of Citizens) the situation becomes a nightmare for Muslims and poor of the country.

As of today, 60 petitions have filed in the Supreme Court of India challenging the Act, and the court has not yet put a stay on the law. The next hearing is on January 22, 2020.

As of today, we need more scientific and logical people in Parliament.

The views expressed are personal