Do you know the terms “religion”, “minority”, “persecuted” are not used in the CAA? Then why do the government says that the CAA is to give Indian citizenship to the religious minority from Pakistan, Afghanistan and Bangladesh, facing persecution?
But first, we need to understand who is a migrant?
According to section 2 (1) (b) of the Citizenship Act, 1955 an illegal migrant means a foreigner who has entered into India-
(i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or
(ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period;
With the enactment of Citizenship (Amendment) Act, 2019 the following proviso has been added.
“Provided 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 and who has been exempted by the Central Government by or under clause © of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for this Act;”
Here in this new definition, you will be struggling to find the terms “religion”, “minority”, or “persecuted” in it.
Saying that this is an Act for providing Indian citizenship to religious minorities from Pakistan, Afghanistan and Bangladesh, who fled to India to avoid religious persecution before a cut off date, is an interpretation.
The actual text does not say this, we imagine it. Law is not what is written, it is what we perceive it to be.
For example, Section 377 of the Indian Penal Code. After 2018 the interpretation changed and now consensual sex between adults of the same gender is not a crime. But if you read the Section 377 before 2018 and after 2018, you will notice that there is no change it. The language is the same, the interpretation changed and that changed the law.
Is the Citizenship (Amendment) Act valid? If not, can we interpret in a way to make it valid?
The legality of Citizenship (Amendment) Act depends on how you interpret it. Let us see what happens when we do a strict interpretation of it?
In strict interpretation, we are not using our imagination, we say whatever is written, is the law. In that case, the Citizenship (Amendment) Act is illegal. It violates Article 14 of the Constitution, by not treating every one of that same class equally. It is excluding Muslims and people with no faith.
But what if we do a liberal (imaginary) interpretation?
Let us assume the law is what the government is saying.
That means 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.
Which religious minorities? The Act says, six communities which will be considered as religious minorities, that is Hindus, Sikhs, Parsis, Christians, Buddhist and Janis. Again we do not see the people with no faith. Non-religious people are also considered as a religious minority and especially in Pakistan, Afghanistan and Bangladesh. Therefore, it is violating Article 14 of the Constitution.
Why only Islamic countries, when we have ample evidence of religious persecution in other neighboring countries?
By only limiting the scope of this amendment to Islamic countries, when we have evidence of prosecution of minorities based on religion in other Non-Islamic countries is not against the Constitution. Of course, it is ethically wrong to do so. It is sending a very negative message to the world. But this issue can be solved by making another law for providing Indian citizenship to people from other countries too.
Why provide citizenship to only religious minorities facing religious prosecution?
The prosecution can be of many types, by only providing citizenship to people facing religious persecution is arbitrary. Moreover, a non-religious person can also face persecution, a Muslim in an Islamic country can face persecution.
What if we provide citizenship to only religious minorities? Again Article 14 will be violated because the Act is excluding non-religious people.
What if we provide citizenship to only prosecuted refugees? Again Article 14 will be violated because the Act is excluding non-religious people and Muslims.
No matter what is your religion, you can still be a victim of persecution because persecution can me of many types.
Is the Citizenship (Amendment) Act legal?
If you think that Citizenship (Amendment) Act is wise legislation and none of the objections raised on it is valid, because it is correcting a historical wrong by providing citizenship to religious minorities from Pakistan, Afghanistan and Bangladesh who have fled and sought shelter in India on the accounts of religious prosecution.
Then you deny the existence of 16% of the world's population who consider themselves as non-religious.
Then you are deliberating limiting the scope of the Act to enforce the RSS’s hardcore Hindutva belief and sending a strong message to the world that we do not want Muslims in our country.
Is the Citizenship (Amendment) Act legal? You decide.