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Constitutionality of Citizenship Amendment Act 2019

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Social media channels are flooded with posts protesting against the implementation of Citizenship Amendment Act 2019. After a detailed study about the Act and the Indian Constitution, one can conclude that the arguments of the protestors have no merit in law or in fact. These are the arguments that support the case for CAA:

The Discrimination/ Equality Arguement:

The first argument that arises is that the law is discriminatory in nature as it “excludes” Muslims from the list of “persecuted minorities” as such is prima facie violative of Article 14 of the Indian Constitution. While Article 14 offers equal protection under law, it also comprises of special provisions allowing formation of “groups” that qualify two major legal tests –

Intelligable Differentia: It tests the constitutionality of the “Group” formed under the special provision of Article 14. In the case of CAA, the religious minorities mentioned in the act dwindled and faced immense persecution. A basic look at the population statistics of the minoritiesalone proves this. The Act passes the test because the three nations mentioned are “Islamic Republics” and by their law, religious minorities are second class citizens; therefore they can be classified as a special “group”. Some argued that why not extend the same the law to “Ahmadiyya” and “Shias”. If they are included in this group, the CAA would fail the test, as they are not “religious minorities” but “ethnic minorities.”

This principle is the same principle which is used to argue for “Affirmative Action or Reservations” that recognize a group and grant them special status, not equal with the rest of the citizens. If this law is outlawed by the common law principle of precedent, all special status given to minorities will also be invalidated.

The Differential has rationale with the Objective of the Act: CAA 2019 aims to give citizenship to persecuted minorities who have entered India before December 2014. It DOES NOT strip anyone of citizenship and therefore will likely pass the equality test in the Supreme Court.

The law does not affect the citizenship of any Indian but only grants the citizenship to “persecuted religious minorities” of only Three countries. Any Muslim who is persecuted in these countries can still apply for asylum or even refugee status. They will have to go through the regular mechanism in place.

The International Law Arguement:

The two major international treaties that govern refugee laws are “The Convention Relating to the Status of Refugees of 1951” and “The Protocol Relating to the Status of Refugees of 1967”. International treaties cannot be enforced unless the countries in question are parties to the convention. India is NOT a party to either conventions, and is only obliged to follow international customary practices but not these treaties.

The Rohingya, Sri Lankan Tamil Arguement:

Sri Lankan Tamils, Tibetan Buddhists, and Rohingyas have not been included in the list. And this was used as an argument for discrimination. Sri Lankan Tamils are no longer under threat as they were during the Civil War. Therefore, they do not require any special laws apart from the asylum laws already in place.

The Rohingya case is more complex. They do not qualify for refugee status because the international standard dictates that the first country of entry by a refugee has the responsibility of them. If thet migrate from there to any country, they will not be refugees but migrants; and migrants have different laws to refugees. Secondly, any new entry of a group is subject to approval of Intelligence Bureau (IB). The Rohingyas also bring in National Security Threat. (Please read up the Amnesty Report on the atrocities on Hindus and other Rohingya minorities in Burma). And the Rohingyas were not issued a security clearance from IB as they felt they could not differentiate the victims from perpetrators.

Tibetan Buddhists also have been excluded owing to the complex nature of Tibet as a state, and they cannot be classified as the same group.

The Parliamentary Power Arguement:

Constitutions are not inclusionary in nature but are exclusionary. They dictate what an entity or person can’t do, but not what they can do. The constitution by Article 11 gives parliament the exclusive authority to make law on who or who can’t be a citizen. The constitution does not define who is a citizen (This is owing the problems during partition and the complexity in integration of princely states, Dr. B. R. Ambedkar created the concept of “Karmabhoomi” where the populous enforces its will and ambitions and creates a nationhood. Read constitutional debate for further context). Therefore, the parliament has every right to make any law that determines citizenship.

The Moral Argument:

CAA keeps up India’s responsibility to minorities who could not migrate in due to the border closing in 1951. It is also necessary to uphold our duty due to the non-compliance of Nehru-Liaquat Pact by Pakistan and Bangladesh. Secondly, the most difficult part will be the implementation of NRC. Whatever the justification, knowing the realities in India, it will affect many innocent people. That is when we need to be active to provide them assistance to prove their case and not oppose laws that are both – legal and necessary to secure our borders, and set a citizenship standard.

In a politically sensitive democracy like India it is important that people, without any legal awareness about the Act, simply do not exaggerate the law-and-order situation in the country by posting half-baked facts as ultimate truth on Social Media.

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