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Busting the myths about CAA: National and international legal perspective

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Abhishek Trivedi Ashish Saraswat
Abhishek Trivedi Ashish Saraswat
Abhishek Trivedi (Ph.D. Scholar at South Asian University in New Delhi) Ashish Saraswat (Asst. Prof. of Law, DBRANLU, Sonipat)

In the much talked about Citizenship Amendment Act, 2019 (hereinafter CAA), there is more confusion and less clarity regarding the consequences the minority community of India will face. Any discussion on CAA in India in the contemporary time is accompanied by unnecessary political jargons and bravado. Thus, it is imperative to separate wheat from the chaff for a clear understanding of the CAA.

National Perspective

In accordance with the ‘Statement of Objects and Reasons,’ the CAA is enacted with the clear objective of protecting the persons of persecuted minorities

“belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community,” who “entered into India on or before the 31st day of December 2014” from Afghanistan, Bangladesh or Pakistan. Section 2(1)-b of the CAA implies two things to be cleared in mind before reaching to any conclusion. First, the protection available under CAA is confined to only six communities that are in minority in three Islamic countries and facing persecution based on religion, among other things. Second, any person belonging to such a community can take the benefit of amended section 2(1)-b only if he/she entered into India on or before December 31, 2014.

Critics of the CAA are arguing that CAA becomes problematic when it is implemented in the context of the National Register of Citizens (hereinafter NRCs) which the Government might be intending to conduct in the future throughout India. Their main argument is that if NRC is implemented throughout India and a particular religious sect is excluded from it, he/she can not recourse and take the benefit of CAA which is otherwise available to above identified six communities if excluded from the NRC. This argument can be reproached given the fact that only a fraction of such identified communities “entered into India” before 2014 from Afghanistan, Bangladesh or Pakistan: most of the persons belonging to such communities are living in India for centuries and may not be necessarily entered into India from Afghanistan, Bangladesh or Pakistan since the last two countries – Bangladesh and Pakistan – were created respectively in 1971 and 1947.

Thus, only those Hindus in addition to Sikh, Buddhist, Jain, Parsi or Christian community are entitled under the CAA who are persecuted minorities in Afghanistan, Bangladesh or Pakistan, entered into India before the cut-off date and staying here for five year, and exempted by the Central Government from the application of Passport (Entry into India) Act, 1920 and Foreigners Act, 1946. Therefore, to say that the CAA and its implementation may be discriminatory is an oversimplified reading of the CAA even in the context of NRC. Nevertheless, whether any person belonging to any identified community above would be excluded from or included as taking the benefit of the CAA hinges on how one would interpret the term “entered into India.”

Furthermore, it is to be cleared that the law of citizenship including CAA and the process of NRC are mutually exclusive. While the citizenship of any person is decided in accordance with the Citizenship Rules, 2009, based on the Citizenship Act, 1955, the rules regarding the NRC if conducted throughout India are yet to be finalized. Moreover, the legal avenues for any person of any religion, caste, creed, and race seeking Indian citizenship are still open under the Citizenship Act on the basis and through the process of birth, descent, naturalization, registration, and incorporation. It is also important to understand a fundamental difference between CAA and NRC that the former deals with relaxing the process of citizenship through naturalization, while the latter deals with citizenship through birth or descent. NRC has nothing to do with religion.

Therefore, those who may be excluded from the NRC list can not claim benefit under CAA whether they belong to Hindu, Muslim or any other religion for the reason that the CAA extends to minorities of three Countries only. Critics also argued that since CAA is limited to only three countries, it is discriminatory. The fallacy of this argument is that it discredits the understanding of the nature of citizenship law of any country including India. Citizenship is a serious legal issue and directly related to the statehood of a country. It would be short-sighted to imagine a universal citizenship law application to migrants of all countries and all religions.

There is also a controversy regarding CAA that it would put the people of Assam in a disadvantaged position and especially those who are not identified in the NRC list would be at the receiving end. However, CAA in this regard makes an explicit reference about its application that the tribal area of Assam, Meghalaya, Mizoram or Tripura and the area covered under “The Inner Line” are not affected by this new amendment. Now the challenge for the Government in the case of Assam is to identify and distinguish people who migrated to India because of either persecution based on religion or economic factors.

The constitutional validity of CAA is also challenged by many before the Supreme Court on the ground of violation of article 14, among other things. Since the matter is sub-judice, it is better not to comment thereupon. Supreme Court judicial precedents in this regard, however, are noteworthy to be considered for general consumption without prejudicing and concluding anything on this matter. Supreme Court has affirmed several times reasonable classification as not violative of article 14 provided such classification is just, fair, and reasonable and having relation to the objects sought to be achieved. Even according to the Dalmia case, 1958, an individual may be treated as a class by himself.

International Perspective

International law functions on the basis of States’ consent which is a corollary of their exercise of sovereignty. States are sovereign to adopt any permissible legal measures which suit their domestic requirements; however, in conformity with their international legal obligation, if any. From these perspectives, it is the sovereign function of India to enact any domestic legislation including the CAA, and hardly any other State should object this as it may necessarily amount to intrude in the internal domestic affairs of India. It is a well-recognized principle of international law that States should refrain from doing any kind of intervention in internal matters of any State. The Charter of the United Nations also recognizes that it would not intervene in matters which are essentially within the domestic jurisdiction of any State.

As far as India’s obligation with regard to refugees are concerned, India is party neither to the 1951 Refugee Convention nor to any other regional conventions on the refugee. India is, however, required to comply with its international customary obligation of non-refoulement which may prohibit India from expelling a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. However, in two situations refugees might not be entitled to take the benefit of the principle of non-refoulement. In other words, as an exception to the principle of non-refoulement, India is not necessarily precluded from exercising its sovereign function, and thus to expel such refugees whom India regard as a danger to its national security or to a local community where such refugees are living and convicted for a serious crime. Nevertheless, States are expected to seek durable solutions before any expulsion. Although what constitutes national security is not defined under law, it provides significant flexibility for the States to come up with legal measures protecting the interest of its citizens. However, such legal measures are still subject to judicial scrutiny in democratic countries like India.

Meanwhile, UNHCR also made an attempt criticizing the CAA as discriminatory in nature. It states that the “amended law would appear to undermine the commitment to equality before the law enshrined in India’s constitution and India’s obligations under the ICCPR and the CERD, to which India is a State party, and which prohibit discrimination based on racial, ethnic or religious grounds.” This statement is, however, not free from legal bias. UNHCR is also known for carrying political agendas because of various international political compulsions. Here, it failed to acknowledge the category of “reasonable classification” that is permitted under the Indian Constitutional provision of equality before the law, and that the CAA is not ipso facto excluded from that category of reasonable classification. Further, the CAA is not a refugee legislation, rather it aims to ease the process of citizenship which the parliament of India is otherwise authorized to do so under article 11 of the Constitution. As far as ICCPR and CERD are concerned, they do not bar any State party from making legal arrangements concerning citizenship, nor do they impose any obligation regarding refugee protection.

It would be immature at this juncture to conclude and prejudice anything concerning the constitutional validity of CAA and its potential detrimental consequences to any excluded community even in the context of NRC.

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Abhishek Trivedi Ashish Saraswat
Abhishek Trivedi Ashish Saraswat
Abhishek Trivedi (Ph.D. Scholar at South Asian University in New Delhi) Ashish Saraswat (Asst. Prof. of Law, DBRANLU, Sonipat)
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