Sifting CAA facts and fiction

It is a policy decision taken through exercise of sovereign power and we must wait for the SC decision on it

By Author Prof GB Reddy, Baglekar Akash Kumar   |   Published: 4th Jan 2020   12:05 am Updated: 3rd Jan 2020   10:09 pm

The entire country is embroiled in a huge turmoil ever since the Citizenship (Amendment) Act, 2019, was passed by Parliament. The CAA has empowered the government of India to confer Indian citizenship on those persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh and Pakistan, who entered India on or before December 31, 2014.

It is also subject to rules framed under the Passport (Entry into India) Act, 1920, vis-à-vis Sec 3 (2)(c), which empowers the government to require persons entering into India to have passports or to exempt from that condition, and the Foreigners Act, 1946, vis-à-vis the power to make orders for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein under Section 3. This citizenship can be conferred either by registration or naturalisation. Further, even the conferment of citizenship on the identified classes of persons does not give them absolute rights.

For the purpose of granting citizenship, the period of residence for naturalisation of such group of persons is five years. The CAA further provides that on acquiring citizenship: (i) such persons shall be deemed to be citizens of India from the date of their entry into India, and (ii) all legal proceedings against them in respect of their illegal migration or citizenship will be closed.

The Home Minister has clarified that this law is not applicable in Arunachal Pradesh, Mizoram, Nagaland, Tripura (about 70%) and almost entire Meghalaya because of Inner Line Permit (ILP) in these States. On December 12, 2019, the President signed an order to extend ILP to Manipur. As far as Assam is concerned, Bodo, Karbi and Dimasa areas fall under the Sixth Schedule of the Constitution, and so this law will not apply there too.

Sifting CAA

The attack on the CAA appears to be on following grounds.

1. Firstly, exclusion of Muslims of these three countries from the CAA infringes upon Article 14 of the Constitution and is anti-secular. This can be countered by arguing that in RK Dalmia v Justice SR Tendolkar (1959), the Supreme Court had laid down the twin tests of ‘intelligible differentia’ and ‘rational nexus’ in relation to the classification and its object. The CAA appears to satisfy the two conditions because a class together of all minorities, including Christians, who have been religiously persecuted from three countries that have declared ‘Islam’ as the State religion is being given citizenship, which is an intelligible differentia because the population of all minorities in Pakistan drastically reduced from 23% in 1947 to 3.7% in 2011. In Bangladesh too, it reduced from 22% in 1947 to 7.8% in 2011.

The Central government cannot be blamed for any ‘Hindutva’ agenda as the beneficiaries include five other religious minorities. It is interesting to note that no country in the world of the nearly 43 countries having Christianity as their state religion has made such affable provision to embrace their own religious kin. The same can be said in the case of numerous Islamic states, which lent a deaf ear to the problems of certain Muslim denominations persecuted in States like Pakistan. Hence, the object of the legislation to protect the rights of religiously persecuted individuals, and it has a rational nexus, which is thereby bona fide.

2. Secondly, the CAA adversely affects the spirit of Assam Accord, especially Clause 6. It may be noted that the Home Ministry had constituted a 12-member committee on July 15, 2019, headed by former Gauhati High Court judge Justice Biplab Kumar Sarma to suggest constitutional, legislative and administrative steps to protect, preserve and promote the culture, social, linguistic identity and heritage of the Assamese people. The committee is already seized of the matter; we have to wait for its report. Can’t we have faith and patience towards the legal process of the country? If the answer is ‘no’, then there is a need to recollect what Dr BR Ambedkar observed in the Constituent Assembly in one of his famous speeches: “If we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgment we must do is to hold fast to constitutional methods of achieving our social and economic objectives…”

3. Thirdly, the CAA is opposed on the ground that the proposed NRC would target minority communities by excluding them from Indian citizenship. Many PILs have been filed against the CAA and the matter is sub-judice. Constitutionally speaking, non-citizens have no right to challenge this law as violative of Article 14 because in State of Arunachal Pradesh v Khudiram Chakma, (1994), the Supreme Court has held that “Articles 19(1)(d) and (e) are unavailable to foreigners because those rights are conferred only on the citizens. Certainly, the machinery of Article 14 cannot be invoked to obtain that fundamental right.”

Furthermore, it is a policy decision of the government to decide on what to do with these hapless victims and the courts do not have not much locus standi to entertain such decisions until and unless they are brazenly arbitrary. In Izhar Ahmad Khan v Union of India, (1962), when Section 9(2) of the Citizenship Act, 1955, was challenged, the SC while dismissing the petition held that “the sovereign legislative competence of Parliament to deal with the topic of citizenship, which is a part of Entry 17 in List I of the Seventh Schedule is very wide.” Besides this, Dr BR Ambedkar on August 10, 1949, said that “….Parliament may not only take away citizenship from those who are declared to be citizens on the date of the commencement of this Constitution, but, may make altogether a new law embodying new principles.”

4. Fourthly, those who criticise the CAA for not granting citizenship to Tamils from Sri Lanka and Rohingyas from Myanmar, and Shia and Ahmadi Muslims persecuted by the majority sections of the Muslim communities in these three countries, must realise that such minorities neither have any historical justification nor a reasonable nexus and the tormented minority Muslims have options to seek refuge in any country, including India by following a rigorous process laid under the Citizenship Act, 1955.

Certain non-BJP-ruled States have declared that they will not implement the CAA in their respective States without fully being aware of the Constitutional duty bestowed upon them. Article 256 of the Constitution stipulates that “the State shall ensure compliance with the laws made by Parliament and the Union government has power to issue directions for such compliance”.

5. Finally, the CAA is a policy decision taken by exercise of sovereign power. All of us must wait and watch what the SC will say on it. It is apt to recollect observations of the top court in Tehseen Poonawalla v Union of India, (2018), that the “Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office. Courts resolve disputes about legal rights and entitlements.” Secularism was, is and should be the most cherished basic feature of our great Constitution.

(Prof GB Reddy teaches law at Osmania University and Baglekar Akash Kumar is a student in the Department of Law)

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