What is the Citizenship (Amendment) Act, 2019?
The Citizenship (Amendment) Act, 2019 seeks to amend the Citizenship Act, 1955 by giving citizenship rights to illegal immigrants, belonging to certain religious minorities who have entered into India on or before 31st december 2014, after facing persecution in the countries of Pakistan, Afghanistan and Bangladesh. It has also relaxed the time limit for getting Citizenship by Naturalisation from eleven years to five years for these communities. The amendment has also made new provisions regarding OCI cardholders.
Investigation Bureau, from his records, gave a count on 31,313 people who are going to be the immediate beneficiaries after this amendment, among whom Hindus constituted the largest chunk, 25,447, followed by Sikhs community at 5,807, Christians community at 56, and Buddhists community and Parsis community numbering only two each.
It was passed by the Lok Sabha on 10th December and by Rajya Sabha on 11th, and finally after receiving the assent of the President on 12th December has become an Act.
Arguments against CAA
Religion cannot be the basis of classification of citizenship: The classification made by the bill is a religion based classification. Hon’ble Home Minister highlighted that the significance of the bill lies in the fact that the country was partitioned on the basis of religion. However, what he fails to take cognizance of is that Pakistan was created on the basis of religion, not India. India stayed secular.
Article 14 is violated: Judicial scrutiny of the Article in the past is to be noted to present an argument in this respect. The case law of Anwar Ali Sarkar, 1952 held that a yard-stick or measure for the grouping; either of persons in a category or outside a category must be present. In this regard another landmark judgment of the Supreme Court and the verdict given by Justice Indu Malhotra in the judicial precedent that decriminalized section 377 should be highlighted Therefore, there must be a yardstick to differentiate between those included and excluded from the group, and that yardstick must be reasonable. Justice Nariman in his concurring opinion in the case of Shayara Bano, identified the doctrine of manifest arbitration as a facet of Article 14.
Taking into account this jurisprudence, first, differentiation on the basis of country-based classification is not justified. Why were Sri Lanka and Myanmar persecuted minorities not included? These countries are also neighboring countries; Myanmar also shares a border with India. Also, if it is argued that countries which were a part of undivided India are included then, What was the basis of including Afghanistan in the list? Lastly, if it is argued that the degree of harm is considered, then Why Myanmar, which is home to the world’s most persecuted minorities (Rohingyas) not included?
Second, the law is not clear on whether the classification is based on singling out persecuted religious minorities or it has the possibility of including victims of ethnic violence. If religious persecution of minorities is the basis of classification then, it can be argued that Tamils are also persecuted in Sri Lanka, which has Buddhism as a state religion (Theravada Buddhism). Why they are not included in the Act?
Hence, the manner in which the countries are chosen and certain countries which are excluded is not clear. Also, critics are comparing the law to the Israeli Law of Return. The Israel Race Law recognizes Israel as the natural home of all Jews and provides similar protection to Jews. Critics are also arguing that why are Jews and atheists not included? The manner of classification is, as such termed arbitrary. More clarity on the provisions was required by the legislature.
Noted senior advocate Harish Salve, has said that the CAA is a policy decision of the government and hence, the Supreme Court cannot intervene in the same, however, a very respectful disagreement is placed on this point. The Supreme Court has in the past intervened in the policy of the government. The case of the canceling of the 2G spectrum licenses bear testimony to this fact.
Lastly, Article 11 is not above the basic structure of the constitution. Secularism is the basic structure of the constitution and as such any classification based on religion and without any reasonable nexus must be declared as unconstitutional.
CAA and foreign policy blunders
The Home Minister of Bangladesh and the Foreign Minister of Bangladesh canceled their visit to India on account of the citizenship status given to the illegal migrants who have fled Bangladesh. It is to be noted that India has had amicable relations with Bangladesh in the past and has been one of the few states with which the country has had stable relations.
Second, Amit Shah’s statement that “Muslims are not persecuted in Pakistan” runs contrary to the stand which India has taken at United Nations on the persecution of Balochis at the hands of the Pakistani Army and the brutal history of human rights which India has time and again iterated that Pakistan has. India has also maintained that Pakistan persecutes its own people. The world leaders might not be sympathetic to India in the future because of such irregular stands taken by the government of the country.
Furthermore, by not providing the Hazaras protection, India has possibly lost a diplomatic asset for the negotiation with the Talibans, who are deemed to come into power in Afghanistan. Taliban is currently in talks with the US and the five permanent members of the Security Council.
Therefore, it can be concluded by asking a few questions:
Firstly, shouldn’t such kinds of law be made for the Hindu refugees coming from Sri Lanka?
Secondly, if providing shelter and doing charity is the notion of the government then shouldn’t it must be equally applicable to all the refugees irrespective of the fact that from where they are coming from?
Thirdly, is it rationally correct to apply autocratic laws on people and then cut-off their internet connections so that their Freedom of Speech and Expression under Article 19 (Part III) is curbed in totality?
Wherefore, it can be said that the government has empowered under Article 11 (Part II) of the Constitution of India to enact laws pertaining to citizenship as it thinks fit. However, Article 13 (Part III) restricts the parliamentarians to make laws which are in derogation with the fundamental rights of the Indians. And this Amendment is a violation of Part III of the constitution.
For instance, genocide in Germany was not the result of gas chambers, however, it was the result of ‘hate speech’ which was delivered by Adolf Hitler. Similarly, in India, the arbitrary provisions pertaining to Citizenship (Amendment) Act, 2019 is a result of communal hatred and party politics on the line of religion.