In the ongoing debate on the constitutionality of the CAA, the authors point out that the law is clearly unconstitutional
Ever since the Citizenship Amendment Act (CAA) was passed by Parliament on December 12, the country has been witnessing widespread protests. The government has sought to assure the Muslim population to not feel anxious about their constitutionally mandated rights and citizenship, an assurance that seems hollow, to say the least. At the same time, there are also people defending the Act as constitutional. An analysis of the arguments on both sideshows that two central questions have emerged with regard to the CAA- the constitutionality of the Act (whether it violates Article 14 of the constitution among others) and its effect on the minority community.
The arguments given in favour of the CAA have largely sought to explain it as legislation that falls within the 'reasonable classification' permitted by Article 14. The argument, as made by the Home Minister Amit Shah in the parliament, and reiterated by senior advocate Harish Salve, relies on the grounds that Article 14 of the Constitution allows for the doctrine of reasonable classification in favour of a group of people who deserve special treatment, on the basis of intelligible differentia. Put simply, the law allows the government to provide relaxations to a group of people who cannot be treated on par with others. The logic of the government has been that religious persecution of Hindus, Christians, Sikhs, Parsis, Jains and Buddhists in Pakistan, Bangladesh and Afghanistan amounts to a reasonable classification under Article 14. The rationale for not including Muslims has been that the three countries have declared Islam as their state religion, and thus Muslims do not face any religious persecution, a claim that is not backed by any data.
In an interview given to the NDTV, Salve defended the CAA and the selection of the countries on the ground that they were countries with a declared state religion, and hence the religious persecution of declared minorities in those countries amounted to reasonable classification. He claimed that the citizenship law, prior to CAA, excluded everyone from acquiring citizenship and relaxation has now been made in order to allow religiously persecuted minorities from the abovementioned countries to apply for citizenship. Such a relaxation is perfectly valid under Article 14 of the Constitution.
On the other hand, the opposition to the CAA has been on exactly the same grounds on which it has been supported by the government and others, i.e. the doctrine of reasonable classification. While there have been several grounds of opposition such as the ignoring of others forms of persecution and persecution within Muslim communities, the main attention here is given to the selection of countries and the rationale behind it.
The government has proceeded with the explanation that the chosen three countries have a declared state religion and thus the selection amounts to reasonable classification, a claim that has not been questioned on its own but termed arbitrary for leaving out some of the other countries with a declared state religion, eg. Bhutan.
Such a claim raises a crucial question from India's perspective- Does the fact that a nation has a declared state religion amount to a reasonable classification on its own? For a secular country like ours, does it matter that any other country has a declared state religion?
The reason that the fact of a declared state religion acquires importance is that it gives rise to an assumption that minorities in such states might be persecuted or discriminated against on the basis of their religion. However, there is enough reason to show that religious persecution of minorities is not always linked to the fact that states have a declared religion. Our own country bears testimony to the fact that religious minorities can be persecuted even in countries that do not have a declared state religion.
Therefore, the larger question that arises is if there is enough reason to show that religious persecution is not directly related to the fact of a declared state religion, can the selection of three countries of Pakistan, Bangladesh and Afghanistan on that basis be termed reasonable?
The two facts of religious persecution and state declared religion has been sought to be brought together must be uncoupled and enquired into separately.
Another argument that has emerged in favour of the CAA in the debates has been that the CAA does not affect or take away the citizenship of any Indian Muslims. People supporting the CAA have sought to discredit the protests on the same ground that Indian Muslims are being misled with regard to their citizenship and constitutional rights.
In the light of an impending National Register of Citizens (NRC), while there is enough to question such claims and indeed prove that CAA will affect Indian Muslims indiscriminately, the manner in which the popular narrative has been shaped itself reeks of anti-Muslim bias.
It has not been the claim of anyone protesting against the legislation that CAA alone will affect the citizenship status of Indian Muslims. What has been questioned vis a vis CAA is the fact that Muslims seeking to enter India on the basis of religious persecution will be discriminated against as opposed to non-Muslims. Therefore, this deliberate attempt to turn the gaze inwards towards Indian Muslims and altering the narrative reflects how unwilling the government is to provide citizenship to non-Indian Muslims, who have an equal right to apply for citizenship under the secular ethos of India. The underlying belief in India as a Hindu Rashtra is impossible to miss.
The CAA is a dishonest attempt on the part of the government to further its Hindutva agenda under the garb of providing assistance to refugees. It's dealing of Rohingya Muslims is clear enough to tell us that the government has a principled stand against aiding the refugees. The current Act, which if upheld by the Supreme Court on India, will alter the basic structure of the Constitution, as conceived. Therefore, in many ways, what is at stake here is the very belief in the Constitution of India. For all the turmoil that the country has gone through over the last seven decades, what has kept the social and political movements fighting against injustice going is the overarching belief in the ideals of the Constitution. It is that very belief that has kept the country together, and any desacralisation of that belief is bound to have far-reaching consequences. It would, thus, be ironic that an act that aims to provide citizenship to outsiders will end up alienating its own people.