The Poisonous Law: The Citizenship Amendment Act 2019

By Dr Narender Nagarwal. Dated: 12/16/2019 4:07:43 PM

The contentious Citizenship Amendment Act 2019 hereinafter referred to as CAA recently passed by the Indian Parliament is not merely poisonous, discriminatory, divisionary but also against the foundational philosophy of Constitution of India. The CAA is fundamentally discriminatory and has been enacted with the aim to target India's largest minority community i.e. Muslims. It is to be noted that the principle Act i.e. The Citizenship Act 1955 provides five ways of acquiring Indian citizenship, viz-birth, descent, registration, naturalisation and incorporation of some territory into India. Shockingly the latest CAA seeks to grant citizenry rights to religious minorities of neighbouring countries on the basis of religion, which is fundamentally impractical and also against the Article 14 of the Indian Constitution. The "reasonable classification" defence taken by the government not tenable under the eyes of law. Rather it is not "reasonable classification" but "class legislation" hence fundamentally wrong and unconstitutional. Moreover, the CAA also hits Preamble, Articles 15, 25, 29 and 30 of the Indian Constitution besides Article 51C and Article 253 that makes an obligation on India to respect international law in its true spirit.
Unpinning the very motive of CAA, it is nothing but face saver for the government, as first test of NRC exercise in Assam has been failed brazenly, now government wants to impose CAA which is also against the Assam Accord of 1985. Certain provisions of the CAA are direct onslaught on cultural and ethnic identity of Assam people. In India, under the Assam Accord, only those Bangladeshis who came into Assam before March 1971 would be granted citizenship under the Citizenship Act. But CAA will make people of six religions - Hindus, Sikhs, Christians, Parsis, Buddhists and Jains - who came from Pakistan, Afghanistan and Bangladesh as Indian citizens, provided they have lived in India since before 2014. The BJP government justifies this discrimination by saying that Muslims did not come into India due to persecution, whereas people of other religions did. But this is only a pretext. The real reason is that the BJP knows that Muslims will vote against them in elections, and so wishes to deny them citizenship (which carries voting rights).
Also, what is overlooked is that many Muslims in Pakistan - Shias, Ahmadiyyas, etc. - are also persecuted there, and may come to India to avoid persecution. While by a constitutional amendment, Pakistan has declared Ahmadiyas to be non-Muslims, the Kerala high Court has declared them Muslims, and Ahmadiyas regard themselves Muslims. However, they are treated horrifically in Pakistan. Many Assamese are protesting because they do not want any immigrants in Assam, whether Muslim or non-Muslim, and object to citizenship being given to any immigrant. Others are objecting to the CAA for other reasons. The whole of Assam is in flames, and in many places the army has been called. The truth is that many Bangladeshi Muslims have been living in Assam for decades, though they may not have come here legally. Many were even born in Assam. They have no roots now in Bangladesh. Where are they to go if deported? Bangladesh has said it will not accept them. This is a humanitarian problem, not just a legal one.
It may be noted that under the Indian constitution while certain rights, like those mentioned in Article 19, are available only to citizens, others like the right to equality mentioned in Article 14 and the right to life and liberty mentioned in Article 21 (which has been interpreted by the Supreme Court to mean the right to live with dignity) are available to all persons. A non-citizen is certainly a person, and hence is also entitled to those rights. In National Human Rights Commission vs State of Arunachal Pradesh, 1996, the question was about Chakma refugees, who were undocumented immigrants from Bangladesh. The court observed that the fundamental right to life and liberty guaranteed by Article 21 of the constitution is also available to Chakmas, though they were not Indian citizens. In light of that, the CAA is unconstitutional as it violates both Articles 14 and 21 of the constitution.
Since independence, India has maintained its global position as world leader to protect human rights, crime of apartheid, minorities rights and social justice. Shockingly, the CAA provisions are purely contrary to India's consistent global position with respect to human rights and minorities rights, hence India has lost its global image as leader of the third world nations and champion of human rights after promulgation of draconian CAA. The impugned law also hit severely many provisos of international law, where India has given its ratification and obtained its glorious image as leader of third world nations. The current form of CAA if implemented would definitely push India into darkness, anarchy and extreme form of lawlessness. The CAA is extremely dangerous for the India's unity, diversity and its secular identity and also hitting the doctrine of Basic Structure as propounded by Supreme Court in Keshvanand Bharti (1973) case, hence it is ultra-vires ab-initio. This CAA is also against the constitutional ethos of establishing an egalitarian society and it will definitely push the country towards majoritarian state. In a nutshell, CAA has potential threat to change the basic and primary character of Indian state as a democratic, secular republic. The main drawback of CAA is that this Act which is primarily exclusionary in nature and has been enacted aiming to target Muslims, further violates the secular principles enshrined in the Constitution of India as religion can't be ground of granting citizenship. The Constitution of India explicitly prohibits religious based discrimination (under Article 14, 15 and 25) against its citizens, and guarantees all persons equality before the law and equal protection of the law. But clauses in the bill are highly deplorable and implausible.
CAA militates the International Law
The Citizen Amendment Act, 2019 of India is an outrightly sectarian Bill, which will change the definition of illegal immigrants. The government seeks to amend it in order to grant citizenry rights to non-Muslims immigrants from Pakistan, Bangladesh and Afghanistan who are of Hindu, Sikh, Jain, Parsi, Buddhist and Christian identity and who had migrated to India without valid travel documents or the validity period of whose documents had expired during their stay in India. These people were compelled to seek refuge in India owing to religious persecution or fear of religious persecution in their countries of origin. The CAA has its own peculiar contradictions and can't stand under the intense legal scrutiny. For eg. CAA classification is not reasonable as mandated to qualify Article 14 of the Indian Constitution. The government has no answer why religious minorities in Muslim sects such as Shias, Baloch and Ahmediya, whose members had been facing utmost religious persecution in Pakistan, Bangladesh and Afghanistan had been excluded. Further, the government has no answer why persecuted groups from other neighbouring countries like Rohingyas from Mynamar, Madhesis from Nepal, Tamil Elam from Sri Lanka and Muslims from China are conspicuously ignored from idea of "secularity, progressiveness and inclusivity" from the current Citizenship Amendment Act 2019. This selectiveness violates the Article 3 of Convention on Torture, 1984 that prohibits parties from returning, extraditing, or refouling any person to a state where there are substantial grounds for believing that he would be in danger of being subjected to torture" which India has signed on 14 Oct 1997. It is also bound by Article 51(c) of the Indian Constitution which says "to foster respect to international law and treaties…" and this needs to be read with Article 253 which talks about giving effect to international agreement. Although it is not ratified but it comes under the customary law, hence should be followed by signatory parities, otherwise it will violate the principle of International law i.e. jus cogens and obligatio erga omnes.
In Article 2(1) of ICCPR, 1966 it is clearly mentioned that each state party to the present covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Hence, through Article 26, it is to be ensured that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground which India has ratified on 10 April 1979 and come into force from 10 July 1979 onwards. The above-mentioned Directive Principles of State Policy (DPSP) in Article 51 (c) protect the rights of the citizens and are fundamental in the governance of the country. It is hereby necessary to say that the basic feature of the constitution is to maintain harmony between fundamental rights such as Article 14 (The state shall not deny to any person equality before the law and equal of protection of laws within the territory of India), Article 21 ("No person shall be deprived of his life") and DPSP Article 51 (c) which state that the State shall endeavour to foster respect international law read with Article 253. Both fundamental rights and DPSP as per the Supreme Court judgment in Minerva Mill case, are complementary and supplementary to each other and are the basic structure of the Indian constitution which if violated through any amendment law will automatically violate the founding principles of constitution and make that law unconstitutional and void under the present context of legal jurisprudence. Indian Constitution is based on the pillars of natural justice, which is a revised version of natural law. Starting from the Preamble, the word justice which is inclusive of social, economic and political and equality of status and thoughts, etc. proves that natural law theory and principles are there in the Indian Constitution and followed by the Indian judiciary in their judgment which can be evident from Maneka Gandhi case in which the court applies the natural law theory of jurisprudence. It is very necessary to examine jurisprudential approach regarding the legality of the said bill. In this respect, Rudolf Stammler the main thinker of the revival of natural law theory in the contemporary world, rightly said that "the purpose of law is not to protect the will of one but to unify the purpose of all". According to him the law of nature means "Just Law" which harmonises the purpose in society. For him, a just law was the highest expression of man's social life and aims at preservation of freedom of individuals. According to him, the two fundamental principles necessary for a just law were:
a) Principles of respect
b) The principles of community participation
The contentious CAA also attenuates the norm of international human rights law and refugee law. Though India has neither ratified the Refugee Convention (1951) nor its 1967 Additional Protocol, nevertheless, it has extended constitutional protection to refugees without any religious discrimination. India became a member of the Executive Committee of the High Commissioner's Programme (EXCOM) in 1995 which supervises the material assistance programme of United Nations High Commissioner for Refugee (UNHCR). Membership of the EXCOM indicates greater commitment to refugee jurisprudence. Apart from this, India voted affirmatively to adopt the UN Declaration of Territorial Asylum in 1967 and accepted the principle of non-refoulma as envisaged in the Bangkok Principles 1966, and acknowledged as jus cogens which is binding on all nation-states irrespective of fact whether state has signed the refugee convention or not. Being a signatory to ICCPR, ICESCR, CEDAW and most significantly the Convention against Torture (CAT) 1984, India is under an obligation to provide asylum to a person who has any fear of persecution irrespective of religion of the person. The present form of CAA also strikes on International Convention on the Elimination of All Forms of Racial Discrimination which was signed in 1965 and entered into force in 1969. Basic premises of the ICERD 1965 is to build a world order, nullifying or impairing any form of citizenry discrimination, denial of religious and cultural freedom and ensuring recognition of human rights of all religious and linguistic groups.
Concern of National Security
The CAA is against the national security primarily for three main reasons-firstly, the CAA has assured to give refuge to illegal migrants from Bangladesh, Pakistan and Afghanistan who are Hindu, Sikh, Buddhist, Jain, Parsi or Christian, but omits Muslims. Has Modi-Shah duo undertaken the assessment what would be the situation of religious minorities in these countries after passing of this contentious law? There is every likelihood that onslaught against religious minorities in these countries may further intensify after passing of CAA. The potential threats of worsening relations with neighbouring countries can't be ruled out after promulgation of CAA. India's relation has already been strained with Pakistan and Sri Lanka but after CAA, situation will further deteriorate in diplomatic relations and trade, energy and medical tourism sector would suffer badly. Secondly, the major concern of CAA is that Pakistan's ISI may exploit the legal framework provided under the CAA to push their "own people" into India. This biggest national security threat arising out of CAA can't be ignored as RAW has already placed its concern before the Joint Committee of Parliament which scrutinized the lapsed Citizenship Amendment Bill 2016. The concern of India's premier intelligence agency is quite legitimate and valid. There is a great probability that India's neighboring countries may push their spies in the name of "persecuted minorities" to India aiming to widen the intelligence ambit of ISI network in Indian sub-continent.
Thirdly, the CAA will force the Indian citizens to submit a false declaration if they wanted to acquire Indian citizenship. These are the people who were left out in the Assam NRC and majority of these people are Bengali Hindus. Many of those who have had difficulty proving their citizenship in Assam are Muslims who emigrated from Bangladesh and have been living in India for multiple generations. Don't forget that Assam's geographical situation and its close porous border with Bangladesh has provided the opportunity to settle as economic emigrants in Assam region before independence and after the independence majority of emigrants who settled in Assam are Bengali Hindus. The excluded applicants of NRC are Indian but they are not possessing documents. Hence to give citizenship to a large number of excluded persons the CAA stressed on first the citizenship seekers declare himself a member of religious minority group either from Bangladesh, Pakistan or Afghanistan and also prove that they have been a victim of religious persecution in these countries. Till recently, all excluded people were asserting that they are Indian but their name was missed in the NRC does not make them all are foreigners. To add their name in NRC and to acquire Indian citizenship they have to declare themselves as foreigner first, it is really bizarre. This forced falsification by the State may create another peculiar problem as to why excluded people should submit false affidavit/documents to show that they are foreigners in order to obtain Indian Citizenship when they are very much Indian like others. The apprehension of deportation, denial of citizenry rights, harassment at detention centre and state sponsored discrimination may lead to another problem of alienation, separatism and radicalisation of North East region. Hence, it can be safely stated that current form of Citizen Amendment Act 2019, which has been passed by both the Houses of Parliament on 12 Dec 2019 is extremely dangerous for the nation's secular identity since this bill is against the Constitution philosophy of pluralism, diversity, minorities rights and freedom of religion type core principles.
CAA and India's Global Embarrassment
India's international humiliation continues since moving the contentious Citizenship Law from parliament. Since the Lok Sabha endorsed the Bill, United States has staunchly opposed this discriminatory, divisionary and anti-Muslim Act. A federal panel on religion has urged the United States to weigh sanctions against India's Minister of Home Affairs Amit Shah if India adopts legislation that excludes Muslims from a path to citizenship for religious minorities from its neighbours. In the meantime, Japanese Prime Minister Shinzo Abe's has cancelled his visit to India which was scheduled to be held in Guwahati next week, amid violent protests in the northeast over the Citizenship (Amendment) Act. A Japanese media report had said that he may consider cancelling the visit amid violent protests. On Wednesday, protesters pulled down hoardings erected in central Guwahati to welcome Mr Abe. After Japan, Bangladesh Foreign Minister AK Abdul Momen and the country's Home Minister called off their visits to India in the midst of the agitations in the northeast. Bangladesh Home Minister Asaduzzaman Khan, who cancelled his visit, was scheduled to visit Meghalaya for an event today. After US and European Union now United Nations has condemned this draconian Citizenship Amendment Act 2019. The United Nations Human Rights (UNHR) office has termed the India's Citizenship Amendment Act 2019 as "fundamentally discriminatory in nature" for leaving out Muslims and called for an immediate review. "We are concerned that India's new Citizenship (Amendment) Act 2019 is fundamentally discriminatory in nature," UNHR spokesperson Jeremy Laurence said in Geneva. The Office of the UNHCR hopes that the new law will be reviewed by the Supreme Court of India and hope it will consider carefully the compatibility of the law with India's international human rights obligations.
Concluding remarks
In my academic life, I have never seen such a law that legitimises discrimination, but here by dividing alleged migrants into Muslims and non-Muslims, the impugned Act explicitly and blatantly, seeks to enshrine religious discrimination into law, contrary to our long standing, secular constitutional ethos. While it is the job of legal experts to determine whether this draft Bill now an Act violates the letter of the constitution, it seems certain to me that it violates its spirit. For the reasons mentioned above, it is important to push for the immediate withdrawal of this passed Bill through court as unconstitutional and void as it violates the basic structure of the Indian constitution i.e. secular character of constitution as decided in S. R Bommai and Keshvananda Bharati case and as its replacement request for appropriate legislation that will address the concerns of refugees and minorities in a non-discriminatory manner.
(Author teaches at Campus Law Centre, University of Delhi, India)
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