CAA - AN ACUTE FUNAMBULIST?


Introduction
Sardar Patel, while arguing for a broad-based, non-discriminatory criterion for citizenship, said:
“There are two ideas about nationality in the modern world, one is broad-based nationality and the other is narrow nationality. It is not right for us to take a narrow view.”
India’s system of granting citizenship has largely been jus solis but the movement towards ethnicity or religion based citizenship (jus sanguinis) is highly evident when seen through the lens of CAA 2019. CAA 2019 seeks to grant illegal non-muslim migrants1 (namely- Hindus, Sikhs, Parsis, Jains, Buddhists and Christians,) from the neighboring countries of Pakistan, Bangladesh, and Afghanistan, Indian citizenship.[1]
The news that the content of CAA has been vehemently opposed leading to several protests and furors especially in Delhi, Bengal and Assam [2] is ubiquitous. The happenings in Jamia, AMU along with solidarity support from various people and universities from all over the states leading to police deployment and petitions of police excessiveness being filed in the apex court grace the front pages of every national newspaper in India daily. Without a doubt, this contentious piece of legislation will reach the doors of judicial machinery and much ink will be spilled when the court will discuss and rule over the constitutionality and legality of it.

Constitutional Test of CAB
As a result of CAA, illegal immigrants are to be differentiated on the basis of their religious identity and place of origin and hence some shall be placed at a profound disadvantage. The non-Muslim migrants who illegally migrated from Afghanistan, Pakistan, and Bangladesh will be able to apply for citizenship through registration and naturalization. Similarly placed Muslim migrants will continue to be barred. 
This differential treatment of Indian residents must meet the requirement of equality before the law and equal protection of laws under Article 14 of the Constitution. The Constitution extends this right to all persons within the territory of India irrespective of religion, place of origin and citizenship. [3]
Equality, however, does not equate to exact treatment and our constitution provides for ‘reasonable classification’ based on intelligible differential and presence of rational nexus between the object and the differential so made [4]. In addition, the classification must also pass the test of non-arbitrariness. "From the positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn, enemies… Where an act is arbitrary, it is implicit that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14." [5]
The Modi government bulldozed the Bill through the Parliament preaching it as an un-doer of the ‘Partition Wrong’, by providing refuge to the persecuted non-Muslim minorities from the specified territories in the Bill. However, there’s much more to this external clamor. It is needful to mention that the CAB doesn’t take into its ambit ‘persecuted minorities’ as a whole but lays down the 6 minorities [6] which shall be granted citizenship via registration or naturalization. This leads to two main distinctions:
  • between Muslim and non-Muslim migrants from Afghanistan, Bangladesh, and Pakistan;
  • between migrants from these three countries and those from other countries,

  1. The main aim of the CAB as hollered is mainly the accommodation of religious minorities facing discrimination or religious persecution in Pakistan, Bangladesh, and Afghanistan. However, in spite of its noble aim, it fails to take into account the persecution of certain Muslim communities (like the Ahmadiyas in Pakistan and Hazaras of Afghanistan ) within these countries, which is socially pervasive and state-backed. 
  2. Religious persecution is equally pervasive outside the chosen triad. Muslim Rohingyas in Myanmar have been subjected to the most heinous religious and ethnic persecutions in recent times [7].  Other examples are - Muslim Uighurs from the Xinjiang region and Tibetan Buddhists (China) and Tamils (Sri Lanka).

The distinction so created by the Bill does not a bear a rational nexus to its objective of accommodating minorities religiously prosecuted since it leaves out some, both within the triad and outside of it without any acceptable principle or tenable rationale. This also makes CAA arbitrary. If the proclaimed purpose of the amendment bill is to accommodate minority communities suffering from religious persecution, the distinction between Muslim and non-Muslim migrants is unreasonable and unjustified. So is the distinction between migrants from Afghanistan, Bangladesh, and Pakistan, versus those from other countries. [8] None of these distinctions compare with the professed aim of the law. From the perspective of India’s equality jurisprudence, these distinctions are under-inclusive [9]. They do not include groups that must be included to meet the law’s aim of accommodating minority communities facing religious persecution [10].
Article 15 prohibits discrimination on the ground of religion. Justice Indu Malhotra in article 377 judgment [11] gave a wide import to the term’ yardstick of intelligible differentia’ by infusing article 15 grounds within article 14 to the effect that the even the intelligible differentia requires  further to fulfill two subtests:
  1. There must be a yardstick to differentiate between those included in and excluded from the group.
  2. The yardstick must itself be reasonable.

It was further observed that discrimination on the basis of an intrinsic trait is not a reasonable classification and one of the intrinsic traits is religion. Thus religion cannot be a ground for discrimination under article 14.
The key blemish in CAA is that it is not founded on an assessment of genuine persecution. It seeks to work on ‘generalization’ of oppression instead of setting standards for actual persecution, which in turn ultimately grants it an unconstitutional character going against the very Grundnorm (Basic Structure) which forms the base of our Constitution promising principles of equality, pluralism, harmony, and secularism.

NRC and CAA
National Register of Citizens, the tedious exercise is done in Assam is a process of exclusion of illegal migrants settled in Assam. The process that created a fair share of controversy, turmoil, and politics for itself seems to be a futile exercise in the present with the enactment of the Citizenship Amendment Act. The NRC was brought to fulfill the mandate of Assam Accords signed in 1985 after a decade of protests ensuring the status quo of Assamese indigenous ethnicity. NRC is a roster of all those who settled in Assam up to midnight on March 24, 1971. The apparent futility in the NRC after the Act has brought Assam to a standstill. The fears of locals are not unfounded since despite repeated assertions of intercession between NRC and CAA there exists an organic relationship between them which has further fuelled the communal overtones underlying in the Act hitherto. In roster, 1.9 million people were recognized as illegal immigrants who belonged to diverse religions and ethnicity but the majority constituting Bengali Hindus. Post enactment of CAA, amongst these illegal migrants, those who satisfy the criteria laid down can apply for citizenship (basically non-Muslims) as per Act and thus, still entitled to Indian citizenship. This will not only discriminate Muslims amongst excluded slots by disentitling the opportunity for applying for fast track citizenship despite belonging to the same category but also create an influx of migrants in the Assam who were earlier excluded in addition to prospective migrants. This problem can reach another level if the proposed nationwide NRC becomes a reality and this is the fulcrum of the protests. “If both CAA and NRC will be implemented the non-Muslims excluded under the NRC will be included under CAA and the net result would be that only Muslims will be identified as illegal migrants and get excluded.” [12]

Conclusion
The democracies of today can remain democracies only if they are able to negotiate pluralism and communality, conflict and justice, rationality and identity. [13] The CAA seeks to send a message which undermines the very foundation of a pluralistic democracy that was nurtured by the freedom movement, by including religious and ethnic identities as qualifications when deciding citizenship, which was earlier filtered out. In present when India is already succumbing to problems of high unemployment, the decline in GDP, failing economy, mass poverty, agrarian distress Government needs to divert its energy towards productive concerns that can actually result in the welfare of the public en masse instead of prioritizing agendas that can lead to public sufferings. 

References
[1] An illegal migrant is a foreigner who,
  1. enters the country without valid travel documents or
  2. enters with valid documents, but stays beyond the permitted period.  (Sec. 2(b) of Citizenship Act 1955).

[2] CAB in its text does not mention the term ‘persecuted minorities’ instead lays down the 6 communities which fall within the scope of the act’s operation. The cut-off date of the application of CAB is 31.12.14.
[3] CAB in Assam is seen as a straight-up violation of the Assam Accord which protected its Regional/Linguistic Nationalism idea.
[4] Not Correctly Defined
[5] Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, 1958 A.I.R. 538.
[6] E. P. Royappa v. State Of Tamil Nadu &Anr.,1974 A.I.R. 555.
[7] The so mentioned minorities: Hindus, Parsis, Buddhists, Christians, Sikhs, and Jains.
[8] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), CR/ 2019/19.
[9] Not Correctly Defined
[10] M Mohsin Alam Bhat, The Constitutional Case against the Citizenship Amendment Bill, ECONOMIC AND POLITICAL WEEKLY (2019) Vol. lIV No. 3.
[11] Ibid
[12] Nav Tej Jauhar v. Union of India, 2018 (10) SCALE 386.
[13] P. Chidambaram, India’s Soul is wounded, INDIAN EXPRESS, December 15, 2019, at  p.14.
[14] Goran Rosenberg, A Pluralist Democracy, EUROZINE, Available Here 

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