Post Mortem

The many facets of CAA: an unbiased summary

By Nagaland Post | Publish Date: 2/14/2020 12:53:18 PM IST

 The government continues to stand by its claim that CAA is to provide citizenship to minorities persecuted in India’s three neighbouring Islamic countries. They have indeed exempted the tribal areas of Assam, Meghalaya, Mizoram and Tripura that are included in the 6th Schedule Area of the Indian constitution from the purview of the Act. Arunachal Pradesh, Nagaland, Mizoram and Manipur are also claimed to be ‘protected’ by ILP. But despite the government’s endless effort to convince the citizens that no harm will be done to Indian citizens, the country is still roiling over the Act. Protestors against the Act have deemed it as unconstitutional and has challenged the same in the Supreme Court on grounds of violation of Article 14, 15 and 21 of the Indian constitution. But the legality of CAA has proven to be a sticky subject with many arguments and counter arguments.

Article 14 talks about ‘equality before the law’ which guarantees that there shall be no discrimination by the law within the territory of India. One can argue CAA discriminates people inside the territory and jurisdiction of India and hence its implementation violates the constitution. However, Article 14 can also be argued for CAA by using ‘equal protection of law’ clause; as when ‘a privileged and an underprivileged are treated equally’, it cannot be construed as the underprivileged being equally protected by the law. Therefore, it is argued, equal protection is when special provisions are provided for to protect the weaker party. This is the basis on which reservations for OBC, SC, ST etc. have been legalized in the past. Therefore, pro-CAA critics argue that the act only provides needed provisions to protect the minorities and thereby does not violate Article 14.

Article 15 of the Indian constitution talks about how a state cannot discriminate on the basis of sex, race, caste, religion and place of birth while Article 21 talks about Right to life and personal liberty. But both Article 15 and 21 applies only to Indian citizens and not non-nationals. Thus, the pro-CAA argument is that since the Act is only for non-nationals from neighbouring countries, the provisions of the Indian constitution need not and should not be applied to them.

Any petitioner is now left to prove that Article 14 is violated by the Act on three grounds:

a) Objective of the bill,

b) Intelligible differentia, and

c) Rational nexus between those included on the bill and the objective of the bill.

The government’s claimed objective is already clear; it is to provide citizenship to the persecuted minorities from three Islamic countries. They argue that Article 14 would have been violated if only Hindus has been included in the Act and not the other religious minority groups. Even the argument that such a ‘discriminatory’ bill should not have been introduced in the parliament in the first place is argued for, because Article 11 of the Indian constitution gives unfractured power to the government to make policies regarding citizenship. Therefore, since all points are well argued for, what exactly is the issue with CAA?

The first argument against CAA is on religious-based classification. Home Minister, Amit Shah said in one of his speeches that the importance of the Act lies on the fact that the partition of India was done on the basis of religion. But dissenters argue, unlike Pakistan, India is a secular nation and therefore it cannot give citizenship to people on grounds of religion; doing so would violate the ideal of India’s secularism. Regarding ‘intelligible differentia’, the Supreme Court requires a ‘reasonable and justifiable’ yardstick to differentiate between those included and excluded. This ruling was made during the verdict of Decriminalization of Section 377, where Articles 14 and 15 were infused and one of the judges ruled that ‘classification done on the basis of a core trait of an individual is not reasonable’. Since religion is a core trait of an individual, therefore, one cannot be discriminated on religious grounds. 

The second strong argument against CAA is the country-based classification. According to some CAA critics, the government’s justifications for the country-based classification may fail to stand the scrutiny of the judiciary. It is to be understood that, normally, the government has the freedom to ‘pick and choose’ as required by their policy and that the Supreme Court cannot question the government about its policies. However, in certain circumstances, the SC has taken its own perspectives on government policies before. For eg, 122 2G licenses were cancelled by the SC because the bench was not in favor of ‘First come first serve’ policy and suggested the government should ‘auction’ the spectrum. Therefore, although CAA is a matter of policy, SC can definitely question the wisdom of the Parliament and the Executive. Let’s consider the government argues that Bangladesh, Pakistan and Afghanistan were picked because they were neighbors - then they have to justify the exclusion of Nepal, Myanmar, Sri Lanka and Bhutan. If the government argues that they have chosen the countries on the basis of undivided India then inclusion of Afghanistan must be justified. If the selection was on the basis of ‘degree of harm’ then they have to convince the judiciary why Rohingyas of Myanmar, one of the world’s most persecuted minorities according to UN reports, were excluded. If the government argues that inclusion was done solely on the basis of religious minorities, than exclusion of Rohingyas again and Sri Lankan Tamils, who are persecuted not only because of ethnicity, but also because of religion remains unjustified. 

There are also claims that the objective of the Act itself cannot be justified because, say, the son of a Hindu who entered India in 1971 will not have faced any religious persecution, by virtue of him being born in India. Thus, if the bill is about giving citizenship to religiously persecuted minorities, how was this hindu religiously persecuted in hindu majority secular India? In addition to this, the exclusion of Jews and Atheists from the Act also needs an explanation. As a result of such inconsistencies and fallacies in the government’s arguments, there are high chances that CAA will be declared unconstitutional. Additionally, it must be kept in mind that although Article 11 does give unfractured power to the government regarding its citizenship policy making, CAA still violates one of the basic tenets of the Indian constitution i.e. Secularism. Numerous SC verdict have proven that an ordinary law cannot violate ‘basic structures’ of the constitution and CAA is just an ordinary law.

Ironically, the biggest outcome of CAA is seen on India’s foreign relations. India’s relationship with her neighboring countries seems to be becoming more estranged, taking cue from the cancellation of the Bangladeshi Foreign Minister’s visit to India. 

Even our Home Minister’s statement that “Muslims are not persecuted in Pakistan” is a statement that is contrary to India’s past stance on Pakistan on the global forum. India has been accussing Pakistan of persecuting its own people taking the example of “Balochistan”. Will not India’s government be seen as brazenly embracing double standards by the world?

All said, CAA seems like politiking that will have many intented and unintened consequences both internally as well as externally and it is difficult to pinpoint at the moment as to why the government is forcing through with such an extreme undertaking. Is the government’s intention to implement the Act only to make India be seen as the ‘home of all Hindus’ as some protesters have claimed? At the very least, it would be very wise if this government eases its stubborn stance, listen to the arguments, analyze the pros and cons and provide acceptable justifications to the questions raised by dissenters, protestors and the general citizens alike. However, if this policy is all about BJP’s polarizing politics and an attempt at ethnic cleansing as feared, then this will never be in the nation’s best interest; or even theirs in the long run.

Arenjungla Kichu

Midland Colony, Kohima, Nagaland

Launched on December 3,1990. Nagaland Post is the first and highest circulated newspaper of Nagaland state. Nagaland Post is also the first newspaper in Nagaland to be published in multi-colour.

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