The Citizenship Amendment Act – Sharp Arguments against an Unjust Law

The Citizenship Amendment Act – Sharp Arguments against an Unjust Law

The Citizenship Amendment Act (CAA) was passed into law in December 2019. The law and its accompanying statements seek to provide Indian citizenship to people from six religious minorities (Hindus, Jains, Buddhists, Parsis, Sikhs and Christians) from three countries (Afghanistan, Pakistan and Bangladesh) on the basis that, having been subjected to religious persecution, they entered India before 31 December 2014. The exclusion of other communities (in particular, Muslims from the same three countries, or Tamils from Sri Lanka) has triggered widespread public opposition to the law, including the following arguments: (a) it is discriminatory against Muslims; (b) it is violative of human rights by denying access to citizenship solely based on religious identity; (c) it violates the secular nature of the Constitution of India.

In order to execute its intent, the CAA has amended the Citizenship Act of 1955. In addition, to give it full effect, connected amendments have been made to the Passport Act of 1920 (and Rules) and Foreigners Act of 1946. While this may seem to be a complex legal maze, the relevant parts of each of these laws is no more than 2-3 pages, and anyone can decode these laws in a few minutes.  A reading of the four sets of laws throws up some obvious limitations. Below is a summary…

Firstly, it needs to be understood that as a legal principle, any law that is intended to apply to historical facts must be interpreted narrowly, so that its implication is limited to precisely the historical fact pattern around which it seeks to legislate. This principle is important, because the CAA seeks to address the historical fact of persons who entered India prior to 31 December 2014.

Among the various conditions to be satisfied in aggregate, one is that persons sought to be provided citizenship under CAA were compelled to seek shelter in India due to religious persecution or fear of religious persecution. Note that this language is explicitly in the Past. Tense.  This means that the fact of flight under religious persecution should have been established at the time they entered India, prior to 31 December 2014. Therefore, the sharper arguments should be as follows: (a) There should be a register of such persecuted migrants already existing in the Government records and the CAA should be applied only to such documented migrants; (b) The Government must be directed by the Supreme Court to apply the CAA only to already documented migrants; (b) The Government must be directed by the Supreme Court to apply the CAA only to already documented migrants, without expanding the list by documenting additional migrants after 31 December 2014; (c) For a migrant discovered today with no documentation, it cannot be credibly verified now whether entry into India more than five years ago was under religious persecution or otherwise; and therefore (d) It would be a violation of the law if entry under religious persecution is inserted today as a reason for migration that occurred more than five years ago – reports suggests that the UP State Government Is already attempting this.

Some unverified reports estimate that there are less than 3,000 persons who entered India prior to 31 December 2014 under religious persecution from Afghanistan, Pakistan and Bangladesh, and who were documented as such at the time of entry. Regardless, the CAA should only apply to historically documented persons, and the State cannot create additional lists today to extend the CAA’s application. Accordingly, the Honourable Home Minister’s statement should be challenged – per his statements, first the National Register of Citizens (NRC) will be used to unearth illegal migrants today, and then the CAA will be applied to provide cover to people from the six minorities.

One of the major risks of our democratic structure is that a brute parliamentary majority can be exploited to introduce legally valid but unjust laws. In such instances, Civil Society must step in to uphold democratic values. Unfortunately, large sections of mainstream media have lost the trust of the public, due to their naked partisan posture. Therefore, it is up to Civil Society to hold the Government to account, using the power supply of the Constitution and the independent institutions of democracy in support of its cause.

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