Legal Narrative
“ Injustice anywhere is a threat to justice everywhere”- Martin Luther King JR.
INTRODUCTION
The Citizenship amendment act 2019, also known as CAA was passed by parliament of India on December 11 , 2019. It amended the citizenship act, 1955by providing an accelerated pathway to Indian citizenship for persecuted refugees of certain religious minorities from Afghanistan, Bangladesh and Pakistan who arrived in India by 2014. The eligibility minorities were stated as Hindu , Sikhs ,Buddhists Jains, Parsis and Christians. They are exempt from being treated as illegal migrants. Additionally, the residency requirement for their naturalization is reduced from eleven years to five years.
Whereas law does not grant such eligibility to Muslims belong to these countries because Muslims are from these countries are unlikely to face any persecution as these are Islamic countries. However the act was criticized globally. Critics and legal scholars found that it is contradictory to constitutional architecture of India.
Article 14 of Indian Constitution
Article 14 of the constitution of India states that the State shall not deny any person equality before the law or the equal protection of the laws, it includes two key concept Equality before law and equal protection of law which applies to both citizens and non citizens.
However equality does not mean that every person must always be treated in similar way state can make reasonable classification. But there are two main conditions
1- There must be intelligible differentia
2- There must be a rational nexus
Therefore, the important question emerges that CAA is whether the classification made by the act has a reasonable connection with its purpose.
Classification under the CAA
The CAA defines spacial category of people who can apply for IndianCitizenship.
These persons are who
● Belongs to Hindu, Sikh, Buddhist, Jain , Parsi & Christian communities; are from Pakistan, Bangladesh , Afghanistan
Thus classification is based mainly on three factors Religion, Country of origin , Date of entry.
Religion as basis of Classification
Religion is the most controversial part of the CAA. As this act includes six religious communities -- Hindu, Sikhs, Buddhists, Jains, Parsis and Christians, and as we know Muslims are not included in particular category. Scholars argued that religion should not be used as a basis for giving a special citizenship benefit because Article 14 guarantees equal protection to everyone. They also argued that there some Muslim category in such countries face persecution like certain Shia and Hazara communities are often mentioned in this debate.
Therefore, the question is not simply whether religion has been usedasaclassification ,but does it satisfies the requirements of Article 14?
Persecution on Religious Minorities
Religious minorities in Pakistan, Afghanistan & Bangladesh have faced difficulties and persecution because of their religion . This is why CAA provides them a special opportunities to obtain Indian citizenship.
Examples of persecution of religious minorities are
● Forced conversions
● Attacks on temple
● Mob violation
● Discrimination
This has led argument that if the real purpose is to protect people from religious prosecution, then other communities who also face persecution should not left outside the act.
Arguments in support and against the CAA
There are many arguments which are in support and against of CAA. Some of them support constitutional validity of CAA. This act does not harm any exist citizenship of person , but it provide certain specific protection to special minorities those who face difficulty in above mentioned three countries. As article 14 provides reasonable classification so it does not automatically refers to violation of equality.
The arguments which is against the CAA act has two related to equality and secularism because the act used specific religion as condition of eligibility. Some Muslims community like SHIA & Hazara they are also facing persecution in these countries are not clearly included in special category. There is no proof that every applicant is personally suffering any religious persecution. Additionally there are exclusion of other countries that is why petitioner challenged that it may violate Article 14.
Conflict between CAA and Secularism
The CAA and secularism have major conflict , as we know India is a secular country and constitutions does not give validity to particular religion as the religion of state. So the use of religion in this act arises certain questions and concern between principle of secularism and citizenship law. Some of the group also misunderstood the concept in law that it will take away the citizenship of muslims just to instigate tention in country but supporters argued that it will not affect any citizenship. However the issue is connected with equality under Article 14.
For CAA there are some major questions arises :
1. Why they included only 6 religion?
2. Why only 3 countries have selected?
3. Does classification arbitarty ?
4. Does it indicate unequal treatment?
5. Does it support principle of secularism in a country like India?
In my views the answers of above questions are very important in order to decide whether the classification satisfies Article 14 or not and to understand CAA there must be clear understanding of religion persecution, but to provide protection to certain religious minorities does to directly violate the Article14because our constitution provide reasonable classification but if the main purpose of this legislation is to provide protection to certain minorities than there must be reasonable connection between classification and persecution.
CAA mentioned the religion, country
and entry date but it is not compulsory to proof individual persecution but there must not be exclusion of similarly persecuted community from other religion Like Ahmadiyya community in Pakistan faces legal and social restrictions, Hazara in Afghanistan faced attacks and violence. Yezidis in Iraq faced severe persecution like killing, conversion and ISIS attacks. In my opinion CAA is an important example of balance between citizenship policy, protection of persecuted person, equality in law and secularism principle in India but there should be no arbitrary classification and it must provide rational connection.
As every coin as two sides Citizenship amendment act also has two sides. Whileit seeks to provide protection to certain religious minorities facing persecution, it has also raised questions equality, secularism and reasonable classificationand having clash with article 14. It has arguments in favour andagainst itespecially when viewed from the perspective of Article 14.
“ The true test of equality is not merely how the majority is treated, but how the rights and dignity of minorities are protected.”
