(Sanya Singh is a fourth year student at National University of Study and Research in Law, Ranchi and Mohammad Faisal Masood is a fourth year student at Bharati Vidyapeeth (Deemed to be University) New Law College, Pune.)
Featured Art: Departure of immigrants by Jose de Almada-Negreiros
“Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by a public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of justice is still within the prohibition of the constitution.”
It is intriguing to note that the idea of fundamental rights is acquired from the United States of America where the fundamental rights can be waived. But in India, the Supreme Court, in the case of Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan has opined that the Fundamental Rights cannot be waived. Absent any such waiver, it will not be wrong to say that the Citizenship Amendment Act, 2019 violates the rights enshrined under Article 14,Article 15 and Article 21 of the Indian Constitution respectively. Acquiring/ denying citizenship on the ground of religion grossly violates one’s fundamental rights.
The concept of citizenship, as expressed in the Constitution and the law, is in the midst of profound and fundamental change. The National Register of Citizens and the Citizenship Amendment Act are the two guiding forces affecting this transition. While the former is forging paths to statelessness for disfavoured groups, the latter is making ways to citizenship for favoured groups. Although NRC is confined to the territory of Assam and despite the approaching danger of its expansion across India, CAA is intended to implement across India. An accurate interpretation of both the NRC and the CAA relies on an awareness of the minority ecosystem created by these twin phenomena that have emanated from both the state and society respectively.
This is, first, a move from the rule of country of birth (jus soli) to the rule of descent or blood (jus sanguinis)to determine citizenship. France’s law underwent changes through the Napoleonic Code and adopted blood over the soil as the basis of citizenship.The ancient rule of France, or rather, indeed, the ancient rule of Europe had been‘De la Vieilleregle Francaise, ouplutot meme de la Vieilleregle Europeenne,’ according to which nationality had always been, in former times, determined by the place of birth’. Secondly, there was a shift from a religion-neutral law to a law that differentiated on the basis of religious identity. From the perspective of Assam’s social structure, it is an attempt to pull apart a fairly successful experiment in pluralism and diversity. There has not been any kind of legal provisionwhich provides shelters to those who have illegally entered into the concerned country. The only exception is perhaps Israel which is a “Jewish State” and offers the “right to return” to Jews from anywhere in the world.
VIOLATION OF FUNDAMENTAL RIGHTS
In early years, Das J. devised the classification test which was inspired by the US jurisprudence, under the Fourteenth Amendment, to determine the compliance of law with Article 14. Thus, to meet the requirements under permissible classification’s test, there are two necessary conditions which must be fulfilled, i.e.
(1) That the classification must be based on an intelligible differentia;
(2) That the classification must have a reasonable nexus with the object sought to be achieved
However, there has been a dissenting opinion in the Supreme Court from the beginning that basically recognized this approach to be constrained and excessively formalistic.
In State of West Bengal v. Anwar Ali Sarkar, the court held that, “In any case, judges must look squarely into the heart of things and take concrete account of the facts of each case, just as a jury would do; and yet, not quite as a jury, for we are dealing with the question of law and not just one of fact; Do these “laws” in question violate an even greater law before which they must even bow?”
Further, the Supreme Court in Kesavananda Bharati case opined that, “Parliament can amend any and every provision of the Constitution, subject to the condition that such amendment does not violate the Basic Structure of the Constitution.” Yet, despite what might be expected, giving citizenship dependent on religion demonstrates the infringement of secularism which frames the basic structure of the Constitution.
In Navtej Singh Johar v.Union of India, Chandrachud J. held that, “where the validity of the law is called into question, judicial review will extend to scrutinizing whether the law is manifestly arbitrary in its encroachment on fundamental liberties. If a law discriminates against a group or a community of citizens by denying them full or equal participation as citizens, in the rights and liberties granted by the Constitution, then it would be for the court to adjudicate upon the validity of such a law.”
As it has been rightly said in the Case of Proclamations, “the King hath no prerogative, but that which the law of the land allows him.” Therefore, common law and statute have limited the prerogative power, including, in the current scenario, there would have been a conflict with the constitutional principles.
The idea and the object behind introducing the Amendment have been to save the minorities who have been persecuted in the Islamic countries like Pakistan, Bangladesh and Afghanistan, where the Constitution provides for a specific State religion. But, nowhere in the Act, the words like ‘persecution’ and ‘persecuted religion’ have been used to provide the grounds for citizenship. Apart from this, the Amendment has absolutely ignored the angle of persecution of Muslim Minorities in a Muslim Majority State, where even today, people belonging to communities like Ahmadiyya, Shia, Bahaii, as well as those belonging to ethnic and other religious groups such as Hazara, Jews and Balochs are persecuted. The argument of providing shelter to those belonging to every religion but Muslims does not hold any credibility within itself.
Ahmadiyyas from Pakistan and Hazaras from Afghanistan have come to India as refugees. Even the United Nation Human Rights Commission (UNHRC) has also recognized them as refugees, which means that the UN has also acknowledged that they have been persecuted in their countries. However, the Centre did not pay heed to the situations of the Muslims minority while making a statement that, “CAA does not seek to recognize or seek to provide answers to all kinds of purported persecution that may be taking place across the world.”
PUSH AND PULL FACTORS IN RELATION TO NRC AND CAA
On one hand, where the CAA allegedly violates the secular identity of the country, on the other hand, it also tends to endanger the linguistic and cultural identity of the states like Assam. Even though the concept of CAA and NRC is different in nature, there is a genuine fear in the minds of indigenous people of Assam that CAA will primarily benefit those illegal Bengali Hindu immigrants who have settled across the State in huge numbers.
The CAA, when combined with the proposed nationwide NRC, will definitely become an instrument to exclude those who belong to the Muslim community in the country. There is no provision in 2003 guidelines for a nationwide NRC that can bar a Muslim from being a legal citizen of this country. But, the CAA does exclude the Muslims immigrants who have entered India illegally. However, since the CAA has the provision of providing citizenship for illegal migrants who are not Muslims in the respective 3 countries, then it clearly implies that whenever the NRC is finally rolled out, only Muslim immigrants will be left out.
People of all religions from Pakistan and Bangladesh have come to India for some reason. On both the sides, there have a mixture of factors which are responsible for continuing influx of illegal immigration from Bangladesh and the same has been recorded by the Supreme Court in the case of Sarbananda Sonowal v. Union of India, where
On the Bangladesh side, the important “push factors” include persistent and steep population rise, the land man ratio has deteriorated dramatically, and poor agricultural performance has led to lower economic growth rates. Whereas the “pull factors” on the Indian side include the ethnic proximity and kinship enabling immigrants to be easily sheltered, a porous and easily negotiable border with better economic opportunities and politico-religious elements of interest which promote immigration.
Many persons who could not have otherwise established their claims which resulted in the exclusion from final NRC published as of now would be able to take cover under the impugned Act effortlessly and along these lines become genuine Indian residents at the expense of the indigenous individuals of Assam.
It has been repeatedly remarked by the Apex Court that the influx of illegal immigrants has massively affected the socio-economic condition of the State of Assam and the same has serious implications for internal security also. Subsequently, in the end, the indigenous individuals of Assam will be diminished to a minority in their home State. Their social endurance will be in peril, their political control will be debilitated, and their business openings will be sabotaged.
The State is the custodian of the natural resources which is to be used for the benefit of the people. In a country of over billion population with scarce natural resources, depleting forest cover and agricultural land, increase in pollution, limited economic opportunities and almost half of the population living in abject poverty, the State as per the Article 38 of the Constitution shall endeavour to promote the welfare of the people by securing a social order in which justice, social, economic and political shall inform all the institutions of national life and to minimize inequalities in income, status, facilities and opportunities not only amongst individuals but also amongst groups of people.
The CAA in the garb of protecting the autonomy of indigenous people is actually destructing the right of the people to fully enjoy their right to life, liberty, and dignity as mentioned under Article 21 of the Constitution.
In this regard, the insertion of Section 6B to the Act in allowing citizenship to large numbers of illegal migrants, to non-tribal areas of Assam and leaving the burden of proof of religious persecution largely on the state, seriously endangers its local people’s right to conserve their culture and language. A large portion of the documents is not legitimate according to the Guwahati High Court judgment in ManoraBewa v. Union of India &Ors. Proper documentation cannot be expected from rural India and the said parameters are unjust and unreasonable to identify the citizens. Because of the lack of proper documentation, if anyone is not able to meet the criteria, then they are put in detention camps. Hence, the whole procedure from the very inception is arbitrary and unjust.
The Citizenship (Amendment) Act, 2019 is in gross contravention of Article 26 of ICCPR. The latest enactment of CAA 2019 is not in accordance with the international obligations of India. Freedom from discrimination is viewed as one of the centre standards of common liberties and the equivalent has been given in the Universal Declaration of Human Rights (UDHR),International Covenant on Civil and Political Rights (ICCPR),International Covenant on Social, Cultural and Economic Rights (ICESCR). The Constitutional duty and obligations can be derived by India to honour and respect the internationally recognized principles and rules.
The Apex Court in Vishakav. State of Rajasthan has made it clear that if any international convention is not in consistent with the fundamental rights, then those conventions can be translated into law by Article 253 read with Entry 14 of the Union List.
The victims we do not talk about: Transgenders
Nearly 2000 transgender persons had been excluded from the list when the process of NRC was executed recently. Since, in 1971, there used to be no column for ‘third gender’ and they were forced to admit themselves as either ‘male’ or ‘female’. Even though, discrimination on the ground of gender identity is included under Article 15 and 16 which mentions about discrimination based on “sex.” But, after the NALSA judgment (which recognized the third gender), those who fearlessly identified themselves have been excluded from the list because they cannot prove that they have registered in 1971.
Swati Bidhan Baruah, Assam’s first transgender judge occupied herself with battling in the Supreme Court of India for the benefit of at least 2,000 trans individuals who have been left out in the NRC list. Even the Objection Applications did not contain ‘others’ as a gender category.
SIGNIFICANCE OF PROTEST IN THE INDIAN CONSTITUTION
Public places are necessary as they can be used for the discussion of public issues, as well as to protest against subjective activities taken by the government. The principle lies at the core of jurisprudence is that in a free and democratic nation, citizens must have the right to speak with each other and to gather, whenever needed in public places. The acknowledgement that specific government-owned property is a public forum gives open notification to citizens that their opportunities might be practised there unafraid of a censorial government, adding substantial reinforcement to the idea that we are a free people.
In Anita Thakur v. State of J&K, the Supreme Court held that “the right to peaceful protest is recognized as a fundamental right under Article 19(1), (b) and (c) of the Constitution, subject to reasonable restrictions.” It also enhances the framework of delegate majority rules by empowering direct assistance in transparent undertakings where individuals and gatherings can express disagreements and concerns, uncovering the shortcomings in the administration and asking the state specialists for responsibility. This privilege is crucial in an energetic majority rule government like India yet more so in the Indian setting to aid in the claim of the privileges of the underestimated and ineffectively represented minorities.
In the American custom-based law traditions, the judges in cases like Commonwealth v. Alger,Jacobson v. Massachusetts have propounded that the use of police force under American Constitutional Law has its fundamental foundations. In a general sense, utilization of police power draws on two Latin standards, sic uteretuo it alienum non laedas(use that which is yours so as not to injure others), and Salispopuli suprema lexesto(the welfare of the people shall be the supreme law) and in this case, how the police have been let loose on the innocent students who were not even part of the protest was also brutally beaten which shows that neither of the principles prevailed.
A significant evolution in Indian society is the very act of a huge number of Muslim women coming from their self – admitted conservative backgrounds and gathering at Shaheen Bagh to share their views. With domestic symbols, slogans and dominant themes and women asserting their rightful place in politics, a very positive signal has emerged for our participative democracy, regardless of the way politics goes. This particular protest has shown how sit-in-protests can be peaceful and within the boundaries of the law, provided that there should be reasonable restrictions as mentioned in Article 19.
CONCLUSION
Prima facie, it does seem that the CAA is very welcoming and has the tendency to set an example all over the world where we are welcoming those people who are the minority in their countries and have faced persecution from time to time. But, apart from focusing on all the religions but Muslims, the Parliament should have made a law which is not religiously oriented. The statement does not hold any credibility if one contends that Muslims are not persecuted in the Muslim dominated countries. The reality is far away from this fictional line of the story and even though in case of Rohingyas, there has been a hue and cry for a very long time, but still they were not included in the list of immigrants.
The Citizenship Amendment Act is unconstitutional for all intent and purposes. Mill stated that it’s not the government that becomes tyrannical but when the majority is itself the tyrant- Society collectively over the separate individuals who compose it – it means the majority execute its mandate to do the unrestricted acts which it may do by the hands of its political functionaries. It implies mainly performing its own order to do the unhindered demonstrations that it might do by the hands of its elected officials. Freedom of speech and expression is nothing more than the privilege enjoyed by a certain class of people and if any other citizen uses the same then they are titled differently to discredit the movements. More importantly so from a constitutional perspective, it is seen that there has been a complete caricature of the provisions of the Constitution and the ideas of Constitutionalism by providing stratified citizenship and more elaborately so a preferential system of citizenship to please a vote bank.
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