Citizenship Act does not violate Constitution, protects minorities from theocracies

Gaurav Bhatia
Citizenship Amendment Act, CAA, CAA protests, CAA support rally, CAA protests Delhi, CAA protests UP, CAA protests across India, Express Opinion, Indian Express

The Opposition parties, which are orchestrating protests against the CAA, as being ultra vires the Constitution, are trying to find their lost political ground by shooting from the shoulders of the students.

The Citizenship Amendment Act, 2019 is an enabling amendment and the Act has been passed to protect religious minorities — Hindus, Sikhs, Jains, Buddhists, Parsis and Christians — who face religious persecution in Pakistan, Bangladesh and Afghanistan, which are all theocratic nations.

The Opposition parties, which are orchestrating protests against the CAA, as being ultra vires the Constitution, are trying to find their lost political ground by shooting from the shoulders of the students. They do not even care to educate the citizens as to how the Constitution is being violated.

Article 355 of the Constitution asks the Union to protect states against external aggression and internal disturbance. The Union is thus duty bound to protect the country from any external aggression such as illegal immigrants and internal disturbance. The Opposition needs to understand that the Constitution cannot be read selectively. If the Opposition invokes the Constitution to claim its right to protest, then it cannot overlook the duty cast upon a citizen to protest peacefully. Violent means cannot be part of a protest.

It is noteworthy that once a law has been passed by Parliament, the chief ministers of states ruled by opposition parties cannot unconstitutionally refuse to implement it, out of hatred for Prime Minister Narendra Modi. This will lead to anarchy. The irony is that the Opposition, which pretends to protest in the name of upholding the Constitution, is itself violating constitutional provisions with impunity.

The CAA is not violative of Article 14, as this Article permits “reasonable classification”. In the present case, there are valid classifications. One, the three countries covered under CAA are either Islamic states or countries where Muslims are in majority. And, two, it is a fact that the minorities in these three countries have faced persecution on religious lines.

Let us now discuss whether CAA is violative of Article 15 or not. The Supreme Court, in Gazula Dasaratha Rama Rao v. State of AP, held that Article 15 prohibits discrimination on some special grounds — religion, race, caste, sex, place of birth or any of them, but that is available to citizens only. Hence, the plea that CAA violates Article 15 does not have any merit as the amendment deals only with those who are not citizens of India.

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Illegal immigrants needed to be deported under the scope and purview of special enactments such as Citizenship Act, 1955, and Foreigners Act, 1946. Though, one must keep in mind that there is a clear distinction between a “refugee” and an “illegal immigrant”.

In 2015, the Supreme Court in Assam Sanmilita Mahasangha & Ors v. Union of India & Ors, directed the government to take necessary steps to deal with the problem of illegal immigration from Bangladesh. In this context, we must remember the Assam Accord of 1985 — a memorandum of settlement signed between the Rajiv Gandhi’s government and leaders of the Assam agitation, to end years of rioting and protests against the massive migration — was not implemented for 30 years until the Supreme Court’s judgment in Sarbananda Sonowal’s case.

Apparently, the Opposition doesn’t want the NRC exercise to be carried out throughout the country, but it also doesn’t suggest an alternative to secure our country from illegal immigrants. Is the Opposition trying to say that there should be no mechanism to identify illegal immigrants?

A seven-judge bench of the Supreme Court in The Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, held that the “Restrictions by the state upon free exercise of religion are permitted both under Articles 25 and 26 on grounds of public order, morality and health. Clause (2)(a) of Article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub-clause (b) under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices.”

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The propaganda against the Modi government — that it is against the Muslim community, does not hold true because the historic step to empower Muslim women by abolishing triple talaq was taken by the same government. Many Muslims from three neighbouring countries have been given Indian citizenship since 2014. It is evident that in genuine cases of non-citizen Muslims, they have been, and will be, accorded citizenship in accordance with law, without any discrimination. Then why are political parties in the Opposition spreading hatred amongst Muslims, despite repeated assurances by Prime Minister Narendra Modi and Home Minister Amit Shah that the Muslim citizens of the country will not be affected by CAA?

Unlike the previous UPA government which was infected with policy paralysis, this government has a steely resolve backed with a firm political will to take strong decisions — such as the abrogation of Article 370 and 35A, the abolition of triple talaq and attaching criminal culpability to it, and, the implementation of GST — in the interest of the nation. The re-election of Modi as the PM has led to many historic decisions being taken by him and his government. In the days to come, these will change the destiny of our nation.

This article first appeared in the print edition on January 14, 2020 under the title 'CAA, myth and reality'. The writer is national spokesperson, BJP and senior advocate, Supreme Court of India.