CAA & NRC

[Gnan_anna]

Caveat first - In this answer, I will try to point out the relevant provisions of law and questions that are likely be taken into account by the SC as this has already now been challenged by the Indian Union Muslim league. Emotions run high with both sides of the political spectrum pointing out irrelevant issues and spreading utter misinformation with zero understanding of the law. In this answer therefore, I would be presenting the Constitutional stand point.

I will be forced to make small parentheses from time to time, to debunk certain myths and misinformation. Kindly tolerate the same. If you speak to lawyers or law teachers, you should know parentheses are crucial !

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A) What is CAB -

CAB which is now passed by both the houses of the Parliament is an amendment to the Citizenship Act making provision for persecuted minorities of Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from 3 neighbouring Islamic countries of Bangladesh, Pakistan and Afghanistan. What it practically does is, it proposes to accord citizenship on the select 6 communities of people who are already in India before 31st day of December, 2014, and relaxes the years required for citizenship by naturalisation from 11 to 5.

It further carves out the “Inner line” or territory within the North Eastern states to which this amendment would not apply. This is done to protect the indigenous culture and population of the states. (For those who are spreading misinformation, the protests in Assam are not about the CAB for the same reasons that the rest of India is protesting. For the rest of India, it is still a theoretical question of their beliefs about the policy of the government and secularism, equality, etc. For Assam it is very real because the state has been battling illegal migrants for decades and is afraid it will go the Tripura way. The Assamese don’t care about the alleged Hindu-Muslim divide of the law, but they don’t want any outsiders.)

So, to recapitulate, CAB provides for 4 conditions the fulfilment of which will mean that a person who migrated to India will not be considered an illegal migrant:

1. The person should be a Hindu, Sikh, Buddhist, Jain, Parsi or Christian.
2. The person should have migrated from Pakistan, Bangladesh or Afghanistan.
3. The person should have come to India before 31st December 2014.
4. The person shouldn’t be in the “Inner line”, the protected territories in the North East of India.

I will analyse each of these on the touchstone of Art. 14 of the Constitution in the next section.

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Does it violate Right to equality under Art. 14 of the Constitution -

Article 14 reads as follows -

"The State shall not deny to any person equality before the law and equal protection of the laws within the territory of India."

There are two aspects to this provision -

1. Equality before the law - This means that all people will be treated equally by the laws. So, the law which makes it a crime to steal will be applied to everyone equally. Here there will not be any discrimination on any ground. This is equality before the law.

2. Equal Protection of the Laws - This concept is based on the fact that in reality people are not inherently equal. Men and Women are not equal, rich and poor are not equal, so on and so forth. So, when there is so much of inequality, would treating everyone equally then be really just? No. From this concept reservations (or special laws for any community) or affirmative action comes forth.

Therefore, Article 14 leaves room for reasonable classification of population. This is permitted under the Constitution, provided the reasonable classification is not arbitrary.

Do not interpret the word “arbitrary” in layman’s terms.

Whether a law is arbitrary or not is not decided based on random opinions, but the SC has laid down a Test of reasonable classification -

1. The law being challenged has to have intelligible differentia. This means that the law that classifies (things or people) should be clear and intelligible as regards the subject matter that is being classified.
2. The Differentia must have a rational nexus with the object sought to be achieved by the act.

Now applying this test to CAB -

CAB identifies the communities very clearly, there is no dispute there. The differentia is certainly intelligible. Three neighbouring countries are identified. Three of them are Islamic. All the minorities are identified.

Secondly, there has to be rational nexus between object sought to be achieved and the action taken under the law.

Why these minorities and why these 3 countries, why not the rest of the world? -

• The government has chosen to take in minorities suffering religious persecution from 3 Islamic countries. It is the government’s sovereign right to choose whom to accord citizenship and on what basis. Bear in mind that the law technically, is closed to all people who aren’t citizens of India and is merely relaxing certain norms for some minorities from some countries. This doesn’t violate Article 14 as the purpose of the Constitutional law is not to interfere with the government’s policy decision. Why this choice that the government has made is linked to the unique history of the Indian subcontinent where the subcontinent was divided on the grounds of religion owing to which, India shares more ethnic relations with these three chosen countries. In the future, the government may decide to accord citizenship to minorities in other nations based on linguistic persecution and that shall also be legal (the reason why Srilanka isn’t included). In the future the government may decide to stop applying this relaxation to Pakistan or Afghanistan. That is the government’s prerogative. For the moment, it is restricted to religious persecution in the three neighbouring countries from where the bulk of migrants have come into India. Given that the three neighbouring nations have a state religion that is Islam and there is religious persecution of minorities, this is a humanitarian relief taking into account that much of Asia isn’t open to these minorities as there are 40+ Islamic countries (as opposed to them being secular democracies). So, it is very clear to me, that it is highly likely that the SC will decide that this is a policy decision (bringing in perhaps even the Doctrine of political question) and not a Constitutional argument. The two tests of Art 14 aren’t violated.

Why exclude the Muslims?

• Firstly Muslims are only excluded from this Amendment to the Act. Not the Act itself. Muslims or others from countries other than Pakistan, Afghanistan or Bangladesh, can apply for other kinds of asylum (including political asylum) under the Act. Secondly, Muslims are excluded from this amendment simply because the amendment is only applicable to the 3 neighbouring Islamic states. Those states were created by the Muslims, for the Muslims. The state religion there is Islam. This is the reason why they are excluded from the amendment. Again, intelligible differentia and rational nexus are totally met. This amendment doesn’t violate Art. 14 in any way.

What about the persecuted communities in other neighbouring countries like Srilanka or China, or the rest of the world?

• The government has very clearly identified one kind of persecution - one that is faced by Hindus, Buddhists, Sikhs, Jains, Christians and Parsis (the communities identified as “minorities” ) in neighbouring three Islamic countries. Does this mean other kinds of persecution doesn’t exist? Nope, it exists. The government is choosing to address this one, right now. This fact, doesn’t violate the Constitution.
• This also doesn’t mean that each minority getting benefit under this amendment will have to prove their persecution. This amendment is applicable to a class of people. The SC in order to determine if Art 14 is violated or not, will not question random families if they were persecuted or not. It will merely see if there is intelligible differentia + rational nexus or not.

What about the persecuted communities among Muslims, in these three countries? The Ahmadiyas or in some cases even Shias or Hazaras?

• There are millions of different kinds of persecution. Persecution that has nothing to do with religion also exists. The government of India doesn’t HAVE to solve all kinds of persecutions in order to solve just one. It has chosen this one. It is a matter of the government’s policy. Again, it doesn’t in any manner violate the Constitution.

Does making religion a qualification for citizenship not violate secularism and thus the Basic Structure of the Constitution?

• This Amendment is merely relaxing the norms for persecuted minorities from three neighbouring Islamic nations. It is not doing anything more than that. As a matter or law, no foreign individual has a fundamental right to get India’s citizenship. There is a procedure laid down in the Citizenship Act for everybody. A foreign national may apply under that procedure, after which it is upon the appropriate authority to decide if the person will become a citizen or not. And they are not obliged to give any reasons for the grant or refusal (section 14, Citizenship Act[1]). The law is clear on that. Thus the normal route of citizenship and naturalisation exists for everybody else, no matter your religion, nationality, sex, political beliefs, etc.
• This amendment is yet again, a mere relaxation on certain grounds that do not in any way violate the Constitution of India. The grounds could very well be religion. That is not the point. The point for violation of Art. 14 is simple this - Is there intelligible differentia and rational nexus or not?

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Now for the biggest question that is the source of most amount of misinformation and fear mongering -

C) CAB and NRC -

The government also announced in December that the National Registry of Citizens would apply to not just the North East but the whole of India.

The allegation and fear that is being spread is as follows - In combination with NRC, the CAB will mean that the Muslim citizens of India will have to live in fear of deportation or some kind of disenfranchisement.

This is not true at all. And this is how -

• CAB has nothing to do with NRC. Remove CAB from the picture and NRC for the whole of India would pan out exactly the same way as it would in the presence of CAB. CAB or NRC is not passed to take away privileges / citizenship. CAB is passed to accord privileges on persecuted minorities identified under the law. CAB doesn’t mean the situation of Muslims in India is worse. It only means that that situation of select minorities from three neighbouring countries that have migrated to India will be better. This is the crucial difference.
• NRC has had its flaws, the government has acknowledged them. If a flawed NRC is implemented throughout India, it will have the same effect, with or without the CAB! CAB is merely going to make certain (very few) people’s life easy. The rest of Indians (99% I must say) will have to deal with a flawed NRC if a flawed NRC is implemented.
• Application of CAB will technically mean that less people are probably likely to leave India or face that threat.

If one has a problem really with this whole exercise, they should have a problem with NRC’s flawed implementation. Not the CAB. In case it is implemented for the whole of India, it should be seen how it is being implemented, before declaring it flawed.

CAB is humanitarian and good for many refugees living in terrible conditions.

It is not that the Muslims will be worse off because of NRC+CAB. It is merely that the others might be marginally better off. This distinction is very crucial!

Further, considering the mammoth task in front of NRC (and the flaws in its implementation in Assam), CAB is only going to make that task easier for the government and 80+% of the Indian population. The question only remains of not goofing it up in case of Indian Muslims - A challenge that remains even without CAB!

All depends on whether the implementation of NRC all over India is done properly or not.

In any case, whether it is NRC and / or CAB, neither violate the Constitution. If the implementation has systemic flaws, it is an implementation problem (people problem) and not a Constitutional problem.

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One may very well say that they don’t like the government’s policy or the government. One may also say that we should be more generous as a nation and take in whoever wants to come.

Meh, just opinions. I don’t agree with any of them. On principle, I agree with both NRC and CAB. They are actually for the betterment of the nation and providing humanitarian relief to some people.

If a flawed NRC is implemented, I might criticise that. But that is about it.

The claims relating to India’s secularism being violated, or that this amendment is unconstitutional, don’t hold much water. They are spewed with no understanding of either the law or the Constitution of India.

Written by- Tejaswita apte , advocate.

setting your differences and biases aside read this once...Do not allow vitriolic propoganda to influence your action...applicable to both sides...kotha bichagadu podderagadu annattu ippudu kotha kothollu kuda osthunnaru ee issue medha fayidha cheskoniki...BEWARE!

[pottipotato]

aahaan!! you are obviously going to run away if someone (especially I) ask you about what this writeup misses (I still haven't read it, but pretty sure its sh1t and I don't have to keep an 'open' mind while reading it. I have my own awesome mind, which you cannot counter.. haha).

so are you going to run away or engage in a discussion (even if its abusive, I dont give a fcuk. I'm not a fcuking loser who takes offense to opinions I don't agree with). 

tell that first.

[pottipotato]

At just a cursory reading of this 'article', It has some glaring hilarious errors, and misrepresentations, and wishy washy nonsense in the name of logic. 

this is the kind of sh1t that sanghis propagate. 

[pottipotato]

some more cursory reading of this article makes it clear that it doesn't address what the anti-CAB folks are saying, and is just addressing some of the easy ones to debunk from various protests against it.

clearly the author is ill equipped to go against an anti-CAA activist.

Is the poster equipped to? let see

[pottipotato]

I"m not reading bullshit until the poster agrees to not act like a clown in response  

[Gnan_anna]

1 hour ago, pottipotato said:

At just a cursory reading of this 'article', It has some glaring hilarious errors, and misrepresentations, and wishy washy nonsense in the name of logic. 

this is the kind of sh1t that sanghis propagate. 

Seppu Ra Abbi...entadhi glaring setbacks.....of course if I have to...no personal abuse and no changing of goal posts....adhi Niki shaathanaithey...

[Gnan_anna]

Ee roju full boring ga undhi...Chalo nee tho time pass aithadhemo suddham...

[pottipotato]

Just now, Gnan_anna said:

Seppu Ra Abbi...entadhi glaring setbacks.....of course if I have to...no personal abuse and no changing of goal posts....adhi Niki shaathanaithey...

edsedhi nuvvu, nannu antunnava.. lol ra.

[pottipotato]

saduvutha first. nee laanti edavalatho discussion kosam time waste endukani sadavale.

repu kanapadu. 

repu nenu free. hehe... ee time lo kanapadu bujji. :) 

[pottipotato]

personal abuse khachitanga untadhi bidda. neetho respectful ga maatladtha ani maatram expect cheiku. haha..

neeku brain undhi ani nenu nammithe appudu istha respect.

but personal attacks tho paatu arguments kooda untadhi. nee laaga erri p comment lu aithe seinu.  lol

 

[Gnan_anna]

Gidhey Ra Bhai...nee tho ochindhi...last chance isthunna...matter untey Ra lekapothey idiseyi...

[Gnan_anna]

Just now, pottipotato said:

personal abuse khachitanga untadhi bidda. neetho respectful ga maatladtha ani maatram expect cheiku. haha..

neeku brain undhi ani nenu nammithe appudu istha respect.

but personal attacks tho paatu arguments kooda untadhi. nee laaga erri p comment lu aithe seinu.  lol

 

Neeku shaathanaitha ledhu...Chalo as usual ga bugger off with tail in between your legs...

[pottipotato]

2 minutes ago, Gnan_anna said:

Gidhey Ra Bhai...nee tho ochindhi...last chance isthunna...matter untey Ra lekapothey idiseyi...

repu ra anna kadha. ikkada nuvvu entha ginjukunna, naa antha opika ga aruge chesetodu evadu dorakadu. neeku nuvvey nee chamcha gaallatho maatladu kovaalsindhey ..

neeku adhey kaavalnemo.. erri p.

oka roju orchuko. nee m emi oodipodu. nee thokkalo article kosam naa time ni nee ishtamochinattu waste cheyyanu. naa ishtamochinattey waste chesta.

[pottipotato]

3 minutes ago, Gnan_anna said:

Neeku shaathanaitha ledhu...Chalo as usual ga bugger off with tail in between your legs...

personal attacks untadhi kadha ra.. nuvvu dumbfcuk laaga argue cheste, respect ela ivvagaltha ra.. haha..

simple logic. khachitanga personal attacks untadhi. 

ofcourse nuvvu chesey pilla bacha personal attacks laaga kaadhu. manaki koncham level untadhi kadha. neeku telusu anukunta

[Gnan_anna]

1 minute ago, pottipotato said:

repu ra anna kadha. ikkada nuvvu entha ginjukunna, naa antha opika ga aruge chesetodu evadu dorakadu. neeku nuvvey nee chamcha gaallatho maatladu kovaalsindhey ..

neeku adhey kaavalnemo.. erri p.

oka roju orchuko. nee m emi oodipodu. nee thokkalo article kosam naa time ni nee ishtamochinattu waste cheyyanu. naa ishtamochinattey waste chesta.

As usual ga denkapothunnav ga... Chalo..ellu Ra Abbi...