CAA has been a topic of intense debate and contention. The controversy around CAA revolves around its religious selectivity, potential violation of secular principles, and the broader implications for India’s social fabric. Because the CAA excludes Muslims, who form a majority in these countries, it is accused of applying selective religious criteria for fastrack citizenship. Critics argue that this religious exclusion violates the secular ethos of India and undermines the principle of equality, that the act singles out Muslims, leading to concerns about discrimination… writes Kamalesh Kumar
On March 11 the ministry of Home Affairs implemented the Citizenship Amendment Act (CAA) across India. The CAA was passed by the Parliament on December 11, 2019, and was notified on December 12 of the same year, however the rules under this law are only now being implemented. After over four years of amending the act, the union government has recently notified the rules for the CAA, indicating its commitment to implementing the law.
It is unfortunate to see how the matter of protecting minorities from neighbouring countries has has become politicised. Before understanding the modalities and inherent justice of the CAA, it is important to understand what the act is trying to achieve and why it the ongoing national discourse surrounding it.
The Citizenship Amendment Act aims to protect individuals who have sought refuge in India due to religious persecution. It offers them a shield against illegal migration proceedings. To be eligible for citizenship, applicants must have entered India on or before December 31, 2014. CAA provides a path to Indian citizenship for Hindus, Sikhs, Christians, Buddhists, Jains, and Parsis who migrated from neighbouring Muslim-majority countries such as Pakistan, Bangladesh, and Afghanistan before December 31, 2014. It specifically targets individuals who were forced or compelled to seek shelter in India due to persecution on the ground of religion. The 39-page Rules notified in the e-gazette recently has prescribed the modalities and procedure for eligible individuals to apply for Indian citizenship. The Rules specify what documents and paperwork are required for putting forward and considering a claim of citizenship.
CAA has been a topic of intense debate and contention. The controversy around CAA revolves around its religious selectivity, potential violation of secular principles, and the broader implications for India’s social fabric. Because the CAA excludes Muslims, who form a majority in these countries, it is accused of applying selective religious criteria for fastrack citizenship. Critics argue that this religious exclusion violates the secular ethos of India and undermines the principle of equality, that the act singles out Muslims, leading to concerns about discrimination.
The United Nations, US government and several other countries have expressed concerns about the alleged discriminatory nature of the CAA. Defending the CAA against its international criticism by certain countries, External Affairs Minister Dr. S Jaishankar has stated that it is unfair for Western nations to criticize it when they had implemented similar immigration policies in the past. Refering to riteria followed by USA and various European countries he asked, “Show me a country in the world which says everyone in the world is welcome.”
Defence minister Rajnath Singh has strongly backed the CAA pitching that it protects the rights of migrants, reduces the number of stateless people and does not discriminate against minorities. Union Home Minister Amit Shah has asserted that no one can stop the implementation of the Citizenship (Amendment) Act as it is the law of the land, that the government’s commitment to implement the CAA. Some state government like the TMC led by Mamata Banerjee has been opposing the CAA. Mr. Shah launched a scathing attack on Ms. Banerjee for misleading people on the issue of CAA, “At times, she tries to mislead the people, the refugees, whether CAA will be at all implemented in the country or not. I want to say this clearly that CAA is the law of the land and no one can stop its implementation. This is the commitment of our party.”
It is crucial to illuminate the contentious Citizenship Amendment Act 2019 through the constitution and human rights jurisprudence perspective. There are important humanitarian reasons why immigrants of certain religious communities from neighbouring countries should not be treated as illegal and should be given speedier access to citizenship. They have suffered persecution and require these protections. The CAA provides a legal pathway to citizenship for persecuted minorities from specific countries, aiming to address their plight and protect their rights in India.The 2019 amendment to the CAA further relaxed the residence requirement for naturalisation, reducing it from twelve years to just six years.
In the Indian Constitution, the jurisprudence on “equal protection” in Article 14 characterises this as being at best a case of “under inclusion”. To draw an analogy, if the government wants to solve a problem like malnutrition, it can take some steps without eliminating hunger entirely. Similarly, if it wants to protect migrants from religious persecution, it can do so by protecting some migrants and not all of them.
Before criticsing CAA on the constitutional merits, it must be noted that Article 15 does not apply to non-citizens. Article 15 prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth. While, under Article 14, laws can rationally differentiate between people on the basis of whether they pay taxes or breach contracts, they can’t differentiate between them merely on the basis of Article 15 characteristics.
If a law is providing for affirmative action why cannot it take into account historic discrimination? The additional protection provided by provisions like Article 15 forms a key part of equality law around the world, be it through the “protected characteristics” under UK’s Equality Act, 2010 or through the USA’s constitutional safeguards for “suspect classifications”. These structures operate in areas of historic discrimination and ensure that people don’t have to suffer for inherent traits that they did not choose. Thus it is valid to ask if there can be concern about historic discrimination within the country, why can’t the concern extend to a history of persecution in another country?
To draw a reference, in the case of caste, Indian constitutional law shows that valid identification of backward castes has always been backed by evidence. This is similar to the US jurisprudence on suspect classifications – these aren’t entirely prohibited, but the government is placed under “strict scrutiny” by courts and has to show that no less discriminatory alternative is available, or that the job cannot be done in a more equal way. If evidentiary burdens tend to determine legal outcomes, then the petitions challenging the CAA’s constitutionality are no exception!
Referring to the unnecessary discourse surrounding CAA External Affairs Minister Dr. S Jaishankar believes that it is a battle of narratives and Anglosphere papers played a prominent part in it, “Take this whole scaremongering that millions of people are going to lose citizenship — you tell people, saying look this was said — one year has passed, two years have passed, where are these people? After all, we are supposed to have a cataclysm in 2020. Even citizenship, when you start reasoning people, ask them–tell me do you not have criteria of citizenship; do you not use language– some people use religion, language, education; some even use income, ethnicity.”
According to sources, there will be over 30,000 immediate beneficiaries from the CAA once the rules are fully implemented. Critics fail to see that the CAA benefits members of some religions without actually harming anyone else. Every country including USA and in Europe have different citizenship criteria based on context and social criteria. Infact the word ‘minorities’ is not used in the CAA because if other countries change the definition of their minorities in future, India would not be able to give them citizenship based on religious persecution. The CAA does nothing to anyone’s detriment and is thus not against anyone at all.
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