Two questions about the citizenship act

prasad1 · Dec 22, 2019

I wonder if the government really understands why the Citizenship Amendment Act (CAA) has provoked so much anger? It’s because how a country defines its citizens also defines the sort of country it is. Citizenship is the right to have rights. Everything flows from it.

Now the constitutionality of CAA will turn on two key questions. First, does it breach the spirit of our Constitution as expressed in the preamble’s commitment to secularism? The answer depends on the Supreme Court’s understanding of that spirit. Different judges could come to different conclusions.

The second question is does CAA conflict with Article 14 which promises “any person equality before the law or the equal protection of the laws”? That depends on whether the beneficiaries of the Act have been identified on the basis of a reasonable classification. This can be easily checked. The Statement of Objects and Reasons (SOR) contains what the government believes is a reasonable classification. “The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries.” There are two clear parts to this classification and both have to stand-up to a fact test.

Two questions about the citizenship act | Opinion

First, does it breach the spirit of our Constitution as expressed in the preamble’s commitment to secularism? The second question is does CAA conflict with Article 14 which promises “any person equality before the law or the equal protection of the laws”?

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prasad1 · Dec 22, 2019

First, are Pakistan, Afghanistan and Bangladesh the only neighbouring countries with a specific state religion? The answer is no. Bhutan is also a neighbour with a state religion. The only way Pakistan, Afghanistan and Bangladesh could constitute a classification by themselves is if the SOR had named Islam as the state religion. But it does not. It simply talks of “a specific state religion”. That applies to Bhutan as much as the other three.

Second, are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians the only ‘communities’ facing persecution on religious grounds in these three countries? Remember the operative word is ‘communities’. The six are not described as religions and the word community covers many different collections of people.

Once again, the answer is no. In Pakistan, the Ahmadiyas, Bahais and Shias are regularly persecuted. In Afghanistan, the Shia Hazaras are too. Now, you could question whether they constitute separate religions but they certainly comprise communities. And they’re undoubtedly persecuted on religious grounds.