Why the CAA must be opposed, because it discriminates An Expert Analysis of the CAA 2019

26, Dec 2019 | Ram Kumar

An Analysis of the CAA 2019

Ram Kumar

The CAA 2019 is confusing. Some muddle it with the problematic NRC. Others are unclear about what it actually implies. It might be worth looking at it in some detail.

This is an amendment to the Citizenship Act 1955. We must read the Citizenship Act with this amendment to see the intention.

Citizenship is embedded in the Constitution. Part II of the Constitution (Articles 5 to 11) deals with citizenship. Actual regulation of citizenship is under the Citizenship Act 1955.

In the next part of the Constitution, Part III, the important ‘Fundamental Rights’ section, two of the most important Articles give rights to ‘persons’ and are not specific to ‘citizens’: Article 14, equality before the law and equal protection of law, and Article 21, the right to life and personal liberty. There are others, to be sure (including Article 25, the freedom to practice a religion of choice, and specific provisions for minorities) but they don’t have a bearing on this discussion.

What is important is that the Fundamental Rights under Article 19 — the right to free speech, the right to practice any trade, occupation or profession, the right to move and settle anywhere in India — are only citizen-specific.

And Article 15 — which forbids discrimination on the ground of religion, caste, race, gender, or place of birth — is also citizen-specific.

Therefore, if you are not a citizen, you cannot invoke any of these citizen-specific rights. You cannot even petition a court for enforcement. They are not available to you if you are not a citizen.

Nevertheless, a positive discrimination is acceptable. You can make special provisions for the downtrodden, for women, etc. What you cannot do is have only a negative discrimination (and it is no argument to say that every positive discrimination has a negative mirror image). The discrimination or special treatment must have they call ‘intelligible differentiation’ and some demonstrably rational nexus with the purpose of the special law. Both are essential. Without either, a law that makes any kind of discrimination is said to ‘fail the Article 14 test’. So (1) you cannot just have a simple negative discrimination; (2) you can have an intelligibly differentiated positive discrimination but it must (3) bear a rational nexus to the purpose of the statute that is being tested.

The CAA has two major parts. One has to do with citizens generally and the second is specific to the areas under the Assam Accord, the north-eastern states and wherever Inner Line permit is required. The first is broader, the second is more geographically limited.

There are five methods of acquiring citizenship under the Citizenship Act: by birth in India, by descent, through registration, by naturalisation, and by incorporation of territory into India.

What’s important in the main Citizenship Act is the definition of ‘illegal immigrant’. This is in

Section 2(b) (amended in 2004) and before the CAA 2019, it said:

(b) “illegal migrant” means a foreigner who has entered

into India—

• without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or
• with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time;

Therefore:

• An illegal migrant cannot acquire Indian
• An illegal immigrant is a foreigner entering illegally, e., (i) without valid travel documents or (ii) enters India legally but overstays his travel document.
• An illegal migrant can be prosecuted in India, and deported or

In 2015/2016, the government amended the Citizenship Act. It now said that some illegal immigrants would not be imprisoned or deported. These “illegal migrants” are Hindus, Sikhs, Buddhists, Jains, Parsis, or Christians with no papers/overstayers who entered India from Afghanistan, Bangladesh, or Pakistan on or before 31st December 2014.

By implication therefore, Muslim illegal immigrants will be imprisoned or deported. CAA 2019 introduces this ‘proviso’ or exception to Section 2(b):

Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;

The Act with the 2019 CAA now reads

(b) “illegal migrant” means a foreigner who has entered

into India—

• without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or
• with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time;

Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;

Therefore these six groups from these three countries — and only these groups from these countries — are not even illegal immigrants any more.

The crucial factor is religion. That’s the problem.

There’s no point saying the CAA is not ‘explicitly’ against Muslims. It directly excludes them from the so-called benefit of this amendment. And it does so without any reasonable explanation: no nexus and entirely unintelligible.

An additional question relates to the Passport (Entry into India) Act, 1920. This Act gives the government power to demand passports before allowing anyone into the country, although Section 3(2)(c) allows the government to make exemptions to this. The government has Passport (Entry into India) Rules, 1950. Rule 3 doesn’t allow anyone entry without a passport and except through a designated port (land, sea, air). So it disallows illegal border crossings. Rule 4 exempts certain persons from Rule 3 (armed forces, Indian domiciles crossing over from Nepal or Bhutan, Indian domiciled Muslim returning from pilgrimage to Jeddah or Basra).

And in 2015, the government added this further exemption

(ha) persons belonging to minority communities in Afghanistan, Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December, 2014-

• without valid documents including passport or other travel documents; or
• with valid documents including passport or other travel document and the validity of any of such documents has expired

Afghanistan was added some time in 2016. No idea why.

Clearly, there’s no rational nexus.

This ‘religious persecution’ clause creates a new class of beneficiaries who need no passport or travel documents. They are not illegal immigrants at all. Only these six groups benefit. Despite the complete absence of data, it assumes that they sought refuge India due to religious persecution. There is no data at all about religious persecution of Parsis for example from any of these three countries. The six groups are included only to exclude the seventh,

i.e. Muslims.

What about persecuted Muslims (Rohingyas, Ahmeddiyas in Pakistan, Shias in Bangladesh, Hazaras in Afghanistan)? Why are they excluded? No answer, no explanation, anywhere.

Not everyone in India has a passport. An Aadhaar card or a driving license is not proof of citizenship. Not everyone in India even has a birth certificate. Go to any village or slum — there are lakhs of persons born with zero documentation. Leave aside these: how many people in urban employment have birth certificates?

When a ‘person’ has no record of his/her birth, he/she now defaults under the CAA 2019 to being a ‘non-citizen’, i.e. an illegal immigrant and an illegal immigrant who is not in the exempted or special provision category (six groups, three nations). This leads to the instant deprivation of fundamental rights. Including the right of continued residence. He/she is not a ‘non-illegal immigrant’ like the other six groups, and is therefore an illegal immigrant, and is therefore not exempt from imprisonment or deportation.

The CAA 2019 took a rule (a piece of subordinate or lower-level legislation) meant to control entry into India and made it ‘substantive law’ (top-level law that confers or takes away rights). It took a regulation controlling the entry of persons into India and made it into an entitlement of ‘citizenship’. But these are two entirely different things.

How can it be maintained that this is not anti-Muslim? As an experiment, consider a modification of CAA 2019 and the Passport Rules 1950, and take out the six groups and three countries, it would read like this :

CAA 2019

 (b) “illegal migrant” means a foreigner who has entered

into India—

• without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or
• with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time;

Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946

or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;

And in the Passport Rules

(ha) persons belonging to minority communities in Afghanistan, Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December, 2014-

• without valid documents including passport or other travel documents; or
• with valid documents including passport or other travel document and the validity of any of such documents has expired

This correction passes the Article 14 test.

Therefore, the CAA 2019 specifically targets Muslims in the country. It tries to hide this by not mentioning the word ‘Muslim’.

On its own, and without up-to-date data, something like a population registry, the CAA 2019 is difficult to enforce. The NRC would provide that. Once you have this data, you know exactly who is who and who is where. The CAA 2019 combined with the NRC is all that is needed.

The CAA 2019 must be opposed precisely because it discriminates on the ground of religion to decide citizenship for one particular class. It is fundamentally anti-secular. Secularism is a part of our Constitution’s core and therefore part of any rational person’s idea of India.

The CAA must be opposed because it discriminates only on religious grounds. It aims to deny people of one particular religion their legal and constitutional rights. Therefore it is unconstitutional.

I’ve excluded the Assam Accord and North Eastern states angle because that’s even more difficult. These so-called benefits are entirely denied to these areas. No one knows why. Again, no data. And that makes it even more discriminatory.

(Feature Image – The Indian Express)