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Saturday, June 10, 2023

Citizenship Amendment Act: What’s the Fuss About

The passage of CAB by both the houses and its assent by the President has seen sporadic skirmishes, violent protests and destruction of public property not only in a few states in the country but also seen orchestrated protests in London in front of Bharatiya High Commission. These were similar to the ones held after Article 370 was revoked.

The orchestrated protests in universities smacks of vested interests, leftists and centrists spreading rumours, indulging in fear mongering, inciting and abetting violence to extract political mileage. Students have been made scapegoats by vested interests and pseudo-secular to promote their own agenda.

The same liberals and pseudo secular exhibited none of this vigilantism and protests when Hindus were being massacred and driven out of their homes in Kashmir in 1999 under Farooq Abdullah’s nose in their very own country. They will also not speak up against the concentration camps run by Chinese for Uighur Muslims in Xingiang province of China where lakhs of Uighur’s are being killed, tortured, and maimed but they will torch buses and pelt stones if Hindus and other communities facing persecution in neighbouring Muslim countries are sought to be given citizenship by an amendment in the constitution duly ratified and passed by both houses of parliament.

All Bharatiya citizens irrespective of their religious affiliation are unaffected by this legislation which aims to provide citizenship to persecuted Hindus, Sikhs, Parsis, Christians, Jains and Buddhists from Bangladesh, Pakistan and Afghanistan which have declared Islam as their State religion.

These religious minorities have become extinct in these countries due to persistent persecution. The Hindus in Pakistan have been reduced from 23% in 1947 to an absymal 1% due to the state policy of killing, tormenting, torture and forcible conversion of Hindus. Article 14 of the constitution guarantees ‘Equality before law and equal protection of law to every citizen’ and ‘Article 15 secures the citizen from every sort of discrimination by the State on the grounds of religion, race, caste, sex, or place of birth or any of them.’

The State cannot discriminate between citizens through State action otherwise such action becomes void and unconstitutional. The new legislation has to pass the twin tests of intellible differentia and reasonable nexus in order to survive the test of article 14 & 15. The term intellible differentia distinguishes reasonably between persons or things that are grouped together (in this case Hindus, Sikhs, Christians, Jains, Buddhists & Parsis) from those that are left out of the group (Muslims).

The amendment seeks to provide protection to such individuals as many of them have incomplete documents and are ineligible to apply for Bharatiya citizenship under section 5 & 6 of the citizenship act. The amendment does not prohibit persons from the Muslim community from applying for Bharat’s citizenship. It does not freshly declare foreign Muslims as illegal migrants and their position remains unchanged by the amendment whereby an additional window has been provided to the minority communities from 3 countries based on reasonable objective.

The Constitution also acknowledges that inequality exists in our society necessitating “UNEQUAL TREATMENT To UNEQUAL PERSONS”. Providing equal treatment to unequal people leads to injustice and thus, a State action with a specific objective cannot be unconstitutional.

Harish Salve, a leading Supreme court lawyer and ex Attorney general elucidates on Article 14 and whether the bill will stand the scrutiny in the top court. On the choice of countries, i.e., Pakistan, Afghanistan and Bangladesh and as to why more countries like Sri Lanka and Myanmar which also have common borders with Bharat were not included he says it is a purely a policy matter of the government over which the courts do not interfere. “Persecution of minorities could be on grounds of religion, political, social etc., but we have recognised one form of persecution (religious) which is purely a matter of policy.”

According to Salve, the courts do not second guess the wisdom of legislation. According to him article 14 purely states that whether their is an intelligble differentia which is there as these communities are minorities in these 3 countries which have declared Islam as their State religion.

The second point according to Mr Salve is whether the provisions have a nexus with this intelligble differentia which it has. “If we are redressing some wrongs, we are not bound to redress all wrongs as it is a matter of state policy” is how the eminent lawyer puts it. Thus it is inevitable that the CAA (Citizenship Amendment Act) will stand the scrutiny of the Supreme court as it has a firm footing and all apprehensions regarding its discriminatory nature are spread by pseudo secular & Lutyens media who are hand in glove with the opposition and are together inciting the students and the Muslim community to resort to violence, arson and destruction of public property.

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Aman Gupta
Aman Gupta
Political Editor, Samast Bharat magazine


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