Is the CAA unconstitutional, anti-Muslim or is it pro-hindu?

The Author of this piece of work is Vrinda Sareen, who is a student of Amity University, Noida. She is also working as a Sub-editor with Droit Penale.

The Citizenship (Amendment) Act, 2019 (CAA) has caused political upheaval in India. Though it is designed to grant a pathway to Indian citizenship to certain minorities that faced religious  persecution  in Pakistan, Bangladesh or Afghanistan but it is widely been perceived as a stunt by the pro-bono Hindu parties in India in order to deprive Indian Muslims of their citizenship rights. The enactment of the statute was followed by the political protests in India, in which the central argument was that the CAA violates the secular spirit of the Indian Constitution.

Secular fabric in the Indian Constitution basically provides no difference between the religion and state but partially it allows the state to reform religious practices. For instance, the  Constitution  abolished  untouchability. Further, Secularism has been held by the Supreme Court to be a part of the “basic structure” of the Indian Constitution and of “constitutional morality”.

In recent  times,  however, “secularism” in  India has been  associated  with  the  vote-bank  politics in  which religious minorities, particularly Muslims, were suppressed at the cost of and against the interests of the Hindu majority. Pro-Hindu parties has  openly advocated for political “Hindutva” which is revealed through their legislative  policies of –abrogating the  special  constitutional status  of  the state  of  Jammu  and  Kashmir, enacting  a  law  criminalizing  the  practice  of triple talaq in  Islam,  and  opposing  the Supreme Court’s judgment allowing menstruating women to enter the Sabarimala temple in  the  State  of  Kerala.  The CAA  is  the  latest  law  which  forms  part  of  their legislative reform.

Unsecular origins of Indian Citizenship provisions

When country was partitioned in 1947 two waves of migration took place from West Pakistan to India: First wave occurred after 1^st March, 1947 which was the starting point of disturbance and was mainly consisting of ‘Hindu’s’ and ‘Sikh’s’ and they were in large number. The second wave of migration took place in 1948 where interestingly large number of Indian Muslims who had previously left India to go to Pakistan realised that Pakistan is not what they thought off as they faced religious persecution and therefore returned to India. The return of Indian Muslims caused problem for the Indian administration as the law itself considered these categories to be different as the group of ‘Hindu’s’ and ‘Sikh’s’ were considered as the “displaced persons” but considered the Indian Muslims who fled away as “evacuees” and further their property was considered as the ‘evacuee property’ and their properties were used to rehabilitate the ‘Hindu’s’ and ‘Sikh’s’ who had migrated to India.

Therefore, the concern arises as to if the Indian Muslims fled back to India what will happen to the evacuee property? So with respect to this correspondence started amongst the Indian leader’s especially between Sardar Vallabhbhai Patel and Nehru, where Sardar Vallabh Bhai Patel wrote to Nehru that the return of Indian Muslims to India creates the environment communal violence and if we give the perception that we are now going to remove ‘Hindu’s’ and ‘Sikh’s’ from the evacuee property and give it back to Indian Muslims, this will in turn feed the communal poison.

In this context, the Indian Government introduced on 19^th July, 1948, a system that was essentially designed to refrain Muslims from coming back to India, known as the Permit System. Under this system, if an Indian Muslim wanted to come back to India than the provincial government where the property was located has the power to veto your return in India. This very provision made it clear that the return of the person’s shall not be granted if there property is being used for rehabilitating the displaced person’s. This system was very much enshrined in the Indian Constitution but the provisions of the Constitution dealing with citizenship did not specified anything about religion, therefore on the face of it, it appears to be secular.

When we refer to the debates of Indian constitution it contained two hidden clauses; those who came prior to the Permit system were presumed largely to be ‘Hindu’s’ and ‘Sikh’s’ and the citizenship was automatically granted to them but those who came after the 19^th July, 1948 required a permit for the permanent resettlement. There were debates on the point as to how the citizenship will be granted. On the other hand the then President of India, Shri Rajendra Prasad was worried that with the Permit system large number of permit’s will be issued but according to the records it is evident that by March there were around 22,000 Muslim’s which arrived to India but with the Permit system only 2000 permits for permanent resettlement was issued.

This raises a question as to why Permit system was applicable with respect to West Pakistan and not East Pakistan? This is so because while only around 600 Hindu’s were left in West Pakistan whereas on the other hand 16 million Hindu’s in the East Pakistan when the system was introduced. But if the system would have been applicable to East Pakistan as well it would have prevented large influx of Hindu’s from coming to India who were forced to convert to Islam.

In Present time, the very Citizenship Act is unconstitutional because of Article 14 of the Indian Constitution which grants to every person the Right to Equality and there are following grounds on which it can be argued that the act violates the equality provision: exclude certain categories of religious groups such as Jews, resident requirement in India is reduced by the act as the persons who fall under the Act have to reside in India for five years but the persons who sought citizenship through naturalisation have to reside in India for eleven years. Other reasons are Cut-off date which further undermines the humanitarian objective of law, excluded categories who suffer non-religious persecution which is of grave concern as after the striking down of Section 377 of Indian Penal Code the person who want to come to India for their sexual identity is not given the benefit.

Further this opens up the door for more deeper problems as the notion of Citizenship by Birth has been abounded. Before 1987, any person born in India irrespective of who their parents were was entitled to citizenship by birth. After 1987 but before 2004, person has to establish that he/she is born in India and that one of the parent is Indian Citizen. After December 2004, person has to prove that he is born in India, one of his parent is India Citizen and the other parent is not illegal alien. This provision acted harshly upon certain categories such as orphans, transgender persons etc. as these category of people does not know about their parents as they are abandoned at the very time of their birth.

Therefore the need of an hour is to reconsider the Citizenship Act in order to eradicate discriminatory grounds with respect to different religious categories, countries etc.