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Scrutiny on the CAA

As we are living in a democratic country, the government shouldn't implement any law which collapses the secularism of our country. Many protests were outburst due to the Citizenship Amendment Act. In this article, we clearly explained the reason given by the government to implement the CAA, the negative shades on the CAA and also how the CAA violates Article 14 and 21? We also discussed the agreement between Nehru and Liaquat Ali Khan which is known as Nehru Liaquat Pact.

Still, many people don't know, what does NRC mean? In this article, we clearly explained about the NRC and the reasons for the implementation of the NRC and also the negative shades when the CAA and NRC were combined. The interesting part in our article is we had compared the CAA with the Nuremberg Laws of Nazi Germany .While reading this part the readers will lift their eyebrows. Many leaders have criticized the CAA and even the UN also criticized it. Our article will help the readers to know about the CAA, NRC and the negative shades on the CAA[1].

Introduction:
The Citizenship Amendment Act was passed on 11th December 2019. This amendment was implemented to provide Indian Citizenship for the Hindu, Sikh, Buddhist, Jain, Parsi and Christian people, who fled from Pakistan, Bangladesh and Afghanistan on or before 31st December 2014.

From the 12th century to the 20th century, there are many historical incidents which have become reasons for immigration in India. A study says that Parsis are genetically closer to the Iranians; they immigrated from Iran to India about 1,200 years ago[2]. According to the 2011 census, nearly 5.5 million people immigrated from other countries to India. 23,04,305 people immigrated from Bangladesh to India, 17,60,917 were immigrated before 1991 and 22,000 Bangladeshis had come to India in 2011. 0.7 million people immigrated from Pakistan.

Only 6,596 were immigrated from Afghanistan. It was found that in India 0.44% were foreign-born population i.e., four in thousand people were foreigners in India[3]. Tibetan had immigrated from Tibet to India because of Tibetan persecution by China in 1959-60. The difference between Citizenship Amendment Act (CAA) and National Register of Citizen (NRC) is CAA will grant citizenship to the immigrants from Pakistan, Bangladesh and Afghanistan who entered India on or before 31st December 2014. The NRC will include those who can prove that either they or their ancestor lived in India on or before 24th March 1971.

Nehru Liaquat Pact:

In 1950, the honourable Prime ministers of India and Pakistan, Jawaharlal Nehru and Liaquat Ali Khan respectively, signed a bilateral agreement called Nehru Liaquat Pact, also known as Delhi Pact. The agreement corresponds to the security and rights of minorities in both countries.

The scenery behind this pact was the large-scale migration of people belonging to minority communities between the two countries. The migration happened due to the attack of majority communities on the former. Finally, the immigrants became the refugees in the respective territories.

Under the Nehru Liaquat pact:

  • Refugees were allowed to return unmolested to dispose of their property
  • Abducted women and looted property were to be returned
  • The forced conversion was unrecognised
  • minority rights were confirmed

Defending the citizenship amendment bill, Home affairs minister, Amit Shah reiterated that both Pakistan and Bangladesh failed to protect the religious minorities after partition which made the legislature to enact Citizenship Amendment act 2019.

Negative Shades On The CAA:

  1. Violation of Article 14:

    The Citizenship Amendment Act benefits only the Hindu, Sikhs, Christians, Buddhists, Jains and Parsis who fled from Pakistan, Bangladesh and Afghanistan. It excludes the Muslim religion and those from a neighbouring country like Sri Lanka etc. Between 1937 and 1987 more than 1.34 lakh Tamilians immigrated from Sri Lanka to India. More than 60,000 refugees were currently staying in 109 camps in Tamil Nadu alone[4].

    But the amendment in the Citizenship Amendment Act doesn't provide citizenship to the Sri Lankans. This amendment violates Article 14 of the Constitution of India. Article 14 says about equality before the law. Article 14 of the Indian Constitution is not only applicable to the citizens of India and applies to every individual i.e. Article 14 is applicable to the non-citizens also.

    Even though Article 14 gave an exemption that there may be a reasonable classification can be done based on the circumstances, the discrimination based on the religion, race, caste, place of birth is against the Preamble of the Constitution which says about the Sovereign, Socialistic and Secularism. In Kesavananda Bharathi vs. State of Kerala, the Supreme Court, secularism is the basic structure of the Constitution and the basic structure of the Constitution couldn't be amended.

    In S.R.Bommai vs. Union of India, when the Karnataka government was dismissed unnecessarily, the Supreme Court held that it is against secularism and the court quashed the governor's order.
    Giving citizenship only to the six religions and three countries is against secularism. Even though the Central Government stated that the selection of these three countries is a reasonable classification as the partition in 1947. However, the claim is not valid because Afghanistan was not part of undivided India at the time of partition.
     
  2. Violation of Article 21:

    Article 21 of the Indian Constitution is available to both citizens and non-citizens. In National Human Rights Commission vs. State of Arunachal Pradesh, the Supreme Court held that the fundamental right guaranteed by Article 21 is also available to non-citizens of India.

    In Maneka Gandhi vs. Union of India, the Supreme Court held that Article 21 of the Constitution of India must be just and fair and it must not be oppressive. Thus, if any law which constrains the life and personal liberty of people fails the test of Article 14, it also contravenes Article 21.

    The CAA clearly violates Article 14 of the Constitution of India and thus it also violates Article 21.
     
  3. The burden of Proof:

    According to the Citizenship Amendment Act 2019, the immigrant must be a Pakistani, Bangladeshi or Afghan and he must be a Hindu, Sikh, Jain, Buddhist, Parsi or Christian by religion and must have entered India on or before 31st December 2014.

    The Government amended the Passport Act and the Foreign Act. According to these amendments, illegal immigrants from those three countries of those six religions were no longer being counted as an illegal immigrant and were allowed to seek shelter, who entered into India on or before 31st December 2014.

    There are two types of illegal immigrants:

    1. Without valid documents including passport or other travels documents.
    2. With valid documents including passport or other travel document and validity of any of such documents had expired.

      To provide Citizenship to the illegal immigrants, The Ministry of Home Affairs asked them to submit the following documents:
      1. Documents issued by the government of your home country (Pakistan, Bangladesh or Afghanistan) to prove that you are a Pakistani, Bangladeshi or Afghan national;
      2. Documents issued by the government of your home country that prove you belong to one of those six listed minority religions;
      3. Documents to prove the date since you entered India or since you have been residing in India: even a Gram Panchayat Secretary Certificate would do.
      4. A sworn affidavit, attested by a government authority, stating that you were “compelled to enter in India due to religious persecution or fear of religious persecution.”

        The interesting contradiction is while being an illegal immigrant by entering into India without any documents how the immigrants can provide the documents? But the Government asked the immigrants to prove that they are Pakistani, Bangladeshi or Afghan and also need to submit a document to prove their religion.

        The rules also clearly stated that the Foreigners Regional Registration Office shall examine the claim of immigrants fleeing religious persecution or fear of religious persecution. How the Foreigners Regional Registration Office would examine whether the immigrants' claims are fact or fiction?

        The illegal immigrants need to pass these tests to be eligible for citizenship under the Citizenship Amendment Act.
         
  4. NRC:

    In 1905, the governor of Bengal Lord Curzon brought East Bengal Muslim labourers for the cultivation of tea to Assam and West Bengal.
    In the 1931 census report of Assam, C.S. Mullan, the Superintendent of Census Operations had recorded that half a million population has transplanted from East Bengal to Assam valley.

    Therefore the government has implemented NRC in Assam to wash out the illegal immigrants from the state.
    National Register of Citizens (NRC) is a database which contains the names of Indian citizens. It is the process of listing out the names of citizens based on Electoral Rolls up to 1971 and 1951 NRC.

    It comes under Section 18 in the provision of the Citizenship Amendment Act, 2019. The purpose of NRC is to have a database of citizens. The database can be used to verify the authenticity of the citizens of the country.

    But Indian Muslims could be badly affected by CAA+NRC because Muslims are required to prove their citizenship in a nationwide NRC. They could be declared as illegal immigrants if they do not have proper documents and they would not be able to use CAA, like non-Muslim Indians.
     
  5. False statement:

    As per the government, the CAA does not introduce religious criteria into the fundamentals of the Citizenship Act; rather it uses these criteria specified in the context of the three countries which have been identified for the purposes of identifying who amount to the persecuted minority community.

    In the parliament, the Central government stated that the population of non- Muslims in undivided Pakistan is 23% which fell to 3.7% in Pakistan and 20% in Bangladesh post the partition and subsequently that number has dwindled. Now, the 3.7% Hindus in Pakistan have fallen to 1.85%.Similarly in Bangladesh from 20%, it is now come down to 7.8%.

    According to Pakistan's Census data[5], in 1951, the Muslims in Pakistan was 85.80%, while the population of Non-Muslims was 14.20 % (It includes both East and West Pakistan). In 1951, the population of Non-Muslims in West Pakistan was just 3.44 %. In 1961, it was reduced to 2.83 %, in 1972, the population of Non-Muslims was 3.25 % and in 1981, it was 3.30%. Thus the statement made by the Central Government is faulty.
     
  6. Global response:

    Because of the implementation of the CAA, India has been losing the trusted allies from global politics. Senior Diplomat and former national security advisor Shiv Shankar Menon stated that the CAA and revocation of Article 370 of the Constitution had led to India being isolated from the International Community[6].

    The press release by the United States Commission on International Religious Freedom held that the Citizenship Amendment Act is fundamentally anti-Muslims and also it is directly against India's rich tradition of multiculturalism and secularism[7]. Recently, UN officials held that the adoption of the Citizenship Amendment Act has led to a rising number of criticizing and discrimination against the minority community[8].

    Some officials had compared the CAA with Nuremberg Laws of Nazi Germany. Adolf Hitler didn't want to murder the millions of Jews; he just wanted to drive all the Jews out of Germany. So, Germany introduced two draconian laws commonly known as the Nuremberg Laws. The two laws were brought in one, the first law is known as Love Jihad Law, the Nazis of Germany were used to call it as Law for the Protection of Germany Blood and German Honour.

    It barred Germans from marrying Jews and Jewish households from employing German females below the age of 45. The second law, the Reich Citizenship Law, states that those who are German blood were citizens of Germany and the Jews were only 'Subjects of the state' without citizenship rights. According to the Nazis of Germany, it is a reasonable classification. Many officials held that CAA is closely related to the Nuremberg Law.

    India had loosened the trust of global partners in the International Community. Since most of the media reports appeared in the leading newspaper of the world was blaming the Citizenship Amendment Act. French President Emmanuel Macron, German Chancellor Angela Merkel, the United Nations High Commissioner for Refugees and even King Harald V of Norway has criticized the Citizenship Amendment Act.

    Conclusion:
    The implementation of the CAA gave citizenship to the Non-Muslims illegal immigrants from Pakistan, Bangladesh and Afghanistan. If these three countries were selected according to the partition in 1947, then why has Afghanistan been chosen? It is not a part of Colonial India. While other neighbouring countries like Sri Lanka, Bhutan, Nepal and Myanmar were excluded from the CAA.

    Even though more than 1.34 lakh Tamilians have immigrated from Sri Lanka to India, Sri Lanka was excluded from the CAA. While exercising NRC in Assam, it excluded a large number of Indian Citizens from its ambit.

    Even though the persons who lived in India since from their birth can't able to prove their place of birth and the place of birth of one's parents, being an illegal immigrant from other countries, the immigrants won't have any documents to prove that they were from Pakistan, Bangladesh and Afghanistan but the government asked the immigrants to prove that they are Pakistani, Bangladeshi and Afghan.

    How can immigrants prove? Due to the implementation of the CAA, India had lost the trust of allies from global politics. Many officials from the UN and the leaders from the other countries have criticized the CAA. Moreover, the CAA violates Article 14 and 21 of the Indian Constitution, since it is available to the Non-Citizens also. Thus the CAA needs to be reexamined.

    End-Notes:
    1. Nehru Liaquat Pact 2.Negative Shades on the CAA 3.NRC
    2. Syed Akbar, Study shows Parsis immigrated to India from Iran, The Times of India, Jan 14, 2017, https://timesofindia.indiatimes.com/india/study-shows-parsis-immigrated-to-india-from-iran/articleshow/59148462.cms
    3. Nikhil Rampal, Maximum imimmigrants from Pakistan and Bangladesh entered India more than 30 years ago, India Today, Dec 14, 2019, https://www.indiatoday.in/diu/story/maximum-imimmigrants-pakistan-bangladesh-entered-india-more-30-years-ago-1628313-2019-12-14
    4. Akshaya Nath, The ignored plight of Sri Lankan refugees in Tamil Nadu, India Today, Jun 9, 2019, https://www.indiatoday.in/india/story/sri-lankan-refugees-tamil-nadu-plight-camps-war-13168-2016-06-09#:~:text=More%20than%201.34%20lakh%20Sri,camps%20in%20Tamil%20Nadu%20alone.
    5. Farahnaz Ispahani, Cleansing Pakistan of Minorities, Hudson Institute, (Jul 31, 2013), https://www.hudson.org/research/9781-cleansing-pakistan-of-minorities
    6. On CAA and Article 370, former NSA Shivshankar Menon warns India of International isolation, Scroll.in, (Jan 03, 2020, 07:52 pm), https://scroll.in/latest/948707/on-caa-and-article-370-former-nsa-shivshankar-menon-warns-india-of-international-isolation
    7. United States Commission on International Religious Freedom, India Chapter-2020 Annual Report, https://www.uscirf.gov/reports-briefs/annual-report-chapters-and-summaries/india-chapter-2020-annual-report
    8. UN experts thinks CAA has sparked more hate speech, discrimination against minorities, The Wire, (May 20, 2020), https://thewire.in/communalism/un-expert-adama-dieng-caa-hate-speech
       
    Written By:
    1. Palani Selvi M, B.Sc.,
      Phone no: 9952204386, E-mail: [email protected]
    2. Barathkumar K M, II year B.B.A., LL.B.(Hons.) - Sastra Deemed to be University
      Phone no: 9952657851, E-mail: [email protected]

      Awarded certificate of Excellence
      Authentication No: JL30519753267-19-720

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