Recently the home minister Amit Shah has made it clear in West Bengal that the CAA will be implemented once the COVID19 vaccination drive is completed. Last year we saw a massive protest against the act followed by a riot in Delhi on a similar line to the farmers’ agitation this year CAA was introduced for giving expeditious citizenship to the persecuted religious minorities who fled Bangladesh, Pakistan, and Afghanistan.
People, who were protesting against the act, especially the left ecosystem came about with many theories against the CAA after the act was passed. The most common amongst them are:
- CAA is unconstitutional because Muslims aren’t given the benefit of the act like other religions.
- Nowhere the term ‘religious persecution’ is mentioned in the act.
- Many persecuted communities like Ahmadiyyas, Shias in Pakistan are not given the benefits of CAA even though they are persecuted.
What more hypocritical is, groups and political parties who supported the violent protest against the CAA wanted the same act in the past to be passed in the parliament, be it the INC (Indian National Congress) or the strongest left party in India, the CPIM (Communist Party of India, Marxist).
But it is really astounding when you get to know that the left itself wanted citizenship for non-Muslims (Bangladesh Minority community) only in the 20th Congress of CPIM in 2012 itself.
Apparently, they insisted upon conferring citizenship to the minorities of Bangladesh, i. e. the non-Muslims only on the basis of historical circumstances or partition of India. However, in 2019 when the Modi government fulfilled their demand of 2012, they came up with a dissent terming the act unconstitutional.
In the dissent note they mentioned about violation of preamble, violation of citizenship provisions (Art5-Art11) and violation of fundamental rights. But quite obviously they didn’t specifically mention the articles of the fundamental rights (Part III) and how all of the above-mentioned points actually violated the Constitution of India. Based on these assumptions an entire protest was staged for more than three months.
Does CAA violate the preamble of the Constitution?
In 1976 during the emergency the then Indira Gandhi government included three words to the preamble through 42nd amendment of the Constitution. They are SOCIALIST, SECULAR and INTEGRITY. When challenged in the Supreme Court, majority of the changes done through the 42nd amendment was struck down, but inclusion of these three words were termed constitutional by the judiciary.
The ‘Andolonjivis’ claimed that CAA violates the preamble because it discriminates against Muslims and India being a ‘secular’ country, it’s a violation of the Constitution.
In the case of Berubari Union and the famous Keshavananda Bharati case, it was specifically put down by the judiciary that the preamble isn’t justiciable or enforceable by the court and rightly so, otherwise every statute in our country might be challenged based on few words depicting the preamble of the Constitution.
Does CAA violate provisions of Citizenship (Article 5 – Article 11)?
In Art5 to Art10 citizenship and various provisions related to citizenship are defined. Art 11 gives exclusive power to the parliament to make any provision related to acquisition and termination of citizenship and all other matters relating to citizenship.
Quoting Article 11:
Nothing in the foregoing provisions of this Part (part II – Art5 to Art 11) shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
Hence, which portion of part II of the Constitution is actually getting violated, nobody knows.
Does CAA violate fundamental rights enshrined in our Constitution?
In the above dissent note the left tried to bring Art15 which bars discrimination based on caste, race, religion, sex etc., however didn’t mention the exact Article number, but why?
There is a catch, Art 15 is only applicable to citizens of India and not anyone who aren’t Indian citizens. CAA is applicable to only persecuted religious refugees and not citizens of India. Once citizenship is given then only Art15 will be applicable to them.
Quoting Article 15:
- (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction, or condition regarding—
(a) access to shops, public restaurants, hotels, and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
1[(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.]
2[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.]
When Art15 didn’t really work, many started challenging Art 14 which advocates “Equality before Law”.
Quoting Art 14:
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Although there are numerous judgements which allowed reasonable classification, but here I don’t want to elaborate what reasonable classification means, otherwise the article will get too lengthy. Instead, I will use one simple example and this claim will also fall flat.
In Art 15 there are three provisos attached in clause 3, 4 and 5 which allows government to make laws for women, children, weaker sections, and backward section in the society even though equality is paramount. But there is no such proviso attached in Art 14, therefore any law made by the government for the SC, ST, OBC, Women, Children will be in violation with Art 14 if we go by that logic.
Therefore, in no way CAA violates the Constitution, at least I did not find any article in the Constitution that gets violated by introduction of CAA.
Now coming to various other claims raised by the wokes of today. They said nowhere the term ‘religious persecution’ is mentioned in the act. Everybody knows statutes or acts are for provisions, and not for defining objectives, historical perspective, or reasons. For such requirements statement of objects and reasons for CAA is already there and it clearly mentions historical circumstances and religious persecution of non-Muslim in these three countries as a reason.
The next claim was why Ahamadiyas, Shias and other Muslim sects are not given the benefits of the act when they are also persecuted on a daily basis in Pakistan. No one can deny the fact that these sects within Islam are getting persecuted in Pakistan, but this Act is for giving justice to historical victims who did not want a partition themselves and became citizens of an Islamic Republic overnight due to historic blunder done in the past by our leaders.
Also, Islam being the state religion in these three countries, legally persecution of Muslims is not a religious persecution, it’s sectarian persecution within the Muslim community and it’s not the duty of our government to address flaws within Islam.
Therefore, hereinafter anyone tries to tell you that CAA is unconstitutional, give them a lesson on Constitution of India.