A legal breakdown of the BJP’s four controversial arguments in defence of CAA

In his paper ‘Making Sense of India's Citizenship Act 2019’, Hilal Ahmed analyses the legal frameworks behind BJP’s arguments for the CAA.

Illustration by Soham Sen | ThePrint

Four controversial issues associated with CAA have been seriously debated in Parliament and in public discussions. In order to understand the official positions and justification given by the [Narendra Modi] government on these issues, we examine the 2019 Report of the Joint Parliamentary Committee on the Citizenship Amendment Bill 2016 (JPC Report). This report introduces us to those technical-legal points, which contribute to the political arguments of the ruling party. 

The legal criterion for selecting the specific cases of Pakistan, Bangladesh and Afghanistan

The selection of three Muslim-majority countries to identify the persecuted non-Muslim minorities is the first critical question. The inclusion of Afghanistan in this list looks quite strange. Pakistan and Bangladesh were the outcome of the two partitions of the subcontinent in 1947 and 1971, which led to massive migration of population. These countries also share borders with India, which makes the question of illegal immigration politically relevant. However, the case of Afghanistan is different. It does not share borders with India and it did not have any direct political-historical continuity with the Indian republic. 

Although the Ministry of Home Affairs (MHA)did not spell out its legal criterion for selecting three specific cases, the official response revolved around the idea of religious persecution of religious minorities in these Muslim countries. This justification was also invoked to rationalize the inclusion of Afghanistan in this list. The JPC report clarified that ”a number of persons belonging to minority communities in Afghanistan have also come to India on account of religious persecution or fear of religious persecution. Hence, it was decided to include Afghanistan’ in the ambit. This religious persecution of non-Muslims was also seen in relation to the wider Indian interest in Afghanistan, as the report asserted that “there have been multiple attacks against Indian interests in Afghanistan by the Pakistan…sponsored LET, Haqqani Network and Taliban’, hence…minority communities are facing …atrocities due to their Indian origin”.

The MHA, however, underlined that it did not ignore the plight of minorities in other neighbouring countries such as Sri Lanka and Myanmar. The report emphasised that the government followed a Standard Operating Procedure (SOP) since 2011 for dealing with foreign nationals. The SPO, therefore, was a legal procedure available to all refugees in India, allowing them to reside in India as legal immigrant. These individuals may apply for Indian citizenship as per the rules spelt out in the Citizenship Act 1955.

In other words, there are six non-Muslim religious minorities (Hindus, Sikhs, Buddhists, Jains, Parsis or Christians) of three Muslim countries (Afghanistan, Bangladesh or Pakistan)who areseparated from the others migrants. However, these six minorities do not become Indian citizens only on the basis of religious persecution. The Legislative Department of the Ministry of Law notes that the CAA “does not directly confer citizenship on these persons (…) it merely provides (…) the opportunity to be considered for the grant of certificate of naturalisation”.

The CAA enables the illegal migrants belonging to six specified communities from Afghanistan, Pakistan and Bangladesh to apply for Indian Citizenship in two categories, Registration [Section 5 (1) (a)] and Naturalisation (Section 6). For this purpose, the Third Schedule of 1955 Act was also amended to reduce the residence requirement from eleven to five years. It simply means that the six non-Muslim minorities are given a particular kind of relaxation under the CAA. 

The idea of minority

The CAA 2019 does not use the term “minority”. Instead, it identifies six-non-Muslim communities. The naming of communities on religious basis actually goes against the established Constitution principles. The Constitution introduces terms such as minority, Schedule Caste (SC) and Scheduled Tribe (ST) as secular administrative categories. For instance, if a social group is culturally/religiously/linguistically distinct and numerically inferior, it might be recognised as a “minority”.

If a social group had experienced caste discrimination and/or untouchability in the past, it would be included in the ‘Scheduled Castes’ list. And, indigenous communities or tribes are to be officially recognised as ‘Scheduled Tribes’. Since minority, SCs, and STs (and later the Other Backward Classes, the OBCs) are conceived as open, secular, administrative templates, no social group, technically speaking, would become a permanent constituent of these official-secular classifications.

The JPC report also highlights this point. In fact, a constitutional expert criticised the CAA for not using the expression minority, arguing that:

If you want to be on the safer side, we would have to omit reference to religions like Hindus, Sikhs, Parsis etc. (…) if we use the term ‘persecuted minorities’ the purpose would be served. As compared to communities, minorities would perhaps be more useful from the legal and constitutional point of view.

The Legislative Department, however, did not subscribe to this view and justified the use of religious categories: 

Using persecuted minorities from the neighbouring countries instead of its current form may negate the objectives of the Bill. As there is a possibility for wider scope of interpretation, it may be construed to include other communities (religious or otherwise). Moreover, the aspect of ‘religious persecution’ would also be lost sight of.

It is obvious here that the official purpose of the CAA is to provide legitimacy to the idea of religious persecution. Interestingly, however, the term religious persecution is not included in the final text of the CAA, 2019. This strategic lapse requires some explanation. The process to enact the CAA, we must remember, began with an official notification issued in 2015. The six non-Muslim communities were given visa relaxation by amending the Visa rules. The term religious persecution was invoked in this notification as a legal plea in defense of the amendment.

The MHA and the Legislative Department forcefully argued that the CAA was based on the gazette notification of 2015, hence there was no need to use the term religious persecution in the text of CAA. The JPC accepted this rather vague explanation and did not ask a crucial follow-up question: if religious persecution could be used in an official administrative order as a legal plea, why couldn’t it be accommodated in the text of the bill presented for legislative scrutiny? 

Exclusion of Muslims 

The CAA excludes Muslims in two ways. It highlights the persecution of non-Muslims in neighbouring Muslim countries and, at the same time, does not include Muslims in the list of preferred migrants. This exclusion is seen as a violation of Article 14 (equality before law) and Article 25 (Freedom of religion). The JPC also raised this question. The Legislative Department, however, made two broad arguments in defence of the constitutional validity of the CAA. First, it said the law was justified on the basis of a legal doctrine called reasonable classification.

According to this doctrine, if there is a special law that is applicable only to a certain sections/groups, the court is entitled to ‘enquire whether the classification is founded on a reasonable basis…or is arbitrary’ (Emphasis added). The reasonableness of classification, in this sense, can only be questioned if a law violates the rights of other persons/communities, which are outside the scope of its legal ambit. The classification of migrants into persecuted minorities and others, by this logic, is called reasonable because it does not affect the rights of Muslim citizens in India. 

Second, the Legislative Department said the CAA was also justified on the basis of freedom of religion (Art 25). It argued that this law aims to protect the religious rights of persecuted minorities seeking Indian citizenship. At the same time, it does not have any impact on the right to worship and religion of other Indian citizens, including Muslims. This line of reasoning actually finds a clear political overtone in the speeches of BJP leaders. 

This legal defence of the CAA as a special law becomes unconvincing when it is read in relation to NCR and NPR. As already explained, NCR and NPR are inseparable constituents of the established legal framework of Indian citizenship. The classification of usual residents into citizens and doubtful persons gets a radically different interpretation after the enactment of the CAA. It is important to remember that unlike the NPR 2010 exercise, NPR 2020 aims to collect additional data such as Aadhaar card number and parents’ birthplace. It is mandatory for the usual residents to provide this information. However, if a resident fails to submit sufficient documents to the NPR officials, including the proof that his/her parents were/are Indian citizens, his/her citizenship may become doubtful. He/she would be listed in the ‘D’ category of the proposed NRC.

The government has not yet evolved any mechanism to deal with such cases. The CAA offers a clear cut answer to these ambiguities. It is easier for a doubtful Hindu, Jain, Sikh, Parsi, Buddhist and Christian person/resident to apply for Indian citizenship even if he/she does not have sufficient documents. He/she may justify his/her application by citing the term religious persecution. However, a doubtful Muslim would eventually be treated as a foreigner as he/she is excluded from the list.  

Although Prime Minister Modi categorically denied any relationship between CAA and the NRC-NPR, Home Minister Amit Shah explained the CAA-NRC-NPR chronology in his various speeches and interviews. He said:

first we will pass the Citizenship Amendment bill and ensure that all the refugees from the neighbouring nations get the Indian citizenship. After that, NRC will be made and we will detect and deport every infiltrator from our motherland.

In another interview, he clarified that the purpose of the CAA and NRC was to deal with the problem of infiltrators at the national level:

all the Hindu, Sikh, Buddhist, Christians, they will get citizenship (…) We want to walk up to them and give them citizenship. They wouldn’t be asked for any documents

Shah’s political explanation of the CAA-NRC-NPR actually goes against the legal-technical arguments presented by the MHA to JPC. In the backdrop of this apparent political clarification, the legal reasonableness invoked by the MHA to defend CAA (as a special law that deals with a special group of people—persecuted minority) becomes completely irrelevant.   

The relationship between the Assam Accord and the CAA

As pointed out earlier, the Assam Accord has been an important political phenomenon that redefines the contours of citizenship framework in India. The CAA, broadly speaking, goes against the spirit of the Assam Accord in two ways: it modifies the cut-off date from 1971 to 2014; and at the same time, makes a distinction between Muslim and non-Muslim migrants. These changes offer an opportunity to non-Muslim migrants of Bangladesh to apply for Indian citizenship even if they had entered the state of Assam after 1971. The JPC, it appears, dealt with this issue delicately and asked the government to respect the sentiments of the people of Assam and the North-east: 

The Committee feel that in view of the anxieties and concerns expressed by the civil society groups in Assam and other North-Eastern States, the State and Central Governments should formulate rules and regulations under this Clause (6A) to ensure that the identities of indigenous peoples are not threatened in any way by unintended consequences of the Citizenship Bill. 

The final version of the CAA, it seems, accommodated these suggestions. Section 3(4) of the new Law makes it clear that the changes introduced by the new amendment will not apply to ‘tribal area of Assam, Meghalaya, Mizoram or Tripura…and the area covered under The Inner Line’.

This edited excerpt has been published with the permission of The French Institute of International Relations. The full article can be read here.

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