CAA's Discriminatory Nature : Explaining With The Help Of A Supreme Court Case

After keeping the controversial Citizenship Amendment Act, 2019(CAA) on the backburner for over four years, the Union Government on March 11 notified the rules to implement the legislation, which purports to give citizenship to persecuted minorities in our neighbouring countries who fled to India. The interesting aspect is that neither the Act nor the Rules mention fleeing from "religious persecution" as a condition to apply for citizenship. In other words, undocumented migrants from Pakistan, Bangladesh and Afghanistan, who entered India before December 31, 2014, are entitled to apply under the CAA, irrespective of whether they were seeking asylum from religious persecution, provided they are non-Muslims.

A religion-based exclusion is writ large on the face of the CAA which makes it constitutionally suspect. Only non-Muslims from the Islamic nations of Pakistan, Bangladesh and Afghanistan are the beneficiaries of the law. The Rohingya refugees, who fled to India due to the raging genocide going against them in the neighbouring country Myanmar are excluded. Sri Lankan Tamil refugees who have taken asylum in India won't get the benefit of the CAA. 

Several articles have been written by Constitutional law experts explaining why the CAA is unconstitutional because of its arbitrary and discriminatory nature and for violating the fundamental principle of secularism by making religion a basis for citizenship. Over two hundred writ petitions are pending in the Supreme Court challenging the Constitutional validity of the Act.

The discriminatory nature of the CAA can be explained with the help of a case which happened in the Supreme Court in 2022. It was a habeas corpus petition (Ana Parveen and others v. Union of India and others) seeking the release of a 62-year-old man who has been then under detention in a Foreigner's Detention Camp since 2015. The man's name was Mohd Qamar, who was alleged to be a Pakistani national. His children, who filed the habeas corpus petition, stated that Qamar was born in India in 1959. Apparently, he had gone with his mother from India to Pakistan as a child of around 7-8 years old in 1967-1968 on a Visa visit to meet his relatives. However, his mother died there, and he remained in Pakistan in care of his relatives. The petitioners stated that around 1989-90, he returned to India and married one Shehnaaj Begum, an Indian citizen, in Meerut, Uttar Pradesh. In this wedlock, five children were born, including the petitioners, who have Indian citizenship.

In 2011, the police arrested him accusing him of being an illegal migrant and a case under the Foreigners Act, 1946 was charged against him. The trial court found him guilty of the offence under Section 14 of the Foreigners Act and sentenced him to three months imprisonment. In February 2015, he completed the sentence. The most curious part of the case commences here. Since he was an "illegal migrant", he was not allowed release despite the completion of the sentence. He was taken to a Foreigners Detention Centre. Since Pakistan did not accept him as their citizen, his detention continued without a definite term. Against this backdrop, his children filed a habeas corpus petition in 2022 seeking his release. By that time, he had served seven years in detention after his release from prison.

The Supreme Court was quick to discern the Kafkaesque absurdity of the situation. A man, who had a settled life in India for decades, is forced to spend his old age in the detention centre, even after serving the sentence imposed on him, due to technicalities of the citizenship law. How can a person be detained indefinitely, asked a bench headed by Justice DY Chandrachud(as he was then) urging the Centre to take a humanitarian view. The bench ultimately ordered his release, after ascertaining from the MHA that the man posed no security risk and asked the Centre to consider granting him a long-term visa.

Had the detenu in this case been a non-Muslim, then he would have got the benefit of the Citizenship Amendment Act 2019 from January 10, 2020 (the date when CAA came into force). Although the rules to implement the CAA were notified only on March 11 this year,  from January 10, 2020, the detenu(assuming him to be a non-Muslim) would cease to be an "illegal migrant". This is because of the proviso added to Section 2(1)(b) of the Citizenship Act by the CAA. According to this proviso, any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan who entered India before December 31, 2014, without valid documents will not be treated as an "illegal migrant". If he is not an illegal migrant, then he is not required to be kept in a foreigners detention centre.

Thus, solely based on the religion of the person, two drastically different results arise. Since the person was a Muslim, he was an illegal migrant. Had he been a non-Muslim, he would not have been an illegal migrant before the law. Thus, two different results (detention or freedom) flow to similarly situated persons solely based on their religious identity! There can't be a worse case of brazen religious discrimination. Apart from discrimination, arbitrariness is also manifest here. As Supreme Court in many cases, including the recent Electoral Bonds case, manifest arbitrariness is a ground to strike down a law as violative of Article 14 of the Constitution.

Recently, a Pakistani Hindu refugee approached the Delhi High Court against the proposed demolition of his home by the Delhi Development Authority. Citing the CAA, the petitioner in that case argued that he is entitled to legal protection in India. The Delhi High Court stayed the demolition of his home taking into account a previous statement made by the Union Government that it was taking steps to help Hindus who came to India from Pakistan.

On the other hand, towards the Rohingya refugees, the Government is taking a different approach, many of them are reportedly under detention and facing the threat of deportation.

Granting shelter to persecuted minorities from other countries is indeed a laudable step. However, when it is done selectively based on religion, it ceases to be constitutional and humanitarian and would end up being a tool to further a sectarian, divisive and majoritarian agenda.