CAA's Claim Of Protecting Persecuted Religious Minorities Flawed : IUML To Supreme Court

The claim that the Citizenship Amendment Act(CAA), 2019 offers protection to persecuted minorities from the neighbouring countries is baseless, argued the Indian Union Muslim League in its written submission filed before the Supreme Court seeking stay of the Act and the Citizenship Amendment Rule 2024.

It was contended in the written submission, filed ahead of the hearing scheduled on April 9, that the CAA selectively excluded certain neighbouring countries and certain communities from its purview. The petitioner pointed out that only Hindus, Christians, Parsis, Sikhs and Jains from Pakistan, Afghanistan and Bangladesh are eligible for the benefit under the CAA, that too if they have entered India before December 31, 2014.

The petitioner highlighted the following aspects :

i.Even while including Pakistan in the list of countries, it fails to extend protection to Ahmadiya community which is one of the most persecuted groups in Pakistan. It similarly excludes rationalists, atheists and agnostic persons who do not profess any religion.

ii. It excludes Myanmar, which was a part of British India till 1935 and where the International Court of Justice has arrived at a finding that genocide was perpetrated against Muslim Rohingyas refugees who are presently, due to persecution, living in India under abject conditions under threat of deportation.

iii. It excludes Sri Lanka, which is a neighbouring country where Tamil Hindus are under persecution.

iv. It excludes China which is a border country where Buddhists and Uighur Muslims are persecuted

v. It excludes Jews who have experienced discrimination over decades.

Against this backdrop, the petitioner questioned the claim that the CAA was meant to offer citizenship to minorities who fled the neighbouring countries fearing persecution.

"Thus, it is ex facie clear that the foundational claim that the CAA aims to extend citizenship benefits to persecuted minorities is fundamentally flawed, and that it fails to as it arbitrarily chooses between persecuted groups of different kinds. This is not merely an issue of under- inclusion per se. Rather, the exclusions demonstrate the lack of any rational nexus to the stated object of enacting a refugee policy. The exclusions are also patently grounded in discriminatory criteria which is constitutionally impermissible. Any refugee policy must be fair, reasonable, non-discriminatory and universal refugee policy that takes into account the needs of all those who seek refuge in India and does not discriminate on the basis of 'protected characteristics".

CAA and Rules do not require the applicants to declare that they fled due to religious persecution 

The petitioner argued that the stated purpose of enacting a refugee policy through the CAA, 2019 is "completely repudiated in the CAA, Rules 2024". There is no test stipulated under the CAA Rules, 2024 to prove or scrutinise if the applicant was compelled to enter India because they faced persecution or fear of persecution.

The Application Forms as per the Rules do not require the applicants to narrate the circumstances due to which they sought shelter in India. They are not obligated to make any such declaration.

Merely an eligibility certificate is required from a community-based leader attesting that the applicant is a member of the selected religious community.

"Thus, the Rules arbitrarily presuppose that any persons of Hindu, Sikh, Buddhist, Jain, Parsi or Christian community, who entered India from Afghanistan, Bangladesh or Pakistan were either facing persecution or feared persecution," argued the petitioner.

CAA allows dual citizenship

The petitioner further argued that the CAA and the Rules do not require the applicant to renounce the citizenship of their native country. "This creates a possibility for dual citizenship which is directly violative of the parent Act. This makes the rules both ultra vires and manifestly arbitrary," the petitioner stated.

The petitioner argued that the three tests of interim relief- prima facie case, balance of convenience and irreparable injury are in favour of staying the CAA and the Rules.

Prima Facie case.

Regarding the prima facie case, the petitioner argued :

"The CAA, 2019 suggests that citizenship may be granted to certain stipulated minorities based on religion after satisfying the conditions set forth in the rules. This is for the first time that the grant of citizenship in a secular nation is based on a ground that is a protected ground under anti-discrimination law, i.e., on the basis of religion. In contrast, the Constitution allows for conferment of status of a citizen based on registration, naturalisation, birth and descent, which are all secular grounds and not linked to the religion of the applicant. The issue to be decided is whether such a criterion is consistent with the basic features of the Constitution. Given that citizenship is the “right to have rights”, discriminatory criteria in the grant of citizenship raise especially serious constitutional issues"

Balance of convenience 

Regarding this, the petitioner pointed out that the Union waited for over 4 years to implement the law as the Rules were notified only in March 2024. This alone is a ground to stay the Act pending consideration of the constitutional challenge to it.

Irreparable Injury 

In this regard, the petitioner stated that citizenship once granted under these Rules cannot be revoked without rendering the person stateless. This would be in violation of international law and is a particular concern for children who may be granted citizenship under these CAA Rules, 2024. If the CAA 2019 and the CAA Rules 2024 are held to be unconstitutional, the revocation of citizenship to children and the consequent statelessness that follows would be in violation of the Convention of the Rights of the Child, 1991.

IUML is represented by Senior Advocate Kapil Sibal and Advocate Harees Beeran.

The hearing of the CAA matter is unlikely on April 9 as a 9-judge Bench led by the CJI is hearing a constitution bench matter on that day.

Although the matter is listed on April 9, since the CJI is hearing a 9-judge Constitution Bench matter on that day, it is unlikely that the CAA matter will be heard.