Day 62 – Q 1.Do you think the Citizenship Amendment Act violates the the basic structure of secularism? Critically examine.

1. Do you think the Citizenship Amendment Act violates the the basic structure of secularism? Critically examine.  

क्या आपको लगता है कि नागरिकता संशोधन अधिनियम धर्मनिरपेक्षता की बुनियादी संरचना का उल्लंघन करता है? समालोचनात्मक जांच करें।

Introduction:

The Indian parliament has passed the Citizenship Amendment Act amid claims that it is violative of the secularism principle of Indian constitution. This Act amends the 1955 Citizenship Act and seeks to amend the definition of illegal immigrant for Hindu, Sikh, Parsi, Buddhist and Christian immigrants from Pakistan, Afghanistan and Bangladesh, who have lived in India without documentation. They will be granted fast track Indian citizenship in six years instead of standard 11 years. 

Body

• Citizenship in India is currently covered under two legislations: Part II of the Constitution of India, 1950 and the Citizenship Act, 1955. However, neither of these legislations have defined citizenship clearly and only provide the prerequisites for a “natural” person to acquire Indian citizenship.
• Citizenship is a complex term, enshrined within which are the ideas of nationality, assumed as ethnicity; and domicile is understood as permanent residence. In India, however, the courts are inclined towards pegging citizenship as an extended arm of domiciliation. The Supreme Court of India, in Star Trading Corporation v Commercial Tax Officer (1963), has stated, in no uncertain terms, that nationality and citizenship are not interchangeable terms.
• The theory of “basic structure” states that the Constitution contains certain characteristics that cannot be taken away by any legislation; for example, judicial review, free and fair elections, welfare state. These form the cornerstone of the governance of a country. Therefore, any legislation that fails the test of “basic structure” is unconstitutional. Secularism is a basic structure, as has been reiterated by the Supreme Court in S R Bommai v Union of India (1994). It has also been incorporated in the Preamble to the Constitution, which serves as the guiding light to interpreting the Constitution.
• As understood in the Indian context, secularism means “sarva dharma samabhav.” This means that all religions are equal in the eyes of law and that the State shall not propagate or endorse one particular religion. This philosophy is also enshrined in the Preamble and in Articles 26 to 29 of the Constitution.
• The preamble begins with the values of sovereignty, socialism, democracy and republicanism that are the very foundations of India. Subsequently it secures for its citizens’ social economic and political justice, ‘liberty of thought, expression, belief, faith and worship’ and ‘equality of status and of opportunity’
• The opponents of the new law argue that it breaches the Fundamental Right to Equality stated by Article 14, because it violates the principle of “equality before the law” and the “equal protection of laws” assured to all individuals, including non-citizens. Naturalisation and citizenship in the name of the religion, they say, is total discrimination and against the basic structure of the humanitarian and secular Constitution of India.
• The decision to grant citizenship based on religion goes against the letter and spirit of the Constitution. In northeastern states, which share a history of ethnic cleansing of minorities, the act is having damning repercussions. The new citizenship act will deepen the old fault lines in Assam, both religious and linguistic.
• Finally, the CAA denies the value of community as it violates fraternal bonds between communities: a public good recognised by Ambedkar and the Supreme Court in decisions on secularism.

But at the same time, proponents of CAA consider it as not violative of the secularism doctrine under the following grounds: 

• There has been much ado about the amendment to the Citizenship Act. It has been attacked as unconstitutional. At first blush the law may appear to be discriminatory and unconstitutional, but such a charge does not stand closer scrutiny. The amendment essentially seeks to facilitate religious minorities in the named countries that have a state religion acquire Indian citizenship.
• Ever since the failure of the Liaquat-Nehru pact of 1950, various leaders, cutting across the ideological spectrum, have demanded the grant of citizenship to religious minorities from Pakistan and Bangladesh, who mostly belong to the Dalit castes.
• CAA did not “change the criteria of citizenship in any way; merely providing a special expedited redress, under special circumstances, for minorities fleeing religious persecution from three specific countries i.e. Pakistan, Bangladesh and Afghanistan
• It does not in any way prevent Ahmadis, Hazaras, Baloch or any other denominations and ethnicity, from these same three countries, seeking citizenship through regular processes
• The seemingly contradictory demands of legislative specialisation and constitutional generality have been resolved by the doctrine of reasonable classification. It is one that includes all persons who are similarly situated with respect to the purpose of the law. In the present case there is a reasonable, valid classification of persons of religious minorities in the three-named theocratic states who came to India before a cut-off date.

Conclusion

There is more rhetoric than legal reasoning in the contention that the law is against secularism and infringes the Constitution’s basic structure. As Legislature is an inclusive body, and is representative of the will of the people, it should have no biases and try its utmost to provide justice and liberty to all. Further, although the legislature consists of political parties, there should be no politics in the passing of legislations that bypass the democratic ideals of India.