CAA IS UNCONSTITUTIONAL

The law laid down by the Supreme Court Constitution Bench judgement in 1994 in S. R.
Bommai's case says that no law can be enacted by the Parliament or by a state legislature on the
basis of religion. According to me, the CAA, distinguishing between persons on the basis of
religion, as per Bommai, iis unconstitutional",

‘A reasonable analysis based on primary legal principles, on the

Constitution’s language and on the Court’s own past decisions, will
show us that the CAA … infracts fundamental rights, in particular
the guarantee of equal treatment contained in Article 14.’
[T]he law [the CAA] ... lays the foundations for a brutal assault on
secularism—a precept that the Court has repeatedly viewed as
forming a bastion of the Constitution’s basic structure.

To provide an accelerated path to citizenship to persons facing

persecution in their home country is a laudable objective. But the
CAA encroaches on this aim by creating a religious test for
citizenship and by making classifications that are wholly arbitrary and
whimsical.
 This it does by excluding from the definition of an “illegal migrant” any person belonging to
the Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan,
Bangladesh or Pakistan, who entered India on or before December 31, 2014. These persons
are then provided an augmented route to securing citizenship through naturalisation, with the
prevailing residency requirement reduced from a period of 11 to five years
Under our constitutional structure, any law, whether made by Parliament or a state
legislature, will be void if it takes away or abridges one or more of the fundamental rights that
the Constitution guarantees. Even a law made by Parliament as envisaged in Article 11 will
have to necessarily yield to these promises. Unlike, say, in Britain, Parliament in India, is not
sovereign. Its powers are not unqualified; they are limited by the Constitution’s text, in
particular by the fundamental rights that are enlisted in Part III.
A retired member of judiciary in an article in a leading daily has stated that CAA violates Article
14 on all three counts of reasonable classification, arbitrariness in state action and treating
people unequally without reason. CAA is not reasonable as it does not cover Muslim minorities
like Ahmadiyyas, Hazaras and Shias. It is arbitrary as it applies restrictively to only three Islamic
countries in our neighbourhood. The inequality in treatment stems from considering religion as
condition for entitlement of protection by the Indian government. If one delves a little deeper on
what has been said, it becomes clear that the learned judge is wrong on all three counts.
First and most important is the fact that Indian Constitution is applicable to Indian citizens and
by no stretch of imagination can it be applied to anyone who is not a citizen of the nation. Those
who are being offered or may seek Indian citizenship under CAA are not citizens of India as on
date. So how can Indian government be accused of treating these non-citizens in an arbitrary or
unequal manner? Further, Article 14 lays down clearly that all laws in the nation cannot be
general. In a diversified society like India there will be a need for laws that are applicable
selectively. To this end Article 14 does not forbid classification of people, objects or transactions
by legislature to meet specific ends.

"Sections 3 and 6 of the Act results in classifications based on religion and based on country,
both...

discriminating migrants from other countries such as Sri Lanka, Myanmar and Bhutan, which
are sharin... international borders with India and to which and from which there has been
trans-border migration...

Article 15 :- Prohibition of discrimination on grounds of religion,race,caste,sex or

birth place. It is true the CAA allowed only some religion minorities/communities and
exclude some communities groups/people from Acquiring citizenship and government
wants exclude illegal immigrants non-indian muslim(not indian muslim) who came
from Pakistan,Bangladesh & Afghanistan and stay beyond the tenure in india are not
eligible for getting citizenship.if they want to acquire indian citizenship so they should
fulfill the CAA conditions. Because of some rumors/political party crisis leaders send
wrong message in people and shows that violation of constitutional right(Article 15) and
this was main reasons of protests emerged in country.

Article 21 :- Protection of Life and Personal liberty. this article gives right on all types
of personal liberty such as Internet, Telephone,postal service,travel, and many others. For
Maintain peace and state displine government officials can suspend some
services(internet,telephone etc.) temporary. i can’t say that Article 21 violated because of
CAA.

One of us (Justice Katju) remembers once when he was sitting on a

Supreme Court bench, a case came regarding illegal squatters in jhuggi
jhopdis in Mumbai. The senior judge on the bench shouted that these illegal
squatters have no legal right to remain where they were living, and must be
thrown out, to which Justice Katju coolly retorted, “But brother, where are
they to go? Should they be dumped into the Arabian Sea? It is not just a
legal problem, it has also a humanitarian aspect.”

It may be noted that under the Indian constitution while certain rights, like
those mentioned in Article 19, are available only to citizens, others like the
right to equality mentioned in Article 14 and the right to life and liberty
mentioned in Article 21 (which has been interpreted by the Supreme Court
to mean the right to live with dignity) are available to all persons. A non-
citizen is certainly a person, and hence is also entitled to those rights.
In National Human Rights Commission vs State of Arunachal Pradesh,
1996, the question was about Chakma refugees, who were undocumented
immigrants from Bangladesh. The court observed that the fundamental
right to life and liberty guaranteed by Article 21 of the constitution is also
available to Chakmas, though they were not Indian citizens.

Specific provisions of the constitution flesh out these special obligations

towards citizens. For example, the liberties under Article 19 are only for
citizens. Articles 15 and 16 secure equality relevant for socio-economic and
political justice to its citizens. Through these articles, the constitution
recognises special obligations arising between states and citizens just as
they arise between spouses or workers or players in a team.

In contrast, articles 14, 17, 21-25, 27 and 32 recognise universal rights of

all persons. They are about equality before the law, untouchability, life and
liberty, preventive detention, self-incrimination, education, child labour
and the right to constitutional remedies. They logically flow from the
preamble’s statement to promote amongst its citizens ‘fraternity assuring
the dignity of the individual and unity and integrity of the nation’. Each one
of these terms is pregnant with moral and political value and deserve
careful attention and not mere rhetorical flourish.

CAA humiliates even legal migrants who must wait seven years at least for
citizenship by telling them that they are less worthy than the chosen illegal
migrants who could get citizenship in five years just on the fact that they
belong to specific religions and countries. Even the dignity of the included
religions from the excluded neighbouring countries like Sri Lanka, China
and Myanmar are violated on the same grounds of being discriminated
based on immutable characteristics related to their intrinsic worth.

he argument made by the Union government is that this is a ‘reasonable

classification’ permissible under the Constitution. Although the Constitution
does not use these words,the test goes back to the State of West Bengal vs
Anwar Ali Sarkar (1952), i... tate of West Bengal vs Anwar Ali Sarkar (1952), in
which the Supreme Court was interpreting the scope of Article 14, which
guarantees equality before the law.

However, this argument of the government goes against the grain of

constitutional law developed by the Supreme Court since the 1950s and
fundamentally misunderstands what the court said in Anwar Ali Sarkar. What
the court actually said was (in the wo... in the words of Justice SR Das): “Article
14 does not insist that every piece of legislation must have universal application
and it does not take away from the State the power to classify persons for the
purposes of legislation, but the classificatio... fication must be rational, and in
order to satisfy this test  (i) the classification must be founded on an intelligible
differentia which distinguished those that are grouped together from others,
and (ii) that differentia must have a rational relation to the object sought to be
achieved by the Act.

The principle is not that any classification will fly — there must be valid bases for
such classification and such differences must meet the purposes of the
legislationOn both these grounds, the amendment fails — not only does it select
certain illegal migrants on the basis of religion, but it also does so for reasons
that have no basis in the law itself. Either a person is persecuted on the basis of
religion or th... Alok Prasanna Kumar, DEC 15 2019, 00:11 ISTUPDATED: DEC 17
2019, 17:50 IST The argument made by the Union government is that this is a
‘reasonable classification’ permissible under the Constitution. Although the
Constitution does not use these words...