Citizenship Ammendment Act shall be under judicial review by the Hon'ble Supreme Court of India shortly as there are more than 144 petitions that have that been filed for ‘test of constitutionality.’
Prima facie, it has nothing to do with any Indian citizen but it's all about the persecuted foreigners from our bordering countries of Pakistan (now divided into two of balance Pakistan and Bangladesh) and Afganistan.
The premise of most of the petitions filed against the law alleges that it's discriminatory & doesn't include Muslims under it’s purview and therefore violative of Article 14 of the Constitution of India, where discrimination in the name of religion is not permitted.
Article 14 of the Constitution which ensures equality is applicable for Citizens only.
Article 14 in The Constitution Of India 1949 talks about ‘Equality before law’ - "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth"
Now Article 14 is well settled with its principles by the Supreme Court of India through various landmark judgments that exist where verdict has been delivered to interpret this particular article.
Here, 'Equals need to be treated equally but unequals can't be treated same as that of equals.' is the doctrine followed.
The details of the same is enumerated in a scholarly legal article below: Ref no (4)
One doctrine has been developed by the Supreme Court in the course of its various judgments in the last 70 years is that there is something called "reasonable classification adduced under intelligible differentia." on which equals will be compared with the equals & unequals will be differentiated upon. Under this same philosophy the reservations for SC, STs are provided.
Under this reasonable classification Haj Subsidy, Minority grants for Muslims for education & welfare activities are provided on the basis of religion. Hindus don't object because they mostly understand & can't be misled.
While Article 14 forbids class legislation, it does not forbid reasonable classification of persons, objects, and transactions by the legislature for the purpose of achieving specific ends.
Firstly, the classification must be founded on the intelligible differentia which distinguishes persons or thing that are grouped together from others left out of the group.
Secondly, the differentia must have a rational relation to the object sought to be achieved by the act.
The issue may be simplified better with examples & circumstances of the litigation.
Now this problem of illegal migrants have arisen due to the partition of India; where only for Muslims; a country named Pakistan was formed to house Muslims separately as per the demand of Muslim league led by Mohammed Ali Jinnah in 1947.
Now Muslims after forming a separate exclusive country for themselves couldn't produce enough prosperity in their own country but had to run to India to find one. That’s another irony.
Pakistan later got divided into two, as balance of Pakistan & new nation of Banglaesh was formed in 1971.
Now people from Bangladesh, Pakistan & Afganistan started to arrive in India primarily due to religious persecution of non Muslim minorities in these 3 countries.
So in reasonable classification the oppressor becomes majority Muslims of the 3 countries, where Islam is the state religion & none of them are secular countries.
So Muslims forms one class as Majority oppressors - Class1 also a beneficiary to have been provided exclusive land as Pakistan
The second class is minorities like Hindu, Sikh, Jain, Buddhist, Parsi & Christians as well, who had to flee these countries due to religious persecution.
Therefore, those above named minorities form another class as oppressed minorities- Class2 also this class had sacrificed land for Muslims by giving away Pakistan but a secular country for themselves where everyone can stay, so more universal & adaptive.
There are eminent person examples available on request in the comments section from all minority communities who are in India & staying as persecuted refugees.
Muslims also came to India in large numbers from our bordering states but not due to any persecution but looking for economic prosperity. Many had come legally but mostly illegally as migrants as alleged.
Therefore, here the object is different, one is for survival, freedom & honour in case of minorities of different religions like Hindu, Sikh, Parsi, Jain, Buddhist & Christians and for the other is only for economic survival ie for Muslims.
Criteria being bordering state, religious persecution & victim of Islamic Majoritarianism for the time being and as & when situation demands other criteria may be added for consideration in the future amendments.
Therefore, class 1 & 2 differentia appears intelligible, identifiable, reasonable & rational; besides the pain, sufferings & loss of all belongings including property that have been snatched from the minorities only because they didn't share the Islamic faith with the majority Islamic community in these countries of Pakistan, Bangladesh and Afganistan.
The greatest evidence is most of the minorities have left their immovable properties in those Islamic countries & have not received any consideration amount or simply couldn't even sell their houses before embarking to India. Post 1971 the refugees are mostly from SC, ST & Dalit communities.
'Honour' word needs to be deliberated further to determine the gravity of the situation as these non Muslim minorities fled the Islamic countries to avoid abduction of their teenage daughters, which was the majority of the reported incidents.
This CAA is therefore a one time legislation; only two basic difference it makes to the original Citizenship Act 1955, is that it brings the cut off date to 31st December 2014 & it reduces otherwise naturalisation time limit of 11 years to 6 years. Both being policy decisions of the Gov't; it can't be challenged in the court.
Citizenship for Muslims still remains open as per the original Act & is not barred by this latest provision.
Majority oppressing minorities in any country is a human rights violations as per the United Nations declaration on human rights & UN minority protection protocols & declarations.
However, minorities are only those who should be in non dominant positions wrt to majority & should be different to majority in language, religion, ethnicity in accordance with international laws.
Therefore, this Citizenship Ammendment Act of 2019 addresses an important human rights issue to serve a very pertinent humanitarian cause of religious persecution of minorities by a majority community.
This bill is under discussion since 2003 under the Chairmanship of the then Home Minister Pranab Mukherjee; further in 2016 the Parliamentary standing committee came out with report on this bill is pasted in the reference below.(2) The notable members of the committee were Mohammed Salim of CPIM, Derek O Brian of TMC, Javed Ali Khan of SP etc, etc.,
All parties including opposition parties to BJP had agreed to this bill earlier to presentation in the parliaments. In fact this bill was passed once in 2016 by Lok Sabha, because BJP didn’t had majority in Rajya Sabha; it didn’t sail through then.
While adjucating legislative action, the judges pay attention in great detail to the intention of the legislature & circumstances of bringing about the legislation and related evidence.
Muslims demanded a separate country of Pakistan for themselves & then not treated the minorities well in their respective countries in accordance with United Nations declaration of human rights & Nehru Liaqat Ali pact of 1950s, because of which a grave situation arises leading to first Assam Foreigners Agitation from 1979 to 1985 where around 1000 plus Assamese people laid their lives; at the same time the majority of oppressors who are Muslims can't ask Indian citizenship, as there remains no humanitarian ground, after having persecuted mainly Hindus & Sikhs.
Oppressed, marginalised victims deserve empathy & not the offender who deserves punishment instead.
The greatest evidence is the drastic reduction of the population of minorities of Hindu, Sikh, Jain Buddhist, Christian, Parsis in those 3 Islamic countries of Pakistan, Bangladesh and Afganistan as shown in the picture above.
Considering the above circumstances & prior agreement by all political parties concerned to the bill, this Act looks quite certain to pass constitutionality.
Therefore, it's quite unlikely that the Hon'ble Supreme Court of India will hold this law as the ultra vires to the Constitution of India & most likely to upheld it.
For more on the background, history, legal opinions of luminaries in the legal field, please Read More:
Reference & Footnotes:
Will the Citizenship Bill stand a constitutional challenge it has a video from Adv Harish Salve & Dr Subramanian Swamy
http://prsindia.org/sites/default/files/bill_files/Joint%20committee%20report%20on%20citizenship%20%28A%29%20bill.pdf Parliamentary standing committee report of 2016
Article 14 in The Constitution Of India 1949
Reasonable Classification under article 14 a scholarly article on reasonable classification in conjunction with intelligible differentia
PS: People in the streets have resorted to violence, arson, destruction of properties & human life, this has damaged the prospect of further consideration & sympathy owed due to 'law being taken into own hands' which is illegal.
The premise of any litigation is the petitioner has to 'come to court with clean hands' : the recent riots have damaged this legal eligibility of the plea makers.
Therefore, Supreme Court has refused to stay the act & advised petitioners to approach High court first, these initial rebuttal by Court have also received initial setback for the petitioners.
Best of luck for both the parties.
#JaiHind
https://www.quora.com/How-likely-is-the-Supreme-Court-of-India-to-strike-down-the-Citizenship-Amendment-Act-2019/answer/%E0%A6%B6%E0%A6%BE%E0%A6%A8%E0%A7%8D%E0%A6%A4%E0%A6%A8%E0%A7%81-%E0%A6%9A%E0%A6%95%E0%A7%8D%E0%A6%B0%E0%A6%AC%E0%A6%B0%E0%A7%8D%E0%A6%A4%E0%A7%80-Shantanu-Chakravarty?ch=10&share=2d6bfadb&srid=HbWH
