The Supreme Court is largely responsible for the chaos around the CAA and the NRC

On January 22, the Supreme Court will hear 60-plus petitions challenging the constitutionality of the Citizenship (Amendment) Act (CAA). As a matter of fact, it is the apex court that is largely responsible for the current mess. Its Sarbananda Sonowal judgment (2005), which struck down the Assam-specific Illegal Migrants (Determination by Tribunal) Act (IMDT), was the turning point of the debate on ‘illegal migrants’. Some observations made in the ruling bordered on the xenophobic and were filled with paranoia about ‘outsiders’. Now, some of these ‘outsiders’ will become beneficiaries if the court does not rule against the CAA.

In the Sonowal judgment (2005), the Supreme Court struck down the Assam-specific Act that had put the burden of proof on the state rather than on the person alleged to be a foreigner. Without providing any evidence, the court went on to say that “unabated influx of illegal migrants from Bangladesh into Assam [had] led to a perceptible change in the demographic pattern of the State and reduced the Assamese people to a minority in their own State.” The National Register of Citizens (NRC), monitored by the Supreme Court itself, has proved these fears to be exaggerated. Even if all the 19 lakh excluded people are considered ‘illegal migrants’, their composition as a proportion of Assam’s population is just 4%.

CAA is territory-specific

The CAA, just like the IMDT that was deemed unconstitutional by the Supreme Court, is territory-specific and exempts certain Northeastern States from its scope. The IMDT had created a separate regime for the determination of citizenship for Assam while a different regime would operate for the rest of India. The court in the Sonowal verdict had said that such geographical differentiation is admissible only if it has a rational nexus with the Act’s objective. The court also ruled that the IMDT’s objective, to reduce illegal immigration, was not served by enacting such a criterion for Assam alone, and hence the Act violated Article 14. It can be argued that in the case of the CAA also, the geographic differentiation — exclusion of Inner Line Permit States/areas from its ambit — has no nexus with the overall objective of the Act, i.e., helping persecuted people. This makes the Act fall short of the criterion laid down in the Sonowal case.

The court had then said that the territory-agnostic Foreigners Act was far more effective than the IMDT in the identification and exclusion of foreigners who had entered India illegally and had no authority to remain. It needs to be stated here that the Foreigners Act deals with ‘foreigners’, not with those whose names may have been excluded due to lack of documentation, for instance in the Assam NRC. Many of them could indeed be ‘citizens’. We must create separate citizenship tribunals under the Citizenship Act to examine such cases, placing the burden of proof on the state to justify their exclusion. A denial of citizenship, which is a ‘right to rights’, must be through a process that fair, reasonable, just and non-arbitrary. Foreigners’ tribunals are nothing but kangaroo courts.

It also becomes pertinent here to examine different types of awarding citizenship and the history of India’s Citizenship legislation. Citizenship by birth, or jus soli, embraces all those who identify with a country. In contrast, jus sanguinis, citizenship based solely on descent, recognises that some races or ethnicities as ‘national’ and others are ‘outsiders’.

In postcolonial nations, such citizenship laws have provided grounds to render whole populations without rights and produced a constant stream of refugees into neighbouring countries. Myanmar’s 1982 Citizenship Act was one such example that classified only some ethnicities as ‘national’, effectively outlawing the Rohingya people. While jus sanguinis is premised on a country harking back to an arbitrarily-determined past, jus soli looks at the future, enabling a country create a pluralistic and inclusive society.

Citizenship by birth and descent

While discussing citizenship in the Constituent Assembly (CA), the drafters were very conscious of how they wanted to build the India of their dreams. Sardar Vallabhbhai Patel, now an icon for the Narendra Modi regime, rejected citizenship based on racial principle. His enlightened views, and those of the other CA members, were reflected in the Citizenship Act of 1955 which provided for citizenship by birth. This changed in 1987 when, for the first time, India made jus sanguinis applicable after the then-Prime Minister Rajiv Gandhi buckled under pressure from Assamese nationalists and signed the Assam Accord.

The Accord created a framework-graded citizenship, depending on a person’s parentage and when he/she had migrated to India. The constitutionality of Section 6A of the Act, which reflects the provisions of the Accord, is still pending before a five-judge bench of the Supreme Court. Ideally, the court should have disposed off this petition before insisting on an Assam NRC.

The Assam Accord and the Sonowal verdict laid the grounds for the Supreme Court-directed NRC. Now, when the CAA has made the inclusion of NRC-excluded migrants belonging to certain communities possible, Assam Chief Minister Sarbananda Sonowal, who was the petitioner in the 2005 case, has himself expressed doubts about the final list. He has also assured the Assamese people that their culture and language will be preserved. None of the 19 lakh excluded people have been issued orders that would enable them to appeal to a Foreigners’ Tribunal. Interestingly, the apex court had said nothing about the process after its conclusion.

There is little doubt that the Assam Accord implicitly targeted Bengalis in general and Muslims in particular. The CAA has made this discrimination more explicit by offering citizenship to persecuted minorities from certain communities who came from Afghanistan, Pakistan and Bangladesh before a specified date. It is obvious that the Act intends to exclude Muslims, including those of persecuted religious denominations from these nations. To make a related point, the CAA could possibly also enable people to convert to one of the listed faiths and seek citizenship. They could well say that they adopted Muslim names due to a well-founded fear of persecution in these countries.

The CAA, in essence, not only violates the constitutional values of secularism and freedom of religion, but also negates the principle of equal protection and non-discrimination.

Finally, if the purpose of the CAA is to preserve the spirit of Vasudhaiva Kutumbakam (‘The world is one family’), why does the government not enact a comprehensive refugee law that would provide for a fair and objective procedure to determine ‘persecution’ and allow eligible refugees to seek asylum? By conflating asylum with citizenship, the CAA sadly prioritises politics over persecuted people.

Faizan Mustafa is a constitutional law expert; Aymen Mohammed is a research scholar at NALSAR University, Hyderabad