Why CAA and NRC should be rejected: Two Kerala lawyers speak up

Lawyers Resmitha R Chandran and Manu Sebastian talk about the controversial act and the recent SC verdicts that lacked clarity.

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When Manu Sebastian’s calm and clear explanation on the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC) of India ended, Resmitha R Chandran’s thundering voice criticised the lack of clarity in the recent Supreme Court judgements.

Both of them are lawyers - Manu is a part of the widely-cited legal website Live Law, and Resmitha works at the Supreme Court. They spoke at the Thiruvananthapuram Press Club on Sunday, on the invitation of HUMANS, a voluntary group of people for humanity, freedom, secularism, tolerance, inclusiveness and nature.

Manu spoke on the topic ‘Why should India reject CAA and NRC?’ in the simplest of terms, beginning from the partition in 1947 when Pakistan was formed as an Islamic Republic and there was a question if India should be declared a Hindu Republic. “The idea was rejected right away by the leadership of Jawaharlal Nehru and Ambedkar. It was decided that religion should have no connection to citizenship. We chose to be a secular republic,” Manu reminded the audience.

There are 4 ways to become a citizen, he said: Citizenship by birth, discent, registration and naturalistion. The details are here.

Background

Never before has religion mattered for citizenship. You need to be a resident yes, born in India or born to Indian-origin parents. It is this basic structure that the CAA breaks, Manu said.

“The Citizenship Act was passed in 1955. Religion had not been a factor then. Till 1987, you could claim citizenship by birth. But in 1987, the Act was amended to say that one of the parents should be an Indian citizen. In 2003, there came another amendment that added that the other parent should not be an illegal migrant. Even then, there was criticism in the Parliament. The rules (for the 2003 amendment) were framed by the then NDA government, forming the basics for the NRC.”

The question then raised was who is an illegal immigrant. Anyone who has come to India from a foreign country without proper documents, or anyone overstaying the permitted time. “What the CAA does is to consider such persons who have come from the countries of Pakistan, Afghanistan and Bangladesh as legal, if they are non-Muslims and if they came before December 31, 2014,” Manu clarified.

Religion becomes criteria for citizenship

Manu spoke about citizenship by naturalisation when earlier, a person who has stayed in India continually for nearly 11 years could apply for citizenship. “This period has now been reduced to five years (the December 2014 deadline). You’d think what is wrong in that. On the face of it, it seems just that those who have faced religious persecution in these three countries are given protection. But then why did we choose just three countries? What about the Rohingya Muslims in Myanmar who are facing a genocide? What about the Sri Lankan Tamils who are attacked? What about the Ahmaddiyas in Pakistan who are discriminated against? The argument that came is, the countries chosen are those that India had once shared a history with. That’d be ok with Pakistan and Bangladesh. But how did Afghanistan figure in the list? So it’s obvious. Religion is the only criteria for choosing the countries and the people who can remain citizens of India,” he said.

Manu explained how the new act would not stand constitutionally since it is a blatant violation of Article 14, which states that everyone is equal before the law, citizens or not. “Equals will be treated equally by the law. There is a term called Intelligible Differentia used here, which accepts the differences between unequals (like social differences which justifies reservation). This has been misused by the supporters of CAA to distinguish between, say a Rohingya Muslim and a Hindu from Bangladesh. They are using religion as the difference here!”

CAA plus NRC is the real danger

While the Centre claims that the CAA and the NRC are not linked, many point to previous statements made by cabinet members including Home Minister Amit Shah, Manu added. “Home Minister Amit Shah has repeatedly said in the Parliament that the NRC that was applied in Assam would be implemented across the nation. The Assam Accord came in 1986, according to which people who entered the state after March 23, 1971 are illegal migrants and cannot be on the NRC. The process (of exclusion) was executed 30 years later after a Supreme Court order in 2015. It resulted in nearly 20 lakh people being excluded from the NRC. More than half of these were Hindu refugees from Bangladesh. That’s where the CAA comes into effect. The Hindus not included in the NRC can still become citizens using the CAA, but the Muslims cannot be.”

Lack of clarity of SC judgements

In the context of CAA and NRC, Resmitha touched on the recent SC verdicts that have lacked clarity. Be it Aadhaar or Ayodhya, none of the judgements had been clear enough.

In a sharp voice, Resmitha referred to the Constitution as the holy book that brings together humans. “It is for this holy book that the people of India are protesting on the street now. Young students are saying take our life, but don’t take our Constitution,” Resmitha said.

She spoke of Justice Loya, who died allegedly under unnatural conditions when he was presiding over the Sohrabuddin Sheikh case. Amit Shah was the prime accused in the case. “After the infamous Emergency by Indira Gandhi, a Supreme Court judge had confessed he was afraid. Perhaps now there are Supreme Court judges who confess privately that they are afraid.”

Ayodhya case

Resmitha mentioned the Ayodhya verdict paragraph by paragraph, the first few of which had misled those who heard it to believe the verdict to be in favour of those who dreamed of the reconstruction of Babri Masjid, a centuries-old mosque demolished by right wing forces in 1992. The right wing Hindutva parties claim there was a Hindu temple there centuries ago, for Ram Lalla (baby Ram).

“The Supreme Court said it will be treated as a property dispute and not be based on faith. They said it would be constitutional. But in the end, they said it was a matter of faith and asked the Central government to build a Ram temple. They told this to a secular state that is supposed to maintain equal distance from all religions,” the lawyer said.

She mentioned the Masjid Shahid Ganj case where the reverse ruling was applied. After Sikhs had taken over a mosque years ago and Muslims went to court, it was ruled that the ‘Statue of Limitations’ has passed since the Sikhs had possessed it for 170 years. Babri Masjid had been standing for more than 460 years when it was demolished.

Sabarimala case

Resmitha then went on to the Sabarimala verdict of September 2018, which allowed women of all ages to enter the Ayyappa temple in Sabarimala. “The AICC had called it a historic judgement that day. Janmabhoomi (newspaper affiliated to the BJP) welcomed the verdict. And then Kerala Chief Minister Pinarayi Vijayan too said that women can enter the temple, all arrangements shall be made. But the next day, the story changed. Pinarayi Vijayan became the man who was ‘aiding women’s entry against tradition’. There was a shower of abuses. For the first time, we came to know the caste of a Kerala Chief Minister. Review petitions got filed.”

The SC lawyer cited other cases that fought outdated rituals, such as the PIL against the Dawoodi Bohra community for practising female genital mutilation, the petitions to allow entry of Muslim women into mosques, and the petition for Parsi women’s property rights if they married outside the caste.

But in the case of the Sabarimala verdict on the review petitions, it was clear, Resmitha said. There was no stay. “Yet, when two women approached the Supreme Court over it (Bindhu Ammini and Rehana Fathima asked the SC to direct the state government to provide protection to women visiting Sabarimala), it was said there are some problems!”

Resmitha ridiculed the court ruling that asked that details of the Citizenship Amendment Bill be published (before the law was passed), insinuating that the people had no clue and they were confused.