Here is the basic things about the controversy going on in India, in the words of my brother: Advocate Vivek Dhaka.
CAA: Citizenship Amendment Act
If CAA is tested on the basis of Article 14 (of the Constitution of India), in my opinion, this Act is very much legal and constitutional. There are two tests under article 14. Most talked about is the reasonable classification test. So, let’s see the rational differentia and the nexus with the object.
Govt has selected 3 counties from the neighborhood. Civilizational responsibility was argued as a basis for this by someone but in my view it is a political argument rather than legal. Nor can be the basis that these countries were earlier part of India, because in that case why to exclude Burma?
However, it is a fact that these countries have a particular religion as the state religion. So, it makes a separate group of these 3 countries. Bhutan has also a state religion but it will be strange to include it within the group. The persecution which we see in these countries, killings, bombing, forceful conversion is certainly alien to Bhutan. Lanka has a state religion. But there is no need to include it in the present list as we know the Lankan govt is accepting it’s people back. 16000 refugees have successfully returned and others are in the process, supported with active financial aid from Indian state. Burma and Nepal are secular countries.
The object to be achieved is protection of the minorities and there is clear nexus without any doubts.
Now, it has been suggested by many that the object of the law would be achieved better if we included Shias, Ahmediyas (sectarian persecution)and even people persecuted on the basis of political belief. It is a settled principle of law that while reviewing a law on the touchstone of reasonable classification, the court can not examine the argument that another combination would have resulted in better outcomes in terms of achieving the object. It is not under the powers of the court. So technically, this argument is not acceptable. For example, many states have come out with quotas and other kinds of special provisions for the sportspersons. The object is to encourage talent or make the population healthy. Now, a singer or yoga student etc can not question it on the basis that the object would be better achieved if they are included. This is a very simplistic example just for understanding.
It has also been suggested that it is colorable exercise of power. In the name of minorities actually muslims are being targeted. If that is so, every action of the govt whether Article 370, Triple Talaq can be questioned. Christians have been included in CAA, and we all know how much they are loved by the govt. At the same time Hindus from other countries have been excluded. Further, these are policy matters. Even if one country was included, the court would have given the leverage to the govt on the basis of policy decision. The leverage is more when it comes to dealing with the foreign policy. So, legally speaking the Act seems constitutional.
But by repeatedly brandishing it as unconstitutional, protesters have done a blunder. If the Supreme Court upholds it’s constitutionality, anti CAA protesters will loose the perception battle on NRC too. Opposition leaders have already lost their credibility in the eyes of majority of people by criticising the govt everytime and anytime. Nobody took Mr. Jairam Ramesh seriously when he said ,”If you are going to demonise him all the time, you are not going to be able to confront him”. If we look at the atmosphere before the start of the CAB controversy, it was dominated by common people including BJP supporters complaining about low demand at their shops and unemployment. The Ram Mandir judgment could not give BJP the expected political mileage because everyone welcomed it and there was no controversy, hence no polarisation. But this time it has changed. The uninformed and violent protests have consolidated the Modi voters again. Better would have been to focus more on NRC along with the economic issues.
NRC: National Register of Citizens
Contrary to the claims, there is a clear link between NPR and NRC. The legal backing behind NPR is Article 11, Citizenship Act and the Rules which provide that NPR is to be used for the purpose of NRC. Nation wide NRX is certainly a bad idea. It will result in another note bandi, minus the electoral advantages. For poor people the best document is the electoral rolls and voter IDs. But nomadic tribes, transgender and people in remote villages will find it extremely difficult to produce it. The Foreigners Act puts the burden of proof on the person to prove his citizenship. Combined with the extra ordinary capabilities of our most honest local level bureaucracy, it is going to make life hell for the people. So my ‘unprincipled’ advice to all the people who don’t want Modi to come again is to safely bet on nation wide NRC. AND Modi followers should actually protest against it.
Copyright: Vivek Dhaka