I wonder if the government really understands why the Citizenship Amendment Act (CAA) has provoked so much anger? It’s because how a country defines its citizens also defines the sort of country it is. Citizenship is the right to have rights. Everything flows from it.
Now the constitutionality of CAA will turn on two key questions. First, does it breach the spirit of our Constitution as expressed in the preamble’s commitment to secularism? The answer depends on the Supreme Court’s understanding of that spirit. Different judges could come to different conclusions.
The second question is does CAA conflict with Article 14 which promises “any person equality before the law or the equal protection of the laws”? That depends on whether the beneficiaries of the Act have been identified on the basis of a reasonable classification. This can be easily checked. The Statement of Objects and Reasons (SOR) contains what the government believes is a reasonable classification. “The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries.” There are two clear parts to this classification and both have to stand-up to a fact test.
First, are Pakistan, Afghanistan and Bangladesh the only neighbouring countries with a specific state religion? The answer is no. Bhutan is also a neighbour with a state religion. The only way Pakistan, Afghanistan and Bangladesh could constitute a classification by themselves is if the SOR had named Islam as the state religion. But it does not. It simply talks of “a specific state religion”. That applies to Bhutan as much as the other three.
Second, are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians the only ‘communities’ facing persecution on religious grounds in these three countries? Remember the operative word is ‘communities’. The six are not described as religions and the word community covers many different collections of people.
Once again, the answer is no. In Pakistan, the Ahmadiyas, Bahais and Shias are regularly persecuted. In Afghanistan, the Shia Hazaras are too. Now, you could question whether they constitute separate religions but they certainly comprise communities. And they’re undoubtedly persecuted on religious grounds.
At this point a few additional facts could be illuminating. In Pakistan the Ahmadiyas were declared non-Muslim in 1974. This means, in Pakistani eyes, they constitute a religion of their own. Estimated at four million they are, therefore, the largest religious minority in the country. And because they’re deemed apostates, the discrimination they face is far worse than that inflicted on Hindus and Christians. According to the BBC’s Reality Check team “the majority of blasphemy cases up to 2018” have been filed against Ahmadiyas or other Muslims, not Christians and Hindus. Yet they’re not covered by the CAA.
Regarding Hindus in Pakistan, the BBC “challenges” the government’s claim that from 23 per cent in 1947 their total has fallen to 3.7 per cent. “Census data for 1998 shows that the Hindu population of Pakistan (which was formerly west Pakistan) has not really changed significantly from its 1951 level of around 1.5 to 2 per cent.” It’s the Hindu population of Bangladesh that’s altered very significantly from 23 per cent in 1951 to 8 per cent in 2011, though by 2017 it increased to 10.7 per cent. Yet, in both countries, Hindus have been chief justices, ministers and members of parliament. That’s not true of Ahmadiyas after 1974.
However, there’s one further problem with the classification in the SOR. It talks of “many persons belonging to” the six named communities. That clearly means not everyone. However, Clause 2 of the Act covers “any person belonging to” the six communities. So is it the case that everyone from these communities suffers religious persecution? Including their former chief justices and ministers?
I would suggest – though I’m not a lawyer – that the careless language of the classification in the Statement of Objects and Reasons and the mismatch between that and the Act could be grounds for declaring CAA unconstitutional.