The notification of the rules providing mechanisms to implement the much-hyped Citizenship Amendment Act (CAA) on March 11 by the Union government after a delay of more than four years and ahead of Lok Sabha elections has reignited the debate over this controversial legislation.

The CAA aims to fast-track Indian citizenship for minorities fleeing religious persecution from Pakistan, Bangladesh, and Afghanistan who entered India before 31 December 2014. The CAA, a key promise in the BJP’s 2019 election manifesto, was passed by parliament on 9 December 2019 but could not be enforced until now due to nationwide massive protests that continued until March 2020, when they abruptly ended in the wake of the Covid19 pandemic related nationwide lockdown.

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Though the original Citizenship Act of 1955 has been previously amended five times in 1986, 1992, 2003, 2005, and 2015, these amendments never faced opposition of such scale and magnitude from across the country as the 2019 amendment. The CAA conundrum raises many questions of constitutional and political significance, like whether the CAA violates the principle of equality enshrined in Article 14 of the Constitution by failing the tests of reasonable classification and non-arbitrariness? Whether the CAA discriminates against Muslims? Whether the CAA violates the basic feature of secularism by granting citizenship on the ground of religion?

Is there anything serious in the CAA that Indian Muslims should be worried about? Whether the CAA will fuel anti-Muslim sentiments in the country and lead to ‘othering’ of Muslims further? The foremost argument against the CAA is that it is discriminatory and manifestly arbitrary and thus violates Article 14 of the Constitution, which guarantees all ‘persons’ (not only citizens) equality before the law and equal protection of the law because it expressly excludes Muslims on the basis of religion. Article 14 requires that all persons similarly circumstanced should be treated alike.

In R.K. Garg vs. Union of India (1981), the SC held that Article 14 prohibits Parliament from enacting laws that arbitrarily or irrationally differentiate between groups of persons. It is not that the state cannot make laws granting certain benefits to a specific group of persons or that a group of persons cannot be subjected to special laws, provided they meet the test of reasonable classification. In Ram Krishna Dalmia v. Justice Tendolkar (1958), the Supreme Court (SC) held that if such a law has to discriminate between groups of persons, it has to pass the twin test of ‘intelligible differentia’ i.e., objects within the class are clearly distinguishable from those that are outside, and ‘reasonable nexus’ i.e., that differentia must have a rational nexus to the object sought to be achieved by the Act, to survive the equality test of Article 14. It must be explained as to how the classifications were arrived at and why the differentiation and the unequal treatment were necessary. The doctrine of reasonable classification also incorporates an additional test of non-arbitrariness.

In E. P. Royappa v. State of Tamil Nadu (1974), the SC declared arbitrariness a sworn enemy of equality. Article 14 protects all persons within the territories of India against arbitrary laws as well as the arbitrary application of laws. The CAA arguably fails both the tests: the test of reasonable classification and the test of non-arbitrariness. There seems to be no rational explanation as to why persecuted people need to be classified further on the basis of their faith.

In the Statement of Objects and Reasons of the CAA, the government has offered explanations for selecting Bangladesh, Pakistan, and Afghanistan. It has been stated that since the constitutions of these countries specify Islam as a state religion, individuals from other religious communities face religious persecution. This reasoning is flawed as there are other neighbouring countries that have declared Buddhism a state religion or granted it constitutional status, and the cases of wide-scale persecution of religious minorities have also been reported there, but they have been excluded from the CAA.

There is no rational justification for excluding Muslim victims of religious persecution in other neighbouring nations, such as the Rohingyas in Myanmar, Tamil Hindus, Roman Catholic and Methodist Tamils in Sri Lanka, and undocumented Bangladeshi Muslims living in India, from the ambit of the CAA. It is manifestly clear that the selection of three countries and six communities has been so designed that it keeps only Muslims and Jews out of the CAA. The attempt to justify the exclusion of Muslims from the CAA on the ground that they have so many Islamic countries to go to is simply ludicrous because Christians and Buddhists have their own countries to go to, yet they have been included in the CAA.

Furthermore, if the stated objective of the CAA is to offer protection only to persecuted minorities from the countries that were part of undivided India, then there is no logic in including Afghanistan in it as it was never part of undivided British India, and excluding Myanmar, which was a part of undivided British India and was covered by the Government of India Act, 1935. There is also no satisfactory answer to the question as to why religiously persecuted people from only Muslim majority nations deserve our empathy and not the persecuted people from countries where Muslims are in minority, like Myanmar and Sri Lanka. There is also no justification for excluding from the CAA the other persecuted groups from the three selected countries.

It is a well-known fact that many Muslim groups, such as Shias and Ahmadiyyas in Pakistan, and Hazaras in Afghanistan, face persecution for simply practicing their version of Islam. Their exclusion on the presumption that Muslims cannot be persecuted in declared Islamic states defies the realities on the ground. There is also no answer to why the Jews of the selected countries have been left out of the CAA. What about religiously unaffiliated people, such as atheists, agnostics and religious sceptics, who also undisputedly suffer religious persecution in these countries?

Another important ground on which the constitutionality of the CAA has been questioned is its complete disregard for the principle of secularism by making religion a criterion for the grant of citizenship and thus discriminating on the basis of religion. The principle of secularism is so fundamental to our constitution that it was declared by the SC in Kesavananda Bharati v. State of Kerala (1973) and reiterated in S R Bommai v, Union of India (1994) as a basic structure of the Constitution that prevents the legislature from enacting any law that undermines or takes away the basic features of the constitution.

The problem is not that the CAA seeks to grant citizenship to illegal migrants belonging to six religious minority communities from three countries; but the problem is the exclusion of certain groups and certain countries from its ambit arbitrarily. One fails to understand that if the stated objective of the CAA is to provide citizenship to people fleeing persecution, then why does it exclude Muslim minorities from other neighbouring countries where they face persecution?

The cherry-picking of certain persecuted people and countries for the purpose of granting citizenship defies the constitutional principle of equality and undermines the basic feature of secularism. The CAA in its present form reinforces the prejudice against Muslims that it is only in Muslim countries that minorities are persecuted, and thus building the narrative of Muslims being persecutors. The CAA’s exclusion of Muslims exacerbates their on-going ‘othering’ and strengthens the anti-Muslim rhetoric that could be used to stoke antiMuslim hate, which is already on the rise

(The writer is a political commentator and professor at Aligarh Muslim University)