Amidst protests about the controversial Citizenship Amendment Act, four more petitions have been filed before the Supreme Court on the premise that it privileges specified religious persecution – specified minorities from three specified nations-- which itself warrants for the Act being declared unconstitutional.
In four separate petitions filed by Rajya Sabha MP Manoj Jha, Supreme Court Advocate Prashant Padmanabhan, the Social Democratic Party of India and Umar M, the Secretary of Kerala-based organisation 'Solidarity Youth Movement' challenged the CAA on the ground that it privileges religious persecution of specific communities -- Hindus, Sikhs, Buddhists, Jains, Parsis and Christians -- in three specific theocratic countries – Pakistan, Afghanistan and Bangladesh rather than protecting all other minorities from other nations who are facing any other form of persecution.
Manoj Jha, the Rajya Sabha MP from Bihar has in his petition filed through advocate Fauzia Shakil petitioned the Apex Court that the CAA makes four classifications: (i) between Muslim migrant and non-Muslim migrant from Afghanistan, Bangladesh and Pakistan; (ii) between migrants from these three countries and those from other countries; (iii) between residents who migrated due to reasons of religious persecution and those who migrated due to other forms of persecution for e.g. racial persecution, ethnic persecution; and (iv) illegal migrants of 6 specified faiths from Afghanistan, Bangladesh and Pakistan who entered India before December 31, 2014 and those who entered India after December 31, 2014.
"Privileging religious persecution, over all forms of persecution of minorities is arbitrary and discriminatory… For example, Ahmadi and Shia Muslims fleeing religious persecution in Pakistan or Hazara (Shia) Muslims from Afghanistan, who are equally persecuted – some would argue more – from the scope of the scheme. As would Tibetans and Uigurs from China, suffering years of racial and religious persecution and those persecuted because they profess no religion.
"Privileging persecution in the three countries over that in other countries in the region is arbitrary and discriminatory. Rohingya Muslims facing extreme persecution in Myanmar, and of who, over 20,000 according to UNHRC, are in India, are not covered by this scheme that seeks to provide a safe haven, nor are Muslims in Sri Lanka increasingly feeling the heat of the rising Sinhala nationalism in the country. Hindu Lhotsampas in Bhutan – who have suffered one of the worst forms of persecution and disenfranchisement, with over a lakh rendered stateless in the 1990s, are also not covered. As are Tibetans and Uighur minorities from China," he submits.
The Social Democratic Party of India through Its National Vice President Sharfuddin Ahmad also petitioned for the CAA to be declared unconstitutional in a petition filed through advocate Kabir Dixit.
The SDPI challenged the CAA saying it cannot be seen in isolation/independent from National Register of Citizens and the names of Non-Muslim appeared in recent NRC Draft List August, 2019.
Besides, it also says, "Making a law pertaining only to three neighbouring Islamic States is a policy that discriminates on the basis of religion with no reasonable or rational basis for such classification. Pakistan, Afghanistan and Bangladesh are not the only 3 theocratic States where religious minorities face persecution. The other theocratic States among India neighbors are Sri Lanka where Christians, Tamil Hindus and Muslims face persecution, Nepal and Bhutan where Christians are persecuted…Therefore if the object of the bill is to give citizenship to those suffering religious persecution, then the only reasonable criteria having nexus with that objective as far as choice of country is concerned can be: countries where certain religious minorities face persecution.
It says even the term "neighbour" is an "unnecessary qualification in the 21st century when a refugee may fly in or come by a ship from any part of the world" and the Amendment is only an attempt to gain political mileage while reducing the concept of gaining "Citizenship" of India to arbitrary executive fiat.
It also says that the CAA, 2019 "violates the Assam Accord signed between representatives of the Government of India and the leaders of the Assam Movement in New Delhi on 15.08.1985 according to which illegal immigrants who entered the State of Assam from Bangladesh after 25.03.1971, i.e., the start of the Bangladesh War of Liberation, were to be detected, deleted, and deported, irrespective of religion…However, of all the immigrants identified (19 lakhs plus) after a protracted and painful exercise, 5.4 lakhs plus have been exempted as the CAA, 2019 abates all pending cases relating to migration or citizenship against them".
'Solidarity Youth Movement'
Another petition moved by Umar M, the Secretary of Kozhikode-based 'Solidarity Youth Movement' said CAA,2019 breaches the international obligations approved and agreed by India through International Covenants.
In his petition filed through advocate Naresh Kumar, he says, "The Impugned Act purportedly seeks to provide benefits to victims of persecution. However, the Impugned Act goes on to create a division between the persecuted, based on faith and nationality of origin and violates every known principle of equality and equal treatment, damages and destroys the Indian Constitution's basic feature of secularism".
Advocate Prashant Padmanabhan
Prashant Padmanabhan, a SC advocate on record, has in his petition said the government has justified the Amendment to the 1950 Act on the ground that the religions named therein are persecuted minorities.
"While it may or may not be true, there is no reason to assume that all those illegal immigrants, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who have came to India from three countries have all come here necessarily on account of religious persecution…There is no exercise undertaken by the Government of India, regarding the economic causes of migration and therefore, the factual premise upon which the law is built, viz. religious persecution in the Muslim countries, must fail the test of judicial scrutiny.
Citing the decision of the United States' Supreme Court in "Trump v. Hawaii" wherein by a thin majority of 5:4 the court upheld the travel ban policy of President Donald which prohibits most people from Iran, Libya, Somalia, Syria and Yemen from entering the US, advocate Padmanabhan said, "the majority of Judges relied on the fact that religion was conspicuously absent in the policy. (However) Amendment Act passed by the Indian Parliament expressly mentions certain religions and exclude some other religions, and it must fail the test of judicial scrutiny as India is not a theocratic State".
He also argues that CAA is also against the doctrine of "Separation of Power" as it the SC was monitoring the NRC policy of the Government in Assam and now the CAA will have the effect of excluding certain section of people out of those names found to be ineligible solely on the basis of their religious identity and country of origin.
He also presents an ideal situation as he submits, "it would be ideal if India could afford to grant citizenship to all the persecuted groups from across the globe if it can afford to do so. Since that is beyond the means of a modern nation-State, it would be ideal if India could raise the issue of persecuted groups in international forums like UNO and make sure that the countries to which they belong treat them as equal citizens."
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