CAA is unconsitutional.

The CAA,2019 was enacted by parliament and came into force. The CAA,2019 was enacted by the parliament under the power given to the parliament to regulate the right of citizenship by law under article 11 of the COI.

11. Parliament to regulate the right of citizenship by law

Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship PART III FUNDAMENTAL RIGHTS General.

The sec. 2, sub section (1), clause (b) of the citizenship act 1955 was amended to state the definition of an illegal immigrant[1].

“Provided that any person belonging to Hindus,Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;”.

1 violation of article 14 of the constitution of India

The article 14 of the COI states

14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

It is understood that art. 14 is applicable to all the persons in India and not only the citizens of India but all the people residing in India have the access to right to equality under the constitution. Since right to equality under article 14 in a fundamental right, it is a part of the basic structure of the COI and therefore no law can be framed in the violation of art. 14.

The CAA violates the right to equality of any person in India on the following 3 grounds: –

  1. Religious basis

The act does not include people of all the religions and therefore this is the violation of right to equality under article 14 which is a fundamental right given to all the people within the territory of India.

  • On the basis of the country of origin

The CAA includes migrants from only 3 neighboring countries (Pakistan, Afghanistan and Bangladesh (Pedra)) and does not include the migrants from the other neighboring countries. This is a violation of article 14 because it does not treat all the migrants in India equally.

  • On the basis time

The CAA only includes the people who have migrated on or before the 31st day of December, 2014 and the act does not include any person who has migrated after 31st of December 2014 and this is also a violation to the concept of equality before law under article 14 of the Indian constitution.

Therefore, CAA is less inclusive in nature.

The article 14 talks about 2 main aspects namely equality before the law and equal protection before the laws. When these aspects are applied to the CAA, we understand that the act does not treat Balkis (majority religion of ) and Shirazis (minority religion of ) equally because the act does not consider Balkis who entered the territory of  before 31st day of December, 2014 as illegal migrants.

  • violation of the basic structure doctrine of the COI
  • The idea of secularism which means that the people of all the religions are treated equally by the law.
  •  The principle of equality and quintessence of equal justice is a part of the basic structure of the constitution.

Both these principles of the basic structure doctrine of the COI are violated in by the CAA. The CAA is against the idea of secularism because it does not provide equal rights to the people of all religions. The does not treat people of all the religions equally and it differentiates migrants on the basis of religion and creates religion as a ground for citizenship. This clearly violates the concept of secularity under the basic structure doctrine of the COI.

The principle of equality is also clearly violated by the act as explained under contention 2.1.

  • violation of article 29 of the COI in the state of Assam

The Art. 29 of the COI says the following

29. Protection of interests of minorities

(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

Art. 29(1) of the COI gives the rights to the citizens residing in the territory of India to protect the language, script or culture of its own and they have the right to conserve the same. This is a fundamental right under part 3 of the COI.

Assam is a state that had illegal migrants for 7 decades and the people of Assam have always opposed this illegal migration. This led to the gradual depletion of the art and culture in Assam. This was a matter of serious concern to the people of Assam and it was important for them to protect their culture and arts. The CAA allows a part of these illegal migrants to be considered as the citizens of  and this would result in depletion of the art and culture of Assam and therefore indigenous Assam (a youth organization) can claim for the fundamental rights under Art. 29(1) of the COI.

13. Laws inconsistent with or in derogation of the fundamental rights

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

 Art. 13(2) of the COI says that laws that violate the fundamental rights of the COI are held void. The concept of doctrine of eclipse can be applied to the CAA,2019 since it is violating the fundamental rights.

However, there are counter arguments regarding the same. That is explained in another article.


Published by Tanmayi Kss

I am a first year law student.

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