To tackle CAA, the original idea of India requires reassertion

On the face of it, CAA may not seem to violate the provisions of the Constitution- but it definitely militates against its spirit.

Tomorrow, the Supreme Court is set to hear pleas seeking a stay on the operation of the rules framed to put the Citizenship (Amendment) Act, 2019 (CAA) into effect.

The foremost defence of the CAA, as put forth by the Central Government and other proponents of the law, is that it does not take away anything; rather, it is an ‘enabling’ law, which confers citizenship on those who require it the most. Taken at face value, this sounds like a good faith argument. There is one minor little detail however, which we all know of- exclusion of the Muslim community from the category of communities, members of which shall not be treated as illegal migrants upon fulfilment of some other conditions, if such members entered into India on or before the 31st day of December, 2014. The question whether this makes the law unconstitutional, solely on this count, does not have a very straightforward answer.

The guarantee under Article 15- of non-discrimination- does not extend to non-citizens. In other words, it may not be open for Muslim ‘illegal migrants’ to seek parity with ‘illegal immigrants’ (phrase within quotes because one should always flinch before calling human beings ‘illegal’) of other communities, even in cases where they are otherwise similarly placed. To what is more, in matters of policy- and especially, in matters of citizenship which are often intertwined with issues of international politics- the Court usually defers to the wisdom of the legislature. What is evident, however, is that the only consideration for grant of citizenship- and by the same logic, the only reason for exclusion- under the CAA, is religion.

The fact that the CAA does not provide equal treatment to equally placed migrants renders it under-inclusive. But under-inclusiveness alone, ordinarily, does not make a law invalid, for reasons of policy and administrative discretion. What sets CAA apart is that the basis of under-inclusiveness here is religion, and while individual migrants may not be constitutionally entitled to an Art. 14 remedy, the scheme of the law itself falls foul of the principles of secularism, and by extension, the basic structure of the Constitution.

What makes our Constitution secular? The preamble to the Constitution, one may answer. But the nature of our polity was not determined by the Constitution; this document is only an evidence of it. The annals of history bear witness that our independent nation consciously chose a secular path: the final draft of the Constitution carried several provisions which cemented this conscious choice. The Indian State is not required to be neutral in matters of religion- it can very well intervene to address discrimination. But in so far as treatment of different religions is concerned, the State is not constitutionally permitted to adopt a preferential approach.

The principles of secularism, though not explicitly laid down in one single provision, pervade the spirit of the Constitution. And the core of the CAA- classification and ouster solely based on religion- transgresses this secular spirit. To challenge CAA, therefore, this original and unconditional spirit requires vehement emphasis. While on a standalone examination, the CAA may not violate any particular provision, its implementation will serve as a precedent for partisan law-making in India, and may very well pave the way for India’s departure from its hitherto secular character.

Tomorrow, the Supreme Court has to be reminded of this very real, impending danger.