Over the last few weeks, you must have heard over and over again the refrain: How can the government discriminate between people on the basis of religion? Doesn’t this make the Citizenship Amendment Act (CAA) unconstitutional and likely to be struck down by the Supreme Court? And you might agree with that, especially if you are influenced by Bollywood thought leaders who have googled pictures of the Constitution for the first time in their lives.
Let me explain why all so-called legal challenges to this legislation are probably going to get laughed out of the Supreme Court.
So let’s talk about the law. We have all heard of Articles 14 and 15 in the Constitution of India, which expressly forbid the government of India from discriminating between people on grounds such as sex, caste, religion, etc. This is enshrined in our Fundamental Rights, incorporated in Part III of the Constitution.
But we also know from our everyday knowledge that this is hardly the case in India. To give you a simple example, it was only the other day that Delhi announced free travel for women in all public buses. More serious examples would include of course reservations based on caste or economic criteria. Then, there is, of course, the Ministry of Minority Affairs, which gives everything from scholarships to job training to religious minorities.
Generally speaking, welfare measures for weaker sections, outlined on lines of caste, religion or gender are completely routine in India. All Indians are very familiar with this concept.
But what is the constitutional basis for this? How might the government make exceptions to “equal treatment for all”?
The answer lies in something called “reasonable classification,” based on the even more fancy-sounding term called “intelligible differentia.” The meanings of these terms have been explained by the Supreme Court in the landmark R K Dalmia vs SR Tendolkar case (1958).
Simply put, government action must meet two criteria :
(1) First, there must be a clear distinction between a group and members who are not in that group.
Here, the group in question is members of six religions (Hindu, Sikh, Jain, Buddhist, Parsi and Christian) who are refugees from three Islamic countries which border India (Pakistan, Afghanistan and Bangladesh).
(2) Second, the government action should meet the objectives for picking up that group.
Here, the group members face religious persecution in these declared Islamic countries. Since they have nowhere else to go, this Act grants them citizenship of India.
Notice that both criteria are extremely important. For example, women could be clearly defined group. That meets criterion (1). Suppose the government were to pass a law tomorrow that entitles every woman to free Mickey Mouse stickers. This would be illegal because it would fail criterion (2): because the action of providing Mickey Mouse stickers does not meet the objective of women’s empowerment in any reasonable way.
But you can see how neatly the Citizenship Amendment Bill would pass both criteria (1) and (2). The Act clearly identifies a group and then take actions that will provide targeted relief to them.
But there’s more!
In case you have some lingering doubts, here is the icing on the cake.
The Supreme Court not only allows the government to make reasonable classifications, but it also creates a presumption in *favour* of the government in all legal challenges to it.
In other words, if you were to challenge the CAA in the court, the entire burden of proof would be on you to prove your case. The Court will always start with the assumption that the law passed by the legislature is constitutional and correctly understands the will of the people.
There you go. For those who hope to challenge the CAA in the court, it’s all but over.
Now you know what’s really happening. The liberals know they lost in the Lok Sabha and the Rajya Sabha. They know they are bound to lose in the Supreme Court.
And that’s why liberals know that the only way open to them is to physically intimidate the government and the majority community by stone-pelting on school buses and burning trains. That is why you have all these liberals morally supporting the riots, spreading fake news, signing foolish petitions and frantically calling up media contacts across the world. Because they know their legal case is both unjust and hopeless.
Their only move is to intimidate the government at home and defame India abroad. The one thing they don’t want is people understanding the act and what it does. Instead of reading their Instagram posts, let’s read our Constitution and Supreme Court judgments. It will foil their plans.