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The Citizenship Amendment Act is constitutional: Here is how the anti-CAA propaganda has no legal basis

The Constitution gives exclusive rights to union government for law making power regarding Citizenship

Can anyone Justify the Massive violence and vandalism of public property in the name of protests against Citizenship Amendment Act, 2019 (CAA)? The answer is Certainly Not. In any country where there is a rule of law, no citizen has the right to take law in their hands and to create mischief to the public property. On the basis of false Propaganda spread through Social Media platforms against CAA 2019, parties with some vested interest are trying to create unrest in the country through the unlawful assembly of people who are knowingly involved in inciting violence in various parts of the Country. The question arises whether such act to enter into confrontation with police, agencies of the government and such assembly of protestors to damage public property in several parts of the country is a justified Act? No court in the country will justify such violent protests. Even the Chief Justice of India while hearing the petitions on CAA criticised the violence and public mischief.

Legal position related to damage to Public Property

Part-IVA of the Constitution of India, Under Article 51A (i) says it shall be the fundamental duty of every citizen of India to safeguard public property and to abjure violence. But who cares for their duties in this Country? They know to create vandalism in the name of democracy, protest, free speech, liberty etc. However, people must remember that rights are corresponded by duties.

Prevention of Damage to Public Property Act, 1984 was enacted with a view to curb acts of vandalism and damage to public property, including destruction and damage caused during riots and public commotion. It is high time to invoke provision of this law wide across this country and if needed also to promulgate Ordinance to increase punishment for all those miscreants involved in creating mischief under Prevention of Damage to Public Property Act, 1984.

Read: How to debate Citizenship Amendment Act with ‘liberal’ idiots

Public Mischief

The section-505 of the Indian Penal Code,1860 says statements conducing to public mischief are punishable under the act. It says whoever makes, publishes or circulates any statement, rumour or report with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity, will amount to Public Mischief. And, sadly many people are spreading rumour about NRC and CAA that these are Anti-Muslim.

Let’s understand the Citizenship Amendment Act

This Amendment adds proviso in section 2, in sub-section (1), in clause (b) in the Citizenship Act, 1955.

And the Proviso reads as “Provided that any person belonging to Hindu, 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.”

Further, new section 6B added in the Citizenship Act, 1955 which states that on and from the date of commencement of the Citizenship (Amendment) Act, 2019, any proceeding pending against a person under this section in respect of illegal migration or citizenship shall stand abated on conferment of citizenship to him, provided that such person shall not be disqualified for making application for citizenship under this section on the ground that the proceeding is pending against him and the Central Government or authority specified by it in this behalf shall not reject his application on that ground if he is otherwise found qualified for grant of citizenship under this section.

Further, it adds in the proviso that who makes the application for citizenship under this section shall not be deprived of his rights and privileges to which he was entitled on the date of receipt of his application on the ground of making such application.

The section 6B (4) adds that nothing in this section shall apply to the tribal areas of Assam, Meghalaya, Manipur, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873.

Read: Here is why the challenges to Citizenship Amendment Act will likely get laughed out of the Supreme Court

The object sought by this Citizenship Amendment Act, 2019 is to provide a remedy to the minorities who are victims of religious persecution aftermath of Partition of India as the new nation Pakistan declared itself an Islamic state. And further, this Act aims to provide exemption under the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or inclusion in the Citizenship Act, 1955 those religious minorities who came before 31st December 2014 from Pakistan, Bangladesh and Afghanistan. This Act does not include Muslims as Muslims are not persecuted minorities in the Islamic Republic of Pakistan, Bangladesh and Afghanistan. This Act recognizes the right of Non-Muslims who came to India due to religious persecution from these three Muslim majority nations.

Indian Constitution and Citizenship

Now, understand the provision of law with regard to citizenship in the Constitution of India. Part two and Article-5 to 11 of the Constitution of India deals with Citizenship. Article 5 gives Citizenship at the Commencement of Constitution for those who had his domicile in the territory of India. Article 6 gives rights of citizenship of certain persons who have migrated to India from Pakistan before the 19th day of July 1948.

Then, a valid question arises what about the victim of partition who chose to stay in Pakistan when Pakistan became an Islamic state and religious persecution started on the minorities. When the situation became unbearable for those minorities in Pakistan they started migrating to India as this country was their last hope as they all were citizens of undivided India. So, what about the citizenship of those people who came to India in 1950 from Pakistan or say in 1971 from Bangladesh as a victim of religious persecution to Minorities?

Article-11 says Parliament can regulate the right of citizenship by law but Indian government took so many years to pass this legislation for granting the citizenship and finally it is being done through Citizenship Amendment Act, 2019. So, citizenship is not the subject of Part-III of the Constitution, rather it is subject to Part-II and Parliament have the power to regulate the Citizenship laws, therefore it is just and reasonable.

In addition to Article-246, Union List under 7th Schedule, Entry-17 gives exclusive rights to the union government for law-making power regarding Citizenship.

As far as Article-14 is concerned it talks about equality before law and equal protection of the laws. And three tests laid down under Article-14 are not violated by this Act. As the objective of CAA is to protect against religious persecution of minorities. Hence the reasonable classification is done on the basis of intelligible differentia is just and reasonable.

National Register of Citizen would be a separate exercise and we can’t say how it will be implemented as it is the question of future and state policy not of law in the present scenario. And CAA has nothing to do with NRC as the objective of both the laws are different. NRC’s Assam model will not be applied throughout India because Assam Accord, 1985 laid down certain binding obligations on the centre. However, that would not be a precedent for all India NRC. So, no need to worry for Muslims and we must avoid from falling the victim of any conspiracy or propaganda. Therefore, the need of the hour is to know the truth of CAA which is hard, while the propaganda of NRC is cheap.


Author: Abhinav Kumar
Advocate, Supreme Court of India

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