Sunday, October 25, 2020
Home Opinions Leaving out Muslims is not 'glaringly discriminatory': A Response to the open letter published...

Leaving out Muslims is not ‘glaringly discriminatory’: A Response to the open letter published in the web portal, The Leaflet to Harish Salve, Sr. Advocate

It is important to note that the CAA doesn’t discriminate against Indian Muslims. It only aims to protect, by fast-tracking the citizenship process, those minorities who are persecuted in their home countries owing to their religious affiliations.

It is being argued that the Citizenship (Amendment) Act, 2019 compromises the secular character of the Indian State by excluding a particular religious community (Muslims), and that this is unconstitutional. The Opposition and several opinion-makers have said that this will shake the foundations of the Republic. It then becomes necessary to evaluate the political and legal dimensions of this amendment in order to draw a distinction between truth and propaganda. Here, we are trying to address the issues parawise as raised in the Open Letter (published in the web portal, The Leaflet) to Mr. Harish Salve, Sr. Advocate by the Maharashtra Students Law Association (MASLA) and the Maharashtra Students Union (MASU).

Yes, Article 14 is for ‘persons’ and not only for citizens. A non-citizen can claim equality under 14. However, the principle of Article 14 is equals ought to be treated equally and unequals can be treated differently. Therefore, potential violation of 14 can be justified and will stand water if the classification is reasonable, the differentia is intelligible and is in nexus with the object of the law. The classification, with its underlying principle, is religious minorities of theocratic states in India’s neighborhood and object of the law is to prevent their persecution. The classification is reasonable and intelligible, as the basis is structurally laid out, we know theocratic states in our neighborhood, we know the minorities living there, their second class existence by virtue of those nations’ state religion is well established. It is coherently in furtherance of the object of law, which is preventing their persecution. It is not arbitrary since one community is not being chosen whimsically, all religious minorities have been included. Further, it is also not arbitrary since official census records of these nations show systematic and alarming rate of fall of minority population, such as from 23 to 3 in Pakistan since independence and from 22 to 7 in Bangladesh since independence.

Article 15 is only applicable to citizens. Hence, foreigners from Pakistan, Bangladesh and Afghanistan cannot say religion cannot be basis of classification. Further, the basis is not only religion, but religious persecution. As long as the 3 prongs of Article 14 test are met, equality is not violated.

Leaving out Muslims is not ‘glaringly discriminatory’ since Muslims are not a religious minority in the Islamic nations of Pakistan, Bangladesh and Afghanistan. Muslims are not persecuted in these Islamic nations who swear by the Quran in their Constitution.

Ahmadiyas are a sect in Islam, not a religion. Further, this distinction is not to bypass humanitarian principles because in fact they believe in Islam and are practitioners of Islam and the Quran. In the broadest common denominator of world religions, the recognised world religions are broadly considered as Islam, Christianity, Hinduism, Buddhism, Jainism, Zoroastrianism, Sikhism, Judaism. Islam has multiple sects within it in various proportions across nations viz Sunni, Shia, Ahmadiyas, Baathis, Bohra, etc. They believe in different forms, expressions, and colours of Quran which does not mean they become external to the religion. Further, a width and scope of classification is determined at the altar of the sovereign, and on the basis of those principles it ought to have the right to determine contours of citizenship to foreigners, as long as the classifications meet the test of Article14. Broadening the principles are also the prerogative of the state, and there is no constitutional basis to say that the state ought to be forced to expand its principle of classification even if it meets the tests of 14. The state can obviously do that later in its own prerogative. In practice, the inner fault lines in Pakistan’s Islamic community can lead to a domino effect wherein an extension to Ahmadiyas shall mean an extension to Shias and Balochs, who constitute a considerable population of the country, the burden of which cannot be forced upon the Indian state because it afforded a beneficial legal structure to others from these countries on an entirely different principle.

The relegation to realm of policy is the basis of separation of powers in our constitutional democracy, the basis of statutes in policy is rooted in the democratic legitimacy of the executive, which if stands the test of constitutional scrutiny cannot be delegitimised as relegation to policy. Our constitutional principles are sound and strong that stands the force of India’s foundational ideas. It begs questioning when policies meeting constitutional ideals are questioned on alternative standards of morality.

Lastly, it is important to note that the CAA doesn’t discriminate against Indian Muslims. It only aims to protect, by fast-tracking the citizenship process, those minorities who are persecuted in their home countries owing to their religious affiliations.

The article is co-authored by Shivam Singhania, Law Student, WBNUJS, Kolkata and Shubhendu Anand, Advocate, Supreme Court of India.

  Support Us  

Whether NDTV or 'The Wire', they never have to worry about funds. In name of saving democracy, they get money from various sources. We need your support to fight them. Please contribute whatever you can afford

Shubhendu Anand
Shubhendu Anand is a lawyer, practicing primarily in the Supreme Court of India, and is Chamber Junior to the Additional Solicitor General of India.

Related Articles

Trending now

After Turkey President Erdogan says Macron ‘needs treatment’ over attitude to Muslims, Pakistanis trend #boycottfranceproducts on Twitter

Pakistani bots putting their weight behind Turkey president Erdogan's call of 'giving treatment' to French President Macron.

India Today releases a squint eyed statement, pats itself in the back for paying Rs 5 L to the court in TRP manipulation case,...

India Today has released a statement on the current TRP scam and it makes no sense.

“Allah will burn this woman in Hell”, Islamists attack TMC leader Nusrat Jahan for participating in Durga Puja

"You are the descendant of Satan -Evil. Don't you feel any shame for doing such dirty things?" an extremist commented on Nusrat Jahan for participating in Durga Pujo.

Times Now asked to air apology to Rahul Gandhi fangirl Sanjukta Basu for calling her ‘Hindu hater’, “We won”, she tweets

The directive to Times Now comes 19 months after Basu had filed a complaint with the NBSA.

Pakistan: Hindu temple vandalised during Navratri, idol of Hinglaj Mata broken by miscreants in Sindh

While taking cognisance of the despicable incident, the Sindh police have assured that they would nab the miscreants soon for vandalising the Hindu temple.

Recently Popular

‘He supplies drugs and girls’: Estranged wife of Mahesh Bhatt’s nephew Luviena Lodh alleges harassment by nephew-uncle duo

Luviena Lodh said that Mahesh Bhatt is the don of the industry, and he controls everything that goes on in the film industry

France: Charlie Hebdo cartoons projected on government building to express solidarity with deceased teacher who was beheaded by Islamic terrorist

Days after the barbaric beheading of teacher Samuel Paty on the streets of Paris by a terrorist for showing the cartoons of Prophet Mohammad to his students, support continues to pour in for the deceased teacher.

Radio Mirchi RJ finds space with radical preacher Zakir Naik as she waters down terms like ‘Kafir’ and ‘Jihad’

A video featuring Radio Mirchi RJ Sayema is doing rounds on the internet in which she was seen normalising anti-Hindu bigotry by legitimising the usage of radical Islamic terms as 'Kafir' and 'Jihad'.

‘Encounter specialist’ cop facing murder charges and reinstated by Param Bir Singh had joined Shiv Sena

Sachin Vaze, Pradeep Sharma, who were both 'encounter specialist' cops facing murder charges, were close to Mumbai CP Param Bir Singh

Faisal Khan says he wants to come out of brother Aamir Khan’s shadow who had earlier called him ‘mentally ill’

Faisal Khan said he will have to break out of his superstar brother's shadow and make his own decisions so that people recognise him as an individual

Exclusive: Conversation that shows how Mumbai Police is trying to coerce witness into naming Republic TV in TRP scam

While Hansa Research report and the FIR filed named India Today in TRP scam, in less than 24 hours, Mumbai Police had seemingly made up its mind that Republic TV was the culprit
- Advertisement -

Assam: Congress MLA demands ‘Miya Museum’ for immigrant Bangladeshis, govt rejects saying they don’t have separate culture

"No question of a museum there reflecting other culture and civilization", Himanta Biswa Sarma rejecting Miya Museum demand of Congress MLA

After Turkey President Erdogan says Macron ‘needs treatment’ over attitude to Muslims, Pakistanis trend #boycottfranceproducts on Twitter

Pakistani bots putting their weight behind Turkey president Erdogan's call of 'giving treatment' to French President Macron.

Xitler: Activists campaign to shift the 2022 Winter Olympics away from China, pointing out how Hitler had used the 1936 games to promote himself

Hashtag #MoveTheGames is trending on Twitter to urge organizers to move venue for Winter Olympics 2022 out of China

India Today releases a squint eyed statement, pats itself in the back for paying Rs 5 L to the court in TRP manipulation case,...

India Today has released a statement on the current TRP scam and it makes no sense.

News Broadcasters Association asks Republic journalists not to cross ‘Lakshman Rekha’, says their journalism is toxic and unethical

NBA issues statement in Mumbai Police-Republic TV clash, says it does on agree with the channel while paying lip service to freedom of speech

“Allah will burn this woman in Hell”, Islamists attack TMC leader Nusrat Jahan for participating in Durga Puja

"You are the descendant of Satan -Evil. Don't you feel any shame for doing such dirty things?" an extremist commented on Nusrat Jahan for participating in Durga Pujo.

Times Now asked to air apology to Rahul Gandhi fangirl Sanjukta Basu for calling her ‘Hindu hater’, “We won”, she tweets

The directive to Times Now comes 19 months after Basu had filed a complaint with the NBSA.

Pakistan: Hindu temple vandalised during Navratri, idol of Hinglaj Mata broken by miscreants in Sindh

While taking cognisance of the despicable incident, the Sindh police have assured that they would nab the miscreants soon for vandalising the Hindu temple.

Maharashtra Police arrests Twitter user Sameet Thakkar over ‘Baby Penguin’ remark against Aaditya Thackeray

Twitter user Sameet Thakkar from Nagpur has been arrested for posting derogatory tweets against the Thackerays.

Connect with us

245,563FansLike
468,206FollowersFollow
19,200SubscribersSubscribe