Saturday, February 27, 2021
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

“Samachar Tamasha Nahi” – 5 instances in recent history when India Today group had indulged in drama, fake news and shoddy journalism

While Aaj Tak runs 'Samachar Tamasha Nahi' campaign claiming to be no-nonsense channel, 5 incidents when it was caught spreading fake news

NRIs in Canada protest outside Khalistani sympathiser and Canadaian MP Jagmeet Singh’s office amidst attacks from Khalistanis

The protestors said that the farmer protests have turned into a Khalistani movement which is now targeting Hindu minorities in Canada

Election Commission announces schedule of assembly elections in four states and one union territory, counting on 2nd May

Dates for assembly elections in Kerala, Tamil Nadu, West Bengal, Assam and Puducherry announced by the election commission

‘We should be outraged!’: Senator Rand Paul grills Biden’s nominee as Dr Levine refuses to condemn sex change procedure for little children

U.S. Senator Rand Paul from Kentucky grilled Dr. Rachel Levine at her confirmation hearing in the U.S. Senate.

Meet British MP Tanmanjeet Singh Dhesi: Khalistani connections, pro-Pakistani stance on Kashmir and vocal during ‘farmer protests’

Tanmanjeet Singh Dhesi, or Tan Dhesi as he is addressed sometimes, is a Labour MP from Slough in the United Kingdom.

Rahul Gandhi lies about India clearing millions of dollars of Chinese FDI after a 9-month freeze: Here are the exclusive details

Rahul Gandhi shared a report that relied solely on sources, to claim that after a 9 month-long freeze, India had started clearing FDI from China

Recently Popular

Did Aamir Khan’s daughter Ira Khan elope with her Hindu servant? Here is the truth

The image that is being used to claim that Iran Khan has 'eloped with her Hindu servant' was originally shared by Nupur Shikare, her fitness trainer. The two were posing on the occasion of Diwali.

US President Joe Biden casually drops the N-word during Munich Security Conference, accused of racism on social media

The N-word is considered as one of the hateful words that were first uttered in the 17th century. Its origin can be traced back to the Spanish word 'negro', which is often used by white supremacists to deliberately offend the African-American community.

‘His opinion less than objective and reliable, his conduct questionable’, says UK court about justice Markandey Katju in Nirav Modi extradition order

The UK Court rejected Justice Katju's argument that Nirav Modi will not get fair trial in India, and exposed his hypocrisy

I worry about Yogendra Yadav’s mental health and his The Print article on the 2021 Bengal elections proves I am not wrong

As BJP rises in Bengal, a panic attack was detailed in The Print, written by our very own Icchadhari protestor, Yogendra Yadav.

‘Hindi filmmakers repeatedly insult Hindu Gods and Goddesses’: Remarks Allahabad HC rejecting bail of Amazon Prime’s Aparna Purohit in Tandav case

Aparna Purohit is accused of hurting religious sentiments through scenes mocking Hindu gods in the web series 'Tandav' on Amazon Prime

Did the Congress party pay fishermen in Kerala Rs 30,000 to swim with Rahul Gandhi? What we know

CPIM owned Deshabhimani quoeted fishermen claiming Rahul Gandhi swimming in sea in Kerala was a drama staged by paying them
- Advertisement -

 

Connect with us

253,124FansLike
520,532FollowersFollow
23,700SubscribersSubscribe