welcome back the citizen amendment bill is law passed by the Rajya Sabha a short while ago but the next test could come in the Supreme Court with several petitions likely to be heard challenging the law is the CA be constitutional or not is it against the Constitution I'm joined by Harry salvage from London also joining me in sutras part Asante a lawyer from chennai advocate at the madras high court but i want to come to mrs. Salwa who i spoke to a short while ago in london first mr. Salvi the first aspect that the bill according to its critics is anti constitutional because the bill as per article 14 is violative of the notion of equality article 14 says the state shall not deny to any person he before the
law the equal protection of the laws within the territory of India the opposition says the bill discriminates against Muslims denies them equality of citizenship before law your response Randeep I had this chat with the other TV channel also in my understanding the principle of article 14 if you take the emotive issues out of this bill judge it purely as a legal proposition the emotive elements apart this law is a law which creates what I call a reasonable classification because it creates a classification first of all on an intelligible differential and second that classification has Nexus with the object sought to be achieved the object of the bill is to deal with the discrimination of minorities as they are in three neighboring countries if that's the object of the bill then this classification is perfectly valid if the object of the bill should have been wider if the object should have been to cover problems in Sri Lanka the object should have been to cover problems in Burma the object should have been to cover problems in in Africa that's a policy object how wide should India go anacs bike with permissions is a separate issue if you test it purely constitutionally on the anvil of article 14 the
court will say what is the object the object is to deal with discrimination of minorities in three countries is that an illegal object it is it does the differentiation have Nexus with that it does it passes article 14 that's my reading next is article 15 which is also seen to be another area where the bill may not meet the test article 15 says prohibition of discrimination on grounds of religion race car sex place of birth the opposition says the bill singles out some communities for granting citizenship therefore violates article 15 do you believe here - it satisfies this test read the opening words it says no citizen article 15 comes in after you become a citizen not before next is article 21 mr. Salvi the bill says we article 21 which says no person shall be deprived of his life or personal liberty except according to procedure established by law the opposition says the bill deprives Muslim immigrants of their right to life and liberty that's the fallacy of the argument the Citizenship Act without the
Amendment does not allow anybody to migrate the Muslim communities or any other community from any neighboring country cannot migrate into India because of the Citizenship Act this is opening and narrow gate you are allowing some people to migrate before and after Muslims were not allowed to migrate before and after other communities are not allowed to migrate now the other communities can migrate so to say that this law deprives Muslims of the right to migrate then we must actually strike down the Constitution the citizenship law completely because the citizenship law prevents the the Tamils who claim persecution in Sri Lanka from migrating it prevents the wrong years from migrating it prevents all the DB subsets of Muslims who may want to leave Bangladesh or Pakistan from migrating so we should not have a citizenship law because it is the citizenship law
which prevents people from migrating now an exception to the citizenship walk let me therefore ask you the final article that comes in article 25 freedom of conscious free profession practice propagation of religion opposition says by excluding Muslims on the bill it infringes on this right of freedom of religion once again you are free to profess and propagate your religion you're opening the citizenship law on a very narrow ground how is it anything to do with preventing somebody from practicing or professing a religion see the religious birthmark is relevant today because those people in those countries are being prosecuted because of a particular state of the Constitution of those three states 25 in my opinion has no role to play you're not preventing anybody from practicing his religion once you come into India and become a part of the Indian mainstream in Article 25 protects your
civil rights but if effectively the other argument is the basic structure argument the secular character of the Constitution is being violated do you believe a bill of this kind has gone to the core of the Constitution particularly notions of secularism and equality equality we have already discussed Sikh let us first of all be clear about basic structure I have always had this conceptual problem about this basic structure argument being brought up as a rhetoric in a speech is fine the basic structure theory was developed by the Supreme Court as a limitation in the power of Parliament to amend the Constitution normally a law cannot be challenged as violating basic structure having said so yes I do know some judgments of the Supreme Court have in a flourish said that the law also violates the basic structure if a law violates the principles of secularism the principles of secularism are not articulated in any specific article yes they pervade the Constitution but secularism is itself a nebulous
concept that is why while it's a very important philosophy secularism citizenships contours are not precisely defined there is no precise formulation so to say that this violates the basic structure of the Constitution I would rather I'll not allow anybody to migrate then to allow minorities of those countries to migrate I don't see how that violates the basic strong McKinley it depends on how you look at this law if you look at this law saying I'm extending a facility to the minorities of the three neighboring countries who have cultural and ethnic ethnic connections with India to migrate to India because those three countries have state religions I don't see how it violates secularism to accommodate minorities there is the community which is left out is the community which is not a minority in those countries so in one sense this is the minority protection measure I don't see how it violates second visit the final question I have for you there is a constitutional test but there is also a
moral test constitutional morality mr. Salman there are those who believe it hurts the soul of India it pays the constitutional morality test it discriminates citizens on the basis of religion which is against affront to the very foundation principles of this country so first of all it doesn't discriminate between citizens it's a question of whom you allow into your country on migration and on question of morality we may agree to disagree you might feel it's immoral I'm you field its moral I personally speaking I don't feel that there's anything immoral in this bill but if somebody feels that it India should be more generous India should allow more people to come in India allow everybody from our neighboring countries who has any kind of a problem to migrate well that that's one point of view I don't subscribe
to that broader point of view we can agree to disagree on that okay that was mr. Salvi speaking to me earlier now I have citrate party joining me live you've been listening very patiently citrate your view you've heard you heard Harish always say a he believes this bill is constitutional be he says the question of morality is debatable but he doesn't believe it's in modern your view is it immoral is it unconstitutional mr. sir they say I I believe it's both immoral and unconstitutional and I think at the outset we can be clear about the fact that we certainly need a law to protect our refugees there's no question that we need to offer protection to people who've fled countries facing various kinds of persecution but I don't think the citizenship amendment bill which I'm sure will soon be signed by the president is going to be an answer to this at all because any which way one wants to look at it whatever rationale the government offers for it to me it is clear that the bill is patently unconstitutional it violates every known tenet of equal treatment constitutional according to you
structure which specific provision of the Constitution does it violate yes so it is absolutely yeah yeah let me explicit this I think for one eat violates article 14 of the Constitution because we need to be clear that article 14 protects both citizens and non-citizens alike so a citizenship law cannot therefore be predicated along religious lines now article 14 which guarantees to all person equal to all persons equal treatment before the law certainly permits certain forms of class legislation and mr. Salvi mentioned that it permits what is known as reasonable classification now some of this might sound complex with the test that the Supreme Court has laid down to examine what constitutes a reasonable
classification is actually rather simple and and quite elegant it broadly requires three things first it requires us to test and look at what the objective over loyals and that objective needs to be non arbitrary and thereafter we go to the two prong test that mr. Salvi mentioned which is the test of intelligible differential and rational Nexus so intelligible differential means that you should be able to separate the class that the law protects from the class that the law doesn't protect and ultimately the differentiation that the law makes this classification that it makes or to have a rational nexus with the object that the law seeks to achieve and I would argue that on all three fronts the law fails because at the outset look at the objective of the law I think the objective of the law is arbitrary now if you want to protect people who are facing religious persecution in their home countries and in these
neighboring countries then there's absolutely no excuse for not including areas who are virtually treated as minorities in Pakistan on the second front with respect to intelligible difference here once again there's a problem because if you're going to differentiate between non-muslims from these countries with Muslims from other countries and even Muslims from these countries who are facing prosecution that means that you are not you've not made a difference here which is clearly intelligible and thirdly on the issue of rational Nexus if the objective of the law let's assume is to protect people who have fled their countries from religious persecution then there's again no excuse for not including Myanmar or not including Sri Lanka and Myanmar for example I mean we know that
Rohingya is a face genocide in Myanmar and they fled their country is facing religious persecution so I think on every possible in every conceivable front this law is violative of article 14 it is also violative of article 14 because as I mentioned it restricts the amount of its protection only to these three countries now if you are talking if your objective is to put it is to protect only pre partition India then there's no question the reason why Afghanistan is included but Myanmar isn't then but again I don't think your objective can be only to protect religious persecution because there are other forms of persecution that people face including political persecution what about Tibetans who have come to India so citizenship in my opinion cannot be grounded purely on the basis of religious or ethnic lines if you want to offer citizenship to people in India who are facing persecution that needs to be opened
up regardless of nationality and regardless of religion I think you've given me a very very very comprehensive answer and I am grateful I hope viewers are listening you heard two views hurry Salva the eminent lawyer giving a very different view so treat the younger advocate giving his view I appreciate both of you joining us and we will this will be now tested clearly in the Supreme Court thanks very much for joining us thank you mr. Salvi as well I'm sure we'll have plenty more voices joining us as they come out of Parliament today my take at the end of this long day the citizen amendment bill is now law effectively linking citizenship to religion for the first time in the country's history whether it meets the legal constitutional test will be debated in the Supreme Court but for now the Modi government has succeeded in using its parliamentary majority to push ahead with an ideological majoritarian agenda and yet far away from this numbers game in Parliament the new
citizenship law has only reopened fault lines in sensitive border states like a salmon Tripura the fires may be doubts but the scars will take time to heal the symbolism of the capn in all India National Register for citizens appears clearly politically driven vote bank politics has taken precedence over the need to bridge the ever-widening divide and mistrust between communities the polarized debate within an outside parliament mirrors this growing divide what is troubling is that those who have criticized the bill are typically being dubbed anti national and pro Pakistan today this only reflects how Corsan our public discourse has begun become referring to constitutional morality while criticising the new law mr. Shah does not make anyone anti national or pro Pakistan by all means mister Home Minister defend the ca be but for God's sake don't double critics as anti national else you would sir with all due respect maybe one day have to dub Mahatma Gandhi and dr. BR Ambedkar too as anti national think about it as you
No comments:
Post a Comment