Why the CAA is an unjust law?

CAA clearly violates the principle that the act of rendering persons stateless is a grave human right violation. The NRC in Assam has already pushed 1.9 million people into verge of statelessness

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PTI Photo
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Faisal CK

The political controversies, philosophical deliberations and jurisprudential speculations on just and unjust law is as old as the concept of law itself. Henry David Thoreau, in his celebrated essay Civil Disobedience, argued that individuals should not permit governments to overrule or atrophy their consciences and that they have a duty to avoid allowing such acquiescence to enable the government to make them the agents of injustice. He believed that when law made by state is unjust, it is the duty of a right citizen to defy such unjust laws. Mahatma Gandhi and Martin Luther King, Jr. further polished and practiced the concept of disobedience of unjust law as a spiritual weapon in social and political agitation.

In India, protests are going on against the Citizenship (Amendment) Act 2019. The Act is clearly an unjust law. It defies the Constitution of India and the Universal Declaration of Human Rights which are touchstones in the municipal law and international human rights law respectively.

Indian Constitution is perfectly a secular constitution. The preamble of the Constitution declares India as a secular republic and assures every citizen liberty of thought, expression, belief, faith and worship. Article 25 promises the freedom of conscience and free profession, practice and propagation of religion.

It provides that subject to public order, morality and health and to the other provisions of Part III of the Constitution, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

The Citizenship (Amendment) Act defies the secular fabric of the Constitution of India. It confers Indian citizenship based on religious identity. It resembles the Law of Return proclaimed by Israel in 1950 which gives Jews worldwide the right to come and live in Israel and to gain Israeli citizenship. Likewise, the controversial Citizenship Amendment Act makes India an ‘Israel’ for Hindus.


Citizenship is a plenary right and the right to enjoy the universal human rights and the fundamental rights enshrined in the Universal Declaration of Human Rights and the Constitution of India. Its denial degrades a person into a mere beast. Article 15 of the Universal Declaration of Human Rights (UDHR) provides that “everyone has the right to a nationality” and that “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”

While all states are bound to respect the human rights of all individuals without distinction, an individual's legal bond to a particular state through citizenship remains in practice an essential prerequisite to the enjoyment and protection of the full range of human rights. The proliferation of human rights norms in international and regional instruments has developed substantive limitations on state sovereignty over citizenship regulation that gives meaning to that provision.

In particular, the universal anti-discrimination norm and the principle that statelessness should be avoided have emerged to constrain state discretion on citizenship.

The Citizenship (Amendment) Act clearly violates the principle that the act of rendering persons stateless itself is a grave human right violation. The hasty NRC (National Register of Citizens) process Assam has already pushed 1.9 million people into the verge of statelessness. The proposed Nation-wide NRC combined with the Citizenship Amendment Act will push some more millions into the nightmarish state of statelessness. In effect, Muslims would be singled out and rendered stateless and their life would be end up in dystopic detention centres.

India has very week documentation system and as such it would be practically impossible for the downtrodden class to prove their citizenship in a cumbersome NRC process. Even the decedents of Fakhruddin Ali Ahmed¸ who was the first citizen of India from 1974 to 1977, have failed to prove their Indian citizenship as per the NRC prepared in Assam. Then, what would be the plight of ordinary folks?

The Preamble of the Universal Declaration of Human Rights postulates that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Article 1 of the UDHR says that all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. The Citizenship (Amendment) Act 2019 blatantly violates the inherent dignity and equal rights of man.

Article 2 states that everyone is entitled to all the rights and freedoms set forth in the Universal Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 3 everyone has the right to life, liberty and the security of person. The Citizenship (Amendment) Act makes religion as a precondition for the enjoyment of right to nationality which is the key to the rest of universal human rights enshrined in the Universal Declaration of Human Rights. The right to life, liberty and security of person would be nullified by the proposed arbitrary deprivation of citizenship.

Article 7 says that all are equal before the law and are entitled without any discrimination to equal protection of the law and all are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. This Article is reflected in Article 14 of the Constitution of India which provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

The right to equality is antithesis to arbitrariness. Justice Krishna Iyer observed in E.P. Royappa Vs. State of Tamil Nadu and Anr. (1973) that: “Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch”.

The Citizenship (Amendment) Act 2019 has taken an arbitrary course as it has not postulated an intelligible differentia for selecting beneficiaries of the Act. It rashly favours a few and harshly disfavours another few, who both are standing on equal pedestal. As such, it is a ‘class legislation’ which the Constitution does not allow. The Citizenship (Amendment) Act 2019 clearly pooh-poohs Article 7 of the Universal Declaration and Article 14 of the Constitution of India.

Article 9 of the UDHR stipulates that no one shall be subjected to arbitrary arrest, detention or exile. The India Government is planning to pound up, in detention centres, the hapless people who are left out of the National Register of Citizens. The Detention based on an arbitrary Act is surely an arbitrary detention and it runs against Article 9 of the Universal Declaration.

Article 18 of the Declaration says that everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

The Citizenship (Amendment) Act 2019 gives a subtle incentive to those who believe in non-Islamic religions and ipso facto extends a clear disincentive to those who believe in Islamic faith. Thus the Act violates Article 18 of the UDHR and Article 25 of the Indian Constitution.

The denial of citizenship or nationality will automatically nix other universal human rights envisaged in the Universal Declaration of Human Rights like the freedom of speech and expression (Article 19), the freedom of assembly and association (Article 20), the right to take part in Government and access to public service (Article 21), the right to social security (Article 22), the right to work (Article 23), the right to health (Article 25), right to education (Article 26) and the right to participate in cultural life (Article 27).

The Citizenship (Amendment) Act 2019 horribly resembles the Nuremberg Laws decreed by Hitler’s Nazi Germany in 1935. They were enacted by the Reichstag on 15 September 1935, at a special meeting convened during the annual Nuremberg Rally of the Nazi Party (NSDAP).

The Reich Citizenship Law, major among the Nuremberg Laws, declared that only those of German or related blood were eligible to be Reich citizens. The remainder were classed as state subjects without any citizenship rights. The laws were expanded on 26 November 1935 to include Romani people and black people.

Another such instance is the Citizenship Law 1982 enacted in Myanmar which deprived the Rohingya people of the citizenship in Myanmar. Under this law, full citizenship is primarily based on membership of the “national races” who are considered by the State to have settled in Myanmar prior to 1824, the date of first occupation by the British. Despite generations of residence in Myanmar, the Rohingya people are not considered to be amongst these official indigenous races and are thus effectively excluded from full citizenship.

The Nuremberg Laws ended up in Holocaust and Myanmar Citizenship Law ushered a ghastly genocide. This history should be allowed to happen in India. In 1846 when Henry David Thoreau was jailed in Massachusetts for refusing to pay the local “poll tax,” as a protest against slavery law, his philosopher-friend Ralph Waldo Emerson visited Thoreau in jail and asked why he was there. Thoreau purportedly responded: “Why are you not here?” Surely, when Law turns unjust, the rightful place of right citizen, as Thoreau pointed out, is jails and streets!

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Published: 02 Jan 2020, 5:00 PM