‘Unconstitutional, Arbitrary and Anti-Muslim’: Lawyers Slam CAB

Senior advocates slammed the CAB calling it unconstitutional, and were confident that the SC will strike it down.

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Unconstitutional
Anti-Muslim
Flimsy

These were some of the many words which legal experts practicing in the Supreme Court of India used to describe the Citizenship Amendment Bill 2019 (CAB), which was introduced and passed in the Lok Sabha on 9 December.

To understand why the CAB is widely viewed as unconstitutional, The Quint spoke to senior advocates Prashant Bhushan, Sanjay Hegde and Colin Gonsalves, who have many years of experience fighting human rights and constitutional matters at the Supreme Court, and Shadan Farasat, an advocate involved in several major constitutional cases in the apex court, including the Kashmir cases and the challenge to electoral bonds.

Would the CAB Stand Scrutiny by the Supreme Court?

All the lawyers were of the opinion that the CAB was liable to be struck down by the Supreme Court as it is in direct violation of Article 14 of the Constitution, which says that “the state shall not deny any person equality before the law or the equal protection of the laws within the territory of India” – often termed the right to equality in India.

“Article 14 will be enough to strike it down,” said Shadan Farasat. He also noted that there were arguments to be made that the bill is also in violation of Articles 15 (prohibition of discrimination), 21 (right to life and personal liberty) and 25 (right to practice one’s religion).

For the sake of convenience, there are two broad ways to argue that a law violates Article 14:

  1. The law provides for differential treatment of a class of persons, but this classification is not a reasonable classification;
  2. The law is manifestly arbitrary.

The lawyers explained why the CAB falls foul of both tests.

No Reasonable Classification

While introducing and defending the Bill, Home Minister Amit Shah used the term ‘reasonable classification’ several times to defend the contents of the CAB.

However, Hegde says that they got reasonable classification all wrong.

“A reasonable classification is when the object of the classification bears a nexus to the classification itself. Here we are looking at refugees on religious grounds. If that is the object of the bill, then all refugees who are fleeing religious persecution, irrespective of their religion or lack of religion should be allowed in.”
Sanjay Hedge, Senior Advocate, Supreme Court

All the lawyers agreed that the country can’t pick and choose refugees “on the basis of religion.” They pointed out that if the objective was protecting those who face religious persecution, then even the Ahmadiyas of Pakistan, or the Hazaras of Afghanistan, or the atheists of Bangladesh, not to mention the Tamils of Sri Lanka and the Rohingyas of Myanmar, would need to be covered by the CAB, which they are not.

Manifest Arbitrariness

Farasat and Bhushan both agreed to the fact that the Bill is arbitrary on the ground that it considers neighbouring countries Afghanistan, Bangladesh and Pakistan but not Tibet, Sri Lanka and Myanmar.

“Article 14 prohibits discrimination on the basis of religion. It also prohibits any arbitrariness in any law in as much as the law restricts grant of citizenship to only three countries.”
Prashant Bhushan, Senior Advocate, Supreme Court

Hegde was of the view that for a law on protection of religiously persecuted communities to discriminate on the basis of religion was manifestly arbitrary.

“Arbitrariness of a nature which is an outrageous defiance of logic, will also come under judicial scrutiny... The Indian Constitution is religion-blind. It provides equal weightage for all religions. So if you are providing for religious persecuted people and refugees to claim citizenship, then you cannot discriminate on the basis of religion. It would be manifestly arbitrary in my opinion.”
Sanjay Hegde, Senior Advocate, Supreme Court

CAB as Anti-Muslim

“It is clear that the whole exercise of the CAB is based on religion. The excuses are flimsy and will probably not stand when the matter goes up to Supreme Court.”
Colin Gonsalves, Senior Advocate

All the lawyers felt the CAB was demonstrably anti-Muslim, and this was not even when viewing it in conjunction with the proposed National Register of Citizens (NRC) for all of India.

Bhushan said, “It is discriminatory on the ground that it discriminates against religion and therefore violates the very basis of our Constitution. Secularism is [part of the] basic structure of our Constitution.”

On the point of conjunction with the NRC, Hegde further added that:

“You take the position that anybody with a Hindu name need not prove his citizenship and it is only Muslims who will be targeted by the NRC exercise. That would be unconstitutional and manifestly arbitrary.”

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