Explained National

Listened to Bollywood’s Legal Gyaan About CAA? Listen to Legal Luminaries Now

Quite a lot of videos show that many people who were on street protesting against CAA and NRC had no clue about what they are protesting and why. Even Bollywood stars who had given clarion call for protests were found wanting on what exactly they are protesting against.

So, this is the time to listen to what the legal experts say on CAA.

Let us now look at what 2 leading lawyers of India who are actually constitutional experts have to say on the CAA.

Harish Salve’s view on CAA

Mr. Harish Salve is a former Solicitor General of India and a senior lawyer in the Supreme Court with over 4 decades of experience who also appeared for India in the International Court of Justice in the Kulbulshan Jadhav Case.

In an interview to Times now, he addressed the following issues-

Does CAA violate Article 14 which says laws should apply equally to all?

  • CAA is a Pro-minority law which is tailored specifically for giving citizenship for religious prosecuted minorities, thus similarly situated people from countries which have state religion are being give citizenship. It does not mean others will not be citizenship or naturalized, they will be given citizenship based on general asylum rules.  Thus, it does not violate article 14.
  • He added that one cannot say law is discriminatory because there are different laws for lion and the lamb. Object of the law cannot be faulted, since religious persecution is the stated perspective.

Does CAA violate Article 15 which says State cannot discriminate on grounds of religion?

  • Article 15 applies only to citizens which happens only after a refugee or a migrant gets naturalized, thus article 15 is not violated.

Does CAA violate Article 21 which says no person shall be deprived of his life or personal liberty except by procedure established by law?

  • As far as article 21 is concerned, it applies only to those who live in India not to those who seek to enter India.

Why are Muslims not included in CAA?

  •  This law does not exclude Muslims from applying for asylum or citizenship. This is not a bill opening gates to economic migrants but         religiously persecuted minorities. If someone want political asylum, then they have to approach through proper channels. Foreigners belonging to the   majority religion of a foreign country which is persecuting the minority religion cannot be included in this bill.

Why are Ahmadiyya’s, Shias, Rohingyas or Sri Lankan Tamils not included in CAA?

  • Sectarian conflicts/ intra religious issues are different from religious persecution. This law is not meant for addressing governance or sectarian issues of neighboring countries.  India holds no obligation to give citizenship to those who are badly treated. This is not part of either international law or domestic law. Tamils in Sri Lanka are not religiously persecuted. Hence a law which addresses one evil does not need to address all possible evils. A law cannot be held wrong on that count.
  • There is a clear distinction in the CAA. Pakistan, Afghanistan and Bangladesh are countries have constitutions which give primacy to Islam and have state religions. This is qualitatively different from governments following certain policies discriminating against certain religions. This act is tailored to address the persecution in the former. Thus, Rohingyas are not included.

Isn’t secular character of India affected by CAA?

  • Nobody can deny that religious persecution is happening in those 3 countries. Simply put this is a law protecting minorities in three Islamic republics. Secular character of India is not affected by giving citizenship to such persecuted minorities.

Aryama Sundaram’s Views on CAA

Mr. Aryama Sundaram is also a senior advocate practicing in Supreme Court of India for over four decades. In an interview with Times Now as well as Mirror Now, he said the following things on CAA-

Since Muslims are not mentioned, doesn’t CAA violate Article 14?

  • Someone is out and someone else is in, ergo it is discriminatory is a fallacy. Reasonable classification based on intelligible differentia comes in precisely because someone is out and someone is in. Now the courts will test whether those who have been kept in are of similar ilk and those who are kept out are of different ilk.
  • It is important to remember that article 14 has two parts- 1st part is don’t treat likes differently and 2nd part is don’t treat unlikes on same platform. CAB is permissible under the 2nd
  • Every illegal migrant has to be deported according to the law but an exception is carved for religious persecuted minorities who have been here for 6 years from neighboring theocratic states.
  • Government here is making an exception to grant citizenship to persecuted migrants from theocratic states, thus people belonging to that same theocratic state religion cannot be given citizenship under this rule.
  • It should not be looked at as giving citizenship to X but not Y. Sending a persecuted minority back to the theocratic state will be like punishing them twice over.

CAA is furthering the political objective of BJP, how can it be constitutional?

  • People are confusing political philosophy or legislative intent with sheer constitutionality of CAA. Some people may disagree with legislative intent of the ruling party which is bringing the law. But constitutionally you only look at the action and see if it is constitutional or not.  Here CAB is perfectly constitutional.