Photo: PTI
Photo: PTI

Opinion | Why the Supreme Court must tread with caution on the CAA

An adverse judgement on the Act could open a Pandora’s box of challenges to religion-based laws

Given the implacable positions of the government and opponents of the Citizenship (Amendment) Act, 2019, or CAA, it is clear that we will have finality only from the courts, where over a hundred petitions have been filed. It is a pity that a law intended to help persecuted minorities in three neighbouring countries will be decided not on the basis of human compassion but legalese.

Without in any way dismissing the feelings of Muslims, which need to be addressed sensitively, the problem is that any court decision that invalidates the CAA will have its own consequences. One can predict a cascading effect on other laws based on religious classifications. The government has justified the CAA’s basic idea of fast-tracking citizenship for certain persecuted religious communities in Pakistan, Bangladesh and Afghanistan as a reasonable kind of classification that does not violate the spirit of Article 14, which guarantees equality before the law. If, on the other hand, the Supreme Court holds that future citizens cannot be “discriminated" against on the basis of a religion-based classification, even if it involves helping the persecuted, then it is likely to open a new can of worms.

Here’s why. All the fire and brimstone aimed at CAA by its critics revolves around the simple idea that you cannot use religion as the basis of positive or negative discrimination. This is questionable. One wonders which alternative universe they have been living in. In India, many laws and government initiatives are based on religion-based classification. Soon after the Constitution came into force, we got the Hindu Code Bill that created civil laws only for some religious groups, but excluded others who could go by their own personal laws. Under the United Progressive Alliance government, we gave ourselves a Right to Education, which places the burden of educating India’s socially weaker sections largely on institutions other than those run by minority groups and entities. This means that we have a policy that effectively leans on religious categorization.

If CAA is struck down purely because there cannot be a religion-based classification, certain provisions of Articles 25 to 30, which deal with freedom of religion and the rights of minorities to follow their own religious practices and run their institutions (especially Articles 29 and 30) may also be need to be reworked. These articles specifically provide for religion-based protection of minority rights. The framers of the Constitution offered these minority protections to ensure that there was no imposition of majority predilections on minorities, but they never dreamt that these very classifications could be used to deny equal rights to the majority community. If a Christian, Parsi, Jain, Muslim or Buddhist institution can run its own schools and places of worship, surely the same right cannot be denied to Hindus. But over 100,000 temples are run by the southern states. At the very least, these institutions need to be freed of state control, possibly with new laws to ensure they are properly run. But then, these laws on governance should be applicable to all religious institutions, not just Hindu ones.

A verdict against the constitutionality of the CAA might also imply that the creation of minority-specific ministries and commissions is unconstitutional. We should have had equal rights or anti-discrimination commissions, not minority commissions, for bias is not practised only against minorities.

The point is that India is no stranger to classifications and institutions based on minority and majority religions. Interestingly, the Supreme Court recently declined to entertain a petition which sought minority status for Hindus in several states and Union Territories where non-Hindus form a majority (Jammu and Kashmir, Punjab, Nagaland, Mizoram, Meghalaya, Arunachal Pradesh). This is surprising: Either you accept that a minority should be defined state-wise, or you do not. How can this be decided only on the basis of who constitutes a national minority when several judgments have held that the state is the primary unit for deciding who is a religious or linguistic minority?

The CAA may have flaws, but its essential intent is humane and beneficial to minorities in countries that have, constitutionally, put them at a disadvantage. Two of these countries chose not to remain secular after Partition.

One hopes the Supreme Court bench, when it examines the constitutionality of the CAA, looks at the larger picture and the context, and not just the letter of the law which forbids discrimination on the basis of religion. In India, many laws have been framed on the basis of religion, including unconscionable things like the state running Hindu temples. Those need to be struck down anyway, even without bringing the CAA into the picture, but an adverse judgment on the CAA will inevitably open a Pandora’s box of legal challenges on other fronts as well. The government, for example, could seek to shut down minority ministries and minority commissions based on what the Indian judiciary decides.

The Supreme Court should not undermine a law that gives hope to persecuted minorities in the name of upholding some interpretation of non-discrimination guaranteed by Article 14.

R. Jagannathan is editorial director, ‘Swarajya’ magazine

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