Why CAA Could Be Declared Void, But If It Isn¡¯t, How It Should Be Implemented

Article 13 of the Indian constitution says that law inconsistent with Part III (Article 12 to Article 35) of the constitution is void.

A law whose objective itself is invalid and violates the provisions laid down under Part III of the constitution is simply void, such as the Citizenship Amendment Act (CAA), given its discriminatory and selective nature. It states any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered India on or before December 31, 2014, will be granted citizenship.

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The act is discriminatory in multiple ways. It provides for the grant of citizenship to non-Muslim minorities, from the three Muslim countries mentioned above, but not to any Muslims from those countries, based on the presumption that Muslims cannot be persecuted or any section of theirs discriminated against if they belong to an Islamic state, despite ample evidence to the contrary.

Ahmadis and Shias, in general, are persecuted religious minorities in Pakistan, and Hazaras, a persecuted ethic minority in Afghanistan, though they all identify themselves as Muslims.

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If it is driven by the noble desire to help the persecuted minorities from the countries bordering India, then the inclusion of Afghanistan, which does not share any border with India, and the exclusion of its immediate neighbours (Bhutan, China, Myanmar, Nepal, and Sri Lanka), except Bangladesh and Pakistan, is highly objectionable, to say the least.

There are persecuted minorities in almost each of the neighbours omitted, such as Muslims and Tamil Hindus in Sri Lanka (a Buddhist State) and Rohingya Muslims in Myanmar.

The Act clearly violates Article 14 of the constitution that says ¡°State¡± shall not deny ¡°any person¡± equality before law or ¡°equal protection¡± within the ¡°territory of India¡±.

The protection of this provision essentially extends to believers and non-believers even to non-citizens. The act makes no mention of non-believers, faithless, and/or atheists, a highly persecuted lot.

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The Act also changed the ¡°basic structure¡± of the constitution that cannot be amended by legislature, which was over and again stressed by the Supreme Court in a number of cases (Keshavananda Bharti v. State of Kerala; Minerva Mills Ltd v. Union of India; Waman Rao v. Union of India; Srinivasa v. State of Karnataka). Although the apex court does not have any clear definition of ¡°basic structure¡±, the judgment listed down the ¡°basic features¡± of the constitution, which are considered as basic structure.

Those are supremacy of the constitution, republican and democratic form of government, secular character of the constitution, federal character of the constitution, separation of power, unity and sovereignty of India, and individual freedom.

India, being a Common Law country, precedents (judgment of courts) are held as principles, which can never be ignored for making a subsequent law.

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Article 13 further says that by definition ¡°law¡± includes any ordinance, order, by-law, rule, regulation, notification, custom or usage. These statutory instruments, which are parts of subordinate legislation, become law. One of the intentions behind creating subordinate legislation is to meet the local needs.

The imposition of a law on the entire country, while ignoring the local needs and conditions, which vary from one place to another, defeats the actual objective of making the law ¨C the larger good of the people. Another intention behind creating delegated legislation is to meet the changing situation and needs of the society that parliament had not anticipated when they enacted the Act.

Given the situation, the parliament can just frame the legislative outlines and leave the details to be worked out by the executive authorities, state government, municipal or even local self-government, which best suits the situation.

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In the current scenario, many states are opposing the Citizenship Amendment Act because it is not appropriate or suitable for their needs. In such a situation, the centre can delegate its power to the state to make subordinate legislation suitable to its needs. Central Government cannot arbitrarily impose its decision on the state as the definition of ¡°State¡± as defined under Article 12 of the Constitution includes ¡°Government and Parliament of India¡±, ¡°Government and the Legislature of each state¡± and also ¡°all local and other authorities¡±.

So, whatever Act is made by the parliament it must be supported by all the state governments and the local authorities with consensus. The legal definition of ¡°State¡± itself makes it amply clear that no part of the ¡°State¡± is superior or inferior and must work in close coordination with each other.

There is a boundary that has to be drawn to maintain the federal structure of the ¡°State¡± and the government should function within that boundary for the smooth functioning of the state machinery.

The author is a lawyer, She holds professional membership of the Supreme Court of India, the Bar Council of India, and the Department of Justice, Ministry of Law, Government of India. Views expressed here are the author's own.