The CAB is fundamentally unconstitutional: Chidambaram in Asiaville Exclusive
P Chidambaram made a case against the Citizenship Amendment Act today, in an exclusive interview with N Ram. Here are his thoughts on why the Act is fundamentally unconstitutional.
In an Asiaville exclusive, Mr P Chidambaram sat down with Mr N Ram today to discuss the path Indian democracy is taking.
In the course of the conversation, Mr Ram asked Mr Chidambaram to reiterate the challenges he had made to the Citizenship Amendment law previously in the Rajya Sabha.
This is what Mr Chidambaram had to say:
The Citizenship Amendment Act is, prima facie, what is called a 'suspect Bill'. This is not to say that the Bill is unconstitutional from the start. Rather, this is a Bill that needs to be examined.
Why? Because the very classification of people within the Bill is suspect.
How does this matter?
Article 14, on equality, has three aspects when it has to be applied to decide the constitutionality of a law.
First, the law which makes a classification of people has to show that this classification is reasonable. The differences that the law envisions between classes of people must be reasonable justifiable.
Secondly, the classification must have a reasonable nexus to the object that the Act wants to achieve.
Let's put this in simple terms: An Act is enacted when a need arises - when there is an issue or societal need. If that Act makes a classification between people, then the Act itself must make a clear connection between this classification, and the solution to the societal need or issue. The Act must show that if people are treated in an unequal manner, then it is only as a solution for an issue that needs to be solved.
And thirdly, the aspect that has recently been introduced by the Supreme Court - the classification should not be arbitrary. It must conform to principles of constitutional morality, universal rights, and basic human rights.
These are the unwritten laws of civilised society.
Now, why is the Bill so clearly suspect?
It picks three countries, leaves out the others. It picks six communities, calling them minority communities, leaves out the others.
Then it says that if you come from one of the three countries, and you come from one of the six communities, you are no longer an illegal migrant.
Once you are no longer illegal, you are then welcome to be made a citizen of India.
This is an absurd permutation and combination.
Hindus are included, but Sri Lankan Hindus are excluded. Why?
Christians are included but Bhutanese Christians are excluded. Why?
19 Lakh people in Assam have been identified as illegal migrants because they came with a story that was rejected; because it wasn't the ideal story for citizenship.
Now, however, the ideal story sought is different.
The CAB looks for a new narrative - where a person says, I was in one of these three countries. I was religiously persecuted. And so now, I should not be an illegal immigrant anymore.
There are so many infirmities in the Bill, that it has to be unconstitutional.
But most importantly, the most weighty argument is of the constitutional morality doctrine, being currently developed by the Supreme Court.
This requires us to look at the practical application of the NRC and the CAB.
If the is CAB applied first, then the non-Muslims will be included and the NRC will exclude the muslims alone. If the NRC is applied first, all of them will be excluded but then the CAB comes in and grants entry to the non-muslims alone.
The net effect is that the CAB is unconstitutional because it comes down to a very simple point - Muslims are excluded. This is constitutionally immoral.
Citizenship based on religion is, at the end of the day, against the tenets of democracy.
And Q.E.D - The Bill is essentially infirm, and must be seen as suspect.