Karnataka High Court
Karnataka High Court
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Citizenship (Amendment) Act, 2019 miserably fails test of Equality: Another plea moved in Karnataka HC

Among other contentions, the petitioner has also raised concern that the controversial amendment would effectively exclude forcibly converted Hindus in Pakistan.

Rintu Mariam Biju

Another Public Interest Litigation (PIL) plea has been instituted before the Karnataka High Court seeking to declare the Citizenship (Amendment) Act, 2019 (CAA) as ultra vires of the Constitution.

The petition has been moved by an NGO, Janaadhikaara Sangharsha Parishath, which has also sought an ex parte, stay on the operation of the Amendment as interim relief. As part of its main prayers, the NGO calls for the Karnataka High Court to also direct that the Amendment is not implemented in the State.

The NGO has echoed concerns by various other petitioners, including those before the Supreme Court, that the CAA violates Articles 14, 21 and 25 of the Constitution, and that it is against the basic structure of the Constitution of India, which includes the principle of secularism. The arguments made by the petitioner to build its case include the following.

CAA miserably fails test of equality under Article 14

The petitioners argue that although the Act is stated to have set up a protective framework for the “Persecuted Minorities” of the three countries of Pakistan, Bangladesh and Afghanistan to secure Indian citizenship, the CAA miserably fails to pass the test Articles 14, 21 and 25.

"... the Impugned Act miserably fails to pass the test of “Equality before Law” enshrined in Article 14, “Protection of life and personal liberty”, as per Article 21 and “Right to freedom of religion”, as per Article 25 of our Constitution."
Janaadhikaara Sangharsha Parishath

To buttress its argument, the NGO highlights that the term “Persecuted Minorities” has not been defined in the CAA in spite of being the basis for the classification

As per the Statement of Objects and Reasons of the Impugned Act, the “Persecuted Minorities” form the main classification under which the amendment claims to have carried out this amendment of law. But, the term “Persecuted Minorities” is no where defined in the Amended Impugned Act which would cause major confusion during the implementation of this Act. The absence of such a definition would lead to arbitrary and inconsistent implementation of the said Act which would defeat the Statement of Objects and Reasons.

Janaadhikaara Sangharsha Parishath

The petitioner argues that the existing classification made in the CAA (when it comes to the beneficiaries under the Amendment) is filled with irregularities and illegalities.

Forcibly converted Hindus also excluded

On the one hand, the plea raises questions over the exclusion of religious minorities from countries like Sri Lanka, Nepal, Bhutan and Myanmar that also share international land borders with India, apart from the Maldives. The petitioner points out that the religious minorities from these countries also include persecuted Hindus. Inter alia, the petition states,

"The minority religions of Sri Lanka are Hinduism, Christianity and Islam. An exclusion of Tamil people from Sri Lanka who are mostly Hindus is bound to be arbitrary and inconsistent when viewed from the lens of Article 14."

On the other hand, the petitioners have questioned the exclusion of Muslim minorities from Pakistan, Afghanistan and Bangladesh as well. Apart from excluding Muslim minority sects facing persecution such as such as Ahmadiyyas, Shias of Pakistan and Hazaras of Afghanistan, the petitioner emphasises that the classification made by the CAA would also exclude Pakistani Hindus who were forcibly converted to Muslims following the partition in 1947.

"... a majority of Hindus were converted as Muslims through forced conversion. By excluding Pakistani Muslims from the Impugned Act, the Modi government is effectively excluding all those Pakistani Hindus who are forcibly converted as Muslims and depriving the “Really Persecuted” non-Muslims of Pakistan from obtaining relief by becoming an Indian citizen. Hence, this sub- classification as per Religion may be termed as unsustainable due to its arbitrary and inconsistent nature."

Janaadhikaara Sangharsha Parishath

On the danger posed to Indian Muslims

The plea further submits that there is a high chance for persons excluded from the "proposed" National Register of Citizens (NRC) to end up in a detention centre. In this regard, the petitioner argues that Indian Muslims stand to face a higher risk than non-Muslim Indians.

"... in case an Indian Muslim unable to prove that he is an Indian, there is every danger of an Indian Muslim being declared as an Illegal Migrant & suffer in detention centre, while non-Muslims are not subject to the same danger. This is the danger of a clear discrimination based on religion that puts every Indian Muslim citizen in peril and is grossly violative of the basic structure of Secularism enshrined in the Preamble of our Constitution."

Janaadhikaara Sangharsha Parishath

In view of this risk, the petitioner argues that the proposed NRC and National Population Register (NPR) exercises, likely to be implemented based on the framework laid down by the CAA, "would be the most potent tool for forcing conversion on the Muslims who are unable to prove their Citizenship."

In the light of these concerns, the petitioners have prayed that the Karnataka High Court strike down CAA as unconstitutional and further, that the Court pass such necessary directions to not implement the Act in the state of Karnataka.

Besides this, the petition has further prayed for the an interim relief i.e to stay from implementing the Impugned Act till the final disposal of the PIL.

Earlier this month, the Karnataka High Court had agreed to hear two petitions challenging the constitutional validity of the controversial CAA.

This development, however, prompted the Central Government to approach the Supreme Court urging that it transfer all petitions challenging CAA before various High Courts to the top Court. The Supreme Court had issued notice on this plea on January 10.

Yesterday, while hearing a batch of over 140 petitions challenging the CAA, the Supreme Court hinted that it may refer the matter to a Constitution Bench. This batch of pleas is expected to come up before the Supreme Court next after five weeks.

[Read the PIL here]

PIL-CAA-HCK (1).pdf
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