CAA is unconstitutional as it distinguishes on the basis of religion: Justice V.G Gowda

Says that amending a law after over 70 years of independence in a country where 50 percent people are unlettered and do not maintain records, is problematic


At the launch of the book Citizenship, Rights and Constitutional Limitations, authored by Senior Advocate Dr. K. S. Chauhan, former apex court judge, Justice V. Gopala Gowda said, “The law laid down by the Supreme Court Constitution Bench judgement in 1994 in S. R. Bommai’s case says that no law can be enacted by the Parliament or by a state legislature on the basis of religion. According to me, the CAA, distinguishing between persons on the basis of religion, as per Bommai, is unconstitutional.”

He said, “Citizenship is a fundamental building block of a Nation State. Impairment of citizenship rights renders a democracy dysfunctional and malignant. It is broadly understood as equal membership of a political community christened as a State.”

He commented on the situation in Assam during the process of National Register of Citizens (NRC) in 2019, where he headed the fact-finding committee. He said, “There are lakhs of people who were migrants decades back, are not in the situation to prove their citizenship today. The NRC and NPR grant power to a person to confer status and determine fundamental rights of a person who has already been residing in India. So, a person who is a nobody, who is the person who registers names, birth and death under the Act, is designated as a person to conduct an enquiry! This is the plight of the persons in respect of whom citizenship is being determined!”

“It is the citizen who has to produce his birth certificate, it is him who must prove that one of his parents was born in this country! And all this after decades and decades, in a country where more than 50% of the population is unlettered and does not maintain the records! After 70 years of Republic India, you amend the law and say that the persons of other countries, who have been harassed and are coming and residing here, will be recognised as citizens, while to the persons of Indian origin who are in Sri Lanka etc, who are here, no citizenship right will be given,” he expressed.

Senior Advocate Indira Jaising, who was also part of the book launch event, shared her opinions on citizenship and its importance in a democracy saying, “Without citizenship, we don’t have any fundamental right, it is above all the other rights, we cannot have a right to speak or dissent without citizenship rights.”

“Once you are entitled to citizenship, you are entitled to the protection of all other rights which then accrue to you under the Constitution. Perhaps that is the rationale behind the CAA read with the NPR to deny to certain sections of people the right to citizenship and to empower others based on religion… Given the history of partition in the country, citizenship is linked to the birth of an individual in the undivided territory of British India, making religion for citizenship totally irrelevant,” the Senior Advocate continued.

In the event, she also criticised the 2004 amendment to The Citizenship Act, 1955 which provides that citizenship can be acquired by birth only if one of the parents is an Indian citizen. She contends, “And therein lies the critical mischief of the 2004 amendment, that it denies citizenship on the basis of birth on the soil of India, except for the precondition that one of your parents was born in India. It appears that the origin of the CAA dates back to this period… The Dreamers Persons Act in USA, grants citizenship to the undocumented migrants whose parents had migrated to the United States of America for the purposes of work. Contrast this with our CAA coupled with the NPA process!”

Elucidating more on the issue of NPR, she said that it reverses the burden of proof on the undocumented person to prove that they are citizens, which is contrary to the rule of law. “As per the existing law, if the government says that one is not a citizen, it is the government which has to go to the court, to the Foreigners Tribunal, to prove the same. We need to safeguard against the gradual erosion of the principle of innocent-until-proven-guilty, and the ordinary principles of burden of proof, which always lies on a State which says that you and I are not citizens,” she said.

She said that it is we, the people, who can contest policies and laws of the Government. She explained, “We have seen two very important movements by citizens for their rights – the CAA movement, which started and ended in Shaheen Bagh, and the ongoing farmers’ movement. The right to organise, the right to associate, the right to protest and the right to resist must come to us naturally, as naturally as we breathe, as naturally as we survive.”

Jaising also emphasised on a citizen’s participatory rights to decide the constitutionality of a law. She said, “Democracy is a participatory process- participatory in law making, participatory in giving inputs in bills and laws which are introduced in the Rajya Sabha and the Lok Sabha, participatory in our rights as citizens. These participatory rights are being taken away by laws which are introduced as money bills, by laws which are not introduced in the Rajya Sabha, by laws which are introduced as ordinances and then passed in law as if totally constitutional.”

The defining moment of the present situation is that this government uses law to defeat the law, thus we live in a state of lawlessness. When a democracy fails, our courts also fail us,” she remarked!

On the issue of sedition under section 124A of the Indian Penal Code, she said, “Unfortunately, very few of us can today say that we are leading happy lives. The institutional autonomy has been eroded, the separation of powers has been eroded, free press is not visible today. Today I am not being called a citizen of India, but an ‘antinational’, an ‘urban naxal’! Are these not curse words for a citizen?” She clarified that there is no provision in law that penalises or defines the term ‘anti-national’ and that everyone has the right to dissent.

Indira Jaising came out in support of NGOs that help safeguard human rights. She asserted, “The most important right of citizenship, for me, is the right to speak my mind, which has been under attack for several years now. This government has successfully immobilised the opposition parties and now it is seeking to immobilise civil society. By civil society, you and I are concerned, the NGOs are concerned. They are the last line of defence of rights in this country- that is why it is important for the government to use the FCRA, the Enforcement Directorate, allegations of money-laundering against each and every one of us.”


No separate list of exclusion of Gorkhas published in Assam’s NRC: MHA

CAA rules yet to be framed, NRC in Assam yet to be notified, says MHA

Inadequate legal aid for NRC excluded persons, CJP moves Guwahati HC



Related Articles