Author: Abhinav Chandrachud
Affiliation: Advocate, Bombay High Court
Organization/Publisher: SSRN
Date/Place: January 4, 2020/NA
Type of Literature: Article
Word Count: 15,625
Link:https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3513828
Keywords: India, Secularism, CAA.Brief:
The paper examines the two basic and frequently asked questions about India’s Citizenship Amendment Act: Whether the act is unconstitutional, and whether it is anti-Muslim or pro-Hindu? The paper identifies how the secular fabric of Indian society is violated by the CAA, which is vaguely reminiscent of policies adopted by the Indian government at the time of the partition of the country and the framing of the Constitution. The author examines the context and unsecular origins of the Indian citizenship provisions of the Indian constitution, emphasizing that the CAA is unconstitutional because the conditions which existed during the days of India’s dominionship (August 1947 to January 1950) no longer exist in India today. Specifically, dominionship conditions included housing shortages and a communal environment charged by millions of refugees, i.e. the homes “evacuated” by Muslims who left for West Pakistan were used to rehabilitate Hindu and Sikh refugees in India, who resented having to return those homes to the returning Muslim owners. When India was partitioned in 1947, the partition was followed by two waves of migrations between West Pakistan and India. The first wave (March 1947) was the migration of Hindus and Sikhs; the second wave (1948) consisted of Indian Muslims, who had left India and went to Pakistan, then returning to India. The law considered these two categories differently—Hindus and Sikhs were called displaced persons, and Muslims where called evacuees. The properties which Muslims left were categorized as evacuee property, which properties were used to rehabilitate the Hindus and Sikhs who migrated from West Pakistan to India. Muslims’ migration back to India created trouble in this charged communal environment, and evacuating Muslim properties could fuel the communal violence. Accordingly, on July 19, 1948, India introduced a permit system that was specifically designed to veto the application of permit seekers, thus preventing Muslim migrations and avoiding the discomfort of returning “evacuated” homes. Although the Indian Constitution in articles 5,6, and 7 did not mention any religious identity, investigation has conclusively shown that there were two hidden premises in the Indian Constitution: for the first wave of migrants who were Hindus and Sikhs, the citizenship permissions were automatically granted; in contrast, the second wave of migrants who left India and came back (Muslims) were given impossible and arduous permit requirements, and subsequently vetoed for permanent resettlement. Because the CAA is the extension of the same scheme, the author identifies it as unconstitutional and discriminatory.
By: Maryam Khan, CIGA Research Associate
