What is the most crucial factor in defining a country?

The answer is the population of that

country, the manpower in short the citizenship of that country.

in 1947, the country was divided primarily on the basis of religion with no fault of citizens. It is
submitted that not only the partition of undivided India was based on religion, even cross-border
migration took place based on religion

Almost all political parties at different times had expressed their concern for the persecuted
communities and advocated for granting citizenship to them. Dr. Manmohan Singh quoted in the
parliament on 18th December 2003: “While I am on the subject matter I would like to tell you
the conditions of refugees. After the partition of the countries, the minorities in the countries like
Bangladesh had faced persecution. I sincerely hope that we should focus on the CAA and grant
them citizenship” However, since the advent of coalition governments in India, no political party
in power had the courage to bring such a law, lest it affect their vote bank.

What the CAB recognises is that conditions in the three neighbouring countries shall likely never
improve for the specific religious communities enlisted in the CAB. This is from the experience
of the past several decades. [Supreme Court in Clarence Pais v. Union of India held that
‘Historical reasons may justify differential treatment of separate geographical regions
provided it bears a reason and just relation to the matter in respect of which differential
treatment is accorded.’] Therefore,

And to conclude I want to say that India being a significantly safer shelter than those three
countries, the Modi government is desirous of not simply permitting them temporary residence
as refugees, but rendering them eligible for Indian citizenship which regularises their status on a
permanent basis. This is a bold move aimed at according the sacred right of citizenship to these
persecuted minorities.

CONSTITUTIONALITY:
1. 6 persecuted religious minorities from pak, afgh and bangle are protected by providing
citizenship. This act is only there to correct the historical wrong.
2. Article 14, equality before law but sometimes people forgets that there is another clause
in this article and that talks about equal protection of laws. That means if two people are
not in similar circumstances then you cant treat them equally and that is why the process
of reasonable classification comes into place. If you will treat two different people in
different circumstances, as equals, then that will be unfair. So with this act we have one
group of 6 religious persecuted minorities and classified them as intelligible differentia
3. This provision prohibits class legislation, but it does not rule out a reasonable
classification for legislation. To satisfy the test of Article 14, a law needs to have an
intelligible differentia which differentiates persons or things who have been grouped
from the ones who have been left out, and classification so made must have a nexus to the
object sought to be achieved by the Act.[i] The object, as clearly set out in the Act, is to
grant citizenship to the persecuted religious minorities of Afghanistan, Bangladesh and
Pakistan. It mentions that these three countries have a constitutionally recognized state
religion, which results in the exclusion and persecution of religious minorities. The six
religious communities selected for this Act are religious minorities in the three Islamic
countries. Classification done in the case of this Act appears to be aptly in nexus with the
objects sought to be achieved.
4. Bangladesh and Pakistan were a part of undivided British India until it was partitioned in
1947 on the religious grounds. While lakhs of people of minority communities living in
areas assigned to Pakistan, travelled across the partition line to get into India, a lot of
them chose to stay back in East and West Pakistan buying into Jinnah’s promise of
establishing a secular nation. Now it is very pertinent that India provides shelter to such
people who are victims of religious persecution in the theocratic states that Pakistan and
Bangladesh have come to be. This explains the reasonableness of the differentia created.
5. many petitioners have contended that the amendment is unconstitutional as it
applies to six named minorities in the three named countries and there are other
minorities in the said three countries. It is submitted that conferment of
citizenship is a sovereign function. The Indian Parliament, which doubtlessly has
the legislative competence, is not required to take into consideration as to which
other communities are treated as minorities in the said three named countries.
The definition of the religious minorities for the purpose of the present Act
contained in the legislation made by the Indian Parliament cannot be dependent
upon the discretion of the respective Legislature and Governments of the said
three named countries so far as the minority status in their countries are
concerned.
6.
CASE LAWS:

 In Shri Meenalkshi Mills Ltd., Madurai v. A.V. Vishvanatha Shastri1, the Hon’able Court
observed that Article 14 not on guarantees equal protection as regards to substantive laws
but procedural laws also come within the same ambit. This means that if a special
procedure is laid down for a class of people as distinguished from others, then the ‘class’
must be based on a rational differentia having reasonable relation with the object sought
to be achieved.
 in order to strike individual liberty and social control cannot be held as arbitrary.2In
Haradhan Saha v. State of West Bengal3 the Hon’able Court held, the procedure
embodied in the Act has to be judged in the context of the urgency and the magnitude of
the problem, the underlying purpose of the restrictions and the prevailing conditions.
 Article 14 will be treated as violated only when equal protection is denied even when the
two persons belong to the same class or category. Union of India v. N.S. Rathnam and
Sons(2015) 10 SCC 681. In the present case the citizens and the illegal immigrants
cannot be treated under the same class or category.
 Navtej Singh Johar vs. Union of India [2018], intelligible differentia has been interpreted
to mean “reasonable differentia”.
 Trump vs. Hawaii [2018], Supreme Court of USA refused to strike down notification of
banning travel to the USA from several countries stating matters of regulation of
foreigners is “fundamental sovereign attribute exercised by the government’s political
departments largely immune from judicial control”
 David John Hopkins vs. Union of India [1997] that Centre’s right to refuse citizenship is
absolute and it is not hindered by the right to equality guaranteed under Article 14 of the
Constitution of India. Further it was stated that “For the foregoing reasons, we arc of the
view that the Government of India have got unrestricted power to refuse citizenship
without assigning any reason whatsoever and the appellant being a foreign national
cannot claim equal rights under Article 14 of the Constitution of India with that of the
Indian Nationals.”
 After the interpretation of the article 21 in Maneka Gandhi vs. Union of India, it is an
established position that if any law which constrains the life and personal liberty of
people fails the test of Article 14, it also contravenes Article 21. But as already discussed,
it is possible to justify the Act under article 14.
 In the 1991 case of Louis Readit vs. Union of India, a divisional bench of the apex court
observed that right to life and liberty under article 21 does not include the right to reside
and settle in this country. This particular right is covered under article 19 (1) (e) and
applies only to the citizens of the country.

1
Shri Meenalkshi Mills Ltd., Madurai v. A.V. Vishvanatha Shastri, AIR 1955 SC 13
2
Was ‘due process’ Due? –a critical study of projection of ‘Reasonableness’ in Article 21 Since Maneka Gandhi
3
Supra 24 at 6
  In the case of superintendent and remembrance of legal affairs v. Girish Kumar it was
held that under inclusion does not deny the equal protection of laws under Art. 14. Here it
has been justified that under inclusion is no ground for violation of Art. 14 for this reason
CAA is constitutional.
 It was held in the case of State of M.P. v. Bhopal Sugar Industries Ltd , “the legislature
has always the power to make special laws to attain particular objects and for that
purpose has authority to select or classify persons, objects or transactions upon which the
law is intended to operate and for this reason CAA is termed as constitutional.


DISCRIMINATION :
in the application of the arbitrariness and non-discrimination principles, in view of the inherent
complexity in dealing with wide mosaic of society, immigration, foreigners and citizenship,
foreign policy, national security, cultures and religions, it is not conceivable to perfectly tailor a
legislation and therefore larger discretion to the Legislature ought to be permitted in such matters
of classification.

1. Balochistan has long struggled to be independent of Pakistan and including Balochis in

the CAB could be perceived as interference in Pakistan’s internal affairs. The Modi
government is currently deploying a different foreign policy in regard to Balochistan by
naming and shaming Pakistan as a perpetrator of terror to the Balochis.
2. In regard to the Rohingya refugees, there are serious national security implications given
use of extreme violence by some Rohingya groups against the Myanmar government in
their fight for self-determination. The Prime Minister of Bangladesh, which received the
most number of Rohingya refugees, called them as a “threat to national and regional
security”
3. Furthermore, Rohingyas have fled from Myanmar which isn’t one of the three countries
referenced in the CAB. Lastly, but most importantly, the SC is hearing a petition filed by
Rohingya Muslims challenging their deportation. Their fate as refugees entitled to
temporary shelter in India under India’s refugee policy is a matter before the SC.
4. Minority communities have been decimated in these countries either by killing them in
the mane of blasphemy laws or by converting them forcibly to Islam. The terror in the
minds of minority communities — of being implicated in false cases of blasphemy has
come to light in many instances. The USA and other European countries have been using
strong-arm tactics against harassment of Christian communities in these countries,
especially in Pakistan, and have ensured that members of the Christian community who
face blasphemy get proper legal help.
SECULARISM:
1. The word secular has not been defined in the Constitution of India. An attempt was made
in the 45th Amendment Bill of the Constitution to define secularism. This definition
could not be adopted by Parliament because of inadequate support in Rajya Sabha.
Interestingly the ruling party at that time was INC with 95 rajya sabha members but still
they cant pass the definition of secularism.
2. What was needed was to separate religion from the civil rights of the citizens. The
Constitution had mandated enacting a Uniform Civil Code which would have protected
all the citizens, irrespective of their caste, creed and religion in respect of their civil
rights.
3. However, instead of framing UCC for all citizens of India just like the Uniform Criminal
Code — which treats as equals all citizens of India, the governments went on to regulate
the practices associated with Hindu community and made significant changes in the
Hindu personal laws. It is not that these changes were not required but similar changes
were equally required to be made for all citizens of this country, irrespective of their
religion. While the state took steps in respect of Hindus, it did not take similar steps of
enacting progressive laws in respect of Muslims and Christians and even when the courts
tried to give such rights to followers of Muslim faith, the government at the Centre
overturned the decision because it enjoyed majority in the legislature. What happened in
the case of Shah Bano? The word secularism was present in the preamble when the Shah
Bano ruling given by the Supreme Court was overturned by Parliament.
4. The propagators of secularism have been using the word only as a tool for vote mopping:
Their real credentials have never been secular.
5. As stated earlier, the position of minority communities in all the neighbouring countries
and the position of Muslims in the same countries has never been equal and the minority
communities there have consistently suffered at the hands of the majority community.
The Indian statute book is full of instances of special legislation applying only to a
particular class or group. Discrimination on the ground of caste and sex has often been
approved by the Supreme Court if it is done as positive action by the legislature to protect
the groups or to undo the historical injustice.

RIOTS:
1. People tend to forget their duty but remember their right- Indira Gandhi.
2. Article 19 ke peeche sab bhag rahe ki protest karna humara right hai but article 51a jo
fundamental duty deta hai usko follow nhi krna hai kya? Agr nhi to ye right exercise krne
ka bhi koi haq nhi aapko.
3. Article 51A Fundamental Duty of Citizen to protect and safeguard public property and to
abjure violence. Fundamental Duties though not enforceable, but always taken into
account while interpreting any fundamental rights.
4. In Javed v. State of Haryana, (2003) 8 SCC 369 it has been held that Fundamental rights
are not to be read in isolation. They have to be read along with the chapter on directive
principles of State policy and the fundamental duties enshrined in Article 51A.
5. Further, in State of Gujarat v. Mirzapur [(2005) 8 SCC 534] while considering provisions
of Articles 48, 48-A and also Article 51-A(g), the Supreme Court held: “58. It is thus
clear that faced with the question of testing the constitutional validity of any statutory
provision or an executive act, or for testing the reasonableness of any restriction cast by
law on the exercise of any fundamental right by way of regulation, control or prohibition,
the directive principles of State policy and fundamental duties as enshrined in Article 51-
A of the Constitution play a significant role.” [Ramlila Maidan Incident, In re, (2012) 5
SCC 123, N.K. Bajpai v. Union of India, (2012) 4 SCC 653]
6. under Article 300(a) of the constitution, there cannot be a deprivation of property except
in accordance with the law.
7. Prevention of Damage to Public Property Act, 1984: It punishes anyone “who commits
mischief by doing any act in respect of any public property” with a jail term of up to five
years and a fine or both. Provisions of this law can be coupled with those under the
Indian Penal Code.
8. In 2007, the Supreme Court took note of instances of mass violence and resultant damage
to public property across the country. It formed two committees under former judge KT
Thomas and jurist Fali S Nariman to recommend legal changes that could help handle
such situations.
9. Thomas Committee’s recommendations: It recommended reversing the burden of proof
against protesters.
10. The Nariman Committee’s recommendations dealt with extracting damages for
destruction. Accepting the recommendations, the court said the rioters would be made
strictly liable for the damage, and compensation would be collected to “make good” the
damage.
11. Supreme Court guidelines: In 2009, in the case of In Re: Destruction of Public & Private
Properties v State of AP and Ors, based on the recommendations of the two committees,
the Supreme Court in 2009 issued the following guidelines: It said in the absence of state
legislation to cover such violence, the High Court may take cognisance of incidents of
mass damage to public property on its own and set up a machinery to investigate and
award compensation.
12. Under Section 41 of the Code of Criminal Procedure (CrPC), a police has the power to
arrest a person, without an order from the Magistrate. Similarly, Sections 47 and 48 of the
CrPC give police officers power to "pursue such person into any place in India" who the
police have the reason to believe that the person has entered or is hiding in any place.
Section 46 of the CrPC allows police to use force to arrest a person who forcibly resists
police action and therefore all the arrests made by the police in the Riots is Valid and not
arbitrary.