ANTI- CAA AND SHAHEEN BAGH

PROTESTS
-By Chanchal Kumawat BBALLB(hons.)
What is CAA?
✤ For starters CAA stands for Citizenship Amendment Act.

✤ The Act seeks to amend the definition of illegal immigrants for Hindu, Sikh, Parsi, Buddhist and Christian immigrants from Pakistan,
Afghanistan and Bangladesh, who lived in India without documentation. They will be granted fast track Indian citizenship in six years.

✤ Citizenship may be acquired in India through five methods – by birth in India, by descent, through registration, by naturalisation
(extended residence in India), and by incorporation of territory into India.

✤ The Bill clarifies that the proposed amendments on citizenship to the specified class of illegal migrants will not apply to certain areas.
 These are: (i) the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, as included in the Sixth Schedule to the Constitution, and
(ii) the states regulated by the “Inner Line” permit under the Bengal Eastern Frontier Regulations 1873
CAA and Religious Persecution

✤
Is the differentiation among the specified class of illegal migrants and all
other illegal migrants reasonable?

The Bill provides differential treatment to illegal migrants on the basis of

(a) their country of origin, (b) religion, (c) date of entry into India, and (d) place of residence in India

Two of India’s neighboring countries, Sri Lanka (Buddhist state religion) [4] and Myanmar (primacy to Buddhism) [5], have had a history
of persecution of Tamil Eelams (a linguistic minority in Sri Lanka), and the Rohingya Muslims, respectively.

Further, there are other religious minorities from Pakistan, Afghanistan and Bangladesh, such as the Ahmadiyya Muslims in Pakistan
(considered non-Muslims in that country)

Once an illegal migrant residing in these areas acquires citizenship, he would be subject to the same restrictions in these areas, as are
applicable to other Indian citizens.  Therefore, it is unclear why the Bill excludes illegal migrants residing in these areas.
CAA: Why SC refused
Stay?

The new law was challenged in the courts almost immediately, with the Indian Union Muslim
League (IUML) filing a petition against it in the Supreme Court the day after its passage.

Even the United Nations High Commissioner for Human Rights, Michelle Bachelet, filed an
intervention application against the law last year, offering to assist the court as amicus curiae.

Kerala also filed a suit under Article 131 of the Constitution, becoming the first state to
challenge the CAA. Article 131 empowers the Supreme Court to hear disputes between the
government of India and one or more states.

“the recognition of religious persecution in the particular neighbouring states, which have a
specific state religion and long history of religious persecution of minorities, is actually a
reinstatement of Indian ideals of secularism, equality and fraternity”
Can State refuse to implement
CAA?
ARTICLE 256: The executive power of every State shall be so exercised as to
ensure compliance with the laws made by Parliament and any existing laws which
apply in that State, and the executive power of the Union shall extend to the giving
of such directions to a State as may appear to the Government of India to be
necessary for that purpose.

The Seventh Schedule of the Constitution divides the subjects on which the Centre
and states can make laws under the Union, State and Concurrent lists. The subject
of citizenship, naturalisation and aliens (foreigners) finds mention exclusively in
the Union List which contains a total of 97 subjects.

The state governments can move the courts to challenge the central government but
a refusal to implement is not within their powers. Article 365 of the Constitution
makes it mandatory for the state governments to follow and implement the
directions of the Central government, failing which the President can hold that the
state government cannot carry on.

Delivery of funds is part of the central government’s responsibility. We have also

witnessed delay by the central government in delivery of these funds such as the
states’ share under goods and services tax. But if the Centre does use this tool as a
matter of policy, we can expect a full-blown federal crisis landing at the doorsteps
of the top court.
 What Amendments are
Required?
✤ Citizenship is State related concept.

✤ Indian Constitution does not even include the word “religious

persecution” and same with the draft of CAA.

✤ All the people who are Religiously persecuted in Bangladesh,

Afghanistan and Pakistan should be given the citizenship of India and
not only those 6 communities.

✤ The date 31st December 2014, is a major drawback of this act. After this
date religious persecution must have happened too in at least one case
and people need help.

✤ Another drawback is that the refugee is restricted to enter some parts of

India. This should be changed and they must be treated like a normal
citizen and enjoy freedom.

✤ Even after one year, this act has not been amended and some important
changes are still left out.
SHAHEEN BAGH
PROTESTS
What started as a sit-in protest by a group of around 100 residents snowballed
into one of the largest and most prominent protests against the Citizenship
(Amendment) Act in the country. For 101 days the road, blocked by hundreds
of anti-CAA protesters, became a symbol of resistance to the government’s
new law.

Until 1990, there were kacha lanes, or dirt roads, no sewer lines and no
electricity, and just about fifty to sixty houses. Since water accumulated in the
vacant plots, mosquitoes and insects swarmed the area.

After the demolition of the Babri Masjid in Uttar Pradesh in 1992, the
population of this area increased exponentially. Members of the Muslim
community, residing until then in mixed localities, began to migrate to this area
for the sake of security. The few Hindu and Sikh residents of Shaheen Bagh
sold their properties at high prices and shifted to other places.

This was an organic movement without an organising committee or leaders.

The protesters are not accepting monetary donations. The representatives of
political parties have not been allowed to intervene.
Amit Sahni vs Commissioner of Police and Ors.

✤ FACTS: Amit Sahni, a lawyer-activist, approached the Delhi High Court on January 14th 2020, complaining that the Shaheen Bagh
protests had blocked several important roads including the Okhla underpass for a period of thirty days. He pleaded with the Court to direct
the Delhi Police to resolve the blockage and ensure smooth traffic flow, in and around the area.

✤ ORDER OF THE COURT: Based on Precedents Himat Lal K. Shah v Commissioner of Police, Ahmedabad & Anr (1973) in which the
court held that a right to hold meetings on public streets was subject to – (a) the control of the appropriate authority regarding the time and
place of the meeting; and (b) considerations of public order. And another precedent, Mazdoor Kisan Shakti Sangathan v Union of India &
Anr (2018) in which the Court had to consider the regulation of demonstrations at Jantar Mantar in New Delhi. In order to strike a balance
between the interests of the residents and the right to protest, it directed the police authorities to formulate a mechanism for the limited use
of the space for protests. It observed that each fundamental right, be it of an individual or of a class, does not exist in isolation and has to
be balanced with that of their counterparts.
The Court in its judgement dated October 7th 2020, concluded that democracy and dissent go hand in hand, but the demonstration of this
dissent cannot occupy public ways and spaces indefinitely, especially when it is to the detriment of other citizens. The concerned
authorities must take action to keep public areas free of encroachments and obstructions.
DEMOCRACY AND DISSENT GOES HAND IN HAND
✤ REFERENCES
1. https://indianexpress.com/article/explained/explained-citizenship-amendment-act-nrc-caa-means-6180033/

2. https://caravanmagazine.in/politics/shaheen-bagh-locality-caa-protest

3. https://prsindia.org/theprsblog/explainer-citizenship-amendment-bill-2019

4. https://timesofindia.indiatimes.com/city/chennai/why-lankan-refugees-are-reluctant-to-go-back-home/articleshow/65591130.cms

5. https://www.bbc.com/news/world-asia-41566561

6. https://timesofindia.indiatimes.com/india/why-india-is-refusing-refuge-to-rohingyas/articleshow/60386974.cms

7. https://www.theguardian.com/world/2016/jun/11/bangladesh-murders-bloggers-foreigners-religion

8. https://theprint.in/judiciary/caa-case-comes-up-just-thrice-in-1-year-in-sc-despite-140-pleas-including-from-un-body/579837/

9. https://www.bloombergquint.com/law-and-policy/can-states-refuse-to-implement-npr-and-nrc

10. https://www.thehindu.com/news/national/states-have-no-powers-to-refuse-implementation-of-citizenship-act-and-npr-official/article30359935.ece

11. https://www.constitutionofindia.net/constitution_of_india/relations_between_the_union_and_the_states/articles/Article%20256

12. https://www.thehindu.com/opinion/op-ed/what-are-the-amendments-that-the-caa-needs/article30405445.ece

13. https://www.scobserver.in/journal/court-lays-down-restrictions-on-the-right-to-protest/

14. https://indiankanoon.org/doc/145656971/

15. https://www.hindustantimes.com/india-news/an-uneasy-calm-in-shaheen-bagh-one-year-after-protest/story-ICbGQmdhTarXDLa8PbekiN.html
THANK YOU!