TBT to when lawyer Abhinav Chandrachud tore apart India's changes in the CAA

In the discussion, the speaker examines the historical context and constitutional intricacies surrounding Indian citizenship, particularly after the 1947 partition. They highlight the distinction between 'displaced persons' (Hindus and Sikhs) and 'evacuees' (Muslims) in the law, and the introduction of the permit system on July 19, 1948, which effectively restricted Muslim return to India. The speaker also challenges the secular integrity of the Indian constitution, noting the hidden religious biases in citizenship provisions. They argue that the Citizenship Amendment Act (CAA) is unconstitutional under Article 14, critiquing its exclusion of certain religious groups and the arbitrary cutoff date, which undermines its humanitarian intent. The speaker further points out the unfairness towards groups like 'dreamers,' orphans, and transgender individuals in proving citizenship, and questions the rationale behind different naturalization periods for refugees based on their country of origin.

• "There was a wave of migrations from West Pakistan to India that was a migration of Hindus and SS they came in large numbers obviously but there was a second wave of migration which took place from West Pakistan to India and that occurred in 1948."

  • This quote explains the two waves of migration involving Hindus and Sikhs (SS) from West Pakistan to India, with the second wave including Indian Muslims returning to India.

• "Large numbers of Indian Muslims who had left India to go to Pakistan realized that Pakistan was not what they had thought it might be and therefore returned to India."

  • The quote highlights the reason behind the return of Indian Muslims to India, indicating disappointment with the reality of Pakistan post-partition.

• "The law referred to Hindus and SS as displaced persons but the law referred to Muslims who left as evacuees."

  • This quote establishes the legal terminology used to differentiate between Hindus and Sikhs, who were called 'displaced persons,' and Muslims, who were termed 'evacuees.'

• "Muslims who left India to go to Pakistan their property was referred to as evacuee property and their property was being used to rehabilitate Hindus and SS who had come from West Pakistan to India."

  • This quote describes the legal treatment of the property of Muslims who migrated to Pakistan, which was repurposed for the resettlement of Hindus and Sikhs coming to India.

• "The Indian constitution in articles 5, 6, and 7 did not mention Hindu, Sikh, Muslim; it did not say anything about religion so on its face it appears to be extremely secular."

  • This quote indicates that the Indian Constitution's articles related to citizenship did not explicitly mention religion, suggesting a secular approach.

• "For those who came prior to the permit system being introduced on 19 July 1948, who are presumed largely to be Hindus and SS, citizenship was automatic."

  • The quote explains that Hindus and Sikhs arriving before the permit system's introduction were granted automatic citizenship.

• "For those who came after 19th July 1948, especially those who had left India and now sought to return, you required a permit for permanent resettlement."

  • This quote outlines the requirement of a permit for individuals, predominantly Muslims, who sought to return to India after the specified date.

• "In the constituent assembly, there was a great debate that ensued."

  • This quote refers to the intense discussions within the Constituent Assembly regarding the citizenship and migration policies post-partition.

• "Once the permit system was introduced only 2,000 permits for permanent resettlement had been issued."

  • This quote provides evidence of the restrictiveness of the permit system, which limited the number of Muslims who could return to India.

• "The permit system was essentially designed to keep Muslims from coming back to India."

  • This quote reveals the underlying intention of the permit system, which was to limit the return of Muslims to India.

• "If a Muslim wanted to come back to India... the provincial government where your property was located had the power to veto your return to India."

  • This quote details the power vested in provincial governments to veto the return of Muslims by refusing permits, based on the utilization of their properties.

• "The Indian government introduced on 19th July 1948 a system that was essentially designed to keep Muslims from coming back to India that was called the permit system."

  • The introduction of the permit system was aimed at controlling the return of Muslims to India after the partition.

• "Under this system, if a Muslim wanted to come back to India...the provincial government where your property was located had the power to veto your return to India."

  • The permit system granted local governments the authority to deny the return of Muslims based on the status of their property, which could be used to rehabilitate displaced persons.

• "This system essentially was entrenched in the Indian constitution...but when you investigate a little bit further...there were two hidden premises in the Indian constitution."

  • The permit system was embedded within the Indian constitution, which on the surface appeared secular, but deeper investigation revealed underlying biases.

• "For those who came prior to the permit system being introduced on 19th July 1948, who are presumed largely to be Hindus and Sikhs, citizenship was automatic."

  • Prior to the permit system's implementation, non-Muslims were presumed to have an easier path to citizenship, highlighting a disparity based on religious lines.

• "For those who came after 19th July 1948, especially those who had left India and now sought to return, you required a permit for permanent resettlement."

  • Muslims seeking to return to India after the cutoff date faced additional barriers, needing a permit for resettlement, which was not a requirement for others.

• "In the constituent assembly, there was a great debate that ensued."

  • The permit system and its implications were a subject of intense discussion among the framers of the constitution, indicating the significance of the issue.

• "When you dig into the correspondence of our leaders like Nehru and Patel, you realize that...if the permit system had been introduced for East Pakistan...it would have prevented Hindus from coming back to India."

  • The selective application of the permit system to West Pakistan, but not East Pakistan, was a strategic decision to avoid hindering the return of Hindus to India.

• "President Rajendra Prasad was extremely worried that a very large number of permits would be issued."

  • The first President of India expressed concerns about the potential scale of permit issuance, indicating the gravity of the situation.

• "By August 1948...Nehru explained that only 2,000 permits for permanent resettlement had been issued."

  • Prime Minister Nehru's update to the constituent assembly on the number of permits issued revealed the restrictive nature of the system.

• "We've taken great care to ensure that these permits are only issued in the most grave circumstances or in the most serious cases."

  • The Indian government was cautious in issuing permits for resettlement, reserving them for what it deemed to be the most critical situations.

• "This...does really undermine the secular credentials and the secular origins of the Indian constitution."
  • The permit system's design and implementation challenge the secular principles that were purportedly foundational to the Indian constitution.

• "The Citizenship Amendment Act is unconstitutional because it violates the equality provisions of the Indian constitution."

  • The speaker asserts that the CAA contravenes the principle of equality enshrined in Article 14 of the Indian Constitution, which is meant to apply to all persons, not just citizens.

• "It excludes certain categories of religious groups."

  • The CAA's exclusion of specific religious communities from its benefits is highlighted as a point of contention, suggesting it discriminates against certain groups, which is at odds with the constitutional guarantee of equality.

• "It excludes Jews... why Jews have been left out from the Citizenship Amendment Act?"

  • The exclusion of Jews is specifically mentioned as puzzling, indicating that the Act's provisions are not uniformly applied across all persecuted religious minorities, thereby raising questions about its constitutionality.

• "The residence requirement in India is reduced by the Citizenship Amendment Act... for somebody who falls within the Citizenship Amendment Act the residence requirement is only 5 years."

  • This quote points out an inconsistency where the CAA provides preferential treatment by reducing the residency requirement for naturalization to 5 years for certain groups, as opposed to the standard 11 years, which could be seen as arbitrary and unequal.

• "A Pari who flees religious persecution in Iran and comes to India has to wait 11 years to be naturalized as a citizen but a Pari who flees religious persecution in Afghanistan has to wait in India for only 5 years."

  • The speaker illustrates an example of disparate treatment based on the country of origin, which seems illogical and potentially unconstitutional due to the unequal application of the law.

• "The cut-off date is 31st December 2014... if you want to protect people who've been persecuted on account of their religion then why close the doors on 31st December 2014."

  • The establishment of a cut-off date for eligibility under the CAA is criticized for being arbitrary and potentially undermining the humanitarian intent of the law, as it excludes individuals facing persecution after that date.

• "This... does really undermine the secular credentials and the secular origins of the Indian constitution."

  • The speaker suggests that the CAA's provisions challenge the secular foundation of the Indian Constitution, as it appears to favor certain religious groups over others, which is at odds with the principle of secularism.

• "While there were only about 7 or 800,000 Hindus left in Pakistan in West Pakistan there were 16 million Hindus in East Pakistan... it would have prevented Hindus from coming back to India many of whom were being forced to either convert to Islam or to leave."

  • Historical context is provided to argue that past policies were not applied uniformly, hinting at selective secularism. This historical perspective is used to draw parallels with the current CAA, suggesting that it similarly undermines the secular nature of the Indian state.