Citizenship Amendment Act Is Unconstitutional: Justice Gopala Gowda

Citizenship Amendment Act Is Unconstitutional: Justice Gopala Gowda

The Hon’ble SC Constitutional Bench in 1994 in S. R. Bommai’s case laid down that “no law can be enacted by the Parliament or by a state legislature based on religion”

To which the Hon’ble former apex court judge, Justice V. Gopala Gowda on 19th March 2021 while articulating his opinion on Citizenship Amendment Act, 2019 (hereinafter referred to as “CAA, 2019”) opined that “distinguishing between persons based on religion, as per Bommai, is unconstitutional”. 

The opinion placed in the event by the Hon’ble former apex court judge was also attended by former Vice President of India Hamid Ansari. The Hon’ble former apex court judge also specified the realistic situation prevalent in Assam, where the NRC exercise was undertaken in 2019, where the Hon’ble former apex court judge was present as a fact-finding committee chairman, the Hon’ble former apex court judge also mentioned that “There are lakhs of people who were migrants decades and decades back but can’t prove their citizenship today. The NRC and NPR grant power to a person to confer status and determine the 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 to conduct an inquiry. This is the plight of the persons in respect of whom citizenship is being determined”

The Hon’ble former apex court judge urged that “It is the person who must establish (his claim), it is the person who must 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 illiterate 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 recognized as citizens, while to the persons of Indian origin who are in Sri Lanka, etc, who are here, no citizenship right will be given” The Hon’ble former apex court judge continued and he also stated that “it is not one religion which is affected, the National Register of Citizens applies to each person regardless of the religion, we must remember”. 

The Hon’ble former apex court judge while delivering his opinion also commended that if the people are required to prove their citizenship are rendered stateless, it will result in a deliberate violation of their human rights. 

Additionally, he mentioned that after understanding and observing the Constitution Bench judgment of 1980 in Minerva Mills, wherein the Hon’ble SC held that the judges are the guardian angels of the ongoing realities of the society. And we as human rights protectors, the law students, the legal fraternity, and the courts should join hands and should come forward to rescue the on-going certainties of the society, the Hon’ble former apex court Justice urged.

The Hon’ble former apex court Justice also pondered upon the hundreds of cases that are pending before the Hon’ble SC, which is also to be considered as the most independent and vibrant judiciary in the entire world. He further demanded that this matter shall be taken up and disposed of expeditiously. As he also mentioned that this matter is alarming every person of the country whose rights are required to be decided as an individual. 

The Hon’ble former apex court Justice furthermore elaborated upon the Draftsperson of the Indian Constitution, Dr. BR Ambedkar, who intensely debated in the Constituent Assembly to reject the idea of granting citizenship based on religion, is testimony to the enormous task of incorporating such citizenship provisions in the Constitution to ensure fairness, inclusivity, equality and complexity and an inherent sensitivity at the dawn of independence. The Hon’ble former apex court Justice while elaborating upon the ongoing dialog also cited that “Dr. B. R. Ambedkar accredited that there is no other Article which has given the Drafting Committee so much trouble like this, considering how many drafts were prepared and how many were destroyed in the endeavour to cover all cases”. He additionally also referred to how a member of the Constituent Assembly, PS Deshmukh, had been warned against going too far with the concept of secularity to wipe out Hindus and Sikhs in the name of secularity. 

Furthermore, the Hon’ble former apex court Justice canvassed how the first Prime Minister of India, Jawaharlal Nehru, had opined that adopting a secular approach towards citizenship was not generosity but just what every country does, except for a few misguided and backward countries. And described that “Citizenship is the fundamental building block of a nation-state. It is the quintessential DNA that powers the life and vitality of a democracy. Any impairment of citizenship renders a democracy dysfunctional. It is the interplay of status, rights, and identity which determines the efficacy of citizenship in a democracy. Citizenship is understood as equal members of a political community christened as a State. It confers a certain typology of rights, benefits, entitlements, obligations, and sense of identity and belongingness in a given social-political canvas”. 

Likewise, the Hon’ble former apex court Justice continued and revealed that Dr. BR Ambedkar considered the complexity of the issue and predicted that the debate on this issue shall continue to prolong, and hence, emphasized the role of the nascent Indian parliament in enacting a comprehensive statute or code for citizenship as envisaged under Article 11 of the Indian Constitution. He also quoted that Dr. BR Ambedkar apprehended that “it is not possible to contemplate every kind of case to confer citizenship on the date of commencement of the Constitution and that if any category is left out, power is granted to the Parliament to make provisions for the same. The genesis of the Citizenship Act of 1955 has to be appreciated in this background. The statute has been resilient and dynamic, in having undergone massive changes, but also aging gracefully, over time. The citizenship right and its constitutional limitations are to be examined on the touchstone of the UDHR 1948”. 

To finish the Hon’ble former apex court Justice  Gowda demarcated the contemporary times as one when “the citizens are facing a great crisis and the rule of law is at stake and the problems of citizenship rights are enormous”.

Sneh Somani
Experienced Legal Research Assistant with a demonstrated history of working in the law practice industry. Skilled in Journalism, Research, and Writing. Strong legal professional with a bachelor of arts and law focused in Law from Symbiosis Law School, NOIDA. Engrossed work in Gender studies and Women Empowerment and Contemporary Issues.