Dinesh Dwivedi

| @@DineshD82772555 | March 15,2020

[dropcap]T[/dropcap]HERE is no law or morality in conflict with, or above the Constitution which “we the people gave to ourselves”. If we reflect on the “Preamble” to our Constitutions, it becomes crystal clear that our Constitution is primarily geared to achieving “unity” and “integrity of our nations”. It also definitively prescribes the way to this goal by securing to all “political justice”, “equality of status and opportunity” and by promoting “fraternity” amongst all. This was the only way known to the farmers, to preserve the integrity and the unity of our Nation. This is the only form for “nationalism” we should recognise in our daily life.

Anything that does not pass the above test of nationalism and is in conflict with the Constitution cannot be said to be nationalistic. Criticism of such a law which does not sub-serve the above goals of “unity and integrity” of our nation, cannot be proclaimed to be “anti-national”. I am not using the common parlance test of patriotism, as the framers of our Constitution have deliberately avoided to use it.

 

 

Our Constitution being our Bible, has prescribed a very simple test of nationalism. Does Citizenship Amendment Act, 2019 (CAA) meet the above goal or test of nationalism? If not, then, will it be fair and reasonable to call those opposing it, anti-nationals or unpatriotic? These are some of the issues troubling us all facing half-baked assertions and partial truths.

 

Jugglery of words

 

It can safely be said that the government is not wrong when it says that CAA, which here means the proviso to Section 2 (1)(b) read with Section 6 B of the Act of 2019, does not deprive anyone of his citizenship on its own. But this projected innocuousness is nothing but mere jugglery of words and peddling of half-truths.

CAA cannot operate independently to deny an existing citizen of his Citizenship. But it was not intended to operate in a vacuum it was intended to operate in the company of National Population Register (NPR) and the National Register of Citizens (NRC) which would mark our “illegal immigrants”.

Such immigrants are illegal who have migrated to India from anywhere without valid documents, or have stayed beyond prescribed dates as per those documents. CAA, therefore, steps in to provides that those who have entered India on or before December 2014 from Pakistan, Bangladesh and Afghanistan and who are not Muslim, will not be deemed to be “illegal migrants”. Thus, paring the way to grant citizenship to them under Section 6B of the Citizenship Act, 1955 either by “registration”, or “naturalisation”.

 

Discrimination based on religion

 

The correct position is that CAA certainly does not deprive anyone of his or her Citizenship but operates discriminately to deny to those belonging to Muslim communities coming from Pakistan, Bangladesh or Afghanistan before December 2014, the similar opportunity to acquire citizenship like Hindus, Sikhs, Jains, and Christians etc.

 

 

Even such communities do not get the benefit of CAA if they have come from countries other Pakistan, Bangladesh and Afghanistan. The thing to note is that Afghanistan has virtually no connection with the partition of India. Anyone belonging to the Muslim community once determined to be “illegal migrant”, cannot ever become a citizen of India except under 11 to 14-year route for naturalisation under the CAA. Would they not feel cheated is the moot point?

 

Anti-secular 

 

At this stage, it would be appropriate to examine how the differentiation is not only discriminatory but also anti-secular. Our Constitution sets up a democracy based on universal adult practice. The concept of “equality” enshrined in our Constitution abhors classification on grounds of religion.

 

 

In fact, the secular ethos of our Constitution is based on this very concept of equal citizenship right to people of all religion. It fosters special rights for minorities to achieve the above goal of religions equality. If we test CAA on the anvil of this equality, we would unhesitatingly find it to be hostile to Muslims. When we examine this a little further what becomes apparent is that it is neither in accord with the intent of the framers of our Constitution nor in harmony with the Citizenship Act, 1955.

 

Content of the Citizenship Act 

 

This Constitution meticulously prohibits discrimination in all spheres. It prohibits inequality in all the spheres through its various provisions like Article 14, 15, 16, 25, 26, 325 and 326. These were the provisions conceived of the Constitution in the Citizenship Act, 1955 at a time when large scale migrations were taking place across the borders.

One can assume that those migrating from India to West Punjab or East Pakistan belonged to a religious minority. Despite this the framers permitted those who had migrated from India to Pakistan, during the heat of partition, to return and to acquire Citizenship on their return. The conferment of citizenship by return nowhere talk of citizenship based on religion.

Interestingly both Articles 6 and 7 deal with migrations to and from India, but neither of them mentions any religious basis for citizenship. The framers apparently kept the opportunity to get citizenship alive for all categories of migrants ignoring their religion.

This spirit also pervaded the Citizenship Act, 1955 which was enacted shortly after the Constitution. None of the provisions of the Citizenship Act, 1955 mentioned a religion anywhere, either for grant of Citizenship or its withdrawal. Neither the process of grant of Citizenship by registration nor by nationalisation was influenced by religion. With CAA, religion is a primary criterion for the grant of citizenship to “illegal migrants”.

 

 

The poisonous part of the CAA is that, in the named three countries, all “illegal immigrants” except Muslims can acquire citizenship of India through the special route if they have come before 2014. Undoubtedly this segregation is based on the religion and strikes at the root of equality and secularism embedded in our Constitution.

It arbitrarily assumes that members of the Muslim community can never be a target of fanaticism or persecution in Pakistan etc., which is factually not correct. The persecution of Ahmadias and Hazaras etc is a case in point. It further assumes that Hindus from other countries can never be persecuted lot. Sri Lanka presents a glaring example of similar persecution. There are other instances of irrational segregation too.

The problem is further compounded by the absence of any definition of “religious persecution” anywhere. There is no criteria for determining who is the sufferer of religious persecution. The law is ominously silent in this regard. Therefore, to link CAA with religious persecution caused by partition is totally illogical, misleading and purportedly possess a camouflage.

Besides, as stated above, what has Afghanistan to do with the partition of India? If it was a genuine concern for those who suffered “religious persecution” then why distinguish on the ground of religion or countries. Can there be a difference in religion prosecution of the Muslims and the Hindus in Pakistan and Bangladesh? It certainly belies my comprehension.

One can genuinely say that to give asylum to those who are sufferers of religious persecution, is a humanitarian act but why should this end when it comes to Muslims from Pakistan, Bangladesh or Afghanistan, or Hindus, Christians etc. from other countries. Why similar humanitarian treatment is being denied to Hindus from Sri Lanka or Christians from Bhutan and other such countries. These were mostly parts of British India too. It is difficult to see the logic behind the selection of the three countries or why the Hindus and the Christians of Sri Lanka or Bhutan are excluded. I am told Hindus have come to Bhutan. Why exclude them. Muslims from every country are religiously excluded and will not be deemed to be religiously persecuted at all.

 

Paving the way for Citizenship

 

Apart from the senseless discrimination what is most troublesome is the legal effect of CAA on the “illegal migrants”. Hindus, Sikhs etc. will not be deemed “illegal migrant”. They would not have to prove anything. Thereafter, it paves the way for grant of citizenship to them since they are no longer illegal migrants by the fiction of law.

The logic of CAA is openly flaunting religious bias against the Muslim. To justify this on the ground of Liakat – Nehru Pact of 1950 is again a serious attempt at spinning out half-truth. This pact nowhere deals with this issue of citizenship based on religion. It deals with two aspects:

(a)      To obligate both the Governments of India and Pakistan to treat their minorities with respect in their own territories, with complete equality of Citizenship. To accord to the members of minorities equality of treatment, and

(b)     To provide adequate security, relief and assistance to the migrants suffering from the displacement of partition ignoring their religion. If we read the accord carefully, CAA most certainly amounts to a breach of this obligation.

 

 

Under the accord, the underlying phrase is “agree to ensure to the minorities throughout its territory complete equality of citizenship irrespective of religion”. Does CAA, conform to this spirit? No, besides the pact by itself does not deal with grant of citizenship to “illegal migrants”. CAA solely deals with this issue. Therefore, reliance on the pact is hardly relevant.

 

Constituent Assembly Debates

 

I must confess that when I read the Constitution Assembly Debates on Article 6 and 7, there did appear to be a religious tilt in favour of non-Muslims, particularly Hindus. But then the reasons were peculiar to the happening surrounding the event of partition. There was an element of inevitability, but to super-impose, those events and realities on today’s time are totally unreal and bizarre.

Partition took place in and around March 1947 as an ongoing process. There was majorly a wave of Hindus coming in from Pakistan. There was a second wave that comes from Pakistan in the year 1948 which comprised of Muslims in large number, who had left earlier for Pakistan and therefore the difference in the manner of the grant of Citizenship in these cases is explainable.

Technically Article 6 and 7 may project some religious bias against Muslims but then this was primarily because it was unsettling the status quo in the property. Therefore, there was this need to discourage such migration of Muslims who had earlier left for Pakistan.

After nearly 70 years, when the issue of Citizenship on account of partition had been given a long quietus, it makes no sense constitutionally or legally to revive the said distinction. CAA is confined to “illegal migrants” who came in only after 2004. Section 3 of the Citizenship Act, 1955 is a clear pointer in this direction and is not even remotely connected to partition.

Despite going through the bad phase of partition neither the Constitution nor the Citizenship Act, 1955 took the step of mentioning “religion” as a significant or underlying factor in relation to grant or denial of Citizenship. The consequences are there to be seen by every logical and rational Indian. I wish and pray, despite being an atheist, that the government listens to the voice of the Constitution.

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