December
11, 2019 00:02 IST
Updated:
December 11, 2019 01:15 IST
The Citizenship Amendment Bill, 2019 has a sinister
political logic — the first de jure attempt towards a Hindu Rashtra
How a
country defines who can become its citizens defines what that country is,
because citizenship is really the right to have rights. For India, the choice
was inexplicably made in 1950 when the Constitution was adopted, and Part II
(concerning citizenship) provided citizenship based on domicile in the
territory of India. In fact, under Article 6 of the Constitution, migrants from
Pakistani territory to Indian territory were also given citizenship rights.
Religion was conspicuous in this constitutional scheme, in its absence. The
Constitution also recognises the power of Parliament
to make
provisions with respect to “acquisition and termination of citizenship”. Pursuant
to this, Parliament had enacted the Citizenship Act, 1955; again, religion is
not a relevant criteria under the 1955 Act.
This
position is now sought to be changed through the proposed Citizenship Amendment
Bill, 2019 (CAB) that seeks to amend certain provisions of the 1955 Act.
The
obvious question on which much of the debate has so far focused on is whether
in a country such as India, with a secular Constitution,
certain
religious groups can be preferred in acquisition of citizenship. Especially
when secularism has been declared to be a basic feature of the Constitution in
a multitude of judgments. But in addition to this basic question, a look at the
proposed CAB shows that it is peppered with unconstitutionalities. The
classification of countries and communities in the CAB is constitutionally
suspect.
Country classification
First to
the countries. The basis of clubbing Afghanistan, Pakistan and Bangladesh together
and thereby excluding other (neighbouring) countries is unclear. A common
history is not a ground as Afghanistan was never a part of British India and
always a separate country. Being a neighbour, geographically, is no ground too
as Afghanistan does not share an actual land border with India. More
importantly, why have countries such as Nepal, Bhutan and Myanmar, which share
a land border with India, been excluded?
The
reason stated in the ‘Statement of Objects and Reasons’ of the Bill is that
these three countries constitutionally provide for a “state religion”; thus,
the Bill is to protect “religious minorities” in these theocratic states. This
reason does not hold water. Why then is Bhutan, which is a neighbour and
constitutionally a religious state — the official religion being Vajrayana
Buddhism — excluded from the list? In fact, Christians in Bhutan can only pray
privately inside their homes. Many Bhutanese Christians in the border areas
travel to India to pray in a church. Yet, they are not beneficiaries under CAB.
Further, if religious persecution of “religious minorities” in the
neighbourhood is the concern, then why has Sri Lanka, which is Buddhist
majority and has a history where Tamil Hindus have been persecuted, been
excluded? Why is also Myanmar, which has conducted a genocide against Muslim
Rohingyas, many of who have been forced to take refuge in India, not been
included? The CAB selection of only these three countries is manifestly
arbitrary.
Focus on certain groups
On the
classification of individuals, the Bill provides benefits to sufferers of only
one kind of persecution, i.e. religious persecution. This itself is a suspect
category. Undoubtedly, the world abounds in religious persecution but it
abounds equally, if not more, in political persecution. If the intent is to
protect victims of persecution, there is no logic to restrict it only to
religious persecution. Further, the assumption that religious persecution does
not operate against co-religionists is also false. Taslima Nasreen of Bangladesh
is a case in point. She or similarly placed persons will not get the benefit of
the proposed amendment, even though she may have personally faced more
religious persecution than many Bangladeshi Hindus. Similarly, Shias in
Pakistan, a different sect of the same religion, also face severe persecution
in Pakistan. The fact that atheists are missing from the list of beneficiaries
is shocking.
Restricting
the benefits of “religious minority” to six religious groups (Hindus, Sikhs,
Buddhists, Jains, Parsis and Christians) is equally questionable. Ahmadiyas in
Pakistan are not recognised as Muslims there and are treated as belonging to a
separate religion. In fact, because they are seen as a religion that has tried
to change the meaning of Islam, they are more persecuted than even Christians
or Hindus. If the avowed objective of CAB is to grant citizenship to migrants
on the basis of religious persecution in their country of origin, the absence
of Ahmadiyas from the list makes things clear.
Article
14 of the Constitution of India, prevents the State from denying any “person”
(as opposed to citizen) “equality before the law” or “equal protection of the
laws” within the territory of India. From the serious incongruities of CAB, as
explained above, it is not difficult to imagine, how it will not just deny
equal protection of laws to similarly placed persons who
come to India as “illegal migrants” but in fact grant citizenship to the less
deserving at the cost of the more deserving.
How else
does one explain how a Rohingya who has saved himself from harm in Myanmar by
crossing into India will not be entitled to be considered for citizenship,
while a Hindu from Bangladesh, who is primarily an economic migrant and who may
not have not faced any direct persecution in his life, will be entitled to be
considered apparently on the ground of religious persecution? Similarly, why a
Tamil from Jaffna who took a boat to escape the atrocities in Sri Lanka will
continue be an “illegal migrant” and never be entitled to apply for citizenship
by naturalisation? It is not difficult to imagine many other examples of this
kind that reveal the manifestly arbitrary nature of CAB. There is also the reduction
in the residential requirement for naturalisation — from 11 years to five. It
is almost as if CAB in its provisions and impact is trying to give definitional
illustrations of the word “arbitrary”.
CAB is
devoid of any constitutional logic, as explained above. But it does have a
sinister political logic. By prioritising Hindus in matters of citizenship as
per law, it seeks to make India a Hindu homeland, and is the first de jure attempt
to make India a Hindu Rashtra. If India is to stay a country for Indians and
not for Hindu Afghans, Hindu Pakistanis and Hindu Bangladeshis and eventually
for Hindu Russians, Hindu Americans, CAB should not be passed in Parliament. If
it is, the judiciary must call it out for what it is — a patently
unconstitutional piece of legislation. Else, make no mistake, it is only the
beginning and not the end of similar legal moves, which, with time, will bring
an end to the Constitution as we know it.
Shadan
Farasat is an advocate practising in the Supreme Court of India. The views
expressed are personal
Source: thehindu
