December
26, 2019 00:02 IST
Updated:
December 26, 2019 00:47 IST
The government needs to display an accommodative
approach in its reaction to the protests against the Citizenship Act
After
reading opinion page articles in this daily such as Time to
defend India’s secularism, by Kerala Chief Minister Pinarayi Vijayan
(December 18, 2019), and A
premature denouncement of the Citizenship Act, (December 21, 2019), by Member
of Parliament and former Union Minister Subramanian Swamy, one cannot avoid the
feeling that the issues require more corroboration and expansion.
Mr. Vijayan
has argued that the Citizenship (Amendment) Act
(CAA), 2019, is
violative of Article 14 of the Constitution and impinges on the very ideals of
our freedom struggle. He tries to establish that the CAA, being divisive and
discriminatory, manifestly violates human rights, and is an attempt to impose
the politics and philosophy of Hindutva, to accomplish its vision of a “Hindu
nation”.
Dr. Swamy
has attempted to rebut these arguments on three premises: that of the aims and
objects of this piece of legislation passed by both Houses of Parliament with a
large majority; the historic context for the legislation; and the equation of
“Hindutva” with ‘secularism’. The arguments in the December 21 article appear
hollow on multiple grounds and mandate rebuttal.
Quite
often, conceivably discriminatory laws are camouflaged by language. What
requires analysis is a reasonable scrutiny of the cumulative effects of the
legislation, read not in isolated silos. Dr. Swamy argues that the need for
this Bill arose partly because the Islamic theocratic nations, of Pakistan,
Bangladesh, and Afghanistan, have brutally persecuted non-Muslim minorities
since 1947. However, India’s official position on a number of occasions
necessitate us to make a nuanced observation. While exercising its Right of
Reply at the 38th Session of the UN Human Rights Council, in 2018, the Indian
representative said of Pakistan’s stand: “In its obsession with puritanism, it
has unleashed systematic persecution against its own Muslim minorities
including Shias, Ahmadiyas, Ismailia and Hazaras, who have been reduced to
second class citizens.”
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It is about rights
In the
course of justification, Dr. Swamy has argued that “no Muslims or Jews came to
India over the last 70 years on grounds of religious persecution”. It is devoid
of constitutional logic because as per the Indian Constitution, even in the
absence of an actual claim, rights of an individual persist. The Supreme Court
of India has held that “Article 14 was founded on a sound public policy
recognised and valued all over the civilised world, its language was the
language of command and it imposed an obligation on the State of which no
person could, by his act or conduct, relieve it.” It signifies that even if a
Muslim or a Jew might not have approached for last 70 years, it cannot be
considered as a ground for waiver of right to equality enshrined in Article 14.
In order to vindicate the patently unreasonable classification under the CAA,
Dr. Swamy appears to have misquoted the Congress Party Working Committee’s
resolution of 1947 and former Prime Minister Manmohan Singh’s statement of 2003
in terms of intent. It is worth noting that their premise for a lenient and
humane approach was not based on the specific ground of religion, but
persecution.
Defining persecution
Dr.
Swamy’s opinion that “on religious persecution, the Muslims of Pakistan, etc.,
are not similarly placed” lacks academic rigour. Arriving at a concrete
definition of “religious persecution” is a difficult task.
In the
context of persecution, religion has to be understood not from the believer’s
point of view; rather it is about what it means to its adversaries. For
instance, the treatment meted towards an atheist or agnostic gets completely
ignored under the parochial understanding of the CAA. Even the agents of
persecution can be of various types, including state agencies persecuting one
or more religious communities, religious organisations persecuting other
religious communities or, individual puritans enforcing conformity on their own
people.
As an
illustration, UN experts and special rapporteurs have reported, inter alia,
that “the current legal requirement for a separate electoral list for the
Ahmadis, who have to declare themselves as non-Muslims in order to vote, is of
particular concern”.
On the
aspect of human rights, the words of statesman-philosopher Dr. Radhakrishnan
should suffice: “This view of religious impartiality, of comprehension and
forbearance, has a prophetic role to play within the national and international
life. No group of citizens shall arrogate to itself rights and privileges which
it denies to others. No person should suffer any form of disability or
discrimination because of his religion but all alike should be free to share to
the fullest degree in the common life.”
Basis of Partition
Drawing
parallels between Hindutva and secularism appears to be a complete misadventure
as minor incidental overlappings may exist between two diametrically opposite
philosophies. Contrary to many misinformed, aggressive and irresponsible
statements made by some parliamentarians on the issue of Partition and a Hindu
Rashtra, let us remind ourselves that the Partition of 1947 did not take place
on religious lines. Rather, it was based on a philosophical understanding of
the nature of society citizens and leaders wanted. Pakistan opted for a
theocratic nature of governance, but our founding fathers coveted a plural,
inclusive and modern society based on democratic and secular credentials. The
CAA has witnessed large-scale, non-violent protest by both the masses and
intellectuals. It is hoped that the Government will display an accommodative
approach. To conclude by paraphrasing Edmund Burke, “Magnanimity in politics is
not seldom the truest wisdom; and a great democracy and little minds go ill
together.”
Anmolam
is a lawyer, running a non-profit organisation BDLAAAW. Farheen Ahmad is a
research scholar at the South Asian University, New Delhi
Source: thehindu
