Wholly subordinated to the majoritarian nation

Lead

Varghese K. George

December 11, 2019 00:02 IST

Updated: December 11, 2019 12:41 IST 

 

The NRC-CAB combine seeks the reconstitution of Indian nationhood on the lines of V.D. Savarkar’s idea

“With India for their basis of operation, for their Fatherland and for their Holyland… bound together by ties of a common blood and common culture (Hindus) can dictate their terms to the whole world.” These words scratched by V.D. Savarkar on the walls of a prison, and published in 1923 as a book that defined Hindutva, are roughly 100 years old.

Political boundaries are artificial and imagined barriers to human movement. Most violence in the modern history of humankind emanated from attempts to enforce boundaries that purportedly protect citizens and eject aliens. The Holocaust and the Palestinian dispossession are two egregious examples. Ascribing, and claiming legitimacy for a particular community-territory link is a political project, and Savarkar did this with remarkable clarity.

During the Second World War, he exhorted Hindus to join the British Army, not to fight fascism, but to prepare for the civil war with Muslims that he thought was inevitable. Muslims and Christians could never be loyal citizens, he argued. He wrote, “The tie of a common Holyland has at times proven stronger than the claims of a Motherland… Look at the Mohammedans. Mecca to them is a sterner reality than Delhi or Agra.” The idea that nation is not territorial, but cultural, was the core of Savarkar’s treatise. Though the notion of a Holyland is emphasised, it is only “a basis of operation” to dictate terms to the rest of the world. Not all those who are residents are a part of the nation, and not all outside the territory are outside the nation. India’s founding fathers and public opinion overwhelmingly rejected this notion at the time of Independence, but an Islamic mirror image of it was born into reality as Pakistan. 

Rooted and true

Though a group of sedate political experts were hallucinating a delink between Narendra Modi and Hindutva in 2014, he was clear in his promises and has been true to them in government. The non-territorial notion of citizenship and nationhood, the core of Hindutva, was reiterated in the 2014 manifesto of the Bharatiya Janata Party, foretelling the amendment to the Citizenship Act, which was passed by the Lok Sabha on December 9. “India shall remain a natural home for persecuted Hindus and they shall be welcome to seek refuge here,” the manifesto said. “The NRIs [Non-Resident Indians], PIOs [Person of Indian origin] and professionals settled abroad are a vast reservoir to articulate the national interests and affairs globally. This resource will be harnessed for strengthening Brand India,” the manifesto foretold Mr. Modi’s diaspora politics.

Talking to the Indian diaspora in London on November 13, 2015, Mr. Modi said: “Our relations are based on the ties of our blood, not on the colour of our passports. All the rights of Narendra Modi has, you do too...” While the Citizenship (Amendment) Bill 2019 (CAB) seeks to enact as law the notion of India as the home for all Hindus anywhere, the National Register of Citizens (NRC) seeks to weed out those who are already in the territory but are not part of the nation, as per Savarkar’s doctrine, echoed in numerous resolutions and statements of the BJP and its forebear, the Jan Sangh. For a non-Muslim excluded from the NRC, there could be a route to citizenship once CAB is law. This distinction between “infiltrators” and “refugees” that Home Minister Amit Shah made during the debate on CAB in the Lok Sabha was made by Mr. Modi during the 2014 campaign. As Mr. Shah told Parliament, nobody can complain of being blindsided by the government on CAB — it was part of the BJP’s agenda on which it sought a mandate in 2014 and 2019.

The outlines

If Muslims were not legitimate citizens of the nation, where would they go? While he would not accept them as part of the Hindu nation, Savarkar would also not concede to the demand for a separate country for them and he fiercely opposed the demand for Pakistan. It was left to M.S. Golwalkar of the Rashtriya Swayamsevak Sangh, with whom Savarkar had a hostile relationship, to spell out clearly what non-Hindus were supposed to do. They “... may stay in the country, wholly subordinated to the Hindu Nation, claiming nothing, deserving no privileges, far less any preferential treatment — not even citizen’s rights.” When India debates what happens to those who will not be able to prove their citizenship under the NRC, and are unable to seek citizenship under CAB, this is the future envisaged for them in the Hindutva notion.

This understanding of nationhood and citizenship is reflected in the government’s move to end the special constitutional status of Jammu and Kashmir, and demote and divide the region into two Union Territories. Kashmiris, far from aspiring for autonomy and enjoying special protection of their cultural identity, are now reduced to seeking the restoration of basic citizenship rights and statehood; as and when they are allowed to speak, that is. Far from holding a veto on Indian politics as the BJP had accused them of for decades, Muslims would be seeking to restore their voting rights, if unable to meet the onerous requirement to be listed in the NRC. The shallowness and duplicity of the government’s claim that the scrapping of the special status of J&K was about uncompromising uniformity of laws across the country stands exposed in CAB, that continues to provide special protection to the cultural rights of several communities. Mr. Shah also made the reassurance during the debate that Article 371 which protects the cultural integrity of many regions, would “never be altered”. So, it is not a matter of principle for the government that no community shall be granted special cultural rights; it is only that Muslims will not be allowed that. 

The U.S. and a parallel

The ongoing attempts in India to remake itself have striking parallels in the political project of U.S. President Donald Trump. In January 2017, soon after taking over, Mr. Trump ordered a religious test for admission to the U.S. Through an executive order he banned travellers from seven Muslim-majority countries from entry. The order also a had a provision, echoing the Modi government’s CAB, which was then pending in Parliament. The President ordered to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality”. This would have excluded Muslims from Muslim-majority countries — the exact intent of the CAB. The American judiciary stalled the implementation of the order, and a third version of the travel ban that was finally upheld by the U.S. Supreme Court in June 2018 did not have the above provision. Two non-Muslim countries were included in the amended list of countries from where travellers are banned. The U.S. Supreme Court upheld the principle that there cannot be a bar on entry based on religious categories, though it allowed the third iteration of the Presidential order to stand.

Justice Sonia Sotomayor, speaking for the minority in the 5-4 judgment said the Presidential order — even the revised one — was discriminatory and unconstitutional. She held that a “reasonable observer” would view the executive action “as motivated by animus against Muslims”, and termed the majority decision as a repetition of the past mistake of upholding the Japanese American internment camps in 1944. During the Second World War, when Savarkar was recruiting future soldiers to deal with the internal enemies, Franklin D. Roosevelt, hailed as a progressive President, was ordering the internment of thousands of American citizens of Japanese origin. That past appears to be returning, not as a haunting nightmare as it should be, but heralded as the promised glorious future. What makes Hindu majoritarianism more effective is its doctrinaire legacy, supported by texts and enforced by a quasi-military cadre. 

varghese.g@thehindu.co.in

Source: thehindu

A patently unconstitutional piece of legislation

Lead

Shadan Farasat

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

శ్రీ కౌముది డిసెంబర్ 2019