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Home Reports Validity of Citizenship Amendment Act, 2019: A historical, humanitarian, and constitutional perspective

Validity of Citizenship Amendment Act, 2019: A historical, humanitarian, and constitutional perspective

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Right from our social media feed to television screens; from newspaper headlines to office discussions, the topic that has been in the spotlight in recent days is the “Citizenship Amendment Act, 2019” (Hereinafter ‘CAA’). Amidst all the propaganda surrounding the issue, we make an attempt to separate the ‘facts’ from ‘propaganda’ and objectively analyse the Act.

If we begin our analysis of the ‘CAA’ through the prism of Hindu Philosophy, the CAA is nothing but another Dharmic (we in no way associate ‘Dharma’ with the term ‘religion’) step out of many which our country has performed since centuries. CAA has everything to do with ‘Dharma’ but nothing to do with ‘Religion’. Surprised? Let me make it simpler.

When Jews were persecuted by Christians, people of Kochi provided them with shelter. No one asked their religion.

When Parsis were hounded in their own homeland, they found shelter in Sanjan, a small coastal town in Gujarat. It is not the case that Sanjan was brimming with extra resources but they still accommodated them all with an open heart. Again, no one asked their religion.

There was a time in history when Muslims were fleeing from their homes fearing the wrath of Chengiz khan, they too found shelter in the ever-welcoming Kerala. Here again, no one asked their religion.

During the Second World War, when Polish people were sandwiched between Hitler’s Germany and Stalin’s Russia and ran for their lives they found shelter in India. Not only they were provided with shelter, but also the orphan homes for Polish children were built by Raja of Navbahar.

 

The list is never ending and we have many more examples such as Syrian Christians, Israelis, Chinese etc.

Now, CAA is legally acknowledging this same Dharmic duty: “To provide shelter to those who have nowhere else to go”. I believe nothing much is required to be said about the sombre gloomy conditions of the minorities in Pakistan & Afghanistan. Minorities have been tortured, ostracized, maimed and killed due to the sole reason of not professing the State religion of Islam and refusing to convert. Condition of minorities have improved in Bangladesh in recent times under the Sheikh Hasina Government, however brutal killings of bloggers in the name of threat to Islamic tenets in not a thing of past. Providing citizenship to such battered people can in no way be categorized as communal, it is a basic tenet of humanity. This article makes an attempt to analyse CAA from humanitarian, historical and Constitutional perspective.

SPECIFIC CASE OF HINDUS

 

The two major religions in the subcontinent are: Islam and Hinduism. If we analyze the conditions of these two religions in the subcontinent since coming into existence of two separates Nations of India and Pakistan and later Bangladesh, the picture becomes crystal clear. The population of Muslims has increased in all three countries. In India despite being a minority, Muslim Population has increased from 9.8% in 1951 census at the time of independence to 14.2% as per the 2011 Census. On the other hand, ratio of Hindu population has gone down not only in Pakistan and Bangladesh but also in India. We are in no way trying to induce fear amongst the Hindu population as is being done by some vested interests with regard to the Muslim community in respect of the CAA. The purpose of this article as stated before is to separate facts from propaganda as facts never lie. The reason for the battering condition of Hindus can be clearly observed in the form of complacency and silence whenever Hindus were specifically targeted. Some of the examples are as follows:-

In 1968, 3 million people (Hindus) were massacred by the Pakistani Army in operation searchlight, no one protested.

In 1980s, many temples were destroyed in Bangladesh and many people (Hindus) were killed, no human rights issue was raised.

In 1990, Kashmiri Pandits were forced to leave their home, raped, massacred, again no one protested.

In 1988, around 1700 Hindus (Dalits) refugees from Bangladesh who were invited by the government to live in Marchijapu island of Sunderbans were killed by the then CPM government of Jyoti Basu, here again all that prevailed was silence.

Hindu women being abducted, raped and forcefully converted, raped and converted has become a daily news item in Pakistan, and the acquiesce of the majority is a death kneel to humanity. The appalling condition of minorities in these countries is well known. There are reasons why human rights watch calls the persecution of minority in Pakistan as something of “unprecedented level”. Let alone the common people, even the MLA and Minister are not safe there. MLA Baldev Kumar wants to migrate to India because of fear of persecution. Earlier in 2016, Soran Singh, Minister of minority affairs in Khyber Pakthunwala province was killed. Pakistan as of now has only 20 functional temples while once temples were the part of basic culture of the present day Pakistan. Their most important city, Karachi is named after the Hinglaj temple’s deity. Even, the Constitution of Pakistan works as a catalyst in the persecution of minorities. The highest post in the Pakistan is reserved only for a Muslim, a non-Muslim citizen cannot become President in Pakistan. Similar is the case in Afghanistan and Bangladesh. The bill tries to do as much as our country can do for the well being of the minorities of Pakistan, Bangladesh and Afghanistan. (We have just analysed the situation of the Hindus in the Subcontinent for the sake of brevity, the position of other communities such as Sikhs, Christians, Parsis etc which the CAA seeks to protect is similar in Afghanistan, Pakistan and Bangladesh.)

All this happened after independence of India. If we were to count all the massacres and incidents of atrocities against Hindus and other minorities before independence, we would need months just to collect the information. But when a bill was passed for the helpless Hindus, Sikhs, Christians, Jains etc; hitherto sleeping sections of the society who were silent in all the above discussed massacres has suddenly risen and branded it as a law that threatens secular credentials of our country. A false narrative is being peddled in the minds of Muslims to induce fear which is totally uncalled for. In order to burst this myth of CAA being anti Muslims, let us discuss it in brief.

 CAA IN BRIEF

CAA decreases the number of years required by the illegal immigrants to become citizens by naturalisation. This is allowed only in cases where an immigrant has entered India fearing religious persecution in his/her country of origin. Illegal immigrants are basically those who either enter the country without the permission of concerned authority or those who come on valid visa but overstay. Illegal immigrant could be detained or deported under the Passport Act, 1930. Under CAA, this advantage is only available to 6 persecuted religious minorities of Pakistan, Afghanistan and Bangladesh namely: Buddhists, Christians, Hindus, Jains, Parsis and Sikhs. CAA decreases the time required for these 6 communities to become eligible for citizenship by naturalization. Earlier, the time needed was 11 years, but now it has been reduced to 6 years.

The important thing for us to understand here is that CAA is in no way harming any citizen of India whatever her religion may be. The fear mongering by certain vested interests specifically directed towards the Muslim community is totally uncalled for without any substantial basis. Moreover, it is not the case that no Muslim refugee would be provided Indian citizenship ever in future; it is just that he is not granted special privilege as granted to the 6 communities mentioned in CAA due to the religious persecution that they face.

HISTORICAL PERSPECTIVE

George Orwell has said that “The most effective way to destroy people is to deny and obliterate their own understanding of their history.”

This quotation is perfectly applicable in our scenario as the people opposing CAA seem to have little understanding of history. Many people are opposing CAA for the reason that they want to extend the benefit of this process to every persecuted minority. Here such people fail to understand that every problem stems from a unique circumstance. That’s why, when we were dealing with the problems of Hindus of Uganda, we didn’t grant the citizenship to Hindus of Pakistan or when we were dealing with problem of Tibetan Buddhists, we only focused on the Tibetans, instead of giving the relief to every persecuted minority in Indian subcontinent. Presently, the CAA is being hailed as to finish the unfinished task of Nehru Liyaqat pact, we have to critically analyse it in the light of Nehru Liyaqat Pact of 1950.

Salient Features of the Nehru-Liyaqat Pact were as follows:

  1. Refugees were allowed to return unmolested to dispose of their property
  2. Abducted women and looted property were to be returned
  3. Forced conversions were unrecognized
  4. Minority rights were confirmed

Later, in August 1966, the Jan Sangha leader Niranjan Varma asked three question to the then external affairs minister Sardar Swarn Singh. The questions were:

  1. What is the present position of the Nehru-Liaquat Pact, which was concluded in 1950 after the last Indo-Pakistan conflict?
  2. Whether both the countries are still acting according to the terms of the Pact?
  3. The year since when Pakistan has been violating the Pact?

The Minister replied to the first question that Nehru Liyaqat Pact is a standing pact. It needs continuous evaluation of the minorities in both countries.

To the second question, he replied that Pakistan has acted in contravention of the pact several times.

His answer to the third claim clearly indicates the relevance of CAA. Sawaran Singh in response to third question has said that “Instances of such violations started coming to notice almost immediately after the inception of the Pact.”

CAA must be seen in this light only, isolated from other problems as it has its origin in the partition. Moreover, the Ahmadiya problem arose in 1974 when they were declared non Islamic community by Pakistan, the claims of Rohingya arose when they were ousted by Myanmar army. Furthermore, communities such as Ahmedias and Shias are not recognised as different religious community in India but merely as different sects of Islam. Thus, their persecution in Afghanistan and Pakistan cannot be categorised as religious persecution but persecution of a sect. This form of persecution can be dealt with in later times under a new Act.

Statement of the first Prime Minister of India is relevant in our understanding of the historical context of CAA. Pandit Jawaharlal Nehru said “Those of our brethren separated from us due to political boundaries, who are watching us but cannot join us in our celebration of freedom, we are also concerned about them. Whatever happens, they are our own, and will remain so, forever. We will be equal participants in their happiness and sorrow, and whenever they want to come to India, we will accept them.”

Words of our beloved Mahatma Gandhi, whose words are revered and respected across the political spectrum in India also said that “The Hindus and Sikhs living in Pakistan, if they don’t want to live there, then they can come to India without a doubt. In this matter, to provide them with employment, citizenship, a life of dignity and happiness, is the first duty of the government of India.”

Liberals arguing that CAA goes against the idea of India propounded by Mahatma Gandhi conveniently ignore the above words of Gandhiji as this does not suit their agenda.

Thus it can be said that it is not any extraordinary humanitarian thing we are doing for minorities of Pakistan, Bangladesh and Afghanistan, we are just fulfilling our duty to abide by the Nehru Liyaqat Pact which was signed by Pandit Nehru in his capacity as the leader of our country.

To deal with the Ahmadiyas, Shias, Rohingyas or Tamil Hindus in the present Act would be to treat diabetes with a capsule meant to treat flu.

CONSTITUTIONAL PERSPECTIVE

The main argument put forward by the opponents of CAA is that it violates Article 14 i.e. Right to Equality as it differentiates illegal immigrants on the basis of their religion. This argument completely falls flat on a cursory glance of various Supreme Court judgments which have discussed in detail the scope of Article 14 i.e. the equality clause of our Constitution.

Right to Equality in our Constitution does not mean that everyone will be treated equal under all circumstances. If such was the cases, then special treatment for various sections of the society such as dalits, tribals, women would be a violation of Article 14. Right to equality under the Indian Constitution thus entails that there is scope for special treatment under special cases as and when the need arise. Hence, reasonable classification is permitted. In DS Nakara & Ors v. Union of India, the Hon’ble Supereme Court observed that the term intelligible differentia distinguishes, reasonably, between persons or things that are grouped together from those that are left out of the group.

The Apex Court further clarified in Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar & Ors. that such differentiation must have a nexus with the objective sought to be achieved by the state action meaning that there must be an objective of a state action and the differentiation must be necessary to achieve that objective.

Citizenship Amendment Act makes differentiation between two groups; one constituting Hindus, Sikhs, Buddhists, Jains, Parsis & Christians from Afghanistan, Pakistan and Bangladesh and the other group consists of the left out communities from these countries, primarily Muslims.

If we analyse this differentiation in light of the statement of object and reasons of CAA which states that Islam being the state religion of Pakistan, Afghanistan and Bangladesh, minority communities have faced persecutions there and many such persons have fled to India to seek shelter and have continued to stay in India, the picture becomes clear.

This differentiation has a clear nexus with the object that is sought to be attained i.e. to provide citizenship to communities that are being persecuted solely because of their religion.

Another important point conveniently being overlooked by the opponents of CAA is that the statement of object and reasons of the amendment states that “The amendment does not prohibit persons belonging to Muslim community from applying for citizenship of India. It does not ‘freshly’ declare foreign Muslims as illegal migrants. The position of foreign Muslims remains unchanged by the amended Act and only a relaxation to foreign persons belonging to minority communities of specific three countries has been provided based on a reasonable objective.”

I have made an attempt to clear the air about one of the most misinterpreted laws of recent times i.e. the Citizenship Amendment Act. It saddens me that buses are being burnt, police and media vans set on fire, stones being pelted on the police, all in the name of an Act which is clearly being misunderstood. Also remember, amidst all this misinformation, violence and disruption, there are few people who have absolutely no other place to go, they have decided to better die here than go back to places where they would anyway be killed or converted. They are looking towards us with hope. Let’s not shatter that hope.

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