By Prof Ujjwal K Chowdhury
The government of India is going ahead with its legislation of the Citizenship (Amendment) Bill and it has been passed in the Lok Sabha already. This was a part of the manifesto of BJP in the last 2019 general elections.
What does it basically entail?
The persecuted minorities, Hindus, Christians, Sikhs, Buddhists, Jains and Parsis of three neighboring nations, Pakistan, Afghanistan and Bangladesh, and who have been staying in India since December 31, 2014, or earlier, can apply for citizenship in India, and India under this law shall accord them the status of citizens. The Bill clearly excludes the Muslims noting that they are the majority in these three nations. Several questions have been raised and rightly so.
If this ensuing law is about being large-hearted, compassionate, then why leave out persecuted Muslims in the neighboring nations like Rohingyas in Burma or Ahmadis and Baluchs in Pakistan? Why leave out persecuted Tamils of Sri Lanka? Or the discriminated Madheshis in Nepal? What about the Gorkhas who have shifted from Nepal to India or working in India for long?
Next, why is religion the basis of considering persecution whereas there are various other reasons and sources of persecution? There can be persecution by belief (Taslima Nasreen had to leave Bangladesh), due to war (as seen in Syria), due to economic hardships (as many marginalized people from Nepal and Bangladesh once migrated to India), and due to political beliefs (as happened with Dalai Lama and his followers). Even extremes of climate can lead to migration.
Article 14 of the Constitution states, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.” The usage of the word “persons” rather than “citizens” is significant, as it means that this right applies to Indian nationals as well as foreigners, contrary to the argument made in this article that the provision applies only to citizens. Hence, this Bill violates the spirit of the Indian Constitution.
The Supreme Court in Charanjit Lal Chowdhury vs Union of India held that the law would not fall foul of the equality principle in dealing in a similar way to “all of a certain class”, but such a classification should never be “arbitrary.”
Arguably, the Bill makes an arbitrary classification based on religion (as some Muslim sects also face persecution in Pakistan, Afghanistan and Bangladesh due to their faith) and the countries listed in the Bill (some Tamils in Sri Lanka face persecution partly because they belong to minority religions, but the country is left out of the Bill.)
The Citizenship (Amendment) Bill is not the first instance of the government extending protection to minorities from neighbouring countries. In 2015, the Centre issued two notifications in the Official Gazette under the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946. Through these, the government allowed Hindus, Sikhs, Buddhists, Jains, Parsi,s and Christians from Pakistan and Bangladesh entry into India even without valid documents.
It is important to note that these notifications only permitted such persons to enter and stay in India even if they did not have valid documents. In other words, the notifications did not deal with the issue of granting them citizenship.
A significant official document dealing with refugees/illegal immigrants was the Assam Accord of 1985. According to the Central government, the National Register of Citizens is aimed at giving effect to the accord, which was signed by the Centre, Assam government, the All Assam Students Union (AASU) and All Assam Gan Sangram Parishad (AAGSP).
As per the Accord, it was decided that immigrants who came to Assam before 1 January, 1966, would be given citizenship. Those who entered Assam from 1 January, 1966, to 24 March, 1971, would be “detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order 1964.” They would remain disenfranchised for ten years. Lastly, those who came to Assam after 24 March, 1971, would be detected and expelled.
Let’s explore further.
This Bill on citizenship has to be viewed along with National Registrar of Citizens (NRC) which has already excluded 19 lacs people (that includes 13 lacs Hindus) from the Registrar of Citizens in Assam, and which is now being touted by Union Home Minister Amit Shah as a template to be applied across India. NRC calls for documents as old as seven decades and to prove that a person and his or her three generations have been staying in India to be considered citizens.
BJP, which was initially very enthusiastic about NRC, now is in a catch-22 situation finding a large number of Hindus, mainly Bengali Hindus, left out of NRC in Assam. Hence CAB is being brought in to allow the non-Muslims left out to apply for citizenship.
View More: NRC in Assam can Burn the State!
But these 13 lacs Hindus who are left out of NRC in Assam have already claimed that they are Indians and submitted documents claiming so once. How would they now move to a different claim as being Bangladeshis and persecuted, and hence applying for Indian citizenship? Legally how tenable is that?
If we deny citizenship even to those who are born in India, and are with valid Aadhaar cards, PAN cards, Voters’ Id and in many cases in Passports of India as is the case with many in Assam, there would be millions of Indian origin citizens or migrants in US, UK, South Africa, Australia, New Zealand, Canada and many other nations who may be asked to go on similar grounds as India is denying citizenship on religious considerations in spite of having several documents. These two laws together, NRC and CAB, if applied nationally, make India an international pariah.
More questions remain.
Why the arbitrary cut off date of December 31, 2014? Why not then any persecuted person who has shifted to India from a neighbouring nation anytime in the past? Why certain states of Northeast are left out? And the fear of people coming from elsewhere and swamping North Eastern states is real looking at Tripura which now has its indigenous Tripuri tribal population at 12 lacs and migrant Bengali population at 28 lacs.
Intelligence Bureau has noted that only 31,313 non-Muslims have so far applied for fora long-term visa under the earlier Gazette Notification of 2015, which makes this brouhaha about persecuted non-Muslim immigrants a minor issue on ground. Further, IB also notes that to apply for Indian citizenship, one has to note the reasons for persecution at the point of entry into India, which also will be rarely seen as the deadline of December 31, 2014, is long gone. Hence, why such a major change in law violating the spirit of the Constitution being done?
Further, it is not clear that what happens to all those people (now pre-dominantly Muslims) who are kept out of citizenship or identified as foreigners, in Assam or elsewhere. They are pushed back into the three neighbouring nations? They have noted that none will accept any pushback and PM Modi assured PM Haseena of Bangladesh that India would not resort to such tactics. Then what? Will they be shot dead? Or will they be segregated from the masses of India and kept in detention camps? Already many detention camps are being constructed in Assam and some are operating in squalor and constraints.
So, India intends to create modern Concentration Camps through these detention camps a la Hitler’s anti Jew regime. And take the detained people out of economically productive engagement in society, put them in detention camps constructed and run by the Indian state, they fed and monitored by the Indian state, all at tax-payers’ money waiting for them to die. Further, these detained people were otherwise working and contributing to the economy and with their departure from the labour market, costs go up and the economy suffers. Is this a 21st century prescription to a vexed demographic issue?
The most important aspect to stop immigration is to seal the borders with the neighbouring nations from where you do not want any illegal immigration. Borders are manned by Border Security Force of the Centre and it is the central prerogative to seal the borders. But no concrete measure taken in that context that betrays seriousness of purpose of the government on immigration. So, why then are these NRC and CAB being upheld?
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There are two reasons for that. First, just like Ayodhya Ram Mandir issue across a quarter century, these two together will divide Hindus and Muslims and keep the nation engaged in an endless debate and action to prove citizenship of each person and may lead to Hindu polarization bringing in electoral benefits to the ruling BJP.
Second, the debate on religion based citizenship today is being attempted to take the attention away from a falling economy, rising joblessness, growing farm distress, the falling value of rupee, and dismantling fundamentals of the Indian economy (now with lowest economic growth-rate in South and Southeast Asia).