There is no law or morality in conflict with, or above the Constitution which ‘We the people gave to ourselves’. If we reflect on the Preamble to our Constitution, it becomes crystal clear that our Constitution is primarily geared to achieving the “unity” and “integrity of our nation”. It also definitively prescribes the way to this goal by securing to all “political justice”, “equality of status” and “opportunity” and by promoting “fraternity” amongst all. This was the only way known to the framers of the Constitution, in order to preserve the integrity and the unity of our Nation. This is the only form of nationalism we should recognise in our daily life.
Anything that does not pass the above test of nationalism and is in conflict with the Constitution cannot be nationalistic. The criticism of a law which does not subserve the above goals of unity and integrity of our nation cannot be condemned as “anti-national”. I am not using the common parlance test of patriotism as framers of our Constitution deliberately avoided using it.
The Constitution, our Bible, has prescribed a very simple test of nationalism. Does the Citizenship (Amendment) Act (CAA), 2019, meet the test of nationalism? If not, will it be fair and reasonable to call those opposing it “anti-nationals” or “unpatriotic”? These are some of the issues troubling us all, in the face of half-baked assertions and partial truths.
It can safely be said that the Government is not wrong when it says that the CAA, which here means the Proviso to Section 2(1)(b) read with Section 6B of the CAA, does not deprive anyone of their citizenship on its own. This projected innocuousness is nothing but a half-truth. The CAA cannot operate independently to deny an existing citizen of their citizenship.
However, it was not intended to operate in a vacuum, but in the company of the National Population Register (NPR) and the National Register of Citizens (NRC) which would identify “illegal immigrants”. Immigrants who have migrated to India from outside the country without valid documents, or who have over-stayed beyond prescribed dates as per those documents, are illegal.
Here, the CAA steps in to say that those who have entered India on or before December 2014 from Pakistan, Bangladesh and Afghanistan and who are not Muslims, will not be deemed “illegal migrants”. It paves the way for an expeditious grant of citizenship to such persons under Section 6B of the Citizenship Act 1955, either by “registration” or “naturalisation”.
The correct position is that CAA certainly does not deprive anyone of their citizenship but operates discriminatingly to deny it to those from Muslim communities who have come in from Pakistan, Bangladesh or Afghanistan before December 2014, the similar opportunity to acquire citizenship like Hindus, Sikhs, Jains, and Christians etc. Even members of named communities fall under deprived category of Muslim, if they have come from countries other than Pakistan, Bangladesh and Afghanistan. What should be noted is that Afghanistan has virtually no connection with the partition of India.
Anyone from the Muslim community, once determined to be an “illegal migrant, cannot ever become a Citizen of India (except after between 11 to 14 years, the naturalisation route under the Citizenship Act). Anyone claiming otherwise is guilty of spreading a blatant untruth. There is no facility which speeds up the process for them.
Would the deprived community not feel cheated?
At this stage it would be appropriate to examine how this differentiation is not just discriminatory, but also anti-secular. Our Constitution prescribes democracy based on direct peoples’ participation based on equality. The concept of equality enshrined in our Constitution abhors classification on grounds of religion. In fact, the secular ethos of our Constitution is based on this very concept of religious equality. It intends to foster special rights for the minorities to achieve religious equality.
The concepts of secularism as well as equality are not antithetic. Therefore, if we test the CAA on this anvil of equality, we would unhesitatingly find it to be wanting, as well as hostile to Muslims. What becomes apparent on further examination is that the CAA is neither in accord with the intent of the framers of our Constitution, nor in harmony with the Citizenship Act of 1955.
This Constitution, based on direct peoples’ participation in the elections and governance, irrespective of religion, meticulously prohibits discrimination in all spheres. It prohibits inequality in all spheres through various provisions like Article 14, 15, 16, 25, 26, 325 and 326.
The Constitution also accords special treatment to minorities as part of its equality code. In keeping with this spirit, the chapter on citizenship maintains a careful silence about the intervention of religion in citizenship. At no place does it advocate grant of citizenship on the grounds of religion, treating all religions alike. Also, these provisions were conceived at a time when large-scale migrations were taking place across borders. One can even assume that those migrating from India to West Punjab or East Pakistan belonged to a religious minority. Despite this, framers of the Constitution permitted those who had migrated from India to Pakistan, during the heat of Partition, to return and acquire citizenship (Article 7). This was the spirit behind granting citizenship under the Constitution; keeping religion aside.
Interestingly, both Articles 6 and 7 deal with migrations to and from India, but neither mentions any religious bias. The framers kept the citizenship issue alive for all categories of migrants while ignoring their religion. In this regard, the silence of the Constitution is telling.
This spirit also pervaded the Citizenship Act, 1955, enacted shortly after the Constitution came into place. None of the provisions of the Citizenship Act mentioned religion, either for granting it or for its withdrawal. Neither was the process of granting citizenship by registration, or by naturalisation, influenced by religion. Again, Parliament too painstakingly avoided even the hint of religion to seep in – till the CAA, in 2019.
In this CAA, religion as a primary criteria for granting citizenship to “illegal migrants” is written in bold letters. The poisonous part is that, in the aforementioned three countries, all other “illegal immigrants” can acquire citizenship of India through the special route if they have come before 2014, except Muslims who would never get the benefit of the same special process. This segregation based on religion undoubtedly strikes at the root of equality and secularism embedded in our Constitution.
The CAA arbitrarily assumes that members of the Muslim community can never be a target of fanaticism or persecution in Pakistan, Afghanistan or Bangladesh, which is factually incorrect. The persecution of Ahmadias and Hazaras in Pakistan and Afghanistan, respectively, is a case in point. It further assumes that Hindus from other countries can never be a persecuted lot. Sri Lanka presents a glaring example of this. There are other instances of irrational assumption too.
No Definition of Religious Persecution
The problem is further compounded by the absence of any definition of “religious persecution”. There is no criteria for determining who has suffered religion persecution; the law is ominously silent in this regard. Therefore, to link CAA with religious persecution caused by Partition is totally illogical and misleading. Or is it camouflage? Besides, as stated above, what has Afghanistan to do with the Partition of India? If it was a genuine concern for those who suffered “religious persecution”, then why distinguish on grounds of religion or on the basis of countries. Can there be a difference in “religious prosecution” of the Muslim and the Hindus in Pakistan or Bangladesh? It certainly belies my comprehension.
Giving asylum to those who have suffered religious persecution is a humanitarian act, but why should this end when it comes to Muslims from Pakistan, Bangladesh or Afghanistan, or Hindus and Christians from other countries. Why is similar humanitarian treatment being denied to Hindus from Sri Lanka, or to Christians from Bhutan? Primarily, these were parts of British India, too. I am told even Hindus have come in from Burma. Why exclude them? Muslims from the three countries named in the CAA are religiously excluded and will not be deemed to be religiously persecuted at all.
A Violation of the Liaquat-Nehru pact?
Aside from the senseless discrimination, what is most troublesome is the legal effect of CAA on the “illegal migrants”. Hindus and Sikhs, for example, will not be deemed as such. They would not have to prove anything. Thereafter, it paves the way for granting of Citizenship to them since they are no longer illegal migrants by a fiction of the law. The logic of CAA openly flaunts the religious bias against the Muslim. To justify this on grounds of the Liaquat–Nehru Pact of 1950 is again a serious attempt at spinning out truths with not even half a stand.
The pact does not deal with these issues anywhere. It deals with two aspects (a)-To obligate both the Governments of India and Pakistan to treat their minorities with respect in their own territories, and with complete equality of Citizenship. It is to accord to the minorities equality of opportunity, security and participation in public life.
The basic theme of the pact is to accord complete equality of treatment in their respective territories and (b)- to provide adequate security, relief and assistance to the migrants suffering partition while ignoring their religion.
If we read the pact carefully, CAA most certainly amounts to a breach of this obligation. The pact carefully avoids bringing religion into the equation. The underlying phrase is “agree to ensure to the minorities throughout its territory complete equality of Citizenship irrespective of religion”. Does the CAA conform to this spirit? Besides, the pact, by itself, does not deal with a grant of Citizenship to “illegal migrants” post-2003. CAA solely deals with this issue. Therefore, reliance on the pact is hardly relevant.
I must confess that when I read the Constituent Assembly debates on Article 6 and 7, there did appear to be a religions tilt in favour of non-Muslims, particularly Hindus. However, the reasons were peculiar to happenings surrounding the event of Partition. There was an element of inevitability, but to superimpose those events and realities on today is totally unreal and bizarre.
Partition did not happen overnight, it was a drawn-out process. There was a major wave of Hindus coming in from Pakistan. There was a second wave that came from Pakistan in 1948, which comprised Muslims, who had left earlier for Pakistan, in large numbers. Therefore, a difference in the matter of granting citizenship in these cases is explainable. Technically, Article 6 and 7 may project a degree of religious bias against Muslims but this was primarily because it was unsettling the status quo in property. There was a need to discourage such migration of Muslims who had earlier left for Pakistan.
After nearly 70 years, when the issue of citizenship on account of Partition has been laid to rest, it makes no sense, constitutionally or legally, to revive the said distinction. There is no parallel at all. The CAA is confined to “illegal migrants” who came in only after 2004. Section 3 of the Citizenship Act 1955 is a clear pointer in this direction. It is not even remotely connected to partition.
The nub of the matter is that despite going through the bad phase of Partition, neither the Constitution nor the Citizenship Act 1955 took the step of mentioning “religion” as a significant or underlying factor in relation to grant or denial of Citizenship. This studied silence is telling, yet the Government of the day hesitates to listen to it. The consequences are there to be seen by every logical and rational Indian. I wish and pray, despite being a-religious, that the government of the day listens.
The writer is a Senior Advocate at the Supreme Court of India. The views are personal.