Citizenship Amendment Act – The argumentative conundrum

The recently passed citizenship Amendment Act (CAA) of 2019 has been in headlines giving scope for a public debate, often turning controversial without entering into the underlaid nuances, legal, moral and civilizational issues, which have to be addressed. This act is not about underlaying a Hindu- Muslim communal divide or neither is about outrightly denying anyone citizenship based on a religious basis. Also, it’s interlinked with the recently conducted NRC( National Register of Citizenship) process in Assam, which is brawling with several lacunes in the process and structural lapses. But questions are being raised about the liberal- secular values of India, the constitutional validity and the justifiability with the basic structure doctrine of the constitution. Critical historical factors of the partition of India and its aftermath, followed by Bangladesh liberation war of 1971 and the Assam Accord of 1985 are under the scanner of the commentariat and opinion-makers.

In the year 1947 when India attained its political freedom, it was partitioned and Pakistan was carved out on its eastern(present Bangladesh) and western front. The seeds of religious persecution were sown during those times leading into an outbreak of a series of communal riots across the borders and also had its footprints in the refugee camps. Especially in the east and west Pakistan, wherein the State religion was Islam, as a brutal and atrocious unstated policy practice, all the religious minorities were persecuted. Rape, murder, robbery, dacoity and gruesome oppression of civil, political and economic rights were a casual affair. As this situation became worse the INC (Indian National Congress) passed a resolution on 25th November 1947which read as ” The INC is bound to protect all non-Muslims, who have come over, crossing the borders or may do so, to save their lives and honour in the future; these people will be protected and given full citizenship in future”.

Moving ahead the Nehru-Liaquat Pact ( officially known as ‘Agreement between Government of India and Pakistan Regarding Security and rights of Minorities’ ) was signed between the Prime Ministers of Pakistan and India, Liaquat Ali Khan and Jawaharlal Nehru subsequently on 8th April 1950 and was an outcome of six days of talks which were sought guarantee the rights of minorities in both the countries after the partition of India and the advent of the war that took place in between. According to which Refugees were allowed to return to dispose of their property, the abducted women and looted property were to be returned, the forced conversions were unrecognized, and minority rights were fully confirmed, by this time close to 1.5 crore refugees had moved into India and among them, majority were Hindus ( 99% Hindus from west Pakistan and 93% Hindus were from East Pakistan). Years later In 1971 in East Pakistan, as a result of the Bengali persecution on a linguistic basis, a civil war outbroke between Mukti Bahini (A Bangla militant outfit) and the State of Pakistan, India intervened in the war which led to full-scale conventional warfare, this led to the creation of Bangladesh.

It’s important to know this, as the huge influx of refugees, most of whom who entered illegally, took place in this year and continued steadily in the next few years. In 1981 it was estimated that around 80 lakh migrants were staying in India, mostly in Assam, West Bengal and Tripura. In the year 1985 Assam Accord was signed between Assam students Union and the Rajiv Gandhi Government with the main intention, to protect, promote preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people. Assam accord promised to deport the illegal immigrants who had become an economic burden and were posing a challenge to the social fabric of the Assamese society and the cut off date was decided ( ie the date on or after which people would be declared as foreigners) was 25th March 1971. This accord was a result of the Assam agitation which was being fought from 1979, for the protection of Indigenous rights and Identity of the Assamese people. After years of delays and byzantine bureaucratism, under the monitoring of the Supreme court, the NRC exercise was carried out in Assam, Tripura and West Bengal mainly, and still remains an incomplete process. In Assam, the NRC process concluded that 19 lakh people are foreigners and out of them over 5 lakh happen to be Hindus.

In international law, the 1951 Geneva convention is the main international instrument of the refugee law. The convention clearly spells out who a refugee is and the kind of legal protection, other assistance and social rights he or she should receive from all its signatories. Definition of a refugee as per the 1951 Geneva convention on refugees is ” A refugee is someone who has been forced to flee his or her country because of persecution, war or violence. A refugee has a well-founded fear of persecution for the reasons of race, religion, nationality, political opinion or membership in a particular social group”.

In India, Illegal migrants may be imprisoned or deported under the foreigner’s act 1946 and the passport (Entry to India) Act, 1920. In 2015 and 2016, the central government issued two notifications exempting certain illegal migrants from provisions of the 1946 and 1920 acts. These groups are Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan, who arrive in India on or before December 31, 2014. This implies that these groups of illegal migrants will not be deported or imprisoned for being in India without valid documents.

Provisions of the CAA

The Act amends the Citizenship Act of 1955 to provide that Hindus, Shiks, Buddhists, Jains, and Christians from Afghanistan, Bangladesh and Pakistan will not be treated as illegal migrants. ( with the cut off date 31 December 2014) to get this benefit, they must have also been exempted from the Foreigners act 1946 and the passport ( Entry into India act) 1920 by the central government. The Bill says that on acquiring citizenship: (i) such persons shall be deemed to be citizens of India from the date of their entry into India. and (ii) All legal proceedings against them in respect to the issues and disputes concerning the migration or their citizenship will be closed. The bill adds that the provisions on citizenship for illegal migrants will not apply to the tribal areas of Assam, Meghalaya, Mizoram, or Tripura as included in the Sixth Schedule of the constitution.

This act also shall not apply to the areas under the Inner Line Permit (ILP), that regulates the visit of Indians to Arunachal Pradesh, Mizoram and Nagaland. This Inner Line was created by Bengal Eastern Frontier Regulation, 1873 to grant protection to preserve their indigenous demographic and cultural character. The application of ILP shall also be extended to the state of Manipur. The Act further reduces the period of naturalisation for such group of persons from eleven years to five years. This act provides for the sixth ground for the canceling the OCI ( Overseas Citizen of India ) registration, which is ” If the OCI has violated any law that is in force in the country, his/her OCI registration will be canceled “.

(NOTE: It shall be very clear that the Indian Muslims are in no way affected by this amendment. They are and will continue to enjoy all the benefits as legitimate Indian citizens. The bill deals with refugees who are foreign citizens.)

The Intelligence Bureau (IB) had submitted a report to the Home Ministry by identifying and calculating the number of beneficiaries, of the erstwhile bill in 2016, which is enacted now. A total of 31,313 persons belonging to minority communities including 25,447 Hindus, 5807 Shiks, 55 Christians, 2 Buddhists and 2 Parsis.

The IB had also said that ” for others (other than the minorities in these countries) to apply for the citizenship under this category, they will have to prove that they came to India due to religious persecution. If they had not declared so at the time of their arrival in India, it would be difficult for them to make such a claim now. Any future claim will be enquired into, including through R&AW before a decision is taken.

(The above mentioned facts were revealed by the government, during a hearing by a parliamentary committee on 2016 version of the bill, which is an act now.)

Since the enactment of this Act, there have been intense and often fervent arguments and debates about the constitutional validity of this act. One of the most fiercely raised questions is about, Article 14 of the constitution which enshrines “The equality before the law and the equal protection of the laws”. The main bone of contention is, by making a distinction on religion, the migrants are treated unequally and solely based on their religious basis. More so the Act avoids the words ” Religious minorities” and instead states ” communities that have faced persecution on grounds of religion”. This oblivious choice of words creates lacune and gives significant strength to the prospect of an unequal law. Though some point out the violation of Article 15, which is on Non-discrimination based on religion, hence it only applies to Indian citizens, it can be outrightly rejected. But, when Article 21 ” Right to life and personal liberty” case is made with puritanical secularist argument stating that disavowal of the human dignity would be achieved by associating people with their faith alone. Also, the case is made that this Act is, blatantly violative of the Basic Structure of the constitution by imperiling the principles of secularism and liberalist democratic structure of India.

Also, on the exclusion of Ahamddiyas, Shias and Hazaras of Afghanistan, Alongside the Tamil minority of Sri Lanka, Hindu minorities of Bhutan and Myanmar, have raised questions and not to forget the Rohingyas of Myanmar. Restricting this exercise to three neighboring countries, and excluding the other neighboring countries creates an illiberal inclusive-exclusive paradox, and as P Chidambaram pointed it out this is alleged to be the phenomenon of “Citizenship by Arbitrary executive feat”. The main allegation by the opposition happens to be that the government is hell-bent on creating communal divide and polarization between Hindus and Muslims of this country by digging up the religious wounds of the partition and is taking the two-nation theory to the next level by creating a parallel of Islamist Pakistan, A Hindu Pakistan, by fueling the ideology of Hindutva.

There is a very strong counter-view to these arguments, first with the constitutional validity of the act. Article 14, which happens to be the bone of contention sited earlier, cannot apply to this Act as intelligible differential, reasonable classification and the rational nexus principles operate while considering these countries as special cases. According to intelligible differential, in granting citizenship, ” Similarly placed people must be treated on par with each other; unequal cannot be considered ‘fiduciary quantum meruit’ “. It means that equals must be treated as equals and unequal cannot be on the same footing. Its a proven fact through the course of history that the minorities in these countries have been persecuted and a mass genocide has been unleashed on them. Numerous human rights reports, media reports and testimonies exist in the public domain. When the government uses this principle to include these stateless migrants into the national mainstream, terming it unconstitutional defies legal logic.

In fact, this proposition was made by Dr Manmohan Singh in the parliament in the winter session of 2003, stating that the religious minorities from Bangladesh and Pakistan who have fled and sought refuge in India, due to the onslaught of persecution need to be conferred with citizenship as an effort of mainstreaming them into Indian society. Similar concerns were raised by the veteran Congress leaders, Mr Ashok Gehlot for the Pakistani Hindu refugees living in Rajasthan and By Mr Tarun Gogoi for the Bangladeshi Hindu refugees living in Assam, in the subsequent years. In the year 2012, the communist party of India CPI(M) under the chairmanship of Prakash Karat condemned the persecution of religious minorities in the neighboring Bangladesh and Pakistan and made an appeal to the Government of India to confer citizenship to the persecuted minority refugees from both countries as an agenda of their Social justice and inclusion strategy.

All these facts need to be contextualized to understand the positions of political parties who are in main opposition to the passage of Act. taking forward the argument of the article 15, it is very clearly stated by eminent jurists and constitutional experts that it applies for the citizens and does not apply to the aliens or foreigners. And as far as article 21 is concerned, the Act, in no manner affect the violates the life and liberty of an Individual as per the procedure established by law. Therefore one can easily ascertain that there is no existentialist treat or even a threat of unlawful detention of any person of any community in the letter and spirit of the law. The principles of proportional discrimination or positive discrimination are applied here, in the specific context of Religious persecution of the minorities from these three countries. Also, the argument that India owes a civilizational responsibility to protect Indic populations, mainly the religious faiths born in India is a very informative argument that is put up, with the backdrop historical relativism and the facts of history and it’s the context which I have laid down earlier.

On Ahmadiyas and Shias not being included, some say they have had a role to play in the Islamic Nationhood of Pakistan, but it would be unfair to bring out this past historical equation to the present context as they have been victims of persecution themselves. But the facts and reports show that their tendency of migration is largely towards Iran, and probably this is the reason why they stand not included in this specific list. But however, if they individually apply for asylum and later through the process of naturalisation they can automatically become the citizens of India. In fact, the Government of India has released a statement saying that nearly 4000 Pakistani and Bangladeshi citizens who predominantly Muslims were given citizenship based on their applications through the process of naturalisation so, the avenues of attaining Indian citizenship is not blockaded by this legislation. On the Rohingyas of Myanmar, there were intelligence reports clearly stating that they would pose a danger to the internal security of India and hence were not entertained in any manner. In the case of Sri Lankan Hindu-Tamil refugees, two factors need to be considered 1) After the LTTE conflict came to an end in Sri Lanka, in the 5lakh people who had come into India as refugees, More than 4 lakh of them have returned back to Sri Lanka.2) The law and order and safety mechanisms for the minorities in Sri Lanka have considerably improved so, therefore considering them under this legislation is out of question and irrelevant.

However, it must be made clear that citizenship in itself, is not a fundamental right but a legal right. In numerous supreme court and high court Judgments, a proper legal precedent has been set that, Illegal Immigrants except for basic human rights, cannot be guaranteed of fundamental rights. Therefore the government has a high degree of executive power and prerogative on the question of granting of citizenship. Under the sub-clauses of the 6B of the Act, enhanced obligations in the form of ” conditions, restrictions and the manner of granting of citizenship” is laid out, according to this, the people who attain citizenship will be kept under the radar of a considerable period as a part of security obligation, so those who assume that the new recipients of citizenship under this provision are not a free run and they will be very well subjected to checks and balances. As eminent Jurist, Harish Salve says “Treatment of all citizens is different from the Uniform treatment of people who come from outside” and he asserts the principles of intelligible differential and protective discrimination to this citizenship debate.

Alongside the CAA debate, the call for a nationwide NRC has become a burning issue and more than clarity and factual analysis, people are being driven emotional reactionism and hyper-chauvinism. This fallacy had led to violent fallout, especially in a few university campuses. On this issue, one needs to understand, that every person who is a legitimate citizen of India will not be excluded or declared as a foreigner. The citizenship Rules 2003 has given the Government powers to lay down a proper diligent procedure for preparation of National Register of Indian Citizens and the government would come out with a due process, in case a Nationwide NRC is decided to be held. But one needs to understand that despite the protection of Sixth Schedule of the Constitution and the Inner Line Permits, the Staunch protests in the Assam is the result of a genuine concern that the people of the NorthEast are raising, which is the possible adverse effect of this legislation on the Indigenous culture, ethnicity and identity of the Indigenous people of the region. There have been several discrepancies and lacunes in the NRC process itself, which needs to be addressed.

Moreso their argument is, by retaining the illegal foreigners, the principles laid down in the Assam accord get violated, the demographic transformation of the region would have an economic and social impact on the locals. This is a legitimate concern, that the Government needs to address and reach out to the people of the northeast with the more efficient and effective measures. The North-East has been for decades a neglected, and an underdeveloped part of the country. Though some efforts of connectivity and Infrastructure has been achieved in the last few years, there is much work in progress, and higher targets need to be achieved. If progress needs to reach this region and greater national integration, we need to put the Assamese Interests first.

Foreign Policy implications of CAA

Already the CAA debate has picked up fuel in the International affairs. The Bangladeshi officials and politicians, who were to attend various track 2 diplomacy initiatives and official state visits have canceled their visits on the backdrop of this legislation. As usual, the Pakistani PM has termed it as an RSS Hindu Rastra agenda and conspiracy. Malaysian PM Mohamad Mahatir has termed it anti-Muslim and unsecular. The US commission on religious freedom has termed this legislation as Anti Muslim. In the 2+2 Strategic dialogue with the USA, which was held recently the issue of CAA came up and our Foreign Minister Mr Jaishankar is supposed to have communicated and conveyed India’s position by defending the Government’s stand. And the global media has also taken a critical position on this issue. Though we are clear about the legal position the reasons and statement of objectives of this legislation, about diplomatic fraternity e needs to be fully prepared to confront this issue in several bilateral and multilateral forums, international organizations and geopolitical platforms.

Although we realise that this is an internal matter of India when domestic political issues are subject to internationalization we need to be ready with an assertive response. Importantly India and Bangladesh have shared a friendly and cordial relationship since decades and it’s important to continue this strong strategic and diplomatic ties with Bangladesh through effective and efficient communication of this issue and its historical context. India needs to make it clear that it is not targeting the current Sheikh Hasina regime and has no intention to defame Bangladesh in the international fora. In the backdrop of this issue, we would also like to highlight that India lacks refugee policy to its foreign policy Framework. India needs to adopt a proper and coherent refugee policy considering India’s national interest and national security priorities/concerns.

As the Supreme Court would decide the constitutional validity of this act, CAA/NRC debate has been raging around Communal Identities and Propaganda flared up by several sections of political parties, media, and the interest groups with their own vicious agenda. One can argue that amidst an ongoing economic crisis, the government has come out with this decision for detractive purpose. But as far as the civilizational and the historical perspective of this issue, this decision has a clear element of moral obligation, which was acknowledged across party lines. India has been accepting various communities with mutual respect since thousands of years and this move also a corollary to our cultural and civilizational erudition. Could it have been more inclusive?… can be an everlasting debate with various propositions and arguments. But one must be amply clear by now that it does not perpetuate hatred or create a communal divide between any community.

While there are some genuine concerns of indigenous identity to be addressed in the North East and specifically Assam to be addressed, an atmosphere of propaganda and fear-mongering across the country was completely unwarranted. India has been a pluralist, secular, liberal, democratic Nation-state and an ancient continuing-civilization with a rich heritage and a composite culture, and it shall continue to be so, forever.