CITIZENSHIP AMENDMENT ACT (2019) CAA: A FARCICAL ENACTMENT?

-Ajay Srivastava

The rumpus generated over the recently enacted Citizenship Amendment Act (CAA) has precipitated an unrelenting opposition and protest against its provisions as they seemingly permeate across the membrane of constitutional values and morality. The issue has gone beyond debate and entered into an amphitheatrically ugly contest between the protestors and the establishment.  Seldom do we come across times when the citizenry has to drag its feet to ‘redeem its pledge’, and not to say ‘wholly or in full measure’, but very substantially, and when the body-politic and soul of a nation dares to ‘find utterances’.   

According to CAA, ‘any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted under certain sections of Passport Act, 1920 and Foreigners Act, 1946 shall not be treated as illegal migrant for the purpose of the Act’ (1). This means that all such categories of people can easily be naturalized as Indian Citizens even when this group is rendered illegal migrants after the conduct of a nationwide NRC. ‘Already the Home Ministries notification in 2015-16 exempts these undocumented migrants from the adverse penal consequences under the Passport (Entry into India) Act, 1920, and the Foreigners’ Act, 1946’ (2). Government’s claim that no Indian citizen will lose citizenship is being questioned on the premise that CAA along with NRC shall rather become an instrument to arbitrarily deny citizenship. Out of those who will be rejected as Citizens under the NRC, only the religious categories as mentioned in the CAA could gain their citizenship back and large number of persons would be left stateless, mostly from the Muslim community. Along with NRC, CAA may lead to persecution of Muslims in India rather than protection of certain people from persecution across the border.

Looking from Government’s perspective, the positive motive behind the legislation may be to exclude Rohingyas from acquiring citizenship, as also excluding all such category of persons from the citizenship rights that could open India for legitimate claims by unwanted population. But a deeper dissection into the legal premise and political intent unravels many issues to be elaborated. Though it goes without mention in the law, the formally manifested objective of the government is to provide citizenship to those minorities who are being persecuted in three Muslim majority countries in the neighbourhood. But the lurking latent design seems to be that of unleashing a political agenda to fulfill a sinister objective through the conduct of National Register Citizen (NRC) exercise. It is being alleged that CAA along with NRC would prove to be fatal for the socio-civilizational fabric of the nation lest merely the contractual principles on which the Indian State has been super-structured.

As per stated objective, the legislation applies to those who were ‘forced or compelled to seek shelter in India due to persecution on the ground of religion.’ It needs to be made clear at the outset that a special legislation like CAA wasn’t even required to fulfill the objective of giving citizenship to the persecuted minorities because the same could easily be done in the existing process of naturalization. It seems the real purpose of the law is not giving of citizenship to such category of persons rather excluding certain people to acquire citizenship. The law is exclusionary rather than inclusionary. According to the bill, the Government of India is not at all concerned about the persecuted people or minorities if they are living in non-Muslim majority countries, which in itself is an arbitrary classification. The previous laws anyhow never stopped the government from giving citizenship to any number of persecuted Hindus from across the world.  Giving of citizenship under the new amended act will open a Pandora’s box and lead to more such persecution and eviction from these countries in the neighbourhood on the basis of possibility of absorption by India, which by the spirit of this Act declares itself as a natural land for Hindus, irrespective of law having a cut-off date.  As the law applies to those persons who have already migrated to India and entered before 31st December 2014, it provides a prospective reasonability to the basis of migration in the name of persecution in the home country. This may not be true, as such migration have ensued for different reasons and situations. Also, no further persecuted minorities could claim any benefit under this law as it has the given cut-off date. The argument that Congress too had been giving such citizenships earlier citing the example of Hindus from Uganada etc. is also misplaced as all earlier attempt of giving citizenship was according to rational principles and constitutional values, especially Secularism.

 CAA goes against the natural grains of the constitution; it is a wretched blow to the edifice of secularism and democracy and is against the spirit, values and vision of the constitution makers. No inclusionary or exclusionary principle in a secular polity can be established on the basis of religion. It is also against the idea of equal, neutral and inclusive concept of citizenship. ‘The new amendment consolidates the shift from the principle of ‘jus soli’ (citizenship based on birth on the soil of a country) towards ‘jus sanguine’ (citizenship based on descent)’ (3).  Although citizenship by descent, as well as registration and naturalisation, also found recognition in the Citizenship Act of 1955, the principle of ‘jus soli’ was further undermined at the hands of ‘jus sanguine’ when the citizenship Act was amended under the NDA government in 2003 (4). It also needs to be highlighted that the religious criteria would further obfuscate the rationality of the principle of ‘jus sanguine’ itself.  The argument that it doesn’t take away any community’s citizenship, rather only provides citizenship to the persecuted communities also seems to be misplaced as the persecuted communities have been classified on the basis of religion which goes against the idea of Secularism. Also, after application of NRC, many who would have been left out of the process can again become citizens rendering only particular community non-citizens. This way the Citizenship Act has an exclusionary utility in post NRC scenario. Clubbed with NRC, CAA also becomes anti-Republican, and an instrument accomplice to perpetrate oppression against the marginalized and downtrodden. The discrimination is by far against every nuance of pluralist theory of Citizenship which professes co-existence without any discrimination. The argument that those who are illegal migrants are only denied citizenship on religious grounds and it is not applied against citizen is also misplaced in the sense that being a secular country Indian State needs to preserve this value in all its endevours, be it laws, policies,   rights of the citizens and non-citizens as also in all its internal and external affairs.    

Looking closely at the provisions, the act goes against the right to equality as enshrined in Article 14 of the Constitution. Though the classification can be made under Article 14 to treat people differently, it shall not be arbitrary and be on the basis of an intelligible differentia i.e. on well laid and discernible facts and evidences; and the classification needs to have a rational relation to the object of classification.  ‘In Anwar Ali Sarkar versus the State of West Bengal (AIR 1952), it was explained that intelligible differentia means that there must be a yardstick to differentiate. Later, in Navtej Singh Johar & Ors versus Union of India (2018) case related to decriminalization of homosexuality (Section 377 of IPC), an important interpretive advance was made upon this. Justice Indu Malhotra, in her judgment, infused Article 15 grounds into Article 14. She interpreted intelligible differentia to mean reasonable differentia and required the intelligible differentia test to fulfill two sub-tests: one there must be a yardstick and two, that yardstick must itself be reasonable.  She observed that yardstick is reasonable only if it is not based on an intrinsic and core trait of an individual. According to her, grounds mentioned in Article 15 constitutes ‘intrinsic and core trait’ of an individual. She explains that a person doesn’t have any control over his race, caste, sex and place of birth and religion is a fundamental choice of a person and discrimination on the basis of any of the following such trait would undermine an individual’s personal autonomy’ (5 & 6).  The classification of illegal migrants on the basis of religion sighting persecution is not supported by evidences, thereby making the differentia unintelligible.  Also the very basis of classification does not have a rational relation to the object of the classification. The object of classification is simply giving of the citizenship as the substantive provisions of the law do not mention the object of persecution. Even if the given persecution was the substantive basis of classification, it would tend to be arbitrary because persecution cannot just be decided on the basis of religion as people are persecuted for reasons other than religion as well. Another problem is that the law is likely to open possibilities for further discrimination by laws elsewhere once it is sanctioned here. Once it is legitimized through the due process, it may act as precedence for further extrapolation of sectarian legal and policy measure by the government to exclude communities on religious basis citing some arbitrary reasonable differentiation for the purpose of Article 14. 

 Though geography could be the basis of classification under Article 14, but in this case such a classification again doesn’t seem to be reasonable.  It requires no mention that minorities are also persecuted among other neighboring countries apart from the three mentioned. Also, large numbers of illegal migrants or refugees in India are from Sri Lanka, Bhutan, and Tibet, that too from non-Muslim community, which renders the given geographical classification also not a reasonable exclusive category. Government has not brought any exclusive provision to grant citizenship to these refugees. The rational that Muslims cannot be persecuted in the countries which are Muslim majority or where State itself adopts the religion of Islam is misplaced, because there are appropriate evidences that sections of Muslims are also persecuted in these societies e.g. Ahmadiyas in Pakistan and Hazaras in Afghanistan.  Similarly, it can be argued that the very reason why Muslims have been excluded applies to Christians as well, as there are a number of countries which could host them as their homeland.

Also, the aggregate period of residence or service of Government in India has been reduced from 12 to 6 years (this includes the period of 12 months of continuously immediately before application) for the purpose of grant of citizenship. The real purpose is to hasten the process of naturalization of non-Muslims from the three countries so that when NRC is implemented most of the people from non-Muslim category shall not be rendered state-less. This could easily catch the imagination of people that the government has done enough to protect the interests of non-Muslims, especially Hindus. 

The Act does not apply to tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873.  Northeast States are protesting as it nullifies provisions of the Assam Accord, not only that non-tribal areas of Assam will directly bear the brunt, the other among the sister states are also not convinced about the quarantine provided by ‘The Inner Line’ permit. As most of the migrants into Assam are from the Hindu community, as has also been proven to certain extent by the Assam NRC, there are apprehensions that after the implementation of CAA, most of the illegal migrants excluded by the NRC process can easily get the citizenship and shall enjoy all the rights like others and this would undermine the prospects of the existing citizens of Assam. This is the reason for wide protests galvanizing in Assam on the issue as they are getting anxious for the preservation of their culture, identity and interests.  

The notion created about India as a land for persecuted Hindus is premised on the construct of a ‘Hindu Rashtra’ and this law is a stepping stone towards engineering the idea among the national psyche.  In a way, the passage of the Bill has led to the acceptance of the two nation theory itself.  The cited object of the bill that justifies India as a destined land for the Hindus goes not only against the modern premise of Indian nation-state, rather it goes against the civilization ethos of India and the philosophical tenets of the Hindu religion itself. In fact what is worse is India has not only been shown as the original land for Hindus, rather for all the religion except Islam. There is a logical obfuscation in this stand.  Also the tone in which the statement were made by the Home Minister on certain occasion as also what had been the long term stance of the RSS that they try to portray other Indo-genetic religions as part of Hinduism itself.  The parental attitude of India to act as the protector of Hindus, which seems to be one of the real intentions of the government, goes against the secular credentials and the constitution. Just for the sake of convenience certain other religions have been included in the category along with Hindus because they hardly make much of the substance of the concerned population in the context. Though there is never a problem in giving shelter to the persecuted, the law creates paranoia among the Muslims and generates a fear and sense of being unwanted. By this entire process they are being batted down the hatches and reduced to second class citizens subject to ridicule, contempt and daily humiliation for no fault of theirs.

All what the law has been able to achieve is to polarize society and give possibilities to both sides of political fulcrum to conduct their politics. Where government has been found to be insensitive towards the protesting masses, frequent resort to violence by vested and miscreant elements further aggravates the societal split. All opposition parties too have come forth to take as much advantage out of the situation. And ultimately it is the common which is suffering amidst non-redressal of real challenges posed by economic downfall, rising employment and insecurity.  Given the quantum of opposition being met by the law, in worst case scenario, it might turn out to be an albatross around the neck of the government.

In case if the citizenship amendment act was not there and the government would have identified certain illegal migrants from any of the religious community and if the country of origin agrees to take back those citizens then it shall be seen whether such people agree to go back or rather prefer to remain in India for certain reasons? Now here, on case to case basis the ground can be considered and government can give relaxation to those citizens who may fear persecution, the basis of which could be any, including religion. Here, Government can consider that a particular people may get persecuted because they are minorities in those countries, more so when they have such a history of persecution. And if an agreement could not be reached with the country of origin of migrants, then anyhow these illegal migrants would continue to remain in India, and in that case giving of citizenship may be avoided and they continue to stay with the status of illegal migrants. Here also, government, if it feels like, can provide citizenship to people through naturalization on certain reasonable criteria. Straight jacketed criteria on the basis of exclusion or inclusion will lead to many practical problems. It shall rather be based on the rational criteria of proper verification of credentials of the individual. From every measure, it can be said that such a law is not only a farce against the constitution and values of Indian nation and society, but has no practical utility also for solving any of the existing problems and therefore in all probability is likely to get struck down by the Judiciary. The citizens of India need to take congnizance of the fact how a seemingly unconstitutional law has been passed by their supreme representative body acting in a majoritarian mode and how all government efforts seem just a lost ball in the high weeds.

References:

  1. Citizenship Amendment Act, 2019
  2. Unequal, unsecular: On Citizenship Amendment Bill, DECEMBER 10, 2019, THE HINDU
  3. Citizenship Amendment Act: ‘Principle of discrimination based on faith will be difficult to limit’: Written by Niraja Gopal Jayal ; The Hindu, New Delhi; December 24, 2019
  4. Citizenship Act, 1955 (2003 Amendment)
  5. GAUTAM BHATIA: https://indconlawphil.wordpress.com/2019/12/05/guest-post-the-citizenship-amendment-bill-is-unconstitutional/
  6. Navtej Johar & Ors versus Union of India 
  7. Citizenship Act, 1955 (2015 Amendment): General reference