Thin End of the Wedge

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The Citizenship Act amendment is a calculated first step to make all non-Hindus second-class citizens of their own country

By Tamanna Yasmin

If anyone harboured doubts about the true intent behind the enactment of the Citizenship (Amendment) Act, they should have been laid to rest by the murderous attacks on peaceful Muslim protestors that left scores of people dead in Delhi in late February. Growing nationwide protests against the CAA ever since it was made law last December have riled Hindu fundamentalists. The rout of the ruling Bharatiya Janata Party in the recent Delhi Assembly elections proved to be the last straw.The party’s campaign had championed the legislation and branded its detractors as traitors.

Parliament amended the Citizenship Act of 1955 to accord citizenship to Hindu, Sikh, Buddhist, Jain, Parsi, and Christian minorities who, fearing religious persecution, had fled Muslim-majority Pakistan, Afghanistan and Bangladesh before December 2014. The cut-off date was as arbitrary as the choice of minorities and countries. The Intelligence Bureau told a Joint Parliamentary Committee that 31,313 refugees would benefit from changed law.

The amendment, that claimed to redress religious discrimination, has been widely criticised for cynically promoting its own form of religious discrimination. “The reason why the CAA is so egregious and consequential is because it represents a fundamental break from the core principles of the Constitution, namely citizenship being open to all without discrimination on the basis of religion, language, race, ethnicity or gender,” says Alok Prasanna Kumar, fellow at the Vidhi Centre for Legal Policy, Bangalore.

In its defence, the Modi government says Muslims are excluded from the CAA’s ambit because Pakistan, Afghanistan, and Bangladesh are Muslim-majority countries, and Muslims are “unlikely to face religious persecution” there. However, Muslim communities like the Hazaras and Ahmadis have faced ruthless persecution in these countries. Why can’t India provide them shelter?

In fact, the CAA arbitrarily excludes some of the communities most discriminated in the region, be they Tamil Hindu refugees from Sri Lanka, Muslim Rohingyas from Myanmar or Buddhist refugees from China. Clearly, its objective lies elsewhere.

Part II of the Constitution, which elaborates India’s citizenship law across 6 articles, not once mentions religion as a criterion for qualification. But the CAA, in the guise of a humanitarian gesture to protect religious minorities, establishes a connection between a person’s faith and their right to citizenship and thus opens the door to create new grounds for citizenship. 

Article 14 of the Constitution mandates that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Article 15 explicitly prohibits discrimination on grounds of religion, race, caste, sex or place of birth.Using a selective basis for granting citizenship of India, the CAA undermines the letter and spirit of Articles 14 and 15.

Massive protests against NRC, CAA at Millers Road in Bengaluru | Credit: PTI

Says senior lawyer and constitutional expert Mr. Ravi Varma Kumar, “Freedom of Religion in the constitution also includes the freedom of not practicing a religion,” which the CAA does not take into account. He asks whether tribals who do not follow any of the specified religions will be eligible for citizenship under this act. Adds eminent historian Ramachandra Guha, “It is a discriminatory act because it says only Muslim States persecute and everybody, but Muslims are persecuted.”

Lawyer Harish Salve, writing in the Times of India disagrees, saying “The principle of equality does not take away from the state the power of making classifications. If a law deals equally with members of a defined class, it is not open to the charge of denial of equal protection.” Adds R.K. Gupta, also a lawyer, “The Supreme Court is yet to gives its judgment on the constitutionality of the amendment. However, as per my understanding the act doesn’t violate Article 14, 19 or 20.”

The controversial amendment invoked nationwide protests which soon took the form of a movement. Referring to this Guha says, “It is an extraordinary protest that’s not really been known since independence.”While some states focused on taming the protests many others openly voiced their intention of not allowing CAA to be implemented in their territory. Kerala is one of the first states to do the same deeming it “unconstitutional”. It is also the first state to challenge the act in Supreme Court on December 31, 2019 claiming that CAA should be declared violative of Articles 14, 21 and 25 of the Constitution.

 A day after CAB was passed in Rajya Sabha, Punjab chief minister Amarinder Singh announced that his government won’t let the legislation to be implemented in the state as it hurts the secular fabric of the nation. West Bengal CM Mamata Banerjee announced, “As long as I am alive CAA will not be implemented in Bengal. No one has to leave the country or the state. There won’t be any detention centres in Bengal.”

With thousands of people taking to the streets against the CAA a new controversy emerged over updating of the National Population Register (NPR), which according to the website of Office of the Registrar General & Census Commissioner involves collection of demographic and biometric particulars.

The NPR is believed to be the first step towards updating the National Register of Citizens (NRC) which was introduced in the 2003 amendment to the Citizenship Act, 1955. According to the government, its purpose is to document all the ‘legal citizens’ of India, identify ‘illegal migrants’ and deport them to their native countries.

India Today reports that in Assam, where the first NRC has been compiled, at least 1.9 million people have been excluded in the finallist. Besides cases of ordinary people, military veterans, government officials, and even family members of a former President of India and former chief minister of Assam were excluded from the draft NRC list and were forced to prove that they were not ‘illegal’ migrants before the Foreigners’ Tribunals. In other cases, this process had thrown up bizarre situations where a brother finds his name in the NRC list while his sibling gets excluded; or a father makes it to the list but his son doesn’t, etc. Despite the controversy over the NRC in Assam centre proposes to implement it throughout the country in 2021.

Though there is no direct link between CAA and NRC, it is speculated that non-Muslims who don’t make it to the NRC list have the option of applying for citizenship through CAA but the Muslims don’t have this option. However, in order to apply for citizenship through CAA, first a person has to admit before the State that they are immigrants from the mentioned countries and produce relevant documents to prove that they fled to India before December 2014.

The whole process may take months or even years, meanwhile the concerned individual will be forced into a detention camp. Considering the possible flaws in the execution of NRC a person might have to spend his/her lifetime or a huge part of it in a detention camp till they succeed in proving their citizenship even if the person had always been a rightful citizen of the country.

Says lawyer Kumar, “The Census Act 1948 doesn’t allow any other exercise to be clubbed with census. Moreover, census is only an enumeration; counting of heads, it doesn’t mandate disclosure of identity. However, the NPR exercise mandates a person to reveal his or her identity. Hence, both the exercises can’t be carried out simultaneously.”

Feature image credit: Reuters

(This article was originally published in the February edition of The Beat 2020)


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