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 “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, 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 said to be nationalistic. Criticism of such 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 the framers of our Constitution have deliberately avoided to use it.
Our Constitution, being our Bible, has prescribed a very simple test of nationalism. Does the Citizenship (Amendment) Act, 2019 (CAA) meet the above goal or test of nationalism? If not, then, will it be fair and reasonable to call those opposing it “anti-nationals” or “unpatriotic”? These are some of the issues troubling us all, facing half-baked assertions and partial truths.
It can safely be said that the government is not wrong when it says that CAA, which here means the Proviso to Section 2(1)(b) read with Section 6 B of the CAA, does not deprive anyone of his citizenship on its own. This projected innocuousness is nothing but peddling of half-truths. CAA cannot operate independently to deny an existing citizen of his citizenship. But it was not intended to operate in a vacuum, it was intended to operate in the company of the National Population Register (NPR) and the National Register of Citizens (NRC) which would mark out “illegal immigrants”. Such immigrants are illegal who have migrated to India from anywhere without valid documents, or have overstayed beyond prescribed dates as per those documents. CAA, therefore, steps in to provide 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 to be “illegal migrants ” this paves the way for expeditions grant of citizenship to them 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 his citizenship but operates discriminately to deny to those belonging to Muslim communities, coming 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 the deprived category of Muslim, if they have come from countries other than Pakistan, Bangladesh and Afghanistan. The thing to be noted is that Afghanistan has virtually no connection with the partition of India. Anyone belonging to the Muslim community, once determined to be “illegal migrant, cannot ever become Citizen of India [except under 11 to 14 years route for Naturalisation under the Citizenship Act]”. Anyone claiming otherwise is spreading the blatant untruth. There is no such speedy facility for them. Would the deprived community not feel cheated, is the moot point.
Discriminatory and anti-secular
At this stage, it would be appropriate to examine how this differentiation is not only 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 minorities to achieve the above goal of religious equality. Concepts of secularism as well as equality are not antithetic. Therefore if we test CAA on the anvil of this equality, we would unhesitatingly find it to be wanting, as well as hostile to the Muslim. When we examine this a little further, what becomes apparent is that it is neither in accord with the intent of the framers of our Constitution nor in harmony with the Citizenship Act, 1955.
This Constitution meticulously prohibits discrimination in all spheres. It is based on direct peoples participation in the elections and the governance, irrespective of religion. It prohibits inequality in all the spheres through its various provisions like Article 14, 15, 16, 25, 26, 325 and 326 etc. The Constitution also accords special treatment to the minorities as part of its equality code. In keeping with this spirit of our Constitution, the chapter relating to citizenship in it maintains a careful silence about the intervention of religion in the area of citizenship. Nowhere does it advocate grant of citizenship on ground of religion. It treats all religions alike. These were the provisions conceived at a time when large scale migrations were taking place across the borders. One can even assume that those migrating from India to West Punjab or East Pakistan belonged to a religious minority.
Despite this, the framers permitted those who had migrated from India to Pakistan, during the heat of Partition, to return and to acquire citizenship on their return [Article 7]. This was the spirit behind the grant of citizenship under the Constitution, keeping religion aside. Interestingly both Articles 6 and 7 deal with migrations to and from India, but neither of them mentions any religious bias. The framers apparently kept the issue of citizenship alive for all categories of migrants ignoring their religion. The silence of the Constitution in this regard is telling. This spirit also pervaded the Citizenship Act 1955 which was enacted shortly after the Constitution. None of the provisions of the Citizenship Act mentioned religion, either for grant of citizenship or its withdrawal. Neither the process of grant of Citizenship by registration, nor by naturalisation, was influenced by religion.
Parliament again painstakingly avoided even a hint of religion to seep in, till the CAA, in 2014. With CAA, religion as the primary criteria for grant of citizenship to “illegal migrants”, is written in bold letters. The poisonous part is that, in the named 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 citizenship under the same special process. Undoubtedly, this segregation based on religion strikes at the root of equality and secularism embedded in our Constitution. CAA arbitrarily assumes that members of the Muslim community can never be the target of fanaticism or persecution in Pakistan, Bangladesh or Afghanistan, which is factually not correct. The persecution of Ahmadis and Hazaras 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 assumptions too.
Definition of ‘religious persection’
The problem is further compounded by the absence of any definition of “religious persecution”. There is no criteria for determining who is has suffered religious 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 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 “religions persecution”, then why distinguish on grounds of religion or countries? Can there be a difference in “religious prosecution” of the Muslim and the Hindus in Pakistan or Bangladesh? It certainly belies my comprehension.
One can genuinely say that to give asylum to those facing religious persecution is a humanitarian act, but why should this end when it comes to Muslims from Pakistan, Bangladesh or Afghanistan, or Hindus, Christians etc, from other countries? Why similar humanitarian treatment is being denied to Hindus from Sri Lanka or Christians from Bhutan? These were mostly parts of British India too. It is difficult to see the logic behind the selection of the three countries or why the Hindus and the Christians of Sri Lanka or Bhutan are excluded. I am told even Hindus have come from Burma. Why exclude them?
Apart from the senseless discrimination, what is most troublesome is the legal effect of CAA on the “illegal migrants”. Hindus, Sikhs etc will not be deemed “illegal migrant”. They would not have to prove anything. Thereafter, it paves the way for grant of citizenship to them since they are no longer ‘illegal immigrants’ by fiction of law. The logic of CAA openly flaunts the religious bias against the Muslim.
The Liaquat-Nehru pact
To justify this on the ground of the Liaquat-Nehru Pact of 1950 is again a serious attempt at spinning out half-truths. It deals with two aspects:
- 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. 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.
- To provide adequate security, relief and assistance to the migrants who suffered during partition, ignoring their religion.
If we read the pact carefully, CAA most certainly amounts to a breach of this obligation. The pact carefully avoids bringing in religion in this regard. The underlying phrase is “agree to ensure to the minorities throughout its territory complete equality of citizenship irrespective of religion”. Does CAA, conform to this spirit? Besides the pact by itself does not deal with grant of citizenship to “illegal migrants”. 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 religious tilt in favour of non-Muslims, particularly Hindus. But then, the reasons were peculiar to the happenings surrounding the event of partition. There was an element of inevitability, but to superimpose those events and realities on today’s time is totally unreal and bizarre. Partition took place in and around March 1947 as an ongoing process. There was a wave of Hindus coming in from Pakistan. There was a second wave that came from Pakistan in the year 1948, which comprised of Muslims in large number, who had left earlier for Pakistan. Therefore, the difference in the matter of grant of citizenship in these cases is explainable.
Technically, Article 6 and 7 may project some religious bias against Muslims but then this was primarily because it was unsettling the status quo in property. There was this 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 given a long quietus, it makes no sense constitutionally or legally to revive the said distinction. There is no parallel at all. 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 tragedy 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.
Dinesh Dwivedi is a senior advocate at the Supreme Court.