WE, THE PEOPLE OF INDIA

WE, THE PEOPLE OF INDIA. These are the opening words of our constitution. Who are these people? Ideally, that should have been the first chapter of the constitution. But our constitutional forefathers were wise and visionaries. In the first chapter, they specified the territory of India. Then, in the second chapter, they bestowed citizenship to all those who were born and had a domicile within the territory of India. Sardar Patel called it an ‘enlightened modern civilized’ way of providing citizenship. In the next two articles, they defined citizenship for the migrants, which is precisely the talk of the day. Again, they provided citizenship based on registration and residence. While framing these articles, there was a call in the constitutional assembly to include religion as a criterion for citizenship. Such arguments and amendments were rejected by the constitution assembly. A K Ayyar said, “We are plighted to the principles of a secular state. We cannot on any racial or religious or other grounds make a distinction between one kind of persons and another, having regard to our commitments and formulation of our policy on various occasions.”

However, the constitution assembly debated and defined citizenship only for the limited scope. Its term of reference was to define who the citizens were during the commencement of the constitution. Acquisition and termination of citizenship after the commencement was left to the Parliament. The Parliament enacted the citizenship act in 1955 based on the vision rolled out by the constitution. Now, for the first time, the act was amended to add religion as a criterion for citizenship. In essence, the law was perverse because a subject that was explicitly discussed and excluded in the constituent assembly was enacted as a statutory law. As per the Citizenship Amendment Bill 2019 (CAB), passed by the Parliament last week, the migrants belonging to six religions (Hindus, Christians, Buddhists, Jains, Parses, Sikhs) from three countries (Afghanistan, Bangladesh, Pakistan), who entered India without proper documents before 2015, are no longer to be called illegal migrants and have been provided with a quicker way to acquire Indian citizenship.

What is wrong with CAB? The objective of the CAB as stated by the government in the Parliament is to give citizenship for the religiously persecuted minorities from the three countries which have a state religion. Whatsoever, the word ‘religious persecution’ is not in the bill. If that was the intent and the government feels that none other than minority communities in those countries was religious persecuted, it could have included that phrase in the bill. Instead, the government specifies the names of the religions in the bill. Also, the government so far didn’t know the number of such affected people, residing inside the territory of India to prove the claim. That leads to real intention: it intends to send a signal to all the excluded religions especially Muslims that they would be second-class citizens.

NRC CAB Combo: CAB, as a standalone law, is just a signal. But the real threat is when it is implemented along with the National Register of Citizens (NRC). Till the end of the last tenure of the NDA government, you would have been asked to produce various documents to avail of the benefits of various state welfare schemes. Now, you must produce documents to prove your citizenship, a right to get other rights. You might have born in this country, you might have worked in the government services for years, you might have involved in an economic activity thus contributing to the national income for years, you might have paid taxes to the government for years, still, you need to produce documents to prove your citizenship. Doesn’t that sound chilling? One such exercise of NRC was implemented in the state of Assam as per the guidance of the Supreme Court and ended as a great fiasco. Despite its high humanitarian and economic losses, one could argue that NRC in Assam was a promise made by the state to the leaders of the Assamese community and hence that was needed to ensure the integrity of the state. Without learning any lessons from that episode and just to create further divisions in the already fragile social fabric, this government is proposing an NRC for the whole country, though there arises no necessity for it.

If the NRC was conducted as intended, that would lead to a lot of people becoming stateless. In that scenario, with the effective implementation of CAB, people of all religions except the excluded religions (especially Muslims) would get a quicker way to obtain citizenship. That would leave the Muslim community vulnerable.

Is it Moral? A few days ago, German chancellor Angela Merkel visited the Auschwitz-Birkenau complex in Poland. It housed one of the Nazi extermination camps. She told in Poland, “I feel a deep sense of shame for the barbaric crimes that were here committed by Germans — crimes that are unfathomable.” During the end of World War II, when the allied forces invaded Germany, they were shocked to discover the human losses and sufferings in the extermination camps. Ignoring the popular view then, General George Patton allowed visiting the camps, both his soldiers so that they get motivated what they were fighting against and the locals to show them the cruelty of the regime, they were living in. But, in hindsight, through various historical evidence and from the survivors of such camps, we could understand that both the allies and the locals were aware of the atrocities. But they didn’t think that it would be to that extent.

So, the moral test rests upon the people. In an era, where human lives are least valued and where human rights are western concept, is voicing dissent against such discriminatory bill a too much to ask for? If ignored as normal, I could find no words to fill here.

Does this bill hold constitutionally? I am not a lawyer and hence am not aware of its technicalities. But based on vision envisaged by our founding fathers and the working of the constitution in the past 70 years, I could argue it is unconstitutional. Those opposing the bill argue that it is a violation of Article 14 per se (equality before the law and equal protection of the law) since the article applies to both the citizens and non-citizens. Those in favor of the bill argue that the bill may easily pass the tests of intelligible differentia and reasonable nexus with the objective, as set by the Supreme Court in 1958. But, in recent times, the Supreme court has added an extra test of constitutional morality. Also, it should be noted that secularism is a basic structure of the constitution. That would lead to questioning the very objective of the bill. Can the state provide citizenship based on religion? Whatever may be the ruling of the Supreme court, the arguments in the court are going to be painful and would further send wrong signals.

What are the solutions? No one is against providing citizenship to or for the humane treatment of refugees or illegal migrants. There are multiple other ways with which this could have been done. As political scientist P B Mehta writes in his The Indian Express column, prioritization of providing citizenship to refugees can be based on other factors: risk assessment, availability of alternatives, historical ties, ground realities, humanitarian concerns, international obligations or even security concerns. Else, the government could have framed a comprehensive refugee law as a short- and medium-term solution. This government chest thumps about its foreign policy. With that, it could have talked with the neighboring countries to successfully take back the refugees.

One political person rightly called NRC as a demonetization of citizenship. If anyone feels that he/she is an illegal migrant, it is the onus on the accuser or the state to prove the charge. By pulling everyone into the exercise, this government is creating several unseen problems that the country can’t afford.

In the days leading to 2014, it was like corruption is the only problem that hindered India to emerge as the major global player. But after six years, where are we? We are not even talking about any such things. If the country still thinks that there is no alternative or there is no political party that fulfills all your criteria or to wait for your dream leader with pure liberal values to emerge, I am just lost. History would forgive even Radcliffe but not the current political dispensation.

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