Ranbir Singh Pathania
Citizenship Amendment Bill – 2019 has finally become a full-fledged law. The antics and overtures of leaders and political parties have really been amusing. Sonia Gandhi, firstly, leads an all-party delegation to the President with the epithet ‘Save The Constitution’ and later makes fervent appeal for talks with stone-pelters. Mamta Di has gone to the irreprehensible limit of seeking a UN-monitored referendum on CAA. A host of petitions are filed in the Supreme Court and various High Courts. Kneejerk reactions/protests emerge in a few educational institutions and streets of a few cities across the country. Heat seems to have turned on in the chilly winters of National Capital.
An impression is being tried to be constructed as if the sky is going to fall aground, and people shall catch larks.
If gimmickry would have been able to deliver on ground, India a might have turned into happy oasis of a country.
Background – For a proper, ringside comprehension of the law and the very perspective in which it was pushed through the Parliament, we need to go to the partition of erstwhile Indian into two states – Islamic dominion of Pakistan and secular India.
And Afghanistan too, which, since almost a century, has been a flash-pan of see-saw battles between religious fundamentalist forces. And notable amongst all has been fortification of Taliban, demolition of Bamiyan Buddha statues and condemning of Sikh traders which led to their immigration into India.
Millions of Hindus, Sikhs, Christians, Parsis, Jains, Budhs, did not volunteer to come to India at the time of partition, possibly due to the nature of their businesses/vocations or attachment with the motherland. Nonetheless, with the passage of time, these minorities starting feeling the heat of fanaticism. The result was that these oppressed minorities on-the-sly moved to India for asylum and the overall percentage of minorities in Pakistan, Bangladesh and Afghanistan shrunk to almost negligible.
It was in this very backdrop and the overweening spirit and sentiment of people and politicians at that time prompted Mahatama Gandhi to say in a prayer meeting on 26-09-1947, “‘There is the problem of those who fear, imaginary or real, will have to leave their own homes in Pakistan. If hindrances are created in their daily work or movement or if they are treated as foreigner in their own land, then they will not be able to stay there. In that case the duty of the adjoining province on this side of the border will be to accept them with both arms and extended to them all legitimate opportunities. They should be made to feel that they have not come to an alien land’.” Similar statements and sentiments were expressed by national stalwarts cutting across party lines and ideologies too – Patabhi Sitamaraiha, Congress President, Jawahar Lal Nehru, first Prime Minister of India, Abul Kalam Azad, first Education minister of India, Shyama Prasad Mukherjee, founder of Jana Sangh who resigned from Nehru cabinet on principles of propriety, Ram Manohar Lohia, noted socialist ideologue – ultimately paving the way for settling of – Nehru Liaquat Pact in 1950.
By virtue of agreement between two top premiers of India and Pakistan, both the countries reiterated their respective unflinching commitment to protect minorities and their respective rights to speech, worship, culture, property, personal honour, freedom of movement within each country and freedom of occupation. Nonetheless, the said pact was impugned with fullest impunity and indifference by the theocratic state of Pakistan thereby setting stage for constant immigrations by minorities in India.
Former Congress PM, Manmohan Singh said on the floor of Rajya Sabha on 18-12-2003, “After the partition of our country, minorities in countries like Bangladesh have faced persecution, and it is our moral obligation that if circumstances force people, these unfortunate people, to seek refuge in our country, our approach to granting citizenship to these unfortunate persons should be more liberal.”
Similar tones and tenors were expressed by noted CPI leaders including Sh. Budhadeva Acharya, Parkash Karat, Jitendra Chaudhary, Gautam Deb, Gautam Chatterjee at various points of time-within as well as outside the Parliament.
The golden thread running through all this remains that minorities in the theocratic states of Pakistan, Afghanistan and Bangladesh were regularly being persecuted – subjected to inhuman tortures, brow-beatings, forcible conversions, rapes, abductions, kidnapping of womenfolk. And there was almost an all-pervasive consensus on affording citizenship rights to them.
Nuances of the new law –
It was on the canvass of a Pan-India mood and sentiment that Modi-led government introduced the said amendment with two major provisions,
Clause 2. In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), in clause (b), the following proviso shall be inserted, namely:-
“Provided that 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 by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act,1946 or any rule or order made there under, shall not be treated as illegal migrant for the purposes of this Act;”.
Clause 6. In the Third Schedule to the principal Act, in clause (d), the following proviso shall be inserted, namely:-
‘Provided that for the person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community in Afghanistan, Bangladesh or Pakistan, the aggregate period of residence or service of Government in India as required under this clause shall be read as “not less than five years” in place of “not less than eleven years”.’.
Does the law stand litmus test of Articles 14, 15 & 21 – A no-holds-barred campaign has been unleashed throughout the country canvassing that Article 14 has been observed in breach. Article 14 promises ‘equal protection of laws’ and ‘equality before law’ for anybody. As Lord Jennings, a renowned authority on constitutional jurisprudence has propounded, ‘Equality cannot be amongst unequals’.
As such, there is an exception to the equality clause which empowers the State to create a class apart for special legislation, but subject to two riders – Firstly, the class should be segregated apart on the basis of an intelligible differentia, and secondly, it should have a rational nexus with the object sought to be achieved.
In the subject case, separate class created is, ‘persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community in Afghanistan, Bangladesh or Pakistan.’ The law is meant for and pivots around providing citizenship to persecuted minorities of Pakistan, Bangladesh, Afghanistan- cultural and civilisational sons of India. Nonetheless, it does not ever liquidate or weaken existing legal framework or rights of any particular class or religion.
In Sanaboina Satyanarayan Vs State of AP, Prisoners guilty of crime against women and other prisoners were treated as a separate class by the Prisons Deptt and the object sought to be achieved was ‘prevention of crime against women’. Supreme Court upheld the law.
The same principle has been upheld and elucidated at length in R K Dalmia Vs J. SR Tendulkar, Parisons Agrotech Vs UOI, Nargesh Mirza Vs AAI, Maneka Gandhi Vs UOI,
Is the law anti-Muslim?
Has citizenship of any Muslim in India has been annulled or put in question?
Does the law prevent any genuine Muslim from India, Bangladesh or Afghanistan to seek Indian citizenship?
Once, answer to both the questions is a big no, how could there be a misinformation campaign unleashed on the basis of less-known facts and less-baked arguments.
Moreso, as per the practice prior to enactment of the new amendment, Hindus, Sikhs, Christians, Parsis, Jains, Budhs, coming on Indian soil after 31-12-2014 as well as Muslims migrants from these countries can always apply for Indian citizenship through the process of naturalisation.
The million dollar question now is -What is this hullaballo all-about. How many of those addressing from pulpits and podiums and those ruling the roost on streets rampaging and ravishing public property have actually read and properly understood the Citizenship Amendment Bill.
The law is rather seen as a historic opportunity to correct the injustices done to victims of the Radcliffe line which had demarcated a partitioned India in 1947. Constituting bloodiest chapter of the Indian history, this partition claimed lives of over one million Indians while leaving another 12 million as refugees. Although the pains and pangs are a distant memory but a constant reminder that line that cut across India more than six decades still bleeds.
Rather it was part of an unfinished agenda of the partition to permanently settle persecuted minorities in our neighbourhood. Even the NDA-I government led by Atal Bihari Vajpayee, had tried on similar lines by conferring special rights to District Collectors in Rajasthan and Gujarat to decide the applications of citizenship for Hindus and Sikhs refugees.
The parting comment runs as – issues on national interest, cultural identity and civilisational issues should not be tested on the touchtone of vote-bank politics.
(The columnist practices law at the J & K, High Court of Judicature, and had been member of 11th J & K Legislative Assembly.)
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