Constitutional Sanctity of CAA
   14-Jan-2020
 
 
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 Demonstrators in support of the Citizenship Amendment Act
 

Citizenship Amendment Act is standing the test of the polarisation between divisive and nationalist forces. Nationalist forces have to assert, lest India will find it difficult to survive

 
 
India stands out uniquely in world history for having given asylum to almost all the persecuted religious groups in the world. Jews, Christians, Parsis, Buddhists and Shia Muslims all benefitted by India. The new Citizenship (Amendment) Act, 2019, is a legal exercise to reiterate the great tradition of our nation. Congress had amended the law three times, and BJP is doing it at the third time. The new amendment protects only those refugees who came before 2014.
 
 
Constitutions of the three theocratic neighbouring states viz. Pakistan, Afghanistan and Bangladesh have declared Islam as their official state religion. Persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian minority communities in those countries are at the mercy of the state religion and have faced persecution and atrocities on grounds of being non-Muslims who do not follow the state religion. The first Law Minister of Pakistan, Sri Jogendranath mandal, was a Hindu dalit leader. He instigated dalits to support Muslim League while Dr Ambedkar was opposing Muslim League. But later he had to face persecution and had to take refuge in India. The Bill is to save the persecuted minorities in such neighbourhood. New amendment only prescribes citizenship by naturalisation if they reside in India for five years instead of the current eleven years. The intention is to give relief to the class of six religions which are compelled to flee out of persecution. Hence they will be hereafter treated as refugees and not as “illegal migrants”. The refugees have to prove that they have come from the three countries mentioned, they fled facing persecution for being non-Muslims by religion, they are residing in India for more than five years and that they belong either to one of the six religions. Identifying such people in India is the main task. Congress Government has issued a Standard Operating Procedure (SOP) vide letter dated 29.12.2011 for residential right to foreign refugees in India coming from various countries.
 
 
Citizenship can be acquired through registration (living aggregately for 6 years during a spread over of 8 years) or naturalisation (living aggregately for 11 years during a spread over of 14 years). Globally Citizenship is granted on two grounds: 1- Jus soli (citizenship is determined by the place of birth) and 2- Jus sanguinis (citizenship or nationality based on right of blood or on your parents or ancestors resided). A child born to a foreign parents in India is foreign national by jus sanguinis and Indian by jus soli. But after the commencement of Constitution only jus sanguinis is accepted in India. Article 9 prohibits dual membership i.e., an Indian acquiring citizenship in another country will lose his citizenship in India. This is unlike that in US. Israel gives citizenship on arrival to all Jews on earth immigrating to Israel.
 
 
Opponents of the Bill allege that it infringes upon the fundamental right to equal protection guaranteed under Article 14, that Article 14 forbids class legislation as it is not a reasonable classification and that the law is based on an unreasonable and irrelevant differentia. Article 14 to 18 deal with right to equality, a fundamental the right. Genesis of its constitutional foundation can be traced to the Constituent Assembly debates. Dr Ambedkar was of the view that giving citizenship right is entirely within the powers of Parliament to legislate. Under Article 11, the right in all matters of citizenship vests entirely with Parliament. Generally, the immigration and citizenship policies of Government are immune to judicial review. Ambedkar also said that Parliament can make laws for any category of people. Art 7 prohibits return of anyone from Pakistan after 1947; but it makes a promise through a proviso that under certain circumstances including “under the authority of any law” citizenship can be conferred to the deserving.
 
 
It is now well-settled that even though Article 14 forbids class legislation, it permits reasonable classification in the matter of legislation. This concept is taken from American Constitution. It permits creation of a separate class of people (non-Muslim refugees in the case of CAB), provided it stands the test laid down in the exemption. Doctrine of reasonable classification is based on the twin tests of intelligible differentia and nexus to the objects sought to be achieved for the purpose of Article 14. For the first time, the word reasonable classification or intelligible classification was used by the Hon’ble Supreme Court of India in the case of Chiranjit Lal in 1951. Supreme Court in Anwar Ali case in 1952 explained the two tests of reasonable classification as intelligible differentia and its rational relation with the objective of legislation. In the same case Supreme Court also said intelligible differentia requires a yardstick for the differentiation. In Navtej Singh Johar case in 2018 Justice Indu Malhotra gave the meaning to “intelligible differentia” as ‘reasonable differentia’. In Parisons Agrotech case in 2015, Supreme Court pointed out the limited scope of Judicial review on policy decisions of Government under Article 14: “Once it is found that there is sufficient material for taking a particular policy decision, bringing it within the four corners of Article 14 of the Constitution, power of judicial review would not extend.” It further permitted classification on geographical difference. Intention of discrimination is a subjective perception. Supreme Court in M.V. Valliappan case in 1999 said if there is a rational nexus with the objective of statute, then differentiation will not violate Art.14. Constitution itself differentiates between the citizens and the non-citizens, and also among the citizens themselves in some of its provisions.
 
 
Those who oppose the Bill also argued that Article 14 gives benefits of equality to “any person” including foreigner; hence foreign illegal migrants cannot be discriminated on the basis of religion. Two former secretary generals of Lok Sabha also alleged that once any one is on the soil of India, cannot be discriminated on grounds of religion. The question arises whether the foreign migrants can be discriminated on the religion-based criterion for citizenship. The general provision of Article 14 ensures equality and equal protection of law to “all persons” whether foreign or Indian. But the specific provision of Article 15(1) that prohibit discrimination on the basis of religion is available only to “citizens”. Those who oppose the bill only point out the general provision of Art 14 and conveniently omit the specific provision on religion in Art 15(1). Hence foreigners can be selectively brought under law as per exigencies. Supreme Court held in the case of Belgian Christian Missionaries who came to India in 1937 and were asked to leave the country in 1987, that it is well established that the domicile of origin is retained until the acquisition of a domicile of choice. They carried foreign passports and got their stay extended from time to time; hence have no or uncertain intention to stay in India permanently. Hence law can be discriminated against them.
 
 

Equality before Law in Human Rights Declaration

 
 
It is also alleged that the new law is violative of India's International obligations. Equality before law was laid in Article 7 of Universal Human Rights Declaration as well as in Article 14 of our Constitution almost at the same time. The Supreme Court observed in Keshavanda Bharti that even though Universal Declaration of Human rights is not legally binding, its spirit is reflected in our Constitution. International Covenant on Civil and Political rights and the Article 14(1) of International Covenant on Economic, social and cultural rights on March 27, 1979, which say about equality before law, were also ratified by India. Testing on the anvil of our Constitutional provisions is not against any international obligation.
 
 
It is alleged that the humanitarian aspect of illegal migration is missing in the law. The identification and deportation of illegal immigrants is a huge humanitarian issue for most of the civilised countries of the world including India. Two major causes of migration are due to: 1. Religious persecution and 2. Economic reasons. India stands economically on a better footing compared to all our neighbouring countries. Economic refugees seeking better life are normally not encouraged in all civilised countries. Issues related to large number of Mexican illegal migrants in US and Trump’s attitude towards them is an example. They are not refugees as defined in the UN Refugee Convention, 1951. Muslims immigrants from neighbouring Muslim countries belong to such category.
 

 
Are the Muslims Discriminated?

 
 
The new Amendment is objected alleging that it differentiate between Muslim and non-Muslim illegal immigrants and denies Muslim illegal immigrants equal opportunity to acquire Indian citizenship. It is feared that if Muslims are unable to establish their citizenship through the onerous documentary requirements, will be stripped of their citizenship rights. Proving citizenship through historical documentation coupled with vulnerabilities of misinformation, illiteracy and poverty make it an impossibility. They would be subject to disabilities purely on account of their religion.
 
 
All these fears are without any base. Amendment has nothing to do with Indian Muslims. Amendment does not prevent Muslims immigrants to apply under the existing normal route. CAB does not prescribe any limitation for Muslims in India to apply for citizenship by naturalisation by 11 years, but only gives a concession to persecuted non-Muslims refugees from three Muslim countries. Muslims can’t claim to be victims of religious persecution in these three countries where they are in majority. Hindus, Parsis, Sikh, Jain etc. have no other major country of final refuge except India, whereas Muslims have innumerable countries. Thus, there is a natural obligation for India in this regard. BJP has promised in its Sankalp Patra, 2019 to bring CAB.
 
 
Opponents of the Bill allege that it is endorsing the two-nation theory (that Hindus and Muslims constitute two separate, antagonistic nations) of Muhammad Ali Jinnah and VD Savarkar. But they conveniently conceal the fact that after partition of India in 1947, millions of non-Muslims are still there in those countries who suffer the persecution and atrocities. Many are taking refuge in India. No one can deny the bitter fact that the unfortunate partition happened on the basis of religion. The ongoing politically motivated agitation not to give asylum to persecuted non-Muslims is absolutely ill motivated.
 
 

Should Rohingyas from Myanmar be Included?

 
 
It is alleged that Rohingya Muslim refugees who are persecuted in Myanmar are excluded from the benefits of the Law. Rohingyas in Myanmar are notorious for massacring Hindus in the areas where they reside which is endorsed by the Amnesty International. That is the major reason for their expulsion from Myanmar. There is a Rohingyan group called ARSA who leads the community in the genocide of Hindus. Amnesty says they killed up to 99 Hindu civilians in one massacre. They were also involved in killings of nine border police. Most Rohingyas reside in the Rakhine State in western Myanmar from 12th century onwards. A 'Mass Hindu grave' was found in Rohingyan area Rakhine. Many foreign media, including the BBC, have reported the killing of Hindus recently back in September, 2017. Hindus were displaced by the violence in Rakhine and have to seek refuge in Bangladesh. So, many think that it is not safe for a country like India to purchase violence by officially giving refuge to such people.
 
 
The question arises why not include in the Amendment countries like Myanmar, Sri Lanka or China where minorities are persecuted. Today offering them asylum are done by executive orders on case-by-case basis in India. The Tibetan refugees and the Sri Lankan Tamils will continue to be dealt on case by case basis in future also. Already Government has exempted refugees from criminal actions of Passport (Entry into India) Act in 2015 and the Foreigners Act in 2016 and provided them with long term visa to stay in India. 2011 procedure letter issued by Congress Government also gives right of residence. Such procedures benefit refugees from Sri Lanka, Tibet, Myanmar etc. That is why such other neighbouring countries were excluded.
 
 
Compared to our neighbouring countries, only India has secularism and democracy in its true spirit, which is attributed to one reason by all viz. India remaining a Hindu majority nation. Hindus have the secular and democratic credentials in their blood throughout history. Indian Muslims are the safest among the world Muslims today. Unfortunately India have a neighbourhood notorious for religious persecutions of their minorities. On the contrary the Semitic minorities in India while enjoying special rights apart from general rights of all, even indulge in violent protests, forced religious conversions and atrocities upon the silent majority Hindus.
 
 

Issue in North East

 
 
North east states have different issue regarding the CAB. The Assam Accord says that only the Bangladeshi refugees who have come to Assam before 25th March 1971 would be entitled for citizenship. Others will have to be detected and expelled. On 20-4- 2012, the then Chief Minister of Assam Sri Tarun Gogoi gave a memorandum to Prime Minister Manmohan Singh requesting that Hindus persecuted religiously in Bangladesh should not be considered as foreigners in India. Those who oppose the new law fear that it will legalise the citizenship of numerous Bangla speaking Hindu immigrants and hence against Assam accord. Hence a section in Assam, Tripura and Manipur are protesting. For others in North east states it’s a question of their cultural identity if outsiders are allowed. But the law exempts all the tribal areas of North east except Manipur. Many Bangladeshi Muslims living in Assam fear that they are living there for decades, but may not be able to prove their long residence. They have no roots now in Bangladesh. Many were even born in Assam. Bangladesh has said it will not accept them.
 
 

Meaningless Protests

 
 
Some states like Kerala, Bengal, MP, Punjab etc. have said that they will not implement CAB. But states cannot claim so since citizenship is a subject falling only in the Central list of the 7th Schedule of Constitution. It is applicable to all states and UTs. CAB has nothing to do with States and State Government has no direct role. District Magistrates, Collectors and State home secretaries have to perform under the law as per the directions of Central government. Hence there is no meaning in States opposing the Amendment.
 
 
It is alleged that CAB is to fill lacuna in NRC to save 14 lakh Hindus out of 19 lakh non Assamese left out of the National Register of Citizens (NRC) list. They also allege that NRC is required to implement CAB. But the NRC list was finalised earlier this year under the supervision of the Supreme Court. Prime Minister and Home Minister have now made it clear that for the time being NRC will not be linked with CAB. NPR and Population census will continue to take place.
 
 
There are other new provisions in the amendment to cancel the registration of Overseas Citizen of India Cardholder who violates any provisions of the Act or any other law after giving them opportunity of hearing.
 
 
Thus the new amendment has been grossly misrepresented, misled by those political groups who compete to appease Muslims for vote politics. The Citizenship (Amendment) Bill has been in public domain since 2016. But political parties started protest only after its passing. Further, the Bill was approved by a 30 member Joint Parliamentary Committee after hearing all stakeholders and interested parties. In Kerala both the UDF and LDF initially were together to oppose it eying the influential Muslim votes, but later UDF realised that joint agitation will not give them political gain over their main opponents LDF. Now the agitation is separate. Thus CAB is standing the test of the polarisation between divisive forces and nationalist forces. Nationalist forces have to assert, lest India will find it difficult to survive.
 
(The writer is National President, Bharatiya Mazdoor Sangh)