TEST OF THE CONSTITUTION – THE CITIZENSHIP AMENDMENT ACT, 2019.

Each and every democracy on face of the Earth has gone through fire and blood. The making, running and prosperity of every democracy have passed through a period of turmoil. The ways in which things have been handled, have decided the future of the nation. Solving foundational issues has resulted in rise of a mature democracy. To put it simply, this is very similar to running a joint family.

The Citizenship Amendment Act (CAA) has created misunderstandings, confusion, violence and fright. We cannot underestimate the importance of this bill. It is basically about the granting of citizenship to the illegal migrants entered into India from certain countries belonging to certain religions. The primary criticisms are anti-secularism and discrimination on the basis of religion. The critics challenge the constitutionality of this Act. A law is said to be constitutional if it conforms to the principles of Constitution. The Supreme Court of India decides this.

On one hand critics compare the Prime Minister to Hitler and term this move to be a murder of democracy and on the other hand supporters praise the secular nature of the Act. The aftermath of passing the Act has seen nationwide protests. Critics say that exclusion of Muslims from Section 2 of the Act defeats the secular fabric of our nation. They go on to say that this is a part of the larger plan of the Hindutva agenda.

The Government and its supporters say that the object of the act is to give citizenship rights to the religious minorities because they have been persecuted by the neighboring countries. Supporters say that this act is similar to the logic of giving certain privileges like reservation to the socially/educationally persecuted people of our country. The only difference is that this Act is regarding people who have come from outside India and have now settled in India without Citizenship rights for many years. It is important to consider the provisions as stated in the actual Act, its objectives, the underlying idea and its effect on India.

Section 2 amended –

Who shall not be treated as illegal migrants? If each and every provision stated below is satisfied then Citizenship will be granted –

• If you are a Hindu, Sikh, Buddhist, Christian, Parsi, Jain,
• From Afghanistan, Bangladesh, Pakistan,
• Entered into India on or before 31st December 2014,
• Exempted under some provisions of Passport Act, Foreigners Act.

Illegal Migrants

Firstly this act speaks about the Illegal migrants. Hence we should limit our discussion to illegal entrants into the territory of India. Section 2 of The Citizenship Act, 1955 gives the definition of an illegal migrant. An illegal migrant is one who has entered India without Passport, valid documents or other documents required by law or one who has entered with these documents but has lived here beyond permitted time. The said Act of 1955 also provides various ways of acquiring citizenship of India. Some of those are by Birth, Descent, and Naturalisation. It should be noted that each of these ways of acquiring citizenship excludes illegal migrants. Thus if one wants to acquire Indian Citizenship he/she must not be an illegal migrant.

The Citizenship Amendment Act, 2019 legalises the illegal migrants. It says in its section 2 (stated above) that if other requirements of the Section are satisfied the migrants would not be considered as illegal. This connotes that the illegal migrants of the religions mentioned in the Act would not be considered illegal. The religion Islam is excluded from this. Thus the Act legalises the illegal entry of people based on their religion.

The Citizenship Amendment Act does not make any provision regarding the Citizenship of the people who are already the citizens of India. Many ill minded critics are spreading false rumours about possibility of deporting the minority community living in India. They say that nation wide NRC (National register of Citizens) combined with CAA will affect Muslims. On the other hand the supporters are also being misled by saying that the act is not against any specific religion as Muslims can acquire citizenship by other ways.

The question is not about acquiring citizenship by legal ways. The real question is about legalising the illegal entry based upon the religion of a person. Some may say that illegal migrants of the specified religions are being legalised because they have entered India due to religious persecution in their respective countries. We will discuss this point further.

The CAA 

The CAA comes from an intrinsic importance given to the persecution of the Hindus of Bangladesh, Pakistan and Afghanistan. The Amendment Act states in the Objects and Reasons that the Act is to provide home to the religious minorities persecuted in these three neighbouring countries. But such a provision is not mentioned in actual text of law. Wordings in a section are different than what the object of the section is. Amendment to Section 2 says that after satisfaction of certain conditions, those people would not be considered illegal migrants. That is, nowhere in the section is it stated that people of the specified religions would be given citizenship because they have been persecuted on the basis of religion.

This is purely a legal debate. The objects and reasons of the Act are an aid of interpretation of the intention of the lawmakers and the legislation. This raises two possibilities. First is that the Government has assumed that each and every person of the religions stated in the Amendment Act has faced religious persecution in those countries. This is an assumption. The second possibility would be that the Central Government would make rules under the Citizenship Act which it has the power to do and decide some detailed criteria to be applied regarding proof of religious persecution. If we proceed along the first possibility we have to seriously check the logic which Government has applied.  If the Government does not mean the first possibility then it will have to explain why it has included the point of religious persecution in the Objects and Reasons without including it in the actual Section. If it cannot explain this then either it believes in the first possibility or brings us to the second possibility.

The Government may say that it will include the point of religious persecution in the detailed rules to be framed under the Act. Now in this case the main question is- How will a person prove that he/she was religiously persecuted in the neighbouring named countries? Can anyone show any documents which prove that he fled his country due to religious persecution? If anyone tells the concerned authorities that his family came here due to economic reasons, is this Government trying to attach religious persecution as the reason behind their migration even if it is not?

Many Hindus, Muslims cross the border illegally just because of family, economic reasons. Do all these Hindus necessarily cross the border due to religious persecution? Actually religious persecution cannot be proved by documents. This doesn’t mean it does not happen. Hence it is easier to show the reason of religious persecution, non-happening of which no one can deny and bring a legislation which furthers the interests of Hindus. If the Government really cared about the persecuted then there was no reason to exclude certain sects of minority Muslims. It is false fact to assume that religious persecution has not happened against Muslims of Pakistan, Bangladesh, and Afghanistan. The Ahemediyas, Pathans are persecuted due to their unique culture. The Sufis are looked down upon in many countries due to their artistic and liberal interpretation of Islam.

To simplify let us take an example – A school teacher makes a rule that bag of every student will be checked to find out whether any student is carrying copy material for the examination. But exception to this rule are all the Girls. The reason behind such a rule is that Girls can never copy. This rule is based on the false presumption that Girls never copy. Similarly the reason/object of this rule is not stated in the wordings of the rule. Thus the reasoning and the rule made by this teacher is fallacious. This brings us to the argument put forth by the supporters to advocate non-inclusion of Minority Muslim Sects in CAA.

The Two Nation Theory

The supporters say that the basis of formation of Pakistan was the idea of an Islamic nation. This argument has merit. They say that those nations were created for Muslims hence they should take care of their people. This argument does not. Our nation was formed on different principles than theirs. We have to strengthen our principles irrespective of what other nations do. It is clear fact of history that the Two Nation theory was the dream of Jinnah. The two nation theory basically rests on the idea that Hindus and Muslims cannot live together as a nation. It also cannot be denied that there were and are Hindus who believe in this. But it is also true that the foundation of our nation rests on the Constitution which doesn’t even remotely support this theory.

Our country has always been an inclusive geography through ages. Even when Islamic invasions had not happened, our country had witnessed a lot of exchange of ideas based on the Ancient Indian Philosophical schools. Some Indians called Samkhyas believed in Vedas while some others called Charvakas did not accept the authority of Vedas. Some others called Yogis focussed on physical and mental aspect of living spiritually. Charvakas thought that life should lead in total joy. There is no God, no soul, no rebirth. Life is for enjoyment and not for Moksha. Charavakas were called Asuras by others. Ancient India never fought upon the idea of Hinduism as there already were a thousand ways of thought in India. Indian culture was one of inclusive debate.

If you are a Hindu ask yourself truly. Can you authoritatively say what your belief about day to day activities is the final truth? Is there any supreme text which guides you in your daily activities? If you study closely you will find that you are a combination of all the elements of Indian thought. When you party you are a Charvaka. When you meditate you may be a Buddhist, Yogi Advaitin etc. But this is not the case with Islam or Christianity. Hence the basic identity of Hinduism was developed after the invasion of Islam which came with a set of belief system totally foreign to the Indian Culture.

Today we are witnessing the standardization of Hinduism. Hinduism is being hijacked and shown ownership upon by some groups of Hindus. This is nothing but mimicry of West which has seen bloodsheds between Muslims and Christians. The purpose of discussing this was the basis of idea behind the Two Nation theory. Jinnah established an Islamic Republic. That was an artificially engineered cause of making a nation.

Pakistan is till today struggling with the reasons behind its foundational principles. Besides the unfounded aim of destroying India it doesn’t have any reason to live. Is it so with India? We are not a nation created only after 1947. We are living culture of diversity. We have very many reasons to exist together with unity. But why are we responding today to each issue as if Religion and its wrongs are the most important things to us? The issue is not about CAA but our priorities in general. We are giving much more importance to issues which give Pakistan something to eat.

CAA will acknowledge the two nation theory of Pakistan. Supporters of the Government say that Pakistan is an Islamic Republic so let them take care of their people. Are Muslims their people? Aren’t they ours? Who has given you the authority to decide who is yours? Your own ‘one religion’ identity is a reaction to the invaders. A reaction never persists; it will just breed violence and insecurity. If you argue that Hindus are yours and Muslims are theirs it just like saying- Yes Jinnah was right, we need two nations.

Basic Ideology

We are witnessing a complete or partial reversal of the ideas with which we were used to after the current Government came to power in 2014. Changes are happening fast. Many positive things have happened in national and international sphere. Naya Bharat was not a myth. It was a reality because the ideology of new government is different than that of the Congress. This move of the government has directly touched the foundational principles of our nation. In a sense the ideological base is directly the reason for enacting the laws being enacted today. Hence it is necessary to see it in brief.

The Right wing always challenges the one sided version of secularism. But it forgets that while criticizing others it tends to go to the other end of the pendulum. When it says that people practice ‘fake’ularism they should present the balance. It is very true that the supporters of secularism have always kept mum on the illegalities carried out against Hindus. Even today if a person proudly says that he/she is a Hindu and practices his faith sincerely he is looked at as a conservative. The idea of modernity of our society has become a photocopy of the West. If an Indian logic is accepted in the West and rebounded back to India then it finds the certificate of approval.

The problematic thing with the conservatives is that they use this argument to promote fideism. Fideism means accepting the faith as it is without challenging it by Science. When we say India, each ideology has its own version and vision to look at it. The extreme Right will see India/Hindustan as a motherland spreading from Afghanistan to Burma, while the extreme Left will see it as a step which we have to pass and move towards a stateless society. Such twisted concepts are creating problems in the modern world. If we look closely, the issue of NRC, CAA and many others are ideological issues. We haven’t really settled on foundational principles.

The Constitution

What is your identity? Who are you? Let’s make a list of our identities – Hindu, Muslim, Indian, Marathi, Male, Female, Aryan, Dalit, Artiste, Actor etc. Our ‘self’ is pasted with a tag throughout our life. Whichever tag you think is more important to you will mould your opinion about any issue. CAA is not an exception to it. Try to see it from a lens of Hindu and you will see this Government acting in a secular fashion. Contrary is also true. This brings us to the question whether we as a country have been able to engrave the Constitutional Principles in ourselves. Can we keep our nation above our Religion? Is CAA in consonance with Constitutional principles? Can we see CAA with a Indian lens?

Conclusion

The Constitutional fathers have righteously inserted the wordings ‘We the People of India’. They rightly maintained the ancient idea of inclusiveness. Illegal migrants are illegal. They are illegal irrespective of religion. If someone wants to legalise them, there should be constitutionally sound criteria. It would not be wrong to grant citizenship on basis of religious persecution. Instead the Government should come with a concrete scale upon which it will separate migrants persecuted on religious grounds from those who have entered for other reasons.

Therefore the Government cannot assume that every religious minority in the three countries of Pakistan, Bangladesh and Afghanistan has entered India due to religious persecution. Setting the criteria of belonging to a particular religion to escape the clutches of law is not a sound principle. And if the Government cares about the minority of other nations it should not forget the plights of minorities belonging to several other neighbours of ours. When the Government shows special affection towards some and neglects others, the move raises eyebrows and the law becomes shady.

I don’t think this Act is founded upon sound principles and data, nor do I think that it is a murder of Democracy. Some critics are wrongly spreading fear in the Citizens of India who are Muslim to gain political mileage. Some are spreading rumours upon the autonomy of North-Eastern states. The tribal areas of North-eastern states and the areas of inner line permit are excluded from CAA. This exception has been made to protect the regional autonomy and culture.

CAA has been challenged in the Supreme Court. It is unto it to decide the constitutionality of the Act. The debate is ideological. The deeper debate is about the meaning we give to the Constitutional principles. It is about who we consider ourselves to be. In any case every law has to pass the test of Constitutionality. Once again the current scenario has shown the need to build a national character based on the Constitution. Constitution is the bottom-line.