Daily Times

A few days earlier, the passage of the contentious bill, “Citizenship Amendment Bill (CAB)” by the Indian parliament sparked a violent protest across India. The bill has invited scathing stricture from the people belonging to all walks of life. It has, undoubtedly, shaken the very foundation of the Indian constitution by giving a death knell to the democratic and secular identity of the world’s so-called largest democracy.

The CAB has attracted strong opposition since it is discriminatory, exclusively towards Muslims. It excludes them from its ambit. “Not only is the bill discriminatory, it wreaks havoc on the very foundations of our Constitution,” Congress Legislature Party (CLP) leader Adhir Ranjan Chowdhury said in the Lok Sabha. “This is a step towards forming a ‘Hindu Rashtra,’ as imagined by the RSS and BJP.”

The citizenship act of 1955 barred illegal migrants from acquiring Indian citizenship. An illegal migrant is a foreigner who enters the country without valid travel documents, like a passport and visa, or enters with valid documents, but stays beyond the permitted period.

The BJP has both ideological and electoral compulsions to enact CAB

However, the “Citizenship Amendment Bill” of 2019 calls for the following changes in the citizenship Act, 1955.

1. The Citizenship Amendment Bill 2019 aims at providing citizenship to Hindu, Sikh, Buddhist, Jain, Parsi and Christian refugees from Afghanistan, Bangladesh and Pakistan. A person belonging to these faiths, who came to India on or before December 31, 2014, can apply for citizenship.
2. With the CAB a law now, any legal proceeding pending against an ‘eligible’ illegal immigrant stands “abated.” They cannot be barred from applying for citizenship on grounds that proceedings are pending against them.
3. Though the act of applying for citizenship under this provision indicates the person entered India illegally, he/she will not be deprived of rights/privileges enjoyed till then.
4. Applicants who qualify are eligible for citizenship by naturalisation if they can establish residency in India for five years, instead of the current 11 years.
5. The new provision will not apply to the tribal areas of Assam, Meghalaya, Mizoram or Tripura, as included in the Sixth Schedule to the Constitution and states with the Inner Line Permit (ILP) provision. In effect, the Act excludes Arunachal Pradesh, Nagaland, Mizoram, Manipur, almost the whole of Meghalaya, and parts of Assam and Tripura.
6. Presently, there is no specific provision to cancel the registration of an Overseas Citizen of India cardholder, who violates provisions of the Act or any other law. The new Act empowers the Centre to do so.
7. Overseas Citizen of India cardholders will be given sufficient opportunity to argue their case before any decision to cancel their registration is taken.

The bill in question has triggered a hot debate among constitutional luminaries, politicos and academicians since it has severely impinged on the cherished democratic and secular fabric of the country.

To this end, on December 11, just before the CAB was cleared, over 700 activists, academicians, and filmmakers wrote a letter to the Indian government expressing grave concern over the proposed laws. “For the first time there is a statutory attempt to not just privilege peoples from some faiths but at the same time relegate another, Muslims, to second -rate status,” they wrote.

“The new law,” they wrote, “also went against the tenets of the Indian constitution.”

“The CAB is at odds with the constitutional secular principles and a violation of Articles 13, 14,15,16 and 21 which guarantee the right to equality, equality before the law and non-discriminatory treatment by the Indian state,” they added.

The major criticism of the law has been that it prevents Muslims from seeking citizenship, something similar to US President Donald Trump’s Muslim ban under which Muslims from some countries were banned from seeking asylum.

Legal experts argue it violates Article 14 of the constitution, which guarantees the right to equality. While commenting on CAB, Faizan Mustafa, a constitutional luminary and the chancellor of NALSAR University of Law, termed the legislation “very aggressive” and a violation of the Indian constitution.

“We don’t have our citizenship based on religion. Our constitution prohibits any discrimination based on religion. By distinguishing illegal immigrants based on religion, the proposed law violates the basic structure of the Indian constitution,” he said.

He added that if the government, through this bill, wanted to give citizenship to the persecuted minorities in the neighbouring countries, how could it exclude the Rohingyas of Myanmar, who were far more persecuted than any other group in the neighbourhood.

Social scientists and experts working on the refugee settlement are unconvinced about these arguments and have condemned the bill. “The CAB not only breaches the equality provisions of the Indian Constitution, it also runs afoul of secularism as a basic structure of the Constitution,” said Surya Deva, associate professor at School of Law, City University of Hong Kong, and advisor to the UN Human Rights Council.

Also, Sanjay Jha, a spokesperson of the main opposition, Congress Party, equated the draconian law (CAB) with Modi’s strategy to polarise India. He argued the law was a “part of a deeper divisive BJP’s political strategy to polarise India.”

“Hence the exclusionary element of religion in the Citizenship Amendment Bill,” he said.

“The business model of the BJP is to keep India on a permanent boil, raising the communal temperatures high during elections,” he added.

Inter alia, last month, Home Minister and a close confidant of Modi, Amit Shah, announced that the country would begin the exercise of counting all its citizens to weed out undocumented immigrants from neighbouring countries. A similar exercise called the National Register of Citizens (NRC) was carried out in the northeast state of Assam, where nearly two million people were left off the citizens’ list in August. In the past, Shah has called Bangladeshi immigrants “termites,” “infiltrators” and a threat to national security. His party has vehemently opposed the arrival of Rohingya refugees and threatened to deport them to Myanmar, despite the Muslim minority facing ethnic cleansing back home. The draft law also excludes Sri Lanka, where Tamil minorities have faced atrocities.

Furthermore, the BJP has both ideological and electoral compulsions to enact CAB. The RSS and BJP have long made public their commitment to giving citizenship to Hindu immigrants. It was part and parcel of the 2014 and 2019 electoral campaign. However, the short-term objective seems to be to win over the Hindu “refugee voters” in West Bengal that exist in substantial numbers in nearly 70 of the state’s 294 assembly segments.

Additionally, in Assam, which shares a border with Bangladesh, people fear an ethnic and demographic shift due to the influx of immigrants regardless of their religion. Citizens in Assam are also concerned about the controversial NRC, which requires people to produce documents for ancestry to be enlisted as Indian citizens.

This exercise, undertaken by PM Modi’s government in Assam between February 2015 and August this year, was meant to “throw out infiltrators.”

The final list of citizens, published on August 31, excluded nearly 1.9 million residents of Assam.

To encapsulate, let me quote a famous Indian author, Arundhati Roy, who, while commenting on the CAB, remarked, “It will break the back of our constitution and cut the ground from under our feet.”

Therefore, Modi’s government should repeal this discriminatory Act (CAB) as soon as possible to save the country from further polarisation and, thereby, restore the country’s lost image of being a secular and democratic. The erection of “Hindu Rashtra” is an elusive dream of Modi and his ideologues, which can only be built on the graves of millions of innocent people.

The writer is a legal practitioner-cum-columnist based in Quetta