The Hindu – In the name of a majority

The NRC in Assam has given us an indication of risks involved in such exercises of inclusion and exclusion

Anupama Roy

Op/Ed, 13 December 2019. The Citizenship (Amendment) Bill (CAB), passed in both Houses this week, promises to give the protection of citizenship to non-Muslims who fled to India to escape religious persecution in Pakistan, Bangladesh and Afghanistan.

While religious persecution is a reasonable ground for protection, the problem with the CAB is that it does not include all communities that suffered religious persecution, and explicitly excludes Muslims who suffered persecution in the specified countries and other non-Muslim majority countries like Myanmar.

This majoritarian notion of religion-based citizenship, although intrinsic to the Bharatiya Janata Party (BJP)’s idea of India, is not shared by the majority of people in this country. In addition, such a view is alien to the constitutional consensus which emerged in 1950, embodying the idea of a people who committed themselves, and those governing on their behalf, to a constitutional order.

Those in support of the CAB have rallied around the argument that it is non-discriminatory and its objectives are justifiable. In doing so, they have often invoked the moral imperative of correcting a perceived past wrong, in this case the Partition. In the process, the CAB changes completely the idea of equal and inclusive citizenship promised in the Constitution.

Changes in citizenship law

The CAB cannot, however, be seen in isolation. It must be seen in tandem with the National Register of Citizens (NRC) and other changes in the citizenship law, which have preceded it. The Home Minister and the Law Minister have clarified that the CAB and the NRC are distinct, the NRC protects the country against illegal migrants and the CAB protects refugees.

This, however, is incommensurate with the election speeches made by BJP leaders. For instance, speaking in Kolkata earlier this year, Amit Shah had promised an NRC in West Bengal, but only after the passage of the CAB to ensure that no Hindu, Buddhist, Sikh, Jain and Christian refugee is denied citizenship for being an illegal immigrant.

In a triumphal note after the passage of the CAB in Lok Sabha, Mr Shah declared that a nationwide NRC would follow soon.

Despite their seemingly disparate and adversarial political imperatives, the CAB and the NRC have become conjoined in their articulation of citizenship. Indeed, the two represent the tendency towards ‘jus sanguinis’ in the citizenship law in India, which commenced in 1986, became definitive in 2003, and has reached its culmination in the contemporary moment.

In 2003, the insertion of the category ‘illegal migrants’ in the provision of citizenship by birth became the hinge from which the NRC and the CAB later emerged.

The Citizenship (Registration of Citizens and issue of National Identity Cards) Rules of 2003 made the registration of all citizens of India, issue of national identity cards, the maintenance of a national population register, and the establishment of an NRC by the Central government compulsory.

Under these rules, the Registrar General of Citizen Registration is to collect particulars of individuals and families, including their citizenship status, through a ‘house-to-house enumeration’.

In an exception to the general rule, Assam has followed a different procedure of ‘inviting applications’ with particulars of each family and individual and their citizenship status based on the NRC 1951 and electoral rolls up to the midnight of March 24, 1971.

The purpose of the NRC is to sift out ‘foreigners’ and ‘illegal migrants’, who were referred to at different points as ‘infiltrators’ and ‘aggressors’, and a threat to the territory and people of India.

Exempting minority groups

The second strand emerging from the 2003 amendment has taken the form of the CAB, which exempts ‘minority communities’, Hindus, Sikhs, Buddhists, Jains, and Christians, from three countries, Bangladesh, Pakistan and Afghanistan, from the category of ‘illegal migrants’.

The CAB brings the citizenship law in line with exemptions already made in the Passport Act 1920 and Foreigners Act 1946 through executive orders in September 2015 and July 2016. It sets a cut-off date of December 31, 2014 as the date of eligibility of illegal migrants for exemption.

It must be noted that a PIL filed by the Assam Sanmilita Mahasangha pending before the Supreme Court has contested the deviation in the cut-off date set for Assam by the Citizenship Amendment Act 1986, March 24, 1971, from the date specified in Article 6 of the Constitution, i.e., July 19, 1948, which applies to the rest of the country.

The CAB is applicable to entire India, and takes the cut-off date forward by several years.

The claim that the CAB does not violate the Constitution is reflective of the recommendations of the Joint Parliamentary Committee (JPC). The JPC was advised by constitutional experts to use a broader category, ‘persecuted minorities’, to protect the Bill from the charge of violating the right to equality in Article 14.

The CAB uses the category ‘minority communities’ and goes on to identify them on the ground of religion. The notifications of September 2015 and July 2016, which changed the Passport and Foreigners Acts, had mentioned the term ‘religious persecution’.

The consideration of religious persecution for making a distinction among persons, the JPC argued, could not be discriminatory, because the distinction was both intelligible and reasonable, satisfying the standards laid down in the Supreme Court judgment in State of West Bengal vs. Anwar Ali Sarkarhabib (1952) to affirm adherence to Article 14.

Test of reasonableness

The JPC appears, however, to have overlooked the substantive conditions that the Supreme Court laid down in the same verdict. These require that the criteria of intelligibility of the differentia and the reasonableness of classification, must satisfy both grounds of protection guaranteed by Article 14, i.e., protection against discrimination and protection against the arbitrary exercise of state power.

In 2009, the Delhi High Court judgement in Naz Foundation vs Government of NCT of Delhi referred to “a catena of decisions” to lay down a further test of reasonableness, requiring that the objective for such classification in any law must also be subjected to judicial scrutiny.

The restraint on state arbitrariness, according to the judgment, was to come from constitutional morality, which as B R Ambdkar declared in the Constituent Assembly, was the responsibility of the state to protect.

It remains a puzzle as to why the government wishes to change the citizenship law to address the problem of refugees. The JPC refers to standard operating procedures for addressing the concerns of refugees from neighbouring countries.

In the case of refugees from the erstwhile West Pakistan who deposed before the JPC in favour of a CAB, the standard operating procedure was the grant of long-term visas leading to citizenship.

One wonders how these refugees will benefit from a law which will put them through an arduous process of proving religious persecution. Immediately after Partition, ‘displaced persons’ constituted an administrative category, and citizenship files of 1950s tell us how district officials expedited their citizenship in the process of preparation of electoral rolls.

The focus in the recent parliamentary debates, for various reasons, was the eastern borders. States in the region have resisted the CAB, and simultaneously asked for an NRC. West Bengal has been an exception. The reality of imposing a national order of things, through a CAB and an NRC, in non-national spaces will unfold in future but Assam has given us adequate evidence of the risks involved.

It can only be hoped that the judiciary and civil society are able to restore constitutional and democratic politics through an exercise of counter-majoritarian power in a context where electoral gains have determined political choices.

Anupama Roy teaches at the Centre for Political Studies, Jawaharlal Nehru University

https://www.thehindu.com/opinion/lead/in-the-name-of-a-majority/article30289562.ece?homepage=true

The Print – Modi’s new citizenship law will rip open the wounds of Partition

Muhammad Ali Jinnah would be proud of Narendra Modi.

Shivam Vij

New Delhi – India, 18 November 2019. Political language,” said George Orwell, “is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.” That would be a fine description of how the Narendra Modi establishment sells its disastrous policies.

It is certainly the case with the Citizenship (Amendment) Bill, 2019, likely to be a law in a few weeks. According to Prime Minister Modi, “There are many children of Maa Bharti who have faced persecution in Pakistan, Afghanistan and Bangladesh. We will stand with those who were part of India at one time, but got separated from us.”

The claim is that the Citizenship (Amendment) Bill (CAB) will somehow finish the unfinished business of Partition. On the contrary, it will only rip open the wounds of Partition.

Maa Bharti’s disowned children

Partition became necessary because there were two different visions of what India should be like after independence. One vision was based on the two-nation theory, the idea that Hindus and Muslims are two separate “nations”. (Wonder why the two-nation theory never saw the Christians, Parsis, Sikhs, Buddhists, Jains and Bahai as separate “nations”. The logical end should be an eight-nation theory, if not more).

The other vision was that nationhood is not a religious construct. It is geographical. From Peshawar to Puducherry, we were one people united by shared geography and history. We were united in our diversity.

It was this difference of opinion that led to Partition. Pakistan saw itself as a Muslim nation. It didn’t matter that west and east Pakistanis would be separated by nearly 1,700 kilometres of Indian land mass. India saw itself as a secular country that respected all faiths equally. And the country itself did not have a state religion, unlike Pakistan.

This is why Mahatma Gandhi was busy stopping Hindu-Muslim riots that were meant to drive out Muslims into Pakistan on either side. The father of the nation, as also the government of India, was committed to ensuring that Muslims can stay peacefully as equal citizens.

In other words, all the people of this land were the children of “Maa Bharti”, no matter what religion they followed. But Narendra Modi now wants to separate some of “Maa Bharti’s” children from her: Muslims.

If you are a Hindu, Sikh, Buddhist, Jain, Parsi and Christian in present-day Afghanistan, Bangladesh or Pakistan, you will soon be able to walk into India illegally, or overstay your visa, and become an Indian citizen in six years.

To exclude Muslims from this privilege, just because they are the “majority” community in these countries, is to say that Muslims are not the children of “Maa Bharti”.

What about Ahmadis whom Pakistan considers part of a separate sect and who are possibly far more persecuted than Christians and Hindus? Given that the founding place of the Ahmadiyya sect is in Indian Punjab, Ahmadis make a good case to be included in CAB.

Making Jinnah proud

Defenders of the CAB say it does not make India a Hindu state, because it also welcomes Sikhs, Buddhists, Jains, Parsis and Christians. Yet, it does exclude the religion of the majority in Afghanistan, Pakistan and Bangladesh. PM Modi must explain why Muslims in these countries are not the children of “Maa Bharti”.

In practice, the new idea of religion-based citizenship will encourage large-scale migration of people from these three countries into India, reminding us of the wounds of Partition. Since the largest religious minority in Pakistan and Bangladesh are Hindus, most beneficiaries of the CAB will be Hindus.

Simultaneously, the so-called, pan-India National Register of Citizens will target Muslims who are unable to prove their grandfathers were Indian. They will be stripped off their citizenship and put in detention camps. This is worse than the two-nation theory. This is a systematic legal design for the persecution of just one religious minority in India, Muslims.

Hindus come in, Muslims get out. That is the message of CAB and pan-India NRC, when seen together.

After all the Orwellian trickery, CAB and NRC are basically a way of accepting the two-nation theory. The 150th birth anniversary of Mahatma Gandhi is the perfect time to do this. Muhammad Ali Jinnah would be proud of Narendra Modi. It is as if the Partition is still taking place.

Some more Orwellian trickery

Incidentally, the text of the proposed CAB does not say anything about Partition, persecution, leave alone “Maa Bharti”.

If the idea is that someone should be given citizenship because they are facing religious persecution, then they should be asked to prove they were facing persecution. That is how, often with the help of the United Nations High Commissioner for Refugees, western countries grant citizenship to refugees.

For instance, after CAB becomes law, the Bhandara family in Pakistan, who happen to be Parsis, could walk into India and become Indian citizens. Are they “persecuted” in Pakistan? Not at all. They are part of the Pakistani high society, owners of the Murree Brewery.

Wouldn’t they love it if one of their family members could become an Indian citizen and start Murree Brewery’s operations in India?

So, the idea that CAB is for “persecuted” religious minorities in Pakistan, Afghanistan and Bangladesh is media spin meant to fool us. The text of the law says no such thing, because the real intention is perhaps not to help persecuted minorities in the three countries. The real intention is to import lakhs of Hindus so that the BJP may play vote-bank politics with them.

On another note, can anyone explain what Afghanistan has to do with Partition? It was not a part of India in 1947. It was never a part of British India. We have always been told that Partition divided India into two countries, India and Pakistan, and a part of Pakistan later became a third country, Bangladesh. So, if CAB is about Partition, what is Afghanistan doing here?

And if Afghanistan can randomly qualify, why not Myanmar? Myanmar (then Burma) was a part of British Indian Empire until 1937. How about giving Indian citizenship to persecuted minorities in Myanmar?

Over 7 lakh Rohingya Muslims have been forced to flee to Bangladesh due to ethnic and religious persecution. If an Afghan-Christian from Herat is the offspring of “Maa Bharti”, why is a Rohingya Muslim from Arakan not a child of “Maa Bharti”?

If Afghanistan is included because of the RSS’ idea of Akhand Bharat, why not Sri Lanka? Just because Tamil-speaking Hindus from Sri Lanka aren’t really going to help the BJP win elections in Tamil Nadu?

There are other issues with CAB. Does India really need more people, given it is already one of the world’s most populous countries? And what about security issues? CAB offers a very convenient route for agencies to send spies to India and get them Indian citizenship in just six years.

None of this means India should not give citizenship to refugees. What we need is a comprehensive refugee law that determines how many refugees India can absorb as citizens every year, and the basis for such citizenship should not be religion or nationality. It should be humanity, in keeping with the spirit of the Indian Constitution.

Modi’s new citizenship law will rip open the wounds of Partition