By Vaibhav Sharma, Batch of 2023
Our Honorable Prime Minister Narendra Modi once said, “Secularism is not only in our constitution but also in our veins”.
However today these words are being threatened by the recently passed Citizenship Amendment Bill, now having become the Citizenship Amendment Act. This Act has led to endless controversy, also leading to large scale protests throughout Delhi, Assam and other parts of India. Even the United Nations is “concerned” that the CAA is “fundamentally discriminatory in nature”.
To completely understand the implications of the CAA we need to look at the previously implemented National Register of Citizens (NRC) in Assam. The CAA follows the footsteps of NRC which backfired to the extent that it was denounced by the BJP’s state leadership. The CAA seeks to exempt the non-Muslims present among the 1.9 million people from the fate of being excluded from the NRC and being labelled as migrants – singling out only Muslims as migrants. The CAA is, thus, a twisted solution to a botched NRC in Assam, and also a pre-emptive precursor to the nationwide NRC, which our Home Minister has declared to be an inevitability. If this nationwide NRC is as poorly implemented as the Assam NRC (whose first list identified over four million people as immigrants), it will have an error rate of over 50%. The CAA can be viewed as a pre-emptive remedy to save all the people left out by the final list while singling out the excluded Muslims.
Constitutional Integrity – Article 14 of the Constitution states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Some of the claims put in support of the CAA’s constitutional integrity state that Article 14 is not violated since a “rational distinction” of protecting minorities in these three countries have been carved out. They argue that the classification in the Citizenship Amendment Bill (CAB) is based on two factors: The classification of countries — from Afghanistan, Pakistan and Bangladesh vs Rest of the countries, and the classification of people — Hindu, Sikh, Jain, Buddhist, Parsis and Christians vs Other sections of people. This classification has been done keeping in mind the ethnic and religious composition of the aforementioned countries. Since these three countries are majorly inhabited by Muslim citizens, the minorities have historically been oppressed and been forced to convert to Islam or be killed. Therefore, the two — oppression and minorities — are enough grounds for such differentiation. Since the government wants to ensure the safety and liberty of these oppressed minorities and wants to protect them through the Citizenship Act, this is reasonable in the eyes of the law.
But what these supporters turn their blind eyes to is that the act means that individuals fleeing persecution will first be administered a religious test that dismisses the actual persecution they fled from as a secondary factor. This is exactly why such legislation is expressly barred by Article 14. Article 14 is attracted when the law is based on arbitrariness such as when it incorrectly conflates persecution and religion (as Muslim sub-sects such as Ahmadis or the ethnic groups such as Hazaras or Baluch have also long been persecuted in the same neighbouring countries but do not come under the purview of this act), is discriminatory and penalizes the adherents of one specific religion, or simply doesn’t satisfy its own objective ( protecting Hindus and others since it leaves out the same from other bordering countries like China, Nepal, Sri Lanka and Myanmar). Hence, it does violate Article 14 of the Constitution.
International Legality – Another argument put in favour of the act is that no international agreements have been violated by it. What one needs to understand is that the bill is an act of religious exclusion, masqueraded as an exercise in sovereignty. It violates the principle of non-refoulement or “no-return” which states that no nation can turn away refugees fleeing persecution or threats to their lives in their home country. While India is not a signatory to the Refugee Convention, (which would have been violated in case India had been a signatory), it is a signatory to the Convention Against Torture, which also bears the same essence of the principle. Hence, the bill also essentially violates these international agreements in spirit.
Security Concerns – Organizations such as RAW are also said to have objected against the Bill on national security grounds. It’s all too easy to imagine a situation where infiltrating agents are sent across as persecuted Hindus or Christians to blend into the population and work themselves into positions where they might be of use to an enemy. The CAB could become a “legal framework” which they could use to infiltrate India. Considering the precarious position India today finds itself in with regards to the preservation of its sovereignty while being relentlessly attacked, directly or indirectly, by its 2 trigger happy neighbours, it becomes much more essential to consider this aspect carefully and ensure that it does not fatally backfire.
Limitations on resources and jobs – We also need to consider the fact that the State’s resources are limited and currently under extreme stress. With the economy slowdown and widespread unemployment, the government needs to ask itself how it plans to accommodate more and more immigrants when the government already cannot guarantee the existing impoverished citizens the modest economic privileges they are entitled to. If the government cannot accommodate these immigrants, it will only lead to more unrest and the discontent of the people inevitably leading to unfavourable results for the nation.
The current wave of unrest and protests across the country can be viewed as the evidence and consequence of a breach of trust of citizens by the government. And the restoration of this trust is vital because the government requires the cooperation of all sections of the society in order to get the economy back on track. At a time when the slowdown has created panic in the market, the last thing the country needs is communal tension. In addition, the situation in Jammu and Kashmir and the Northeast is far from normal. We cannot afford further unrest.
The prime minister of Japan postponed his visit to Guwahati given the situation. Two senior ministers from Bangladesh have also cancelled their India visits. We have to act firmly so that internal issues don’t become international.
Last but not least, we need to open our eyes and look at the CAA for what it really is and not what it is being portrayed as. This act needs to be renegotiated with the citizens in order to address their fears and concerns. Policies focusing on human rights need to be accommodated and should not bar people of certain religions from sharing benefits in a secular democracy like ours. As mentioned earlier, the government needs to take the citizens and the opposition into confidence while making sensitive decisions and move collectively and not disruptively.