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Mainstream, VOL LVIII No 1 New Delhi December 21, 2019 | ANNUAL NUMBER

The Idea of Belongingness and Citizenship

Saturday 21 December 2019

by Anujaya Krishna

The Citizenship (Amendment) Bill, 2019 (“Amendment”) passed by both Houses of Parliament recently is an epitome of discrimination, not ‘reasonable classification’. It was tabled as a “BILL further to amend the Citizenship Act, 1955”.1 The Citizenship Act, 2005 (“the Act”) is stated to be an Act to provide for the determination and acquisition of Indian citizenship.2

The Amendment makes an addition to Section 2(b)(1) of the Act as per which “...any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act.”3

Plausible Justification?

This has been justified in the Statement of Objects and Reasons of the Amendment4 as follows (for the sake of analysis, the paragraph presented in the Amendment is being divided into points):

1) “It is a historical fact that trans-border migration of population has been happening continuously between the territories of India and the areas presently comprised in Pakistan, Afghanistan and Bangladesh.”

The Amendment focuses on three neighbouring countries—Pakistan, Afghanistan and Bangladesh, without proffering any tenable argument for handpicking these countries only. Trans-border migration of population is a historical fact that is universally applicable and observable and when it comes to India, no doubt, that there has been such migration between India and the three countries mentioned. But the question is- is it restricted to the countries mentioned? As per the data on migration from the 2001 census, “among the total population, about 51 lakh persons in the country were migrants from across the International border and about 97 per cent of them were from the eight neighbouring countries (including Afghanistan). Of these migrants 30 lakh were from Bangladesh, 9 lakh from Pakistan, 5 lakh from Nepal and 1 lakh from Sri Lanka.” Notably, the volume of total migration has also declined since 1971.5 Evidently, migration to India is not restricted to the countries mentioned in the Amendment.

Secondly, let us take the case of Rohingyas. They are an ethnic group from Myanmar, majorly Muslim, who have fled persecution in their country of origin and have migrated to other countries in large numbers, especially Bangladesh.6 A large number of them have sought refuge in India too, there being an estimated 18,000 Rohingya asylum seekers and refugees registered with the United Nations High Commissioner for Refugees (“UNHCR”) in India.7 What makes the Amendment exclude Myanmar from its ambit? In fact, if the intent is to provide refuge to communities from religious persecution, why exclude persons belonging to a particular religious community when there is clear evidence of their exodus from neighbouring countries due to persecution?

2) “Millions of citizens of undivided India belonging to various faiths were staying in the said areas of Pakistan and Bangladesh when India was partitioned in 1947. The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries.”

This is a blanket generalisation for countries that have declared a specific religion as the State religion. As per a Pew Research Center report8, a country by virtue of having a State religion does not automatically mean that that religion is mandatory or that religious freedom is curbed. It is estimated that three out of 10 countries with an official religion “give more benefits to the state religion while also creating an especially harsh environment for other religions (beyond basic regulation of those groups).”9

The premise behind linking official religions of the States mentioned and consequent persecution of people belonging to the other religious communities there mentionedin the Amendment is half-baked at best. The fact is that religious persecution in these countries is not restricted to the communities mentioned. For example, in Pakistan, Ahmadias10 and Shia Muslims have also been subject to discrimination and threats by extremist groups.11In such a scenario, the lines of inclusion seem arbitrary.

3) “Some of them also have fears about such persecution in their day-to-day life where right to practice, profess and propagate their religion has been obstructed and restricted. Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.

Again, the above statement is not restricted to the communities and countries mentioned in the Amendment. Even if one takes the categorization to be according to neighbouring countries, the fact that there are plenty of Rohingyas who have fled persecution in Myanmar and come to India begs observation. While it may be argued that the question of inclusion and exclusion is a matter of policy and the legislature cannot be dictated as to whom to include and exclude, deference to the basic structure of the Constitution should be maintained at all times.

Article 14 of the Constitution provides, “the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India.” The working of the right to equality permits ‘reasonable classification’, which should stand two tests12—

(i) There should be an ‘intelligible differentia’ between the things brought within the scope of the legislation and those left out;

(ii) There should be a ‘rational nexus’ between the intelligible differentia and the legislative goal.

Notably, the Supreme Court relied13 on a 1949 article by Joseph Tussman and Jacobusten Broek14 to understand these criteria better. Among other things, these two scholars raised the issue of the extent of deference that the courtshould accord to the legislature, i.e. would the Court go into whether facts existed to justify the reasonable classification, thereby putting the burden of proof on the legislature. They also proposed that in light of equality certain kinds of classifications should be excluded from being invoked at all, such as differences in colour or creed, birth or status. They also argued that certain legislative purposes should also be excluded, especially laws driven by “hostility” and “antagonism” intent towards specific groups. As the judicial canon around Article 14 has developed, the basic structure of the Constitution as well as its other provisions, like Article 15 that prohibits the State from discriminating on grounds only of ‘religion, race, caste, sex, place of birth, or any of them’, create a barrier to making legislation on impermissible grounds.15

Affront to Secularism?

It has already been established that the no law made should override the basic structure of the Constitution, and that the secular character of the Constitution is part of it.16 How does the Amendment strike at the roots of secularism? The Preamble, that presents the vision of our nation that we as a people had when we adopted the Constitution, also mentions that India is a “secular” country. A secular state is non-religious17 in nature, i.e. it does not use religion as the basis of its policy actions. Indian secularism differs from Western secularism in that in the latter there is mutual exclusion of religion and the State, with neither intervening in the other’s sphere but in the Indian model, the State is allowed principled intervention in all religions18, for example, to intervene to abolish caste untouchability prevalent among the Hindus. All in all, it is clear that India was envisioned to be seen as a country where all peoples were treated as equals rather than being arbitrarily discriminated- sort of an extension of Ernest Barker’s hypothesis—“Two new ideas are entering the world, both destined to a long history- the idea that all men are naturally equal, and the idea that they are all by nature brothers in a single human society.”19

Conclusion

This Amendment is a portent of how drastically the India that we all know and are a part of may change, and not for the better at that. There are some pertinent questions that we, as citizens, must ask ourselves- “In the garb of righting ‘historical wrongs’, should we dislodge the foundational ideals of our Constitution?”, “Before we start acting as saviours for the persecuted, do we need self-introspection?”, and “Whether the truest test of rationality lies in looking inwards and correcting our course?” for policies may come and go, but the fabric of our Constitutional values must be preserved and cherished at all costs.

Footnotes

1. The Citizenship (Amendment) Bill, 2019, http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/370_2019_LS_Eng.pdf (last accessed on December 11, 2019).

2 The Citizenship Act, 1955, https://indiacode.nic.in/bitstream/123456789/4210/1/Citizenship_Act_1955.pdf

 (last accessed on December 11, 2019).

3 Section 2 of the Amendment.

4 Para.2 of the Statement of Objects and Reasons of the Amendment.

5 Drop-in-Article on Census- No. 8, http://censusindia.gov.in/Ad_Campaign/drop_in_articles/08-Migration.pdf (last accessed on December 11, 2019).

6 Yermi Brenner, “Rohingya migration to India: patterns, drivers and experiences”, Briefing Paper, Mixed Migration Centre, April, 2019, http://www.mixedmigration.org/wp-content/uploads/2019/04/063_briefing-paper_Rohingya_India.pdf (last accessed on December 11, 2019).

7 “UNHCR seeking clarification from India over returns of Rohingya”, UNHCR Press Release, published on January 4, 2019, https://www.unhcr.org/news/press/2019/1/5c2f2a374/unhcr-seeking-clarification-india-returns-rohingya.html (last accessed on December 11, 2019).

8 "Many Countries Favor Specific Religions, Officially or Unofficially“, Pew Research Center, published on October 3, 2017, https://www.pewforum.org/2017/10/03/many-countries-favor-specific-religions-officially-or-unofficially/ (last accessed on December 11, 2019).

9 Ibid.

10 Ahmadis are a persecuted Islamic group who are referred to as non-believers (kafirs), or heretics, for their doctrinal apostasy on the finality of prophethood (“Pakistan: The Multifaceted Persecution of the Ahmadiyya Community”, Pulitzer Center, https://pulitzercenter.org/projects/pakistan-multifaceted-persecution-ahmadiyya-community (last accessed on December 11, 2019)).

11 Religious Persecution in Pakistan, Unrepresented Nations and Peoples Organization, published on July 14, 2019, https://unpo.org/article/21577 (last accessed on December 11, 2019).

12 State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.

13 State of Gujarat v. ShriAmbica Mills Ltd. 1974 SCR (3) 760.

14 JospehTussman and JacobustenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341 (1949), http://scholarship.law.berkeley.edu/californialawreview/vol37/iss3/1(last accessed on December 12, 2019).

15 Gautam Bhatia, The Transformative Constitution, 2019, Noida: HarperCollins Publishers, pp. 43-46.

16 His Holiness KesavanandaBharatiSripadagalvaru and Ors. v. State of Kerala and Anr. AIR 1973 SC 1461, para. 316.

17 P. RamanathaAiyar, Concise Law Dictionary, 2009, New Delhi: LexisNexisButterworthsWadhwa Nagpur, p. 1053.

18 ‘Secularism’, http://ncert.nic.in/ncerts/l/keps108.pdf

 (last accessed on December 12, 2019).

19 Ernest Barker, Greek Political Theory, 1918, Methuen & Co. Ltd.: London, p. 122.

Anujaya Krishna is a legal professional, author and educator based out of Lucknow. She completed her BA LLB (Hons) degree from the National Law University, Bhopal, followed by an LLM in European Law from the University of Hamburg (Germany) through a scholarship awarded by the German Academic Exchange Service (DAAD).

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