THE CITIZENSHIP AMENDMENT ACT- IS IT MORAL? IS IT CONSTITUTIONAL? NO, IT’S BOTH!


Dharmendra Pradhan

Little “Nagrikta” was born in a decrepit refugee camp at Majnu ka Tila—a colony in north Delhi on the banks of river Yamuna. Her parents reached the shores of the city escaping persecution in Pakistan. They named their baby Nagrikta after the enactment of the Citizenship Bill representing, for them, the possibilities of leading a life of dignity. As for this couple, the Citizenship Bill rekindles hopes of gaining statehood –- a right long denied to them in their parent country.

In the rumor-mongering and frenzy that has ensued since the Citizenship Amendment Act (CAA), a number of pertinent questions have been relegated to the background: one, whether persecution, especially in the name of religion in certain countries, is a reality or not? Second, should a country with the rich civilizational ethos as India mitigate the pain of people facing such discrimination? Finally, is the action, which has been initiated in form of the CAA, vires of constitutional provisions? If the answers are in the affirmative, then the din that has been created is only politically motivated.

When the Indian Parliament was debating the Citizenship Amendment Bill (CAB), the US State Department in a report re-designated Pakistan as one of the countries committing “egregious violations of religious freedom”. Moving testimonies form part of the depositions before the Joint Parliamentary Committee on Citizenship, which submitted its report to both the Houses in January 2019. Additionally, a report on the religious minorities in Pakistan released by the European Parliament recently bemoaned the plight of minorities and women. Many of them, particularly Hindus, have fled to seek asylum in India. The fact that should not be lost is that all three countries covered in the CAA are theocratic states.

Coming to the second question, what are the options before India if people suffering religious persecution land in India? The CAA seeks to ameliorate what Shyama Prasad Mukherjee in 1950 said using the Hobbesian analogy: “life for minorities in Pakistan has become nasty, brutish and short”. India has been the birthplace of some of the great religions like Sikhism, Jainism and Buddhism. Indian ethos has assimilated various streams of religion, sects, and traditions.

Finally, the business of laying down permanent law of citizenship has been left to the Parliament. Now the question arises whether the CAA meets the provisions of the Right to Equality as enshrined in Article 14 of the Constitution. To recapitulate, Article 14 states that “the State shall not deny to any person equality before law and equal protection of the laws within the territory of India” and any derogation to Article 14 by way of special classification needs to meet the twin objectives of “rational and intelligible differentia” and nexus to the “objective sought to be achieved”. A catena of judicial pronouncements has upheld that simply meting out differential treatment does not per force violate the spirit of the constitution.

The objects and reasons for CAA were clearly laid by Home Minister Amit Shah. The Constitutions of only three out of seven countries with whom India shares land boundaries provide for a state religion. Thus, no discrimination has been done based on our bilateral relations. Historically, there has been trans-border migration between India and Pakistan, Afghanistan and Bangladesh. Communities facing persecution on grounds of religion have fled to India seeking shelter even after their travel documents have expired or with incomplete or no documents. The Modi Government had already, in its first tenure, exempted these migrants from adverse penal consequences of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946 and in 2016 also made them eligible for long-term visa. The CAA simply seeks to empower these persecuted minorities to apply for citizenship.

Debates are also ongoing on whether the CAA is violative of Article 25 of the Constitution. Article 25 gives the right to all persons equally to freely profess, practise and propagate any religion. The CAA has not violated these provisions– a fact, which Prime Minister Narendra Modi has clearly reiterated while assuring that neither the rights of minorities are violated, nor India’s secular ethos and traditions have been called to question through enactment of the CAB.

The Citizenship Amendment Act corrects a historic injustice, and provides closure to thousands of families who continue to suffer the trauma of partition, long after most of the sub-continent has moved on. In doing so, it fulfils the vision of our freedom fighters, who struggled to achieve a homeland where each and every person could aspire and work towards a brighter future. It secures justice and dignity for those who have suffered religious persecution on the sub-continent. It reinforces the essential Indian ethos of inclusivity.

It is a historic move to empower the dispossessed who have suffered for generations. As an appeal of sanity to the silver spoon leaders who have been fomenting violence and unrest on the streets, it is worth remembering what Swami Vivekananda said in 1883 in his famous Parliament of Religions speech: “I am proud to belong to a nation which has sheltered the persecuted and the refugees of all religions and all nations of the earth”. The CAA in many ways fulfils these aspirations.

(The writer is Union Minister of Petroleum and Natural Gas, GoI)