What Makes The Citizenship Amendment Act Unconstitutional?

“Sabhi ka khoon shaamil yahan ki mitti me
Kisi ke baap ka hindustan thodi hai”
– Dr. Rahat Indori

(The soil of this land has absorbed so much blood,
that dare anyone take Hindustan for granted)

This couplet clearly describes the pluralistic nature of the Indian society—the idea of ‘India’ that no one group can claim dominion over with the diverse and vibrant population. Nobody hast right to shatter and alter the basic structure of our Constitution. But sadly, we don’t live in an ideal country. Our society is replete with politicians who consider the constitution their holy book.

Indian history is filled with examples where the Constitution has been twisted and interpreted depending on the whims of the ruling party. Sometimes, the politicians need to ‘stay in power’ and at other times, vote bank politics might be the motivation. Our takeaway from all this is that the Indian government, irrespective of who has been the command, has never really cared about the Constitution!

So, the Citizenship (Amendment) Bill , 2019 recently became an Act after the President’s assent. This Act has created a whole lot of controversy leading to mass scale protests on the roads and across the internet as well. So, let’s dig deeper and try to find the answers to your questions related to the Act:

What Exactly Is CAB And Whom Does It Affect?

“Our takeaway from all this is that the Indian government, irrespective of who has been the command, has never really cared about the Constitution!”
  • The legislation applies to those who were “forced or compelled to seek shelter in India due to persecution on the ground of religion”.
  • The Citizenship (Amendment) Bill proposes to grant citizenship to non-Muslims Hindus, Sikhs, Christians, Buddhists, Jains, and Parsis – from Afghanistan, Pakistan and Bangladesh who arrived in India before 31st December, 2014.
  • India is considered the ultimate refugee destinations for minorities (especially Hindus) fleeing from persecution from all over the world.
  • Earlier, the duration of the immigrants’ residency was 11 years. The amended bill has reduced it to 5 years. This means that immigrants from the three countries and the above-mentioned religions would not be deported or imprisoned if they are not carrying any valid documents for their residency in India.
  • It would not apply to tribal areas of North-East including Assam, Meghalaya, Arunachal Pradesh, Nagaland, Assam, Mizoram and Tripura as included in Sixth Schedule of the Constitution and also the area covered under the Inner Limit permit system (special permission is needed to enter such areas).
  • Besides, OCI cardholders (if they are of Indian origin or the spouse of a person of Indian origin) can still get the benefits such as the right to travel to India and to work and study in India until they violate any law notified by central government (range of offenses and cases of minors are still arbitrary)

Why Is There So Much Criticism?

“Even if we ignore the “ideals”, the fault in the ‘technicality’ can’t be ignored. Secularism has been declared to be a basic feature of the Constitution so the Act can never pass an unbiased and fair judicial review.”

Against the idea of India: India chose to be a secular democracy even in the aftermath of the bloody partition. The principle of inclusion was present in both the constitution of India and the Citizenship Act of 1955 since its inception. So, the biggest concern is that the Act introduces religion as a criterion of India’s citizenship (which is a right to have rights) and goes against the ideals that India stands for.

Against the Constitution: Even if we ignore the “ideals”, the fault in the ‘technicality’ can’t be ignored. Secularism has been declared to be a basic feature of the Constitution so the Act can never pass an unbiased and fair judicial review. Also, Article 14 of the Constitution of India prevents the State from denying any “person” (as opposed to citizen) “equality before the law” or “equal protection of the laws” within the territory of India. This seems to be violated by the provisions of the proposed amendment.

Dubious nature of grouping: There doesn’t seem to be any rational reasoning behind the country grouping or the community grouping. Afghanistan is included even when it was neither a part of British India nor it shares an actual land border but on the contrary immediate neighbors like Nepal, Bhutan (whose state religion is Vajrayana Buddhism and which prohibits construction of non-Buddhist religious buildings), Sri Lanka (Tamil Hindus has been persecuted there) and Myanmar (which has committed internationally-recognised violence against Rohingyas) are excluded.

Flawed Assumption: The Act is only for victims of “religious persecutions”, but the “political persecution” is also equally (if not more) existent in the world. The UN itself has adopted several resolutions related to it (India is a signatory to most of them). But the passed Act ignores it completely. Also, it doesn’t talk about persecution against atheists and co-religionists like Shias in Pakistan.

Against the indigenous people of North-East: The Act is facing wild protests in Assam because it contradicts the Assam Accord of 1985 ,which clearly states that illegal migrants from Bangladesh after March 25, 1971, would be deported. This same demand was the reason for that whole NRC process, but this Act would nullify all the effort because most of the people excluded from the NRC list were Hindus. After this, they will get the chance to gain Indian citizenship and to live legally in there.

The timing of this Act (right after the completion of NRC) also creates legit doubts. Although, the government has reiterated that they are committed to safeguarding the political and cultural rights of the Assamese people and CAB is in no way connected to NRC (it’s just that the Hindus won’t have to prove their citizenship like Muslims and there is nothing partial about that. Right?).

What Can Be Expected Now?

“Protest as much as you want, CAA won’t be withdrawn,” Amit Shah had said in a rally in Lucknow in January, 2020.

Indian Muslims have been repeatedly assured that the Act is not meant to snatch away their citizenship, so there is no need to fear or worry. However, it’s obvious that the Act is discriminatory against Muslims and is surely going to face judicial review. And if that would be a fair one, then the government would have to fight a tough battle. Having said all of this, the misinformation that some opportunists are spreading among Muslims of India is beyond explanation.

Calling it the ‘dark day’ in the history of India (what about the emergency) and relating it to Nazism is just too much. Not focusing on the real issue and twisting it to establish fear among minorities is one of the biggest problems of India’s secularism. We should fiercely oppose this Act, but for the legit reasons. We should oppose the Act because it’s an injustice to the people of North-East. That region need development not another wave of extremism. Inner permit lines that will come into existence after this legislation will isolate it even more. So, for now, let’s hope and pray that the Supreme court intervention puts a stop to this mess.

All images have been provided by the author. 

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