The Blurring Lines Between Citizenship, Constitutionality and Nationalism
THE BLURRING LINES BETWEEN CITIZENSHIP, CONSTITUTIONALITY AND NATIONALISM
- Parvathy Suresh, Symbiosis Law School, Pune
The New Year was welcomed with an array of nationwide protest, from the north to south and east to west of India. The streets crowded with people protesting in defiance of the newly enacted Citizenship (Amendment) Act, 2019 (CAA) causing a great deal of political upheaval in the country. Though apparently designed to grant a humanitarian based pathway to Indian citizenship for certain minorities that fled religious persecution in Pakistan, Bangladesh and Afghanistan, the same has been under scrutiny as it is perceived as a form of Hindutva extremism by the right wing by stripping the Muslims of Indian citizenship. This has brought about a blurriness in the concept of citizenship, constitutionality and nationalism of India.
As per the Act,any person of any nationality and faith is entitled to apply for Indian citizenship and to be granted that under the Citizenship Act. An illegal migrant is defined there under Section 2(b) as a foreigner who enter India illegally. There is no change in the law except that the amendment has carved out an exception by adding a proviso. CAA now carves out an exception for persons belonging to minority communities of Hindus, Sikhs, Buddhists, Jains, Parsis or Christians from Afghanistan, Bangladesh and Pakistan, who have entered India on or before 31-12-2014 and who are exempted fro the application and consequences from the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946 shall not be treated as illegal migrants.
Yet the new amendment has been under the scrutiny for being unconstitutional, mainly on the grounds that, the classification is against Article 14, the principles of secularism and the Basic Structure itself. This change in the eligibility criteria makes three distinct classifications which forms the basis for granting citizenship, i.e., i) On the basis of religion, ii) On the basis of country and lastly, iii) On the basis of the cut off date of 31-04-2014.
Classification under Article 14
For any law to be understood and interpreted accordingly, it has to be read in accordance to its statement of objects and reason. This portrays the legislative intent of the Parliament in enacting the law. The legislation seeks to facilitate religious minorities in the named countries which have a State religion of Islam, and have suffered persecution in the name of religion to acquire Indian Citizenship as a one-time measure. It is aimed at those who were ‘forced or compelled to seek shelter in India due to persecution on the ground of religion’ and aims to protect such people from legal ramifications of illegal migration.
The legislation has been facing severe backlash on the ground that it violates Article 14. Under the traditional classification-based test of Article 14, as laid down in State of West Bengal v. Anwar Ali Sarkar, a classification created through legislation must satisfy a two-pronged test – (i) it should be founded on an intelligible differentia, which distinguishes those that are grouped together from those that have been excluded; and (ii) the differentia must have a rational nexus with the object that the statute seeks to achieve.
The classification under CAA is not founded on intelligible differentia for three reasons.
Firstly, the classification is based on that religious persecution only happen in the three states which have Islam as the State religion. There are two other neighboring countries, i.e., Bhutan and Sri Lanka, which also have a specific state religion of Buddhism. There have been several instances of religious persecutions subjected to Tamils from Sri Lanka and Christians from Bhutan. Thus the differentiation on the premise that religious persecution takes place only in those neighboring counties that have Islam as the state religion and the object is to provide a one-time relief to such category of persons doesn’t stand the classification test as there is not compelling and legitimate reason to the group which has been excluded.
Secondly, the classification takes into account only religious based persecution and not based on other persecutions, like, sexual orientations, sect, political views, or race. The persecution of Ahmadi Muslims in Pakistan for not subscribing to a certain version of Islam rebuts this presumption. Similarly, there is much evidence of political persecution of Tibetans in China. In addition, immigrants of other religious communities such as Jews, Muslim minorities of Shia and Ahmadiyas, may have been persecuted on the grounds of religion in the three countries. Yet, CAA doesn’t cover them. In covering only some religious communities and not others, the CAA violates the principle of secularism which is a part of constitutional morality.
Lastly, the amendment provides for this one -time amnesty under CAA to such category of persons who entered India on or before 31 December 2014. Persons who have entered thereafter have no such right, even though they might have faced religious persecution in the three countries.
Even though India is not a signatory to the 1951 Convention on refugees and also the 1967 Protocol, it is a signatory to a number of United Nations and World Conventions on Human Rights, refugee issues and related matters. These require the contracting states to provide refugee status to those who have a “well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and have to apply these instruments “without discrimination as to race, religion or country of origin”
Thus providing for cut-off date, a state, religion and persecution differentiation in providing a relief to those refugees who are illegal migrants undermines the ostensibly humanitarian aim of CAA.
Yet many advocate in favour of the constitutionality of the amendment. There is always a presumption in favour of the constitutionality of a statute. It is presumed that the legislature understands and correctly appreciates the needs of its people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. The Act is merely meant to be an amnesty of sorts, a one-time pardon to those who illegally migrated to India fleeing religious persecution. In the present case, religious persecution in neighbouring Islamic states is the intelligible differentia as per the government, and the object is to provide a one-time relief to such category of persons. Classification need not be scientifically perfect and should dependent upon the peculiar needs and specific difficulties of the community which are constituted out of facts and opinions beyond the easy ken of the courts. The Amendment would help 31, 313 persons who belong to this classification as per the figures presented any the Joint Parliamentary Committee.
However, there is no adequate or intelligible reasoning as to exclusion of the other religious minorities, neighboring countries or those persecuted on grounds other than religion, and such and exclusion bears no rational nexus to object sought to be achieved by the statute thus challenging the constitutionality of the amendment.
An eminent fear that ignited the protests especially in the North-Eastern States is the accusation against the right wing, that CAA is only a part of the problem. The fear rendered that the National Register of Citizens which was carried out in Assam, if it operationalized for the rest of India, it is possible that many citizens would be left out of its ambit due to the lack of adequate documentation or proof. The apprehension that, among them the non-Muslims would be exempted by the application of CAA. Thus reading both together, it is essentially intended to strip Indian Muslims of their citizenship. However, this argument is baseless as, it is an error to think that the CAA would automatically confer citizenship to all non-Muslims who have been left out of the NRC. It cannot be read together as there isn’t enough clarity regarding NRC. There is not clarity whether there will be a similar exercise for a nation wide purpose or what the documentary procedures and requirement would be. These apprehension and opposition is misconceived and callow.
Understanding the constitutionality of a statue is prima facie contrasting to indulging in the concept of nationalism. Constitutionality of the Amendment maybe challenged on the basis of equality, secularism or the basic structure, but suppository attack on the ideologies of nationalism is wrong. The nationwide protest is an expression of the society’s aversion to the amendment, yet this has been molded into a politicized violent movement questioning the nationalism of the society itself. India being a democratic country is built on the fundamentals of discussion and dissent of ideas. Yet this right to dissent conferred to the people should not be abused to bring about violence and disintegrating a democracy into a mobocracy.
REFERENCES
1. Law Commission of India, A Continuum on the General Clauses Act, 1897 With Special Reference to the Admissibility and Codification of External Aids to Interpretation of Statutes (Law Com No 183, 2002)
2. The Citizenship (Amendment) Act 2019
3. State of West Bengal v Anwar Ali Sarkar (1952) SCR284
4. Report of The Joint Committee On the Citizenship (Amendment) Bill, 2016 Pdf. <https://www.prsindia.org/sites/default/files/bill_files/Joint%20committee%20report%20on%20citizenship%20%28A%29%20bill.pdf> accessed 4 April 2020
5. Tenzin Tsering, ‘REFUGEE: Rights & Issue of Deportation under Indian Legal System’ (Tibetan Political Review, 21 November 2015) <https://sites.google.com/site/tibetanpoliticalreview/articles/refugeerightsissueofdeportationunderindianlegalsystem> accessed 5 April 2020
