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Unfairly pilloried

Criticism of the Citizenship Amendment Act is not justified by facts, argues NANDALAL CHAKRABARTI.

NANDALAL CHAKRABARTI | New Delhi |

The nation last year witnessed mounting resentment against the Citizenship Amendment Act 2019 (CAA). Cases were filed in court and violent agitations hit the streets.

The protests subsided considerably after the Shaheen Bagh agitation ended. But, the recent Central government notification inviting applications for citizenship has, once again, fueled anti-CAA sentiments.

Although the government says that it is pursuant to the Indian Citizenship Act 1955 and its rules framed in 2009, there are rumblings of discontent. The move is viewed as a covert way of enforcing CAA even before rules for its implementation have been framed.

It is undeniable that reference to non-Muslim refugees from Pakistan, Bangladesh and Afghanistan echoes CAA’s objective of granting citizenship to the persecuted religious minorities of these countries.

However, the allegation of CAA being unconstitutional and ruinous to our social fabric has not yet been established. The moral arguments put forward in CAA protests so far are based on lopsided views of secularism based on misinterpretation of Constitutional provisions.

Those who launched anti-CAA agitations seem to be oblivious to any moral consideration of providing a life of safety and dignity to the persecuted religious minorities of Pakistan, Bangladesh and Afghanistan.

It is claimed that CAA violates the principle of equality enshrined in Article 14 of the Constitution and militates against prohibition of discrimination laid down in Art. 15.

Let us find out what these articles say. Article 14 (1) provides 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. In 2006, the Supreme Court observed that equal protection of the laws meant right to equal treatment in similar circumstances [State of UP V. Maqbool Ahmed].

Equality envisaged in Article 14 does not speak of uniformity, it recognizes differences among people. Different persons can be treated differently as separate groups if circumstances justify such treatment. It is called the ‘Doctrine of Reasonable Classification’.

It can also be referred to as protective discrimination. For instance, if physically challenged persons in India having the common identity of being differently abled are exempted from paying income tax, as a separate group/class, such classification would not be violative of Article 14 as long as the exemptions are applied to all of them equally.

It is for the legislature to identify the class of people to be given protection and on what basis such protection is to be given as held by the Supreme Court in D.C. Bhatia V. Union of India, 1995.

In the present situation, the CA bill proposing a classification of refugees was passed in Parliament, a competent authority as prescribed by the apex court. A charge of discrimination has been levelled against CAA on the ground that Muslims have been excluded from the group of refugees to be accorded citizenship. Muslims are a majority in the Islamic States of Pakistan, Bangladesh and Afghanistan.

The question of their being persecuted as religious minorities in these Islamic states is absurd. Muslims from these countries have taken shelter in India for reasons other than religious persecution. For example, Ahmadia, Shia and Baluch groups have been subjected to ethnic persecution in Pakistan and not religious persecution.

It is argued that the CAA is violative of Article 15 as refugees are classified on the basis of religion. Article 15 does say that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them. The word ‘only’ is frequently ignored and the article is often misinterpreted. ‘Only’ is the crucial qualifier in terms of which Article 15 distinguishes between valid and forbidden ground of discrimination.

This means that if there is any additional ground for the differential treatment besides those prohibited by this article, the discrimination will not be unconstitutional. Discrimination solely based on the forbidden grounds, i.e. religion, race, caste, sex and place of birth or any of them, is unconstitutional.

The Citizenship Amendment Act 2019 classified certain groups of refugees not only because they belonged to the non-Muslim religious community but also because they are persecuted minorities in Pakistan, Bangladesh and Afghanistan. It would not be out of place to mention that in 1953 the Mysore High Court held prohibition of bigamy in the case of only Hindus as valid because the classification was not based on religion only, but also on the social advancement of Hindus.

The present classification is not solely based on religion; it has reference to persecution of minorities in certain geographical locations. Geographical location separately can be a legitimate ground of classification as well. Keeping in view the scourge of India’s Partition and rise of religious fanaticism in Afghanistan, victims of religious persecution of these neighboring countries are being given protection.

There are allegations that CAA excluded many other groups of refugees like Ahmadias, Rohingiyas and Sri Lankan Tamils. Ahmadias are Muslims. They have been subjected to sectarian persecution and not religious persecution in countries where Islam has been declared the state religion. Sri Lankan Tamils, on the other hand, were subjected to ethnic persecution and not religious persecution.

In the case of Rohingiyas, questions have been raised as to why they would not be granted citizenship under CAA. Rohingiya Muslims have taken refuge in India to escape religious persecution in Myanmar. A 1978 Report of the UN High Commissioner for Human Rights said that hundreds of thousands of Rohingiyas were ‘systematically’ driven out from Myanmar by the ‘Burmese Ministry’. One finds it quite intriguing that insurgency unleashed by Rohingiya mujahideen since the 1970s is conveniently jettisoned. Attacks of the Rohingiya Solidarity Organisation (RSO) near Bangladesh border in the 1970s and Harkah al-Yogin’s attacks on Myanmar border posts along the Bangladesh border in the 1990s never figured in objections to the Myanmar government’s crackdown on Rohingiya separatist movements.

The Government of India was against granting citizenship to Rohingiyas because they are infiltrators. Since many of them represent a national security threat, the government decided to deport them and the Supreme Court endorsed it. During World War II, Rohingiya Muslims of Burma supported the British after being promised a separate Muslim State and agreed to fight against local Rakhine Buddhists who were then on the side of the Japanese.

The conflicts between Buddhists and Rohingiyas had grown out of competing claims of territorial control. This is discounted in the clamour for Rohingiyas’ citizenship as it did not quite fit into CAA’s frame of reference. CAA is also condemned by linking it to NRC. But the NRC has come into force only in Assam and that too following the Supreme Court’s order pursuant to the Assam accord acceded to by Rajiv Gandhi’s government.

No discussion has yet been held by the Central government on NRC for the whole nation. An apprehension nudged into CAA-protests is that the prospect of citizenship may lure a huge influx of refugees and this, in turn, would adversely impact our economy and demographic composition.

This is preposterous. The Act is for those who are already living in India as refugees. How will CAA lead to any increase in the existing population? Will the question of over-burdening our national exchequer be relevant? It is unfortunate that the nation is in the grip of rumour mongers.

The writer is former Head of the Department of Political Science, Presidency College, Kolkata.