CAB: NONSECULAR, UNCONSTITUTIONAL

The new Citizenship Law is not only unequal, unsecular and unconstitutional, but also severe attack on the Indian Constitution
The Citizenship (Amendment) Bill, 2019 (CAB), passed by both Houses of the Parliament on Wednesday night is not only brazenly discriminatory, unequal and unconstitutional, but also discriminatory against its own people, who have been identified as ‘others’ on the basis of religious faiths. It is only a matter of time that before its constitutionality is subjected to severe judicial scrutiny in the highest court of the land. A challenge to the constitutional validity of the law has already been filed in the Supreme Court merely 12 after its passage in Rajya Sabha through brute majority of the NDA-government. The government’s obstinacy in going ahead with it, despite opposition in the Parliament, as well as the enlightened sections of the society, is unfortunate. It is tragic that the law in its intent and wording singles out a community for hostile treatment in a country, wherein the Constitution guarantees equality and no discrimination based on religious, creed, race, colour and sex.

The law has chosen to open its citizenship door to non-Muslims from three neighbouring countries with Muslim Majority – Afghanistan, Pakistan and Bangladesh. The reasons given by the Union Home Minister Amit Shah: an opportunity to members of minority communities from these countries who had entered India prior to December 31, 2014, to apply for citizenship through naturalisation. The residential requirement for this category for naturalisation is reduced from 11 to five years. The law carefully avoids the words ‘persecuted minorities’, but the Statement of Objects and Reasons says ‘many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religions’ in these three countries. Moreover, it refers to Home Ministry notifications in 2015-2016 through which it had exempted these undocumented migrants from the adverse penal consequences under the Passport (Entry into India) Act, 1920, and the Foreigners’ Act, 1946. The CAB creates a category of people on the basis of their religion and renders them eligible for its benefits.

An important argument against the CAB is that it will not extend to those persecuted in Tibetan Autonomous Region (TAR), Myanmar and Sri Lanka, from where Tibetan Buddhists, Muslims, Rohingya Muslims and Tamils are staying in the country as refugees or otherwise for the past more than 60 years. It requires a particular mention that the Tibetan Buddhists and Muslims find no mention despite the fact that they have been here for the past 60 years. The law also fails to allow Shia and Ahmadiya Muslims, who also face persecution, to apply for citizenship in India. The exemption from the application of the CAB’s provisions in Tribal Areas in Assam, Meghalaya, Mizoram and Tripura, and the Inner Line Permit (ILP) areas in Arunachal Pradesh, Nagaland and Mizoram, with Manipur added only recently, is clearly based on political expediency, even if it is in line with the constitutional guarantees given to indigenous populations and statutory protection given to ILP areas. The fears are also among the Tribals in North Eastern Region, who do not identify themselves as Hindus. There is a need for careful and meaningful categorisation, something that the main provisions fail to do.

The central feature of the equal protection of the law envisaged in Article 14 is that the basis for classifying a group for a particular kind of treatment should bear a rational nexus with the overall objective. If protecting persecuted neighbourhood minorities is the objective, the classification may fail the test of constitutionality because of the exclusion of some countries and communities based on their religion. It is a sad day for the Indian Republic that the legislation that challenges its founding principles of equality and secularism has been allowed to be passed. The CAB should have been stopped by the legislature, things should not have come to this pass. Now, the judiciary must rise again to the Constitution’s defence, as it has done at several turning points before, and protect the spirit of the Republic, its very soul.