Apart from the exigency of dealing with the Hindus from Bangladesh who find themselves on the wrong side of the National Register of Citizens (NRC) as mandated by the Supreme Court following the 1985 Assam Accord, the thrust of the Citizenship (Amendment) Act 2019 enacted by the Modi government is ideological, an ideology based on Hindu religious identity. The inclusion of Buddhists, Jains, Sikhs, Parsis and Christians is a weak bid to hide the Hindu bias of the legislation.
Home minister Amit Shah has based his argument on the rationale of Partition: Hindus in India, Muslims in Pakistan, and later Bangladesh. If Hindus from Pakistan and Bangladesh are to come to India, they should have the right of free passage. In 1947 and later, when Hindus moved out of Pakistan and Bangladesh and came to India, it was accepted as a tragic necessity that they had to leave their hearths.
The ideologues in the Muslim League and in the then minority Hindu Mahasabha saw it as a necessary move, that Muslims who went from India to Pakistan and Bangladesh, and Hindus coming from there to India were moving in the natural direction. While forced to accept Partition because Muslim League under Jinnah made it difficult for any other solution at the time, Congress rejected the idea of a religion-based state. The non-religious base of the state in India was conclusively established in the Constitution in Articles 14, 15 and 16.
What CAA 2019 does is discriminate on the base of religion. The Citizenship Act of 1955 did not provide the rationale that India is the natural homeland of Hindus. The amendment to the Citizenship Act in 1985 following the Assam Accord provided relief for those found to be illegal immigrants in Section 6A (4), where all rights and obligations of a citizen will be recognised for such a person but he or she will not have the right to vote for 10 years. There was really no need for the latest amendment because the issue of illegal immigrants was taken care of.
The argument of Shah that CAA 2019 does not take away the citizenship rights of Muslims and therefore it cannot be called anti-Muslim is weak because the CAA remains discriminatory. The courts will have to decide whether a discriminatory law which does not affect Muslims’ citizenship rights satisfies Articles 14, 15 and 16 of the Constitution. It cannot be argued that the right to equality is for those who are citizens, and that it does not apply to the issue of who can be offered a citizenship.
The argument that after gaining citizenship the religious minorities from Afghanistan, Bangladesh and Pakistan will be on an equal footing with all other Indian citizens, including Muslims, is flawed in principle as well as in law. The affected religious minorities from the three neighbouring Islamic states could have been granted citizenship without the proviso of persecuted religious minorities. The implication of persecuted religious minorities from these three countries is far more complicated than conceived by the BJP lawmakers.
First, it points an accusing finger at the polity of these three countries, and it would be difficult to maintain cordial relations with them after this. Second, India can stand up for the rights of the religious minorities in these countries even as it does for the rights of Sri Lankan Tamils or Fiji Indians.
The policy seems to be based on expediency, that of dealing with Hindus from Bangladesh in Assam who are illegal immigrants. All illegal immigrants, irrespective of religion and ethnicity, must be dealt with on an equal footing. If not, it will have to be stated that India is the natural homeland of the Hindus and that Hindus will have a privileged access to India, which includes citizenship.
BJP and its ideological mentor, RSS, do believe in the idea of Hindu homeland. The idea that India is for Hindus is the ideological equivalent to Muslim League belief of the 1940s that Pakistan is the homeland of subcontinental Muslims. Once India becomes the homeland of those professing Hindu faith, then all those of other faiths including Islam, stand as aliens in principle and in law. It will also mean that people other than Hindus are not eligible for certain higher offices in the country.
Those protesting the latest amendment to the citizenship law foresee the future implications, and it is for this reason that they are raising their voice against the legislation which they deem to be discriminatory, which it is on the face of it. Prime Minister Narendra Modi, Shah and the others in government have a lot of explaining to do. A blanket denial would not convince people. This amendment needs to be dropped because there is no need for it. The 1985 amendment to the citizenship law takes care of the issue of illegal immigrants.
The historicity of India as the birthplace of Hinduism and its development over the last three millennia remains uncontested, but it is not part of the political discourse of the modern nation-state that India is since the adoption of the Constitution in 1950. From 1857 to 1947, India was a British colony, and it was a dominion in the British empire between August 15, 1947 and January 26, 1950. The civilisational and cultural traditions do not, and need not, coalesce with the constitution of a modern state, which is a legal, territorial entity.
DISCLAIMER : Views expressed above are the author’s own.