Citizenship Amendment Bill — Bringing Republic of India an Inch Closer from Secular Republic to Hindu Rashtra: Why is Unconstitutional
“Citizenship Amendment Bill, 2019” and Why It Will Not Survive But “ONLY IF …”
Introduction
People within and outside India are distressed with the polarization unleased by the Bhartiya Janta Party (BJP) through the Citizenship Amendment Bill (2019) of the original act No. 57 of 1955, Citizenship Act, 1955 under the leadership of Prime Minister Narendra Modi.
It is perhaps an understatement that December 11, 2019 will be known as one of the darkest days in India’s socio-political standing given that this bill is a direct affront to India’s social and democratic fabric, woven through its plurality, diversity and secular thread.
The grief and anxiety in people, particularly Muslim community is rightly placed and today, you do not have to be a Muslim (documented or undocumented) to grasp those fears and dog-whistles in the backdrop of recent steps taken by the government targeting Muslim community.
The New Normal
While India’s Home Minister Amit Shah brazenly stated, “Indian Muslims have nothing to fear,” a several reactions started emerging, “This is (name withheld) I am Muslim born and brought up in Mumbai and currently in (name withheld) and working for (name withheld). I am in fear and scared of this CAB and NRC. I have 2 year old son…please help people like me and many more….”; “I am speechless, disgusted and broken from Inside,” invalidating the false propaganda and that highlights mere gaslighting.
The attempt to assuage the global community “all is well” also does not abode well with the ground realities, that tell us a different story — exhibit A (Curfew in Guwahati after violent protests); exhibit B (Tripura Blocks Mobile Data, SMS Services Amid Citizenship Bill Agitation); exhibit C (an ailing two-month-old baby died enroute to hospital owing to vehicular traffic blocked by agitators); exhibit D (Maharashtra IPS Officer Quits In “Civil Disobedience”); and exhibit E (BJP MLA Binod Hazarika’s House Set Ablaze in Assam).
If this is normal, then abnormalities definitions need some serious revision.
Modi-Shah ambitious and divisive plans compromising World’s Largest Democracy
When dissent is equated to anti-nationalism, when a government must use its police & military forces, curtail basic civil rights and means of communication while passing every other legislation(s), it is for people to take a step back and ask, if India is heading into a totalitarianism with an oppressive regime, systematically targeting specific groups and putting democracy at stake?
Two Key Misgivings in the Bill
The passage of this contentious Bill is a clear indication of a callous yet calculative approach of Modi’s government in disenfranchising millions of undocumented Muslims as it expressly states, “Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsis and Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 … shall not be treated as illegal migrant.” Evidently, it excludes members of the Muslim community — which remains the first core issue toward discrimination on grounds of religion.
Second, contrary to the political rhetoric, the amendment does not state providing fast-track citizenship to the ‘religiously persecuted minorities’ but to ‘any person belonging to distinct religious denominations.’ This makes it the second misgiving pertaining to the scope of this Bill.
And understandably, the Bill will therefore by its design, benefit 1.9 million population, initially excluded from Assam’s National Register of Citizens (NRC) as it should but ‘only so long they are categorically not Muslims, which amounts to excluding 36 percent, nearly 700,000 Muslims residents of Assam.’
What this means, under this Bill the undocumented Muslim immigrants will be classified as illegal immigrants, left at the doorstep of foreign tribunals to prove their citizenship. For what it is worth, per prior reports, 95 percent of the cases looked by foreign tribunals declare those people as foreigners, in other words, ‘stateless.’
Even if the global community were to consider these misgivings on religious persecution as accurate, interestingly, per Indian Intelligence Bureau report to the Joint Parliamentary Committee (JPC), only “31,313 persons belonging to minority communities stand as immediate beneficiaries, specifically 25,447 Hindus, 5807 Sikhs, 55 Christians, 2 Buddhists and 2 Parsis, facing religious persecution in their respective countries. Much ado about nothing in the grand scheme of affairs.
It is clear under the current government use of religious test to grant citizenship to undocumented members of the communities; the global community must prepare itself for an impending humanitarian crisis in world’s largest democracy. This marginalization may grow manifolds once the center plans NRC exercise all over the Country.
Modi-Shah History With Muslims
This willful exclusion of the undocumented Muslims is more troubling given past tumultuous record and rhetoric of the two top leaders at the helm. Within first year of Narendra Modi as Gujarat’s Chief Minister, Godhra communal riots took place that killed nearly 1000 with three-quarter Muslim fatalities in 2002. National Human Rights Commission (NHRC) in its preliminary findings suggested his government “indicted the Gujarat Government for its failure to contain communal violence in the State.” It stated “[t]here could be no clearer evidence of the government’s failure to control the situation.” Although, the preliminary report does not hold any water today, considering Nanavati-Mehta Commission report tabled at State Legislative Assembly on December 10, 2019 gave a clean chit to then Chief Minister (and now Prime Minister) Narendra Modi and his Cabinet.
The second in command has repeatedly and publicly labeled illegal immigrants as infiltrators, termites, and promising to throw them in Bay of Bengal, in September 2018 and April 2019 — sentiments endorsed by the BJP spokesperson, Nalin Kohli.
India Following Criminal Part of Global History
India’s experiment of religious test to citizenship falls a stone throwaway from “Nuremberg race laws,” issued nearly 85 years ago where German Jews were stripped of their citizenship and gradually millions exterminated during Holocaust; “Apartheid in South Africa” that legitimized white supremacy and racial segregation, owing its roots directly to the Natives Land Act of 1913 giving South African law discriminatory foundations against Black Africans; and lastly, Israel’s citizenship act, controversially passed in 2018, discriminating against 20 percent of the Arabs minority living in country’s 9 million population.
While excluding undocumented Muslims, it has also rendered left, right and center discourse with an existential crisis on a once settled secular foundation of the country — India belongs to whom and who indeed holds the narrative of the idea of India, today?
Why this Bill will not pass the Constitutional test, but only if?
For starters, two key provisions of the Indian constitution are violated with the passage of this Bill.
First, “Right to Equality,” Article 14 of the Indian Constitution states “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
The key phrase “any persons” means that irrespective of nationality, origin, gender, race, caste, creed, religion, sexual orientation or in any variation, everyone stands tall under this right. Therefore, exclusion of Muslims impedes on their right to equality, and invariably violates the Constitutional guarantee under the stated article 14.
Second, the use of religion-based criteria infringes upon the Amendment 42 of the Indian constitution that affirmed India’s ‘commitment to high ideals of secularism.’
Can Supreme Court Null & Void this Bill? What is Next for India?
Now, that the Bill has passed by both lower and upper house, the PIL filed against it earlier in the year and several other litigations will compel the Supreme Court of India to safeguard constitutional guarantees and also reinforce the secular fabric of the Country. In a true test of democracy, Kesavananda Bharati vs. State of Kerala,1973, that established “Supreme Court is the final arbiter to check violation of constitutional provisions” will reaffirm its own place also in this turbulent period.
What this means is that, while the Bill may have passed by both houses and is also likely to receive India’s President assent, the Supreme Court will have the final say in recognizing the discriminatory aspect of the Bill and rule it unconstitutional. It is perhaps a matter of time, and importantly a serious test of establishing judicial independence from the executive and legislative in post-Modi-Shah era.
I implore the Indian government to stay true to PM Modi’s original message to the United Nations General Assembly stating India’s philosophy as Vasudhaiva Kutumbakam, which means, ‘entire world is a family.’
Anything short is fundamentally contrary to India’s philosophical core which currently is swinging by a loose thread between the pendulum of staying secular republic that believes in inclusiveness of all to the left, and an ill-conceived paradigm shift that believes in marginalizing millions in the name of religion, to the right.
Lest to say, India as a nation is at a highly critical juncture.
Manish Madan, Ph.D.
Professor of Criminal Justice
www.manishmadan.com
Brief Bio
He is an associate professor of Criminal Justice. He grew up in India but now lives with his family in New Jersey where he teaches at Stockton University. He writes frequently on Indian politics with critical lens and has published research on sexual harassment, police-citizen relationship in various International journals, including having his research finding mention in popular major news outlets such as HuffPost, NYTimes and India Today.
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