THE year 2019 has come to an end. There were unprecedented constitutional and legal decisions that were taken by our courts this year. These decisions will have a long-term effect on our body polity. But basically these decisions impinge on the type of republic framers of our Constitution had visualized for us. These decisions are against the grain of the Constitution. Here we will discuss the governmental and judicial response to these promises particularly in the context of dilution of Article 370 in Kashmir, Babri Masjid in U.P. and citizenship.

Constitutions are nothing but a social contract between the people and the state. They signify the constitutional pact, which should ordinarily be respected and adhered to. We promised a certain kind of autonomy to the people of Kashmir and by diluting Article 370 we have gone against our word. Though the expression ‘federalism’ has not been used in the Constitution, it remains part of the ‘basic structure’. However, with the 2019 decision on Kashmir, the states in India now exist only on the sweet whim and will of the Centre. Their territorial boundaries, name or status can easily be violated by placing them first under President’s Rule and then, by invoking an ordinary law passed by a simple majority, they can be bifurcated and even reduced to the lower status of an Union Territory. The promise of India as a ‘union of states’ and not ‘union of union territories’ appears under threat.

At the time of independence, we had several princely states whose sovereignty was restored by the Indian Independence Act, 1947 and these princely states joined India by signing an Instrument of Accession. Raja Hari Singh of Kashmir had agreed to join us on certain terms and conditions. These terms were subsequently incorporated in Article 370 that gave some autonomy to the state and promised them that these guarantees would be withdrawn only with the concurrence of Kashmir’s Constituent Assembly. Over the years Article 370 was largely diluted and was in fact used as the special power of the Centre rather than special statusof Kashmir. For the people of Kashmir, Article 370 was more of sentimental value.

The BJP government in a swift move, and in violation of established parliamentary procedure, circulated a Bill on 5 August 2019 and got it passed on the same evening in the Rajya Sabha. Two days later the Lok Sabha passed it as well. Subsequent to the dilution of Article 370, the state witnessed large-scale detentions and a lockdown. Strangely our apex court did not show any urgency to examine the issues including the all-important habeas corpus petitions against the illegal detentions and curtailment of freedom of press. The court’s reluctance to hear this matter revived memories of a similar attitude displayed during the Emergency.

At Partition, Indian Muslims had the option of migrating to Pakistan, but our visionary leaders like the father of nation Mahatma Gandhi, Jawaharlal Nehru and Maulana Azad, asked them to stay back and reject Jinnah’s divisive two-nation theory. A massive majority of Indian Muslims responded positively to this call and opted for India as their country. Accordingly, though secularism in the classical European sense means state neutrality in matters of religion, in India the protection of minorities’ rights and their places of worship, as also the preservation of their cultures, became an integral part of our brand of secularism.

 

The Supreme Court’s judgment in the long-pending case of the Babri masjid has gone against this promise. The court accepted that the demolished structure was a mosque for 450 years, yet it said that Muslims had not proved that they were in the exclusive possession of this mosque from 1528, when it was constructed by Mir Baqi on the orders of Emperor Babur, till 1855 when the British constructed an iron railing between the inner courtyard that was to be used by the Muslims, and the outer courtyard or Ram chabutra that the Hindus considered to be birthplace of Lord Rama.

The judgment is problematic, as it had put a heavier burden of proof on Muslims to prove their exclusive possession. For Hindus, the mere belief that Lord Rama was born under the central dome was considered sufficient. The verdict is in favour of Lord Ram who was illegally brought inside the mosque in the early hours of 22/23 December 1949. The court itself deemed this act as illegal and termed it ‘desecration of the mosque and ouster of Muslims otherwise than by the due process of law.’ Similarly the judgment did accept that ‘on 6 December1992, the structure of the mosque’ was brought down and destroyed. The court said that the destruction of mosque was an ‘egregious violation of rule of law.’ It is common sense that once a mosque has been dedicated to God, it cannot change its character.

On the basis of a doubtful travel account by Joseph Tieffenthaler, the court gave a conclusive finding that the mosque was used till 1855 for prayers both by the Muslims as well as Hindus without making a distinction of the outer and inner courtyard. Moreover, in contrast, the Sabrimala review petitioners could not point out any error in the 2018 judgment permitting entry of women in the Sabrimala temple, yet the review was heard in an open court in 2019, and the issues raised have now been referred to a seven-judge bench. In contrast, the Babri masjid review was quickly heard in the chamber of judges and summarily rejected.

Despite the Supreme Court’s verdict that Mughal era wrongs cannot be corrected now, the stay on the Gyanvapi mosque in Varanasi has been now vacated and the local court will start hearings in January 2020. Thus, the Places of Worship Act, 1991, that was said to be a part of the basic structure of secularism even in the Babri judegment, is no longer protecting places of worship of all faiths. Though the court disapproved, we are on a dangerous mission of correcting historical wrongs.

 

The breaking of promises by the republic has continued unabated and has eventually led to the enactment of the Citizenship (Amendment) Act (CAA) that was passed in December 2019 and has now added a religious test to Indian citizenship. The Bill is a clear sign that Muslims are not welcome in this country and that India is the natural home of Hindus. Since citizenship is a right to rights, and is most important, we will discuss this issue in greater detail.

Theoretically speaking citizenship is about the state, not the people, but today, with the use of latest technological tools, the state does try to control her citizen. The National Population Register that will collect Indian residents’ biometric data will make state control far more easier and tighter. Citizenship is the relationship of an individual with a particular political community. It is indeed not only the promise of equality, but also ensures integration with the political community. It rejects all social, religious, regional or ethnic differences and hierarchies. It signifies full membership of such a community and gives the citizen a sense of belonging. CAA has adversely affected this sense of belonging of our largest minority. The Muslim community that rejected the two-nation theory and preferred a secular and liberal India as a country of choice suddenly feels ‘unwanted and unwelcome’. This ‘othering’ has affected them emotionally and psychologically.

 

Ideally all other differences should stand eliminated with the tag of citizenship, and citizenship should signify complete equality in terms of status for all members of the political community. If some citizens are superior and others inferior, and we have some equals and others not so equal, it means citizenship has failed in its primary mission of obliterating all such differences. The unabated caste atrocities against the historically underprivileged groups, and incidents like in Una where three Dalit youth were beaten up, demonstrates that we are still an unequal society. Moreover, discriminatory behaviour by the police in dealing with mob protests is also a matter of concern.

Just a month ago the police looked hapless, allowing lawyers to indulge in all kinds of violence, but dealt harshly with students protesting against CAA in Jamia Millia Islamia and Aligarh Muslim University. Similarly those who commit acts of mob lynching do think of themselves as ‘super citizens’, who can get away because they see the state as being on their side. We still do not consider sexual minorities as equal to fellow citizens in spite of the court striking down the homosexuality provision of Section 377 in the Indian Penal Code, 1860. Citizenship is increasingly becoming a condition indicative of hierarchical inequalities and this certainly goes against the promises made at the time of the founding of our republic.

 

The hard fact is that citizenship in itself is really an exclusionary idea as citizens are defined by reference to ‘outsiders’. Exclusion is central to the modern concept of citizenship and is at the very core of citizenship law. There are two well known principles for the grant of citizenship. While ‘Jus soli’ confers citizenship on the basis of place of birth, ‘Jus sanguinis’ gives prominence to blood ties in the grant of citizenship. Under the ‘momentum’ principle, citizenship is individualistic and signifies universality and equality and obliterates ethnic, religious and caste identities. In drafting the Indian Constitution, we adopted the universal, liberal and progressive idea of giving citizenship to everyone born in India.

By subsequent amendments in1986 and 2003, we preferred to adopt a regressive and restrictive idea of citizenship by blood ties. With the enactment of the Citizenship (Amendment) Act, 2019, we have now added even a religious test to our citizenship law though it is contrary to our constitutional vision and basic structure of the Constitution. There are well founded apprehensions of ethnic cleansing or disenfranchisement due to the unprecedented mass approval of majoritarian politics and divisive ideologies.

B.R. Ambedkar, chairman of the Drafting Committee of the Constitution had said that no other subject has given as much headache to the drafting committee as the issue of what defines an Indian citizen. Several drafts were prepared and destroyed. Citizenship is in the Union list under the Indian Constitution and thus, under the exclusive jurisdiction of Parliament. In strict constitutional terms, state governments do not have any say in citizenship and immigration matters. Interestingly the Constitution does not define the term citizen but in Articles 5 to 11 gives details of various categories of persons who are entitled to citizenship. Strangely Article 11 itself confers too wide a power on Parliament by laying down that ‘nothing in the foregoing provisions shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all matters relating to citizenship.’

 

In the context of CAA the central question is, can Parliament go against the citizenship provisions of the Constitution? The answer is yes and this is exactly what Parliament did in 1986 and 2013 as constitutional provisions fundamentally dealt with the question of ‘citizenship at the commencement of the Constitution.’ But CAA, by including certain religious groups and by excluding Judaism and Islam, has clearly gone against the fundamental principles of the Constitution. Parliament cannot destroy the basic structure of the Constitution, even by a constitutional amendment. The CAA is a suspect legislation as it is an ordinary law that cannot go against secularism, as it has consistently been part the basic structure of the Indian Constitution.

The CAA entitles members of six communities, i.e. Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Pakistan, Bangladesh and Afghanistan, to Indian citizenship if they had entered India before 14 December 2014. All proceedings under the Foreigners Act and Passport Act against these illegal migrants too would abate. Through executive notifications of 2015 and 2016, members of the aforesaid communities from the three countries were already protected from prosecution and legal proceedings. The CAA is more in tune with the ‘Israeli law of return’ that treats Israel as the natural home of all Jews. We rejected the theory that India is the natural home of all Hindus. India has always welcomed people of different races and religions particularly those who are persecuted in their countries.

Ideally CAA should have lain down that anyone persecuted anywhere in the world, either on grounds of religion or political opinion, would be welcome in India. The current law would have sufficed to help all the persecuted people if we had just removed the ineligibility of ‘illegal migrant’ from citizenship. No one would have objected to such a law.

 

Citizenship was promised as an idea of shared identity, but today it is being used to divide and treat people of certain religious persuasions as inferior. It ignores the plight and persecution of atheists, Shias, Hazars, Balochis, liberals, sexual minorities and trans-gender persons of these three countries. It even ignores the claims of Hindus in Sri Lanka where Buddhism constitutionally enjoys the highest status amongst all the religions.

It ignores the persecution of Christians in Bhutan, who do not even have the right to publicly pray in their churches – they have to come to India to offer prayers. Even Nepalis in Bhutan are at the receiving end. The CAA of course turns a Nelson’s eye towards the Muslim Rohingya who are facing a definite genocide in their country. The Government of India did tell the Supreme Court that it couldn’t give the Rohingya refugee status as they would be a burden on national resources. The BJP government’s treatment of the Rohingya clearly demonstrated our concern for the ‘persecuted minorities’. Myanmar was very much part of British India and was only separated in 1935. Afghanistan was neither partitioned from India nor is it a neighbouring country, yet it has been included in the CAA, but not Myanmar.

 

The government’s figures of religious persecution in these three countries are not entirely correct. The Home Minister argued in Parliament that in 1947 about 23% of non-Muslims were in Pakistan and this number has drastically gone down to 3.7% in 2011 due to religious persecution. No exact figures are available for 1947 when Pakistan was created, as figures of the last census of 1941 cannot be relied on due to mass migration to India in 1947. In 1951 only 14.20% non-Muslims were in undivided Pakistan. About 23.20% of Hindus resided in East Pakistan in 1951 (now Bangladesh). Hindus in West Pakistan (today’s Pakistan) in 1951, after a mass exodus of about five million post-Partition, were just 3.44%. In the 1961 census, the non-Muslim population was reduced to 2.83% in today’s Pakistan. In the 1972 census, it went up to 3.25%. In 1981, it again showed an upward movement with 3.30% and in 1998 non-Muslims constituted about 3.7% of Pakistan’s population.

In fact, it is in Bangladesh that their number has gone down from 22% to a paltry 9.60% in 2011. The Hindus from Bangladesh have migrated to India in huge numbers for several reasons, including better economic opportunities after 1971, and therefore once again, the rightist narrative of Bangladeshi Muslims illegally infiltrating into Assam to change its demography has been proved wrong. As far as Afghanistan is concerned, minorities in Afghanistan constitute about 0.3%. The Taliban regime was certainly oppressive for all including Muslim women.

 

The CAA is clearly inconsistent with the ideals of rule of law and justice. It is in contravention of Article 14 that not only demands reasonable clarification and rational object to be achieved for any classification to be valid, but also additionally requires that every such classification must be just and non-arbitrary. The CAA is an instance of class legislation not classification.

Neither is religious persecution the monopoly of only three countries, nor is such persecution confined to just non-Muslims. It was heartening to note that Home Minister expressly assured Muslims that their citizenship would not be adversely affected by the new amendment. Certainly it would not apply to Indian Muslims, as Indian Muslims had not migrated from Pakistan. Moreover, citizenship once conferred cannot be retrospectively revoked. But this assurance will only satisfy them when the proposal of a nationwide NRC is shelved.

Let us now discuss the judicial response to the citizenship issue. On the petition of Sarbananda Sonowal (2005), current chief minister of Assam, the Illegal Immigrants Migration Determination Act, 1983 (IMDT) was struck down. The court came down heavily on illegal migration by terming it as an act of ‘aggression’. As a stereotype, Bangladeshi migrants into Assam being Muslims were in fact not only considered disruptive and dangerous, but also seen to be followers of so-called Islamic fundamentalism. The court expressed its concerns about the demographic shift in Assam.

During the CAA debates in Parliament, the Home Minister said lakhs and crores of persecuted people have come to India and should be given citizenship. The government now concedes that these people were not Muslims, and earlier governmental and judicial narratives about them being Muslims were exaggerated. The court also held that since the IMDT Act applies only to the state of Assam, and is at variance with the Foreigners’ Act, 1946 that extends to whole of India, it is unconstitutional. The court considered classification based on geographical considerations as a violation of right to equality under Article 14. Interestingly CAA too exempts certain North East states, and thus considered the geographical criteria as being a valid classification. In fact, even within Assam, some districts have been exempted from this amendment and while in some districts migrants of these six communities will be entitled to apply for citizenship, no such right would be available to migrants in the exempted districts. Those who were arguing for ‘one nation one law’, suddenly see merit in different laws of citizenship even within one state.

 

The new amendment will even put non-Muslim citizens under huge hardship, as first they will be excluded from the National Register of Citizens. It will place a far heavier burden on those asserting that they are Indian citizens in Assam, to prove that they came from one of these three countries. It will be impossible for these poor people to prove that they, or their parents, are not Indians but were subjected to religious persecution and migrated from these countries to India. In fact, the CAA is unnecessary. If we want to help persecuted people, we should just sign the Refugee Convention and make illegal migrants eligible for citizenship. Let us honour our constitutional promises by rejecting all divisive ideologies, policies and laws. This is necessary for the unity and integrity of the nation.

 

* The views expressed are personal.