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No, CAB is not India’s descent into theocracy

CAB protests on Al Jazeera

Ever since the government of India passed the Citizenship Amendment Bill 2019 or CAB, there has been a deluge of misinformation about what the changes will do. There has been scaremongering of astronomical proportions insinuating that the entire Muslim population of India – some 200 million of them – will lose their right to live as equal citizens. Muslims will continue to enjoy that right, as they have been doing so since times immemorial, along with their Hindu, Sikh, Jain, Budhist, and Christian brethren. No, CAB is not India’s descent into theocracy, far from it.

Yes the CAB 2019 or now, after the President of India gave his assent to it on December 12, the Citizenship Amendment Act (or CAA) 2019 – is a bad look for India in the fact that it precludes Muslim non-citizens who have somehow managed to get into India and have been living there for many years, from being able to apply – as a matter of right under the amended law of 2019 – for India’s citizenship by naturalization. The new ACT (CAA 2019) has amended the definition of who is an “illegal migrant” in India.

With the 2019 updates now incorporated, an “illegal migrant” in India means a foreigner who has entered into India―

  • without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or
  • with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time;]

Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by … or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;

Thus, the CAA 2019 provides for a path to live in India permanently as a citizen of India Hindus, Sikhs, Budhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan. Those people qualify only on the basis that they faced “persecution or fear of persecution” in their countries and entered India on or before 31 December 2014.

In the Third Schedule, qualifying for Indian Citizenship, the requirement of aggregate of 11 years being in or serving India has also been reduced to six years. It is not a good look for India as it excludes Muslims by stipulation of all other minorities for those three source countries.

Is India descending into a theocratic state?

A journalist in Australia writing on the issue, has claimed that CAA 2019 is a step in India’s ‘descent into theocracy’.

“A new law that threatens to exclude Muslims from citizenship upends the idea of a nation built on liberty and equality”, he said in the sub-heading.

Not correct. CAB or CAA 2019 is a special arrangement provision based on an administrative policy decision taken to address the plight of millions of persecuted stateless minorities from three neighboring Islamic countries who are already in India.

He was perhaps inspired by Indian journalists (including Barkha Dutt) who have claimed that India was becoming a mirror image of Pakistan – a country which came into being on the basis of religion. Those Indian journalists – are actually pandering to the needs of their celebrity status, making claims which have no foundation. The answer to the question is – no. India neither has descended into a theocratic state, nor it will – because IT CANNOT, without bludgeoning its constitution to death.

Also read: Is CAB cherry-picking of people in distress?

In Australia, it is against the law to discriminate against a person because of his or her national origin. Discrimination on the basis of national origin occurs when a person is treated less favorably, or not given the same opportunities, as others in a similar situation because of his or her national origin. Yet in 1989 Australia allowed hundreds and thousands of Chinese nationals to apply and stay on in Australia permanently in the wake of Tiananmen Square massacre. Many of those Chinese had nothing to do with the protests in China, as they had been here for years while many others from other countries, were actually running from genuine fear of persecution from their country authorities, were not covered.

The CAA 2019 measure is no different to Australia taking such steps to set its own house in order. CAB does not include Muslims non-citizens, who are not seen as fleeing, fearing persecution by their own Islamic states. Excluding Muslims from the Bill was a move Shah and Modi based on:

  1. All three source countries are countries where Islam is the predominant and state religion;
  2. Minorities protected under the bill are persecuted minorities in those countries; and
  3. The Bill is a specific special measure to address the millions of non-citizens who have arrived in India on or before December 31, 2014.

Thus the scope of the bill is limited and it does not vest any open ended infinite power in the state to permanently block Muslims. Muslims like anyone else, from anywhere in the world, including from those three countries, do have the right to seek refuge or Indian residency under its other current provisions.

The Constitutional Angle
The Preamble to the Constitution of India guarantees India to be a secular state and it is fundamental to the very being of India, it cannot change.

Article 14 and state’s power to make laws
The critics also say the law violates the Indian constitution’s Article 14 which guarantees equality to all. The critics – mostly non-lawyers, believe that the chance of citizenship being offered to a particular minority – under Article 14 – will ensure everyone the same opportunity. The concept enshrined therein ensures – equality within a select subset from a larger setting set of applicants – with almost identical bases for their claims. For instance – all Hindus within the persecuted minority group of Hindus from the same place, are guaranteed equality of treatment; it does not automatically extend to everyone in the world. If it were so, India will be all black or blue, everyone will be the same.

If the concept of equality enshrined in Article 14 was so simplistic, most of India’s codified law would be unconstitutional. Spare a moment to think of two murder trials with two different outcomes. That is only possible because each case CAN BE DECIDED on a case by case basis. One murderer sentenced to death cannot claim lenient sentence awarded to another murderer on the basis of equality enshrined in Article 14.

For those who have read the constitution, the issue of Citizenship is dealt with in Part II – Articles 5-11 of the Constitution. In my view, the law does not violate any provision of the Indian Constitution but will need to be amended, for pragmatic reasons. It would be foolish for the government to declare hundreds and thousands of Muslim non-citizens as ILLEGAL MIGRANTS and confine them to detention camps, because they cannot be sent back (as Bangladesh has already refused taking any) and let them languish for years to come.

Modi and Shah will have to do a deal with Bangladesh and Afghanistan (Pakistan looks almost impossible scenario), if they really want to do any further work on NRC (National Register of Citizens). That will command a clean slate, to not become an exercise in futility. I cannot see how they are going to get out of either doing deals to send the non-citizens back or amending the law to include Muslim non-citizens.

There is a lot to come.

In the meantime, the CAA 2019 is a bad look, but it is a policy decision by the administration and leaders leading it. In my view, it is perfectly within the Constitutional framework and punishable by ONLY the people of India at the next election in 2024.

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