Tanisha
Recently the government passed a bill with respect to the immigrants who have resided in the subcontinent since time immemorial. The amendment to the citizenship act 1955 known as the citizenship amendment act 2019 (CAA) provides that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Pakistan or Bangladesh, who have entered India on or before the 31st of December 2014 shall not be treated as illegal migrant for the purpose of this act.[1]
Provided the immigrant must have been in India not less than five years. Thus granting Indian citizenship to the immigrants. This impugned act has gained a lot of attention due to its alleged biasness towards the mentioned communities as it openly excludes the Muslims from the entire act.
CAA and the Assam Connect
Notwithstanding that the entire nation is on fire for this discrimination on the basis of religion, the plight of the people of Assam and the northeast is against the immigrants from Bangladesh irrespective of the community they belong to. The North-easterners claim that the immigrants are a threat to the cultural identity, a threat to their economy, making them the minority of their own state. The act makes an exception for certain states in the northeast.
It says that this act shall not apply to the tribal areas of Assam, Meghalaya, Mizoram or Tripura (as mentioned in the sixth schedule of the constitution) nor shall it be applied to the areas covered under the “the inner line”. The inner line covers the North-eastern states of Arunachal Pradesh, Nagaland and Mizoram where no citizen can overstay without permission unless he or she belongs to the place.
However, 26 districts of Assam are not under the sixth schedule and out of the total population of 26,655,528 (as per census 2001) of the state 23,346,958 people are not protected under the sixth schedule thus under the threat of immigrants. And once the immigrants from Bangladesh get the Indian citizenship, they are just like the people of Indian origin and will be able to settle and practice any trade or business, get jobs in the organic sector in the tribal areas that are covered under the sixth schedule of the constitution.
Therefore this provision in the act is redundant. Bangladesh shares 2217 km border with Meghalaya ,Mizoram and Tripura and is close to the rest of the North-eastern states, the influx from Bangladesh who have already entered India on or before 31st Dec 2014, i.e. 2.3 million ( as per census 2011) people are most likely to inhabit these states, endangering the lives of the native of north east.
The resources are limited, the jobs are limited, the properties are limited, and such a mass taking over the place will reduce the standard of living of the people of northeast, those who have been the citizen of this country since the beginning. Assam is a mixture of over 200 plus tribes and 50 plus dialects, such a diversity has its own cultural identity which will be jeopardized if the immigrants from another country get rights that of an Indian origin and start living within the community. It also remains to be seen what will happen if the illegal Muslim immigrants convert to Hindu to take the advantage of this citizenship under this act in view of absence of any clarity or preventing measure in the act.
This act is in clear violation of the Assam Accord that was signed in 1985. The clause 5 of the Accord states that after the date of March 25 1971 any immigrant from Bangladesh moving into the country will be subjected to deportation and will be expelled in accordance with the law. The act shifts the cut-off date from 25th March 1971 to 31st Dec 2014. I.e. 43 years 9 months and 7 days. The 5th clause also stated that all the migrants coming before 25th march 1971 can get registered in this country.
The state of Assam already taking the burden of such a huge population when the other developed states didn’t. Shifting the cut-off date is absurd, unreasonable and unfair for the indigenous people of Assam. The clause 6 of the Accord states that Constitutional, legislative and administrative safeguards, as may be appropriate, shall be provided to protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people.[1] The infiltration threatens the language, the tradition and the cultural identity of the people. This act will populate the place with Bengali speaking as the majority making the Assamese the minority in their own state. However, the Centre has setup a panel to implement clause 6 and constitutionalise it.[2]
CAA and Secularism
Another flaw of this disputed act is that it attacks the Secularism of the state. The act has been made on the basis of religious prosecution. But, the crux is how the secular fabric of the constitution be diluted on the basis of religion by excluding a category (Muslims) subjected to same type of sufferings as other minorities when the preamble of the constitution begins with the words- “we, the people of India…” (No mention of any community) Meaning that all the immigrants from Afghanistan Pakistan and Bangladesh of the faiths Hindu, Sikh, Buddhists, Jain, Christians and Parsi are exposed to religious prosecution. And as these countries are Islamic countries the centre assumes that these countries wouldn’t persecute the Muslims on the basis of religion.
The Ahmadiyyas and Shias of Pakistan and the atheists of Bangladesh even though born in Muslim families are at the receiving end of extremist violence.[3] These types of Muslims face religious persecution. So if an immigrant from these countries of such community has entered India for protection he wouldn’t receive the benefits of this act. Discriminating on the basis of religion violating one of the predominant features of the preamble.
CAA and Article 14
It also violates article 14 of the constitution. Article 14 provides that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. That directs that all the immigrants should be treated equally. Now any law must fulfill two conditions 1) the classification must be founded on an intelligible differentia 2) the differentia must have rational nexus. It simply means that the classification must be understood by all. That the reservation or the provision given is rational and has a valid base. The impugned act is differentiating among the equals as some of the communities are not included. Any classification must not be arbitrary.
The Honorable Supreme Court has ruled out many laws where the act is distinguishing unreasonably. In the case Maneka Gandhi v. Union of India it was held that no law can be arbitrary. The citizenship amendment act 2019, is allowing citizenship on the basis of religion and even then is arbitrarily excluding the Muslims and by doing this is this act is going against the essence of the constitution, the rule of law.
The legislature does have a power to make laws and this is a policy where the centre has selected three countries covering six religions and it is one such policy for the improvement of these particular religion and maybe the government might formulate some other act where they will include the excluded immigrants like the Tamils from Srilanka. But the reason of any act should be reasonable and if this is about all the immigrants who are persecuted on the basis of religion then the Ahmadiyyas and Shia Muslims should also be included. Because then the government can contrive a law where it will arbitrarily forbid the citizens from wearing western clothes or leaving the country on some invalid basis like religion or orthodox norms. This act is violating one such indispensable fundamental right, which is for everyone, the citizens and the immigrants.
CAA and NRC
The national register of citizens (NRC) which was conducted in the state of Assam had its own limitations. The government of India has implied and in many occasions voiced that it will implement NRC in the whole country. Which signifies that each one of us will have to prove we are the citizens of this country. The government has not disclosed how will that be or will it be like the way it was implemented in Assam or how many documents will a person have to bring in order to prove his citizenship.
However, in any manner the whole scenario will cost a fortune to this country and will be a living hell for the poor illiterate people and those who won’t have documents to back their claim of citizenship. In this context, this act is acting like a protection, an umbrella for the people of the mentioned faiths. All those who would not be able to prove their citizenship when a pan-India NRC is implemented, they will be termed as immigrants according to the law.
Nonetheless, if the so called immigrant is a Hindu, Sikh, Jain Parsi, Buddhist or Christian, the CAA will come into rescue as according to CAA any immigrant of these faiths will get citizenship provided all the provisions are met which most of the excluded will have. But the Muslims, the Indian origin Muslims who are either poor or do not have the documents will not be saved. All of the Muslims then will be deported or put into detention. This is how dangerous this act will be if implemented with NRC. Not to mention the 1.9 million who were termed as illegal immigrants when the NRC was conducted in Assam will benefit from this as they will also avail citizenship, most of them being Hindu Bangladeshis, making the whole operation a futile one.
CAA and Fraternity
Not only the fundamental rights of equality, life, and liberty are violated under CAA, but also the deepest constitutional commitments to dignity, fraternity and integrity that breathe life into our fundamental rights, are also violated.[4] Illegal immigrants are also human beings as any other citizens. They may be categorized separately for special treatment but not in a way that denies their inherent dignity as safeguarded under the constitution. The CAA, here proposes to sacrifice fraternity by segregating illegal immigrants based on religion which breaches the intrinsic relation between fraternity and secularism.
In S.R.Bomai’s case, the super court upheld this intrinsic link between fraternity and secularism when it stated- “India being a plural society with multi religious faiths, secularism is the bastion to build fraternity and amity with dignity of persons as its constitutional policy.”
CAA also is a source of humiliation to the legal migrants who must wait for seven years at least for citizenship by giving a message to them that they are less deserving than chosen illegal migrants who could get citizenship in just five years on the basis of specific religion and countries they belong to.[5]
Similarly Muslims in general have been made to believe unnecessarily how their religion is singled out as a means to select countries and individuals for citizenship of a country which they call their own. That means CAA undermines the value of community by violating the fraternal bonds between the communities- a public good recognized by Ambedkar and the Supreme Court in verdicts on secularism.
Conclusion
It is remarkable to see the whole country protesting and raising its voice and asking questions making the government feel that it is accountable to its people, although the protests should be peaceful and not turned into violent fulminations. The faith shall always reside on the Honorable Supreme Court for the justice shall prevail under any circumstance, under article 13 and a plausible violation of part three of the constitution ( fundamental rights), upholding the ethos and morals of the constitution of India. Let there be no such law which will bring in ill-feeling or seclusiveness within the community. India is a country of diverse ethnicity and religion and let that uniqueness triumph.
End-Motes:
Clause 6, Assam Accord, 1985.
Kaushik Deka, CAB done, over to clause 6 of Assam Accord now, India Today.( Dec. 24, 2019, 8:09 AM) https://www.indiatoday.in/india-today-insight/story/citizenship-amendment-bill-assam-accord-clause-6-1627922-2019-12-13.
Alok Prasanna Kumar, Citizenship (Amendment) Act: An unconstitutional Act.( Dec.24, 2019, 9:15 PM) https://www-deccanherald-com.cdn.ampproject.org/v/s/www.deccanherald.com/amp/specials/sunday-spotlight/citizenship-amendment-act-an-unconstitutional-act-785638.
Pritam Baruah, ‘Not just equality, the CAA betrays constitutional values of dignity, integrity’, The Wire ( Jan 10, 2020, 7:40 PM) https://www.google.com/amp/s/thewire.in/rights/caa-constitution-equality/amp/
Ibid
Citizenship (Amendment) bill, 2019.
Written By Tanisha Mishra, National Law University Assam,
Ph no.- 8144161387
Related Articles on CAA:
The Situation In Assam And The Threat Of Its Islamization
The situation of Bengal and Bengali Hindus
Historical Position of Indian Political Parties on the issue of CAA
Historical Backdrop of Partition and Nehru Liaquat Pact
A Brief Analysis of CAA And Its Impact on Citizens
Salient Points of Union Home Minister Shri Amit Shah’s Speech on Citizenship Amendment Bill in Lok Sabha