A perilous intent
With the Union Cabinet's clearance on changes to the Citizenship Act of 1955, Citizenship Amendment Bill, 2019 awaits discussion in Lok Sabha today. The controversial legislation has raised a furore on grounds of the unjustifiable basis of it which implies unreasonable classification and exclusion of a group of people in contravention with the clause of equality. The intent to amend the Citizenship Act to allow religiously persecuted minorities, that is, only Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan, to be granted Indian citizenship. The conspicuous exclusion of Muslims for three neighbouring countries from seeking Indian citizenship on grounds of religious persecution is the most contentious part of the proposed law as it points to a dilution of Indian democratic values of equality and secularism. Notwithstanding the fact that the bill does not apparently state the term "minority communities" and the criteria of "religious persecution" directly, it makes a reference to the rules under the Foreigners Act amended in 2015 and 2016 which do clearly mention these terms. Widely upheld and explained as unconstitutional, the proposed amendment violates the very core of the constitutional scheme of equality before law. It is sacrosanct to the spirit of Indian democracy that irrespective of economic and social position, everyone is equal in the eyes of law. The Supreme Court's judgement in 2002 regarding a case involving Arundhati Roy elaborated that "It is only through the courts that the rule of law unfolds its contents and establishes its concept." As equality is a fundamental element of rule of law, the courts are duty bound to strike down any legislation that violates it. Article 14 of the Constitution upholds 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." This provision does not discriminate an individual in India on the basis of the citizenship they hold. The equality in terms of the proposed amendment is a conditioned equality—conditioned primarily by the religion one belongs to. And, consequently, the principle of "equal protection of the laws" stands significantly compromised. The Supreme Court interprets Article 14 as one which forbids discrimination between persons who are substantially in similar circumstances or comparable conditions. "It does not forbid different treatment of unequal," the court said. It is this aspect that enables the state to act in favour of marginalised groups and take requisite steps for their protection. The contentious aspect of the bill is that it discriminates against a very significantly numbered minority with considerable political sensitivity. If materialised, this law would allow non-Muslim illegal migrants to become Indian citizens, whereas Muslim migrants and residents for decades who cannot prove their legal status with papers will stand vulnerable to expulsion to nowhere. Moreover, the Intelligence Bureau has already claimed that the bill's strict processes mean that only a very section of people will benefit from this exercise.
Owing to the strength of representation in the lower house, it is expected that bill will be passed. In that case, this will be the first time that a legislation would introduce a religious element in the country's citizenship law as the Citizenship Amendment Bill, in theory, allows Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan to apply for Indian citizenship even if they had entered India illegally and that they will "not be treated as illegal migrants". This bill is potentially an instrument to further the politics of Hindu nationalism. Several misconceptions propagated in association with this bill may be dissected to discern the dangers of this legislative intervention. The claim that this bill serves to save people from religious persecution stands falsified given that religious persecution in these Muslim majority states is primarily on account of sectarian differences—Ahmadiyyas in Pakistan and Rohingya Muslims refugees in Bangladesh, for instance, are clearly not welcome. The fact that the said neighbouring states are Muslim majority countries is unjustifiably exploited to evade the matter of religious persecution inflicted at their respective ends. The arbitrary selection of countries leaves room for questions about why neighbours like Sri Lanka and Myanmar, which too have significant minority populations, are left out. The Tamils of Sri Lanka as well as the Rohingya of Myanmar have suffered globally condemned genocide. How do they not amount to persecution? It is also of little credibility that the bill will help a large number of refugees. Intelligence Bureau (IB) as part of its deposition to the Joint Parliamentary Committee on the bill clarified that anyone applying for Indian Citizenship under the amended law must "prove that they came to India due to religious persecution". The IB also argued that such a claim would have had to be made at the time the person entered India. As per the bureau, a "strict antecedent verification process" would be put in place involving the foreigner tribunals, notorious for human rights abuse. This is a very difficult proposition, to produce evidence of afflictions and to establish legality of residency from such a time. Further, the claim that this bill will help Hindus left out of NRC is dubious as part of its politics of opposing illegal migration, the Central establishment fervently supported the SC-monitored NRC that began in 2015 in Assam. The stand of the party changed in 2018 when reports emerged that most of the people excluded from the register were actually Hindus—a fact running contrary to the politics of Hindu identity. It cannot be defined how a person excluded from the NRC is eligible for citizenship under the Citizenship Amendment Bill, given the two contradict each other. Under the NRC, applicants had claimed to be Indians. But to apply for the Citizenship Amendment Bill, the same applicants would now have to claim they came from Bangladesh. Several more questions remain unanswered regarding why the government in intent on pursuing this biased plan. The answers that can, however, be speculated do not hint of a democracy in good health.