The world’s largest democracy is fighting to protect its ethos.
A few days ago, the Citizenship (Amendment) Bill was passed by the Indian Parliament. On Dec. 9, the Lok Sabha, the lower house of the Parliament, passed the bill with 300 votes in favour and only 80 against; and on Dec. 11, Rajya Sabha, the upper house, passed it with 125 votes in favour and 105 against. Whilst the Parliament passed the bill with relative ease, the aftermath of the passage of this act, however, has shaken the foundations of the country.
What is the Citizenship (Amendment) Act, 2019?
The Citizenship (Amendment) Act provides for a fast-track to Indian citizenship to Hindu, Sikh, Jain, Parsi, Buddhist and Christian immigrants from three countries – Pakistan, Bangladesh and Afghanistan. Instead of the normal wait of 12 years for naturalised citizenship, these immigrants can, under this law, be given Indian citizenship after just six years. However, this act only applies to those who entered India on or before Dec. 31, 2014. The Citizenship (Amendment) Bill would not apply to tribal areas of Assam, Meghalaya, Mizoram and Tripura as included in the Sixth Schedule of the Constitution and the area covered under the Inner Limit notified under the Bengal Eastern Frontier Regulation, 1873.
Is the CAA unconstitutional?
The Constitution of India provides for a single citizenship for the country based on domicile and birth, not religion. A person who, on the day of adopting the Constitution (Jan. 26 1950), (a) was born in India, (b) either of whose parents was born in India, or (c) had been ordinarily resident in India for not less than five years became an Indian citizen. Further, an illegal immigrant can never apply for citizenship, except under the CAA. The procedure for naturalised citizenship, under which persons from other countries can apply to become citizens of India, is already laid down .
The right to equality mentioned in Article 14 of the Constitution, and the right to life and liberty mentioned in Article 21 are available to all persons, not just citizens of India. Right to Equality is what is known as a Fundamental Right, and explicitly prohibits discrimination on the grounds of gender, race, religion, caste or place of birth.
India does not have any well-defined refugee laws and is not a signatory to most of the UN covenants on refugees. Even so, post-independence, India has been a safe haven to many refugees (including Tibetans, much to the displeasure of China), so much so that even many small towns have a ‘refugee market,’ a place where one can buy inexpensive handicrafts, textiles, etc from refugee communities.
Why, then, with the naturalisation procedure of citizenship already in place, has the CAA been introduced?
What the government says
The government rebuts any charges against the constitutionality of the CAA. “This bill is not to hurt anyone or person of any religion. There will be no injustice caused to the Muslims of our country. CAB will not hurt citizenship of Muslims. It is about granting citizenship and not taking away their citizenship,” Union home minister Amit Shah said in the upper House.
Prime Minister Modi tweeted that “No Indian has anything to worry regarding this Act. This Act is only for those who have faced years of persecution outside and have no other place to go except India.”
The government has capitalised on India’s historical narrative of welcoming refugees fleeing religious persecutions to justify the CAA.
“India’s centuries-old ethos of assimilation and belief in humanitarian values”
On Dec. 9, Prime Minister Narendra Modi hailed the passage of the bill by tweeting that “This Bill is in line with India’s centuries-old ethos of assimilation and belief in humanitarian values.”
Certainly, the cultural melting-pot character of the Indian subcontinent predates the creation of the nation-state of India by centuries. The oldest church in India, the St. Thomas Syro-Malabar Catholic Church in Kerala, according to tradition, was set up by Saint Thomas in 52 AD. The oldest mosque in India, the Cherman mosque in Kerala, is said to have been built in 623 AD, during the lifetime of Prophet Mohammad. Not far away is Udvada in Gujarat, where the fire in the Parsi temple of Atash Beshram, considered the holiest Parsi temple in the world, has been going on for over a millennium. Some argue that the oldest continuously living Jewish community in the world may actually be in India.
Why are there protests?
Protests initially began in the north-eastern state of Assam, which has a turbulent history with mass immigrations from Bangladesh and Bengal province under the British rule. Under the Assam Accord of 1985, only those foreigners who came into Assam before 25th March 1971 (when the Indo-Pak war that led to the creation of Bangladesh began) would be granted citizenship under the Citizenship Act. However, the CAA has changed the deadline to December 2014, sparking outrage across Assam at the perceived threat to the Assamese identity.
The government responded with curfew and suspension of internet and other communication services. Despite that, thousands of people continue to gather and protest against the CAA and the doors it opens to the influx of non-Assamese migrants. A number of people have been killed, various others injured in brutal crackdowns. News from Assam is sporadic now with the total communications ban, but what news is filtering in shows clearly that the protests are continuing. The internet ban was supposed to have been lifted on Dec. 16; however, that did not happen.
Suspension of communication services, usually a tactic favoured by authoritarian regimes, seems to have found its new patron in the Union Government of India. It has been more than four months since the suspension of communication services in Kashmir (where, in addition to this, elected representatives also continue to be under house arrest) and in the last month alone, as many as eight states have had internet shutdowns. 67 percent of the documented internet shutdowns all over the world in the last year happened in India.
The next place to suffer from an internet shutdown was Aligarh in Uttar Pradesh, north India, where student protests at Aligarh Muslim University were met with severe police action and the almost-predictable suspension of internet and communication services.
Moreover, on Dec. 15, police entered Jamia Millia Islamia, a university in New Delhi, without permission, ostensibly in pursuit of violent protesters. Videos show the police indiscriminately beating up students and using tear gas. Students were made to march out of the university campus with their hands raised. Hundreds were injured. Over fifty students were arrested and not allowed access to lawyers for close to six hours. They have since been released, and the Delhi Police, which is directly under the control of the Home Ministry of India, has categorically rejected any allegations of use of excessive force.
In response, ordinary citizens across India, including many in the academic community, have taken to the streets amidst reports that the government has ordered public institutions to declare their support for the CAA. Dr. Sharad Baviskar, professor at Jawaharlal Nehru University, New Delhi, tweeted, “When the regime is not open to reason, social justice and democratic mode of life, it’s imperative to speak to people and all those who truly represent them by expressing genuine questions!” Some state governments, such as those of Kerala and West Bengal have refused to implement CAA.
However, the space for legitimate means of protest, enshrined in yet another Fundamental Right – the Right to Assemble Peacefully and Without Arms – is continuously shrinking due to heavy-handed police action. Armed with batons, tear gas and guns, the might of the Union government can be seen descending on unarmed citizens in one viral video after another. There have even been reports of the police causing destruction to property themselves.
A dangerous mix: CAA, NRC and UAPA
On Dec. 16, Assam leader Akhil Gogoi was arrested and charges were filed against him under the amended Unlawful Activities (Prevention) Act (UAPA), under which any person may be declared a “terrorist” if the government finds them to be committing, preparing for, promoting, or being involved in an act of terror. There is little respect in this act for the presumption of innocence until proven guilty.
The National Register of Citizens (NRC) is another potentially divisive mechanism. If implemented in all states, as the current Union Government has promised, all citizens of India may have to individually prove their claims to citizenship by showing documentary evidence of residence in India going back a generation or two or three. They will be required to produce official papers to show that they, their parents or their grandparents were born in India prior to the cut-off date to be decided by the Union government. Those failing to do so will be deemed as illegal foreigners, detained and stripped of Indian citizenship. The Union Home Ministry has already issued a circular to all state governments to construct detention centres with modern amenities. In a country with substantial rural population whose access to such documents and indeed most government services is limited, this provision can, at a stroke, make citizens stateless.
In a scathing condemnation of the Union Government, the well-known author Arundhati Roy wrote, “The real purpose of an all-India NRC, coupled with the CAA, is to threaten, destabilize, and stigmatize the Indian Muslim community, particularly the poorest among them. It is meant to create a tiered citizenship, in which one set of citizens has no rights and lives at the mercy, or on the good will, of another—a modern caste system, which will exist alongside the ancient one, in which Muslims are the new Dalits. Not notionally, but actually.”
But it is not just the Muslims who stand to lose from this unholy trinity of CAA-NRC-UAPA. How many citizens have perfectly documented proof showing their Indian-ness since 1950? What about those who don’t have any documents, or those who may have lost theirs? What about those whose documents have spelling errors, a very common occurrence? What about women who have changed their names – not just surnames – after marriage, following the traditions of their communities? What about transgender persons? What about persons who have converted from their religion at birth to their religion of choice? Why is a person’s name in the previous census or electoral roll not sufficient proof of their citizenship? If the implementation of NRC in Assam is anything to go by, during which nearly 2 million persons were found to not have sufficient documents (including those who have served in the Indian military, and those whose family members have enough documents to prove their citizenship), the implementation of CAA-NRC in the rest of India may cause unprecedented levels of havoc in the country. The possibilities of corruption alone are staggering and, as always, the most marginalised are the ones who will suffer the most, whatever religion they may belong to.
The fight for the idea of India
In determining religion to be the only defining criterion in choosing immigrants for fast-track to citizenship, the Union Government has defined the Indian identity in religious terms. The Act seems to promote the notion that some religious identities are more ‘naturally’ worthy of being Indian than others. This is where the grave danger to Indian democracy lies. If this passes muster, all other steps away from democracy towards majoritarianism, authoritarianism, and dictatorship of the mob will only be a matter of time.
Arundhati Roy wrote, almost prophetically that “The violence of inclusion and the violence of exclusion are precursors of a convulsion that could alter the foundations of India—and rearrange its meaning and its place in the world. Our Constitution calls India a “socialist secular democratic republic.” We use the word “secular” in a slightly different sense from the rest of the world—for us, it’s code for a society in which all religions have equal standing in the eyes of the law. In practice, India has been neither secular nor socialist. It has always functioned as an upper-caste Hindu state. But the conceit of secularism, hypocritical though it may be, is the only shard of coherence that makes India possible. That hypocrisy was the best thing we had. Without it, India will end…. We can only hope that someday soon, the streets in India will throng with people who realize that unless they make their move, the end is close.”
The streets in India are thronging with people.