By introducing religious aspect to notion of citizenship, CAB threatens to put India, Indians on slippery slope

Alok Prasanna Kumar

Several other commentators have already pointed out the obvious constitutional defects in the previous versions of the bill (read these pieces here, here, here and here). To summarise, the constitutional arguments that have been made against the Citizenship (Amendment) Bill (CAB) €" it introduces a religious test into the process of seeking citizenship in India and discriminates even against those fleeing religious persecution on the basis of the country of origin. Not only does the CAB violate the plain text of the Constitution, specifically Article 14 guaranteeing equality, but also is an attack on a basic feature of the Constitution €" secularism.

Although supporters of the CAB would like us to believe that Muslims are a large, undifferentiated monolith in every country in which they are the majority, the truth is anything but. Shias and Ahmadiyyas have been at the receiving end of sectarian religious violence in Pakistan. Atheists (even those born into Muslim families) have been targeted and killed in Bangladesh by majoritarian mobs for expressing their religious views in public. These are just the more publicised instances. What the CAB wants to enshrine into law is the Hindutva understanding of who is a majority and who is a minority, not one based on actual oppression or discrimination.

Although the law is ostensibly to give protection to minorities fleeing religious persecution in their countries of origin, nowhere does it actually say that. This was pointed out during the proceedings of the Joint Parliamentary Committee, and the response of the Government was that the prior notifications of the MHA referred to in the CAB actually use the term. This is a very strange way of explaining the purpose of a law, especially when the same government actively refused to include the words "religious persecution" in the law itself.

Even assuming that the CAB wants to meet the goal of protecting those fleeing religious persecution, there's a pretty simple way to fix the constitutional problems. The goal of protecting refugees or giving them citizenship is not per se objectionable or unconstitutional. Rather, it is the manner in which it has been done €" to deliberately exclude Muslims and certain neighbouring countries which is appalling. Should CAB include all neighbouring countries and anyone fleeing religious persecution in these countries, one can fully support the law in good conscience.

However, the latest draft of the CAB adds Clause 6B which, among other things, sets out to allow non-Muslim illegal migrants from Muslim majority countries an opportunity to get naturalised as citizens of India. At present, illegal migrants are not permitted to be naturalised as citizens of India under the Citizenship Act but this clause in the Bill, if enacted, would permit only non-Muslim illegal migrants from Muslim majority countries to be naturalised. Needless to say, such a move is also equally unconstitutional for the same reasons I have mentioned before: For picking and choosing who should be a citizen of India on the basis of religion and country of origin rather than need.

One concern that has been raised in the North East of India, specifically demographic change as a result of this bill, has been attempted to be addressed in the most hamfisted and potentially unconstitutional way as well. Sub-clause (4) of proposed Clause 6B says that the clause will not apply to "tribal areas of Assam, Meghalaya, Mizoram or Trupira as included in the Sixth Schedule to the Constitution" and the areas known as the "Inner Line Permit" areas. Interestingly, these areas do not include the state of Manipur €" a surprising exclusion that has no obvious basis in the law.

On the face of it, this clause is very badly drafted and it is not at all clear what this is supposed to mean. One can posit three possible interpretations:

1. That illegal migrants currently residing in these areas cannot take the benefit of Clause 6B;

2. That illegal migrants who have ever resided in these areas cannot take benefit of Clause 6B;

3. That illegal migrants who crossed over into India into one of these areas cannot take benefit of Clause 6B;

4. An application for registration and naturalisation made in these areas to the appropriate authority will not be considered.

While it is permissible for the government to limit the right to move and reside in tribal areas, one wonders how questions of citizenship can be determined on the basis of residence alone. Citizens of India not from these areas are already bound by the laws restricting residence in these areas of the North East, but the link between granting citizenship to certain people and these areas is not at all clear. The purpose of the clause seems less to create a legal exception and more to toss in text as a jumla to communities opposed to a CAB. While one would not like to comment on the constitutionality of such a badly-drafted and vague clause, that in itself could be a reason to strike it down in courts (as has been done in the past).

The CAB is not about creating a regime for refugees fleeing religious persecution to seek citizenship in India. It is about introducing a religious aspect to the notion of citizenship €" violating a sacred principle at the cornerstone of India's constitution. The inclusion of non-Muslim minorities communities in the CAB is a ruse €" once the principle is accepted that citizenship can be determined on religious grounds, each of the minorities can be stripped of their citizenship in turn in due course leaving India a Hindu majoritarian country. This is the real danger of the CAB and why, in its present form, it must absolutely not be allowed to pass.

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