Proposed citizenship law is immoral, will unleash a legally-sanctioned regime of discrimination

Gautam Bhatia

On December 4, the Union cabinet cleared the Citizenship Amendment Bill (2019), paving the way for its introduction in Parliament. Ostensibly, the CAB is a legislation designed to protect persecuted minorities. It stipulates that “Hindus, Sikhs, Buddhists, Jains, Parsis and Christians” from “Afghanistan, Bangladesh and Pakistan” shall not be treated as illegal immigrants. Individuals belonging to these categories are also granted a fast track to citizenship by naturalisation (after a period of six years).

The CAB’s stated objective — to give shelter and protection to persecuted minorities — is laudable. The text of the Bill, however, not only undermines that objective, but also rends the plural fabric of the Indian Constitution. In its careful listing of protected communities, it explicitly — and intentionally — leaves out Muslims. The message it sends, thus, is one of discrimination, exclusion and second-class citizenship based on religion.

What justifications may be advanced for the CAB in its present form? The first is that Pakistan, Bangladesh and Afghanistan are Muslim-majority countries where Muslims, by definition, cannot be persecuted. This is false. The Ahmadiyya community in Pakistan has been subjected to sustained discrimination and violence. Religious communities — and nations — are not monoliths, and frequently persecute those who are ostensibly their own. And so, if the CAB is motivated by considerations of protecting the vulnerable, then what matters is not the religion of those who are persecuted but their humanity.

Furthermore, there is no explanation for why the CAB has picked out Pakistan, Bangladesh, and Afghanistan — and only those countries. If the criterion is undivided, pre-Partition India (as the CAB’s Statement of Objects and Reasons mentions), then Afghanistan ought not to have been a part of the list. If, on the other hand, the criterion is neighbouring nations, then there are a host of countries surrounding India that have visited terrible violence upon minorities. The Rohingya Muslims of Myanmar have been subjected to ethnic cleansing and genocide. Sri Lankan Tamils have suffered systematic discrimination and state-sponsored persecution. It is suggested in the CAB’s Statement of Objects and Reasons that Afghanistan, Pakistan, and Bangladesh have an official state religion (Islam). But so does Sri Lanka (Buddhism).

When viewed objectively, therefore, it is abundantly clear that the CAB has been designed in a manner that specifically excludes Muslim refugees from the possibility of amnesty and citizenship, for no reason other than their religion. To start with, this is morally indefensible, and a betrayal of the egalitarian and pluralistic values that guided our freedom struggle and the founding of our Republic. It is also unconstitutional. Article 14 of the Indian Constitution guarantees to all persons equality before the law, and the equal protection of laws.

As the Indian courts have often held, Article 14 prohibits the state from engaging in irrational classification of persons, from arbitrary action, and from treating people unequally for no legitimate reason. The CAB manages to violate each of these three principles. Its exclusion of Muslims from the list of protected communities in Pakistan, Afghanistan, and Bangladesh — in the teeth of the documented persecution of the Ahmadiyyas — is an irrational classification if the goal is to protect persecuted minorities. The restriction of the CAB to just these three countries is entirely arbitrary, as there is no underlying principle that connects them. And the design of the CAB — that first selects Muslim-majority countries and then offers amnesty only to religious minorities within those countries — creates religion-based distinction between those entitled to protection, and those excluded from it. This is an affront to the secular foundations of the Indian Republic, and therefore, an illegitimate legislative purpose.

There are two further factors that exacerbate the immorality of the situation. In response to widespread protests from the North-eastern states the last time the Bill was introduced, the CAB’s new iteration now exempts the amendment from applying to the “tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule of the Constitution.” This is an entirely unprincipled manoeuvre. The purpose of the Sixth Schedule of the Constitution was — and is — to protect the distinct culture and way of life of India’s indigenous populations. It has nothing to do with separate citizenship regimes. In order to secure smooth passage, therefore, the Union cabinet appears to have tacked on a purely political exemption to an already unconstitutional legal regime. This is the very definition of arbitrary state action.

Secondly, the CAB cannot be viewed in isolation from the proposed National Register of Indian Citizens (NRIC). The home minister has repeatedly vowed that the NRIC will be implemented shortly, in order to identify and remove “infiltrators” from the country. This follows upon the heels of the hugely expensive and disastrously-managed NRC process in Assam, that ended with the exclusion of 19 lakh individuals who now face the prospect of statelessness. The NRC process saw widespread panic, fear, and suffering — especially among the poor and marginalised — as it imposed onerous documentary requirements upon people. The NRIC will replicate this suffering on a national scale, but when it is combined with the CAB, it becomes clear that that suffering will be specifically visited upon India’s Muslims, who will be facing the brunt of the NRIC without the prospective shield of the CAB (a shield that will be available to all other communities).

Together, the NRIC and the CAB constitute a pincer movement against India’s Muslims. Their combined effect is to deny to Muslims equal moral membership in the polity. In the history of the 20th century, such legally-sanctioned regimes of discrimination have been seen before: In fascist states, the epitomes of morally and ethically bankrupt regimes.

The CAB, therefore, must be strongly opposed. It must be opposed by all those who continue to believe in a plural, egalitarian, and democratic India, where religion is not a brand that can condemn individuals to perpetual second-class citizenship. And it must be opposed in the courts, as a flagrant violation of equality and the rule of law. It is only principled opposition that can reclaim from naked power politics the fundamental values that animated India’s freedom struggle, and that lie at the heart of the Indian project of secular and democratic republicanism.

Bhatia is a lawyer and author of Offend, Shock or Disturb: Free Speech Under the Indian Constitution.