Who is an Indian?

IMAGINE A COUNTRY that enacts a law providing succour to peoples of minority faiths in countries that profess a state religion. Global humanitarian organisations routinely proclaim this as a goal for all nation-states of the world. Statesmen invoke it frequently and charters and declarations of rights make much of it. Now imagine India to be that country and think about the Citizenship (Amendment) Bill, 2019. Everything asserted in its statement of objects and reasons matches the global gold standard for such laws.

In India, none of that matters. The Bill and the law that followed fell afoul of the squinted definition of secularism in the country. The fault of the Bill lay in its elision of Muslims from the list of communities given relief. Its journey from a humanitarian law to an alleged tool of majoritarian assertion was quicker than the melting time for a snowball in hell.

By the time Union Home Minister Amit Shah rose to speak in Lok Sabha at the end of the debate on December 9th, alarm bells had been ringing for a while in India’s secular establishment. The Citizenship (Amendment) Bill, 2019 (CAB) aroused such hostility that its features—written in as plain language as possible—were lost sight of. Several last-ditch efforts were made by opposition parties to scuttle the Bill. The Bill was slated for discussion and voting in Rajya Sabha on December 11th. On December 9th, The Congress’ troubleshooter, Ahmed Patel, even called up Bihar Chief Minister Nitish Kumar seeking his party’s support in the Upper House. Attempts were also made to make the Shiv Sena—a key constituent of the National Democratic Alliance until recently—reverse its stand on the Bill. The Sena voted for the CAB in Lok Sabha but ended up ‘boycotting’ voting in Rajya Sabha. Outside Parliament, a din of fear and obfuscation was created. Blatantly false claims like ‘Muslims will be deprived of their citizenship’ and that if the CAB became law it would spell ‘the end of secularism in India’ swirled freely. Beyond faux arguments, mawkish sentimentality was invoked: India was civilisationally hospitable to all peoples of the world and the new law would irreversibly change the character of the country.

In the end, all arguments came to nought. Lok Sabha voted overwhelmingly for the law as did Rajya Sabha on December 11th, where the Bharatiya Janata Party (BJP) lacked a majority of its own. The Bill sailed through with 125 votes in its favour and 99 against it. There was clearly a gap between voicing opposition to the Bill and casting votes to halt it. Soon after the Bill was passed, Prime Minister Narendra Modi tweeted: ‘A landmark day for India and our nation’s ethos of compassion and brotherhood!…the bill will alleviate the suffering of many who faced persecution for years.’

Amit Shah made it clear that a distinction has been made between people who seek refuge in India from religious persecution and migrants who come just for a better future. The law gives succor to the former. There cannot be a ‘secular’ criterion on this score as Afghanistan, Pakistan and Bangladesh remain non-secular states

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The passage of the Bill boosts the BJP’s political prospects even as it shrinks the space for the opposition. Passing a law like the CAB was a political promise made by the party. As the proceedings in Parliament showed, the opposition did not have any coherent argument against the Bill. It largely relied on vague binaries like ‘morality versus power’.

The Bill provides for a speedy acquisition of citizenship by naturalisation of minorities from Afghanistan, Pakistan and Bangladesh—countries in India’s neighbourhood with Islam as state religion—something that has not gone down well with the opposition in Parliament and secular intellectuals outside Parliament.

The CAB sought to amend the Citizenship Act, 1955 and it provides Hindus, Sikhs, Buddhists, Jains, Parsis and Christians an exemption from the Passport (Entry into India) Act, 1920 and the provisions of the Foreigners Act, 1946. The new law also makes changes to the Citizenship Act allowing these communities to get naturalised in ‘not less than five years.’ The original Act demanded a continuous residence in India of not less than 11 years for citizenship. The CAB also provides legislative backing for disqualifying holders of Overseas Citizenship of India card.

While uninformed speculation around the CAB had been circulating outside Parliament for months, Shah answered key concerns about the Bill in Lok Sabha in his response on December 9th and later in Rajya Sabha on December 11th. The most vexed of these were the issues of the Bill’s constitutionality, as it allegedly violates Article 14 of the Constitution (equality before law), and its ‘anti-secular’ character. Both these facets are tangled with contemporary politics and the bitter history of independent India’s creation in 1947.

“I would like to tell all members… that this Bill is not unconstitutional from any dimension nor does it violate Article 14,” Shah said in his reply to the debate. “The right to equality given under Article 14, I have stressed before, permits reasonable classification to frame a law. Article 14 imposes no bar in this respect,” he added.

In the aftermath of Shah’s response, there has been plenty of hair-splitting over what is permitted under Article 14 and what is not. The answers—even when they have come from lawyers who specialise in constitutional law—have been polarised along political lines. Lawyers of liberal persuasion dubbed the CAB ‘illegal’ and ‘unconstitutional’ even before it had been transmitted to Rajya Sabha for debate in that House. But beyond the vexed debate and high-pitched arguments is a simple fact: Article 14 permits a reasonable classification among people for whom a law is being framed. This is an accepted principle of law that has been upheld by the apex court numerous times. The test of reasonableness is simple: that there is a tight nexus between what the law seeks and what it prescribes. In case of the CAB, this is clear from the statement of objects and reasons that accompanies the Bill: to provide citizenship to migrants from Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Pakistan and Bangladesh.

Legal opinion backs what Shah said in Parliament. On the question of the CAB violating the right to equality under Article 14 of the Constitution, former Additional Solicitor General Harish Salve said: “[This] is a narrow tailored law specifically meant to deal with those who are being persecuted by our three Islamic neighbours… I don’t see how this violates Article 14.” He added: “You cannot say that the law is discriminatory because there are different laws for the lion and the lamb.”

Another allegation made against the law is that ‘persecuted minorities’ is just a fig leaf. Otherwise, the Bill would have included Shias and Ahmediyas in its ambit—communities that are also persecuted in Pakistan and Afghanistan. To this, Salve responded: “The purpose of the law is not to address governance problems in our neighbouring countries. The purpose of the law is to provide a facility for the relocation of those who do not subscribe to the Islamic faith. India owes no obligation to neighbouring states to go ahead and find people who are being badly treated in that state and allow them to make a home in India. That is not part of international law and that is not part of our domestic constitutional law.”

The opprobrium before and after the Bill was passed in Parliament centred solely on the elision of Muslims from its purview. Shah explained this as well. Since the three countries mentioned in the Bill have Islam as state religion, other communities have faced persecution on religious grounds in these countries at different points in recent history. The aim of the Bill is to provide relief to those persons trying to escape tyranny in these countries. This, predictably enough, did not go down well with the ‘secular’ establishment. Every conceivable claim, theory and argument has been thrown at the Bill, including the spectre of the two-nation theory. The Home Minister did not shy away from this aspect of the debate either. He said: “It would have been good if this country had not been divided along religious lines. Had this country not been divided along religious lines then it would not have been necessary for me to bring this Bill. That this country was divided along religious lines is a reality. This reality should be accepted by this House.”

Within no time, the two-nation theory—the infamous argument put forward by Muhammad Ali Jinnah in 1940 when he made the demand for Pakistan and, in a different context, by Vinayak Damodar Savarkar earlier—was pressed into service. It was claimed that the BJP was turning India into a mirror image of Pakistan, a so-called ‘Hindu Pakistan’. That this claim was incongruous and disingenuous did not matter as long as the CAB’s backers could be tarred with the same brush as Jinnah and, of course, Savarkar. This led to fireworks in Lok Sabha and outside as well. Claims and counterclaims about responsibility for Partition flew thick and fast.

What was left unsaid, however, was that in the speech wherein Savarkar said that Hindus and Muslims were “two nations”, he made a distinction between a nation and a nation-state—two very different concepts. Savarkar mentioned nations. At no point did he mention a separate nation-state for Muslims. If anything, he stressed that India should have no state religion and that peoples of minority faiths should be allowed to profess what they wish.

If the ideological posturing is left aside, the sequence of events leading to Partition is clear even if historians have continued to debate the reasons for the outcome. A clear line joins the 1940 Lahore Resolution of the All India Muslim League (AIML)—that called for separate and sovereign states in India’s Northwest and Eastern parts—and the June 3rd, 1947 plan when there was no option left but to partition India. On June 2nd, 1947, a day before the plan was announced, Acharya JB Kripalani, who was Congress president at that time, accepted the inevitability of partitioning India. Then, soon after the plan was announced the next day, Jawaharlal Nehru, in a broadcast said: “It is with no joy in my heart that I commend these proposals to you, though I have no doubt in my mind that this is the right course.” This decision, he said, “is the right one even from the larger viewpoint.”

After seven decades, the reverberations of that event continue to be felt in contemporary politics. The claim of the ‘secular’ parties is that India’s leaders never wanted Partition and that it was the AIML leaders who sought and got what they wanted. Why should India ‘follow Pakistan’ in crafting legislation based on religious criteria? On paper, this is a sound claim and, historically, India has never enacted laws that discriminate among citizens on the basis of religion. The key word here is ‘citizens’. The CAB, however, deals with persons who desire to be citizens and not those who are citizens. Extending the ‘secular principle’ to a class of people who are not Indians puts too much burden on India as a country.

“There is a grave, perhaps even deliberate, misunderstanding of the CAB,” Rahul Sagar, Associate Professor of Political Science, New York University’s Abu Dhabi centre, tells Open. “It does not restrict citizenship or naturalisation on the basis of religion. It does not, for example, say that a migrant wishing to legally enter India now or in the future must meet a religious test. Therefore, the question of whether India should treat non-citizens in a ‘secular’ fashion is quite irrelevant to the CAB.”

If there is much that is in favour of the law, there are fears about its consequences as well. During the debate in Rajya Sabha, former Home Minister P Chidambaram echoed this: “So, what we are doing today is wrecking the Constitution from within. A small part of the Constitution is sought to be wrecked and demolished by this insidious Bill. Fortunately, we are three organs of the State. The Executive is complicit; the Legislature is being invited to collaborate; hopefully, the Judiciary will strike it down and will save India.”

Is there reason to worry that the CAB will ‘hollow out’ the Constitution and may even end up having deleterious consequences for India? It is worth noting that the CAB does not touch the Constitution in any manner. It cannot, as it is not a constitutional amendment. There can be political disagreement about the content of the law but to assert that it will ‘wreck’ the Constitution is far-fetched.

There is, however, scholarly opinion that points to long-term dangers from laws like the CAB. “India is fundamentally not a nation-state. It is a state-nation; it has a unified, sovereign legal and political framework under which multiple ‘imagined communities’ can coexist,” Milan Vaishnav, director of the South Asia Program at the Carnegie Endowment for International Peace in Washington DC, tells Open. Vaishnav sees danger ahead: “Attempts to make the cultural boundaries co-terminus with India’s territorial boundaries will create enormous upheaval.”

Even as the Bill was being debated in Parliament, tensions quickly ratcheted up in Assam where protests against amendments to the citizenship law turned violent. Soon enough, the Army had to be called out in many districts . The state capital of Guwahati was placed under indefinite curfew after the situation there turned uncontrollable.

Is Assam an example of the kind of dangers Vaishnav alludes to?

Assam is a complicated state where wave after wave of illegal migrants have settled in almost the entire stretch of the Brahmaputra Valley. The problem is acute in the Lower Assam districts of South Salmara-Mankachar, Dhubri, Goalpara and Barpeta. Here, vast demographic changes have taken place since Independence and the ethnic Assamese are in a minority. Similar changes have taken place on the other side of Assam, the one that borders the Sylhet Division of Bangladesh. Since 1979, Assam has seen repeated movements to expel foreigners from its soil. The 1985 Assam Accord promised to rectify the situation but made it even worse as the identification and deportation of foreigners were left to a judicial process that never really took off. The first step in the process—of identifying foreigners—was left to an updated National Register of Citizens (NRC) that was effectively put in motion only in 2015 after the Supreme Court cracked the whip. The final results, announced in July 2019, led to an uproar as there were allegations of undercounting and counter-charges of overcounting. The political divide was clear: local people, championing their rights, versus a ‘Delhi establishment’ of so-called secular parties, intellectuals and lawyers who wanted as low a count as possible. Even today, Assam continues to be on the boil.

In Assam, unchecked illegal migration has proved to be a political cornucopia from the perspective of vote banks. Even as migration from Bangladesh continued unabated, key parts of the Assam Accord, such as Section 6 that promised constitutional, legislative and administrative safeguards for the Assamese, remained a dead letter. The Accord—that was signed with fanfare in 1985—remained unimplemented in key spheres such as deportation of illegal migrants and operationalising safeguards mentioned in its sixth article.

Fears of illegal migrants overrunning the ethnic Assamese politically are acute. “If there is no CAB, another 17 seats will go to Badruddin Ajmal [the leader of the All India United Democratic Front]. We cannot allow Ajmal to be the Chief Minister. We will oppose this till our last drop of blood,” Himanta Biswa Sarma, Assam’s Finance Minister and key BJP leader in the state, tells Open.

Sarma’s comments may appear overly partisan, calculating electoral advantage from a legislative instrument. But they hold a kernel of truth. From the protests that began in Mangaldoi constituency in 1979 till 2014, no government, no institution, and certainly no scholarly study, tried to understand the roots of Assamese insecurity. Article 6 of the Assam Accord—which Shah referred to in his speech—promised constitutional, political and administrative safeguards to the people of Assam. Only now are there hints that this part of that diluted and ‘moth-eaten’ agreement will be operationalised.

Much of the migration into the state has been for economic reasons. Bangladesh—and East Pakistan earlier—has a high population density. Migration in search of land is natural in this setting. But right from 1947, no effort was made to study these processes either by census enumeration or by special summary counts. Any such effort was anathema until very recently for reasons of vote-bank politics. Even as the CAB was being debated in Parliament, virtually everyone—the ‘secular’ establishment, Bangladeshi officials and no less than the Prime Minister of Pakistan—bandied together to dub the CAB a bigoted piece of legislation. It is not hard to understand their concerns.

Even if Assam is ‘burning’ today, it is surprising that one Member of Parliament (MP) after another from that province voted in favour of the Bill. Not only Assam but the entire contingent of MPs from Northeast India voted in favour of the CAB. The political safeguards provided to states like Manipur and others have a lot to do with this.

As Shah made it clear in Lok Sabha, a distinction has been made between people who seek refuge in India from religious persecution and migrants who enter India just for a better future. The CAB gives succour to the former class of persons. There cannot be a ‘secular’ criterion on this score as Afghanistan, Pakistan and Bangladesh remain non-secular states with an established state religion. Plenty of remote scenarios have been conjured by people opposed to the CAB against this reality. For example, persecuted Muslim sects such as Ahmediyas and Shias don’t find space in the CAB. Nowhere did Shah rule out help for such groups: it is just that the CAB is not the instrument for that.

He explained at length that India has dealt with refugees and outsiders in different ways at different times. In 1974, then Prime Minister Indira Gandhi and Sri Lanka’s then Prime Minister Sirimavo Bandaranaike agreed that India would take 525,000 Tamils from the island nation. These Tamils were then granted Indian citizenship. There have been other arrangements—for example, with Nepal under the 1950 treaty that allow persons to settle in India. The CAB is in sync with this approach adopted over time. Critics of the CAB conveniently overlook this.

Again, Assam is an exemplar of this hypocrisy. India’s secular liberal establishment has been dead set against both the NRC and the CAB, albeit for different reasons. It chose to see these two very different processes together under the rubric of ‘secularism’. The source of the angst is that under the NRC, Muslims in Assam were allegedly ‘rooted out’ while the CAB is decried as against secularism, the Indian Constitution and democracy. The trouble is that Assam has seen an influx of both kinds of migrants—those seeking a better economic future and those trying to escape religious persecution—and is amenable to the politics of secularism. The reality is that the NRC and the CAB serve two very different purposes. In the India of today, it is convenient to view them together.

The reaction against the CAB is understandable. By stanching the flow of economic migrants, it threatens the politics of secularism. But the economic reality of eastern India is grim. It is a poor, densely populated region where a finite resource like land is prized in a grimly Malthusian manner. Before the Bill was introduced in Lok Sabha, almost all north-eastern states were up in arms against it. There were widespread protests across the region. By the time it was voted on in the Lower House, there was near unanimity among representatives from the region in favour of the Bill. The fear of outsiders swamping these states and taking away land from the original inhabitants is real. This is something routinely ignored in the name of secularism. If India is to survive as a coherent nation-state, laws like the CAB are essential.

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Siddharth Singh

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