How Citizenship Amendment Act feeds into Hindutva logic

The people's protest is a movement to save India's soul. It is the Indian spring in winter.

 |  4-minute read |   22-12-2019
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Prime Minister Narendra Modi's second term has emboldened the BJP to triumphantly claim absolute powers absolutely. The party's biggest fear is the loss of its exclusive Hindu vote bank which it keeps on the boil - unwilling to share it with even erstwhile allies like the Shiv Sena.

A gradual process

No sooner than it returned to power, the Modi government criminalised triple talaq, revoked Article 370 and dismembered Jammu and Kashmir to gain Hindu and Buddhist support, clamped down on the Valley, changed Islamic names of cities to Sanskrit ones, indulged lynching in the name of the cow, ghar wapasi, pressured the judiciary, played out temple politics, and created an ideology-based citizenship legislation to target Muslims by exclusion.

India is on the path to de facto become a Hindu nation reinforced by de jure policies. The Citizenship (Amendment) Act, 2019, or CAA, is the biggest ghar wapasi of all times, beckoning the Hindus of neighbouring Muslim countries to shelter in India. The Statement of Objects and Reasons (SOR) to the Act unequivocally links CAA to redress the Partition of l947.

CAA's cut off date is December 31, 2014, immediately corresponding to the BJPs first electoral victory. In 2017, it used its executive power to amend the Foreigners Order l948 and rules under the Passport (Entry into India) Act, 1920 and to protect its special target group (STGs) Hindus, Sikhs, Buddhists, Jains, Christians and Parsis only in Bangladesh and Pakistan. Christians, Parsis, Buddhists and maybe Jains are added on as legal confetti. Afghanistan was added in 2018 - perhaps for the Sikhs. For the first time, CAA profiles a refugee policy based on a "well founded fear of persecution" which it has avoided because it is not a signatory of the Convention relating to the Status of Refugees, 1951 as expanded to protocol in l967, but is bound by other international covenants.

The crucial question: Can an anti-persecution refugee policy be proliferated on grounds of religious discrimination? The resounding answer to this has to be 'no'. In practical terms, this means: (a) A Hindu and a Muslim arrived illegally before 2014 from the three countries and have been in India for five years: The Muslim is sent to a detention camp, the Hindu given citizenship without examining who was actually persecuted (b) Discrimination against Muslim Rohingyas in Myanmar, Uighurs in Tibet and even Bangladesh which does not want them back (a severe form of exclusionary persecution), Ahmadiyyas and Shias in Pakistan, Hindus in Sri Lanka.

Political reasons

The reason is political. The Modi government dare not take on China, does not want to anger middle-east Shia and Sunni countries, but does take refugees from Somalia, Sudan and other states.

Now, if CAA's central concern is to protect the persecuted, can it limit itself to certain countries and religions? In constitutional terms, this is called invidious "under exclusion".

The BJP's constitutional advisers say this is only an initial "narrowly tailored" policy for some religions and countries.

Let us test this proposition in a different context. If America were to say that "we will first deal with persecuted white Christians from some countries and then, maybe, blacks, browns and yellows from other countries," it would surely violate equality. It would be far worse, if there is a "whites" or "Christians" for any form of preference.

Equally suspect is the so called concession given to Assam, Meghalaya, Mizoram and Tripura in respect of the Sixth Schedule tribal or Inner Line areas. The people and governments of these states want to protect their politics and culture which are in turmoil. CAA will put them in a worse position.

Northeast question

As soon as the STGs, mostly Hindus, are given citizenship, they will have the constitutionally guaranteed right under Article 19 to freedom of movement to the tribal areas, reside in the tribal areas and pursue any job, occupation, business and commerce in these tribal areas, vote for the District Councils and even own property in some states. This will amplify the biggest fears of residents of these areas.

The NRC may become the biggest witch hunt in India's history. No doubt, it is always a good idea to know who one's citizens are. This massive exercise would be in addition to all other insignia. The Indian State would ask for proof of citizenship in every case until the officer is satisfied. It goes without saying that, invisibly, Hindus will be less harassed and, by virtue of CAA, will claim citizenship without papers. The rest will be subjected to rigorous checks for papers that they won't have. We can forsee the NRC as a massive exercise to target "undesirables", a religious cleansing. Many state governments have already said they will not cooperate with this expensive and inherently discriminatory investigative exercise.

They would be right to do so. Where cooperative federalism is denied, un-cooperative federalism is the answer.

Today, India has answered the BJP on CAA. It is a revolutionary exercise in civil disobedience throughout the country. This is a movement to save India's soul. It is the Indian spring in winter. It is alike the protests in Europe in l968 and Poland saying "We will overcome".

(Courtesy of Mail Today)

Also read: CAA, NRC and the idea of India

Writer

Rajeev Dhavan Rajeev Dhavan

Supreme Court lawyer.

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