Insights into Editorial: A Bill that undercuts key constitutional values
Secularism as a basic structure has been reiterated by the Supreme Court in S R Bommai vs. Union of India (1994).
Recently while speaking about implementing a National Register of Citizens in West Bengal, Home Minister said, “I want to assure Hindu, Sikh, Jain, Buddhist and Christian refugees, you will not be forced to leave India by the Centre.”
These words sparked an immediate backlash as Mr. Shah had evidently omitted one religious community, Muslims, from his statement.
Critics argue that the bill undermines secularism and is thus against the Basic Structure of the Constitution.
Concept of Citizenship:
Citizenship signifies the relationship between individual and state.
It begins and ends with state and law, and is thus about the state, not people. Citizenship is an idea of exclusion as it excludes non-citizens.
Citizenship is in the Union List under the Constitution and thus under the exclusive jurisdiction of Parliament.
The Constitution does not define the term ‘citizen’ but gives, in Articles 5 to 11, details of various categories of persons who are entitled to citizenship.
What is the Citizenship Amendment Bill?
- As its name suggests, it makes an amendment to the Citizenship Act, the umbrella law that sets out the elements of Indian citizenship.
- The Amendment stipulates that “persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan shall not be treated as illegal migrants for the purposes of that Act”.
- These individuals are made eligible for naturalisation as Indian citizens, and furthermore, the normal precondition for naturalisation having spent 12 years in the country is halved to six years.
- Therefore, the Citizenship Amendment Bill does two things:
- It shields a set of individuals from being declared illegal migrants (and, by extension, shields them from detention or deportation); and
- It creates a fast-track to citizenship for these individuals.
The Citizenship amendment bill Violates Article 14 of the Indian Constitution:
- The Bill makes illegal migrants eligible for citizenship on the basis of religion. This may violate Article 14 of the Constitution which guarantees right to equality.
- Article 14 guarantees equality to all persons, citizens and foreigners. It only permits laws to differentiate between groups of people if the rationale for doing so serves a reasonable purpose.
- The problem, of course, is that it does so on an explicitly communal basis: it categorically excludes Muslims from its ambit.
- The implications are clear: if the government goes ahead with its plan of implementing a nation-wide National Register of Citizens, then those who find themselves excluded from it will be divided into two categories: (predominantly) Muslims, who will now be deemed illegal migrants, and
- all others, who would have been deemed illegal migrants, but are now immunised by the Citizenship Amendment Bill, if they can show that their country of origin is Afghanistan, Bangladesh or Pakistan.
- The fact remains that by dividing (alleged) migrants into Muslims (but also, as we shall see below, Jews and atheists) and non-Muslims, the Citizenship Amendment Bill explicitly, and blatantly, seeks to enshrine religious discrimination into law, contrary to our long-standing, secular constitutional ethos.
Discriminatory Citizenship Amendment Bill should not be discriminate Indian Constitution:
Re-introduction of the bill is challenge to the constitutional values such as secularism and equality to all as enshrined in article 14 of the Indian constitution.
The Citizenship Amendment Bill is closely linked to plans for a nationwide National Register of Citizens (NRC). A nationwide NRC will replicate the flaws of the Assam NRC on a much larger scale.
The discriminatory Citizenship Amendment Bill will protect some but only some based on their religion which is against the ethos of Indian Constitution.
Discrimination is often at the root of identity-related tensions. Such tensions have a potential to develop into crises that could ultimately lead to conflict, forced displacement and, in the worst cases, to atrocity crimes, including genocide.
The whole governance network must recognize that effort to promote and protect the rights of minorities must be multidimensional and engage the entire System.
Hence, before these instances develops into a broken window syndrome, these must be allayed as early as possible.
What the communities and civil societies need to look after is the sense of developing an integrative humanistic framework which allows for affirmative discrimination in favour of minorities at the same time ending avenues for potential abuse.