Though the prime minister of India, Narendra Modi, recently re-emphasised that the Citizenship Act "doesn't snatch away any right of the Indian citizen or causes any harm," India has turned into a cauldron of protests since the passage of the bill in both the houses in the parliament. While during an election rally in Jharkhand's Berhait, Modi tried to downplay the actual intention and effect of the amendment act, political and cultural activists of various stripes across India showed little sign of acceptance.
In fact, things are only becoming more intense as protests broke out across India – which the police are hard put to contain without resorting to violence.
If the scenes of dissent out in the streets have peaked, things are also heating up on the legal frontier. Harsh Mander, Aruna Roy, Nikhil Dey, Irfaan Habib and Prabhat Patnaik have filed a petition in the Supreme Court challenging the controversial Citizenship Amendment Act 2019 (CAA).
This conglomeration of civil rights activists, writers, an economist and a historian and their petition challenging the Modi government's atrocious step which takes the divisive politics to a whole new level, was the first challenge against what many term as the Hinduisation of the world's biggest democracy.
The petition also tells us that what the BJP and its ally have been up to is in total negation of the constitutional rights of the Indian people, especially Indian's largest minority – Muslims. In fact, such arbitrary separation of Muslims from the rest is being challenged by the mob as well as rights activists and scholars.
The current petition also brings to the surface the fact that though Modi decries that "congress and its allies are instigating Muslims for political purpose," the CAA is nothing short of a means to exclude Muslims from the social-political sphere.
For Modi and his Hindutva enthusiasts, the act may or may not be the last of a series of changes that they have introduced to the constitution, which also included the removal of Article 370 in Jammu-Kashmir and Ladakh. For people across India, CAA is seen as the final blow to their secular constitution – of the society as well as the state.
According to the synopsis of the petition posted on LiveLaw, the petitioner has filed the instant writ petition in public interest under Article 32 of the Constitution of India for the enforcement of fundamental rights under Articles 14 and 21 of the Constitution of India.
They argue, "While Article 11 empowers parliament to regulate citizenship, this does not mean that parliament through an ordinary law can destroy the fundamental values and basic structure of the Constitution." Which they believed the current amendment has sidestepped by treating illegal migrants in India "on the grounds of religion, country of origin, nature of persecution they have fled, date of entry into India and place of residence in India."
Terming this as an "arbitrarily discrimination" which clearly excludes Muslims from the process of naturalisation.
The petitioner cited the case of Kesavananda Bharati Sripadgalvuru and Ors versus State of Kerala and AIR 1973 SC 1461. The petition says that "it has been held by this hon'ble court that secularism is part of the basic structure of the constitution, that is beyond the amending power of the parliament and that, one cannot legally use the constitution to destroy itself."
The petitioner's case rests on the fact that "they [non-Muslim refugees] are being exempt from the enabling provisions of citizenship (amendment) act, 2019, that seeks to make only Hindu, Sikh, Buddhist, Jain, Parsi and Christian illegal migrants from Pakistan, Bangladesh and Afghanistan, who entered India without valid travel documents on or before December 31, 2014, fleeing religious persecution, eligible for citizenship by registration or naturalisation."
Though such communal bias has long been ailing the polity of the subcontinent, India's constitution, since its formation, has always been seen as a model for democratic aspirants around the region.
Specially, Bangladeshi politicians have always been inspired by the secular ideals it was based on. The Article 15 of Indian constitution unequivocally prohibits the state from discriminating against any citizen on grounds of religion, race, caste, sex or place of birth.
Thus the petitioner is also challenging as unconstitutional "the notifications GSR 685(E), 686 (E), 702 (E) & 703 (E) dated 7th September 2015 and 18th July 2016, issued by the central government, exempting illegal migrants from the above mentioned six religions, seeking shelter in India due to religious persecution, from Afghanistan, Bangladesh or Pakistan, from the provisions of the Passport Act 1920 and the Foreigners Act 1946."
The petition refers back to a policy for issuing "long term visa" to those who had been recognised as "refugees" by the government or UNHCR in 2011.
It says, "The Ministry of Home Affairs policy clearly incorporated the Refugee Convention's definition of a refugee that does not discriminate in any manner on the basis of religion, country, date of entry, etc. The guidelines clearly mention that the 'standard operating' procedure is to be followed when a foreign national claims to be a refugee."
The guidelines state as follows: "In case it is found that prima facie the claim is justified (on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion), the matter will be recommended to the Ministry of Home Affairs for grant of long term visa within thirty days from the date of claim by the foreigner."
But what the ACC stands against is such universal standard operation and by doing so it turns India into an apartheid state – one that closes its doors to Muslim refugees. Perhaps pushing the Rohingyas that entered India back into
Bangladesh was also a clear signal of the apartheid that has been made official through the ACC.
The petition mentions the Ahmadis, who "make up a sizable minority in Pakistan (with a population of about two million members), that regularly faces religious violence, religion-based prosecution, and anti-Ahmadi laws." Though, they fit soundly into the category of a religiously persecuted minority group in Pakistan, the ACC will give the Modi government a legal tool to turn them down.
It also points to the incidents of "atheists in Bangladesh being attacked for their views." They argue, "The persecution of atheists for their lack of religious beliefs also amounts to religious persecution, and therefore, merely using religious identity and country of origin as a proxy of persecution is unreasonable, and also suffers from the vice of arbitrariness."
"The act also places residents who have illegally migrated from other countries like Sri Lanka, Nepal, China and Myanmar at a disadvantage by arbitrarily excluding them from the provisions of the Amendment Act," the petitioners said to LiveLaw.
Now, one must also mention the case of Taslima Nasrin, who has been living in India on resident permit. Would she be able to continue to enjoy this privilege?
Aside from the exception, the Indian government might have in mind for Taslima Nasrin and the likes – Muslims who would seek asylum have been given a clear sign that they are unwanted in India. Additionally, Muslims, who have been living in India, perceiving it as the land of multiple religions and languages, might face an uncertain future, even disenfranchisement, if not total eviction.
What is inspiring amid all that is dispiriting in this age is that the passage of the act has finally awakened the Indian masses.
How does Modi plan to tackle the situation? Lambasting the opposition will not suffice. Though this was exactly the case recently. During the election rally in Jharkhand's Berhait he said, "I challenge Congress and their allies, if they have the guts they should openly declare that they will give Indian citizenship to every Pakistani citizen and that they will bring back Article 370 in Jammu-Kashmir and Ladakh."
In an unsigned editorial, The Indian Express issued its concern over the "rankling gap" between police and the people which, they felt, followed in the wake of Modi's loss of voice to talk back to the escalating situation across India.
According to the editorial, last Sunday, police were more than just lathi-happy, since the silence of the government in the aftermath of the outrage at Jamia was also a part of the problem.
Jamia students sustaining police abuse tellingly brings to light the excesses that awaits the Indian citizens who oppose the CAA.
The Indian Express says that the police barged into the campus without permission, forced its way into the canteen, mosque and library, dragged and beat up students, rounded up and detained them, using as pretext acts of arson and vandalism outside the university.
Newspaper reports say that opposition to the bill has been particularly loud in the multi-ethnic state of Assam, where, according to South China Morning Post, "anti-immigrant sentiment has been strong for more than half a century. The locals fear that illegal immigrants will become a burden not only on their resources and take away jobs but are also likely to pose a threat to the local culture, traditions and language."
So, Muslims are not the only ones who stand to lose in the grand scheme of things that Modi and his cohorts have devised for the region. Because the CAA involves the entire region and will certainly have fallouts all over the region, especially in Pakistan, Bangladesh, Myanmar, Nepal and Sri Lanka.