Blog#1-CAA-An consequential inconsequence

When the country is reeling under protests and debates, I pen my first blog inspired by a fiery young man with immense promise and ability to make a change. Our opinions may differ but Abhinav Chandar, your writings pulled me to a point of finally taking that leap. More power to you.

There were many aspects that Abhinav had covered on the CAA/CAB and had interlinked the state of affairs of the economy and also the right to equality amongst others including the debatable NRC. These linkages of several unique and isolated topics is now a common platform for the debate, protests and dissent.

It’s important to analyse each one of them in their own right and base one’s opinions on facts rather than interpretations. In times like these a rational outlook is seen as sitting on the fence and am glad to be on that spectrum for some of these issues.

CAA

The interpretation of this amendment by non constitutional law experts created the base for confusion and misinterpretations. Hence, I refer to an opinion tendered by a legal expert serving as an advocate in the Supreme Court of India, J. Sai Deepak.

The act is a limited amendment to the legislation of granting citizenship to immigrants from basically 3 nations of Pakistan, Bangladesh and Afghanistan who belong to Hindu, Jain, Buddhist, Parsi, Sikh and Christians religious faiths. The clear distinction is that this is an act of limited inclusion and not exclusion of Muslims immigrants, which is not referenced to, basis their entitlement to individual citizenship through the normal process of naturalisation. But why only these 3 nations and why those specific religions is the question? One, is that the persecution of minorities based on religious preferences is rampant in these nations and second that these nations at some point in history were part of the undivided Indian sub-continent, hence given the lineage they have shared cultures and disposition. This was understood post partition too and hence the Nehru-Liaquat pact of 1950 between undivided Pakistan and India which specified that minorities of the two countries would be taken care of by the respective governments and their rights shall be protected. This was basis the critical hostage theory of using the treatment of minorities in your country to demand the safety and protection of minorities in the neighbouring nation.

The Nehru-Liaquat pact since then has lost its practical ground and evidence of the same is starkly visible through some statistics. Prior to 1971 the population of minorities, non Muslims in undivided Pakistan ranged at 23% of the population which post 1971 became 3% with 20% share taken up by the new nation formed as Bangladesh. This 3% is today 1.8%, through the outward claims are that population of non Muslims has risen to 1.8% in the last few years from 1.3%. In case of Bangladesh this 20% is now lower than 11%. It’s a classic example of how you view the problem. The question that would be a natural progression is that how would have the population mix changed in these countries? Either there were large scale migrations of minorities from these two countries to other nations including India or they would have been subsumed in the local population by altering their faith or would have been killed or have died without progeny. Either ways this would be a deviation from the Nehru-Liaquat pact of 1950.

In case of Afghanistan the emergence of Taliban brought intense radicalisation of islam leading towards stringent version of islam which was not acceptable to large swathes of local population. This led to the exodus of the population who were welcomed by India as refugees. This could be debated as one of the strategic moves with a defined objective in the early 2000s. The argument that if the afghans were welcomed, then why not ahmadiyas or Shias of Pakistan who are subject to sectarian violence? It’s been long known that these two sects of islam have very strong views on other religions especially idol worship and with belief in their own version of islam they could posses a huge risk to our current Indian muslim population and their faith. Would we risk that? In my view this would be a way to protect the sanctity and integrity of our Indian Muslims who are our own.

Linkage of CAA to Article 14 of the Constitution & NRC

The linkage seems so natural given the fact that there is mention of some set of religions in the CAA. However, this would be highly unconstitutional if the two were linked since it would bestow different set of rights to minorities to be treated differently under various circumstances. The current linkage by one and all is outside the gamut of constitutional law which would take a route of closest proximity of all the special and general provisions to the main issue to form a legal interpretation. This means that neither article 14 nor CAA can be viewed in isolation. Article 14 is part of the Part 3 of the constitution whereas the aspects of citizenship are covered in the Part 2 through articles 5 to 11. Article 11 clearly states that grant of citizenship may be subject to any other law that the government may pass in the parliament to this regard. Therefore articles 5 to 11 need to be interpreted in conjunction with the citizenship act of 1955 which leads to the CAA coupled with the Foreigners act of 1946 which leads to the NRC. Any amendment passed by the parliament which does not nullify articles 5 to 11 of the constitution & citizenship act of 1955 is deemed to be constitutional. This is while retaining the fact that secularism is part of our Preamble and one of the basic structures of the Indian Constitution.

That brings to another bone of contention, the NRC. If at all there is a national wide exercise conducted on NRC and if Indian Muslims or Hindus or citizens of India of any faith stand to be excluded as per the guidelines then the belief that citizens of all other faiths other than islam would be protected due to the provisions of CAA is a myth being propagated. The CAA and the NRC interlinkage does not apply to existing citizens of India except in case of Assam. That is the real issue. The situation in Assam has escalated due to the years of negligence by Govt of India towards controlling the inflow of immigrants in that state. With 1.3 Mn foreign immigrants, the state would be in a flux and issue of Assam is more critical that the debate on exclusion of Muslims at this point of time.

In the end its the narrative which takes precedence in these modern times with social media and the press leading the charge of which I too am a culprit! What’s more frightening is that people now are delving into the past to say that India is entering the early stages of Facism and compare the CAA with the Nuremberg law of the pre world war Germany. I sincerely hope and pray not for someone to prove the facts towards their similarity or otherwise, but that this does not become the main narrative propagated in our country given most of us are social media trigger happy through our ordnance of WhatsApp, FB and twitter! ( Thank god Tinder does not encourage debates !! )

Jai hind