The Citizenship (Amendment) Act, 2019 is confined to a narrow section of the people viz., minorities who suffered religious persecution in Pakistan, Bangladesh and Afghanistan. Article 2 of the Constitution of the Islamic Republic of Pakistan clearly lays down that Islam shall be the State religion. Like-wise, Article 2 A of the Peoples Republic of Bangladesh also lays down that the State religion is Islam. In line is the Republic of Afghanistan, the Constitution of which, by Article 2, declares that Islam is the Religion of the Republic.
When a particular religion is the State religion, it needs no external evidence to conclude that people of other religions do not get equal treatment. The events that occurred in Pakistan and Bangladesh clearly reveal the subjugation of religious minorities: how their numbers have been decimated and the atrocities perpetrated on them which necessitated their fleeing the countries in order to save their lives, liberties and their honour. The population of the said minorities in those countries has come down drastically. According to the 1941 census, the percentage of Hindus in the areas which eventually formed part of Pakistan was 19.52% and Muslims constituted 72.45%. After the partition, Pakistan successfully got rid of its Hindu minority almost totally. According to Pakistan Census of 1951, in West Pakistan, the non-Muslims were just 2.9% whereas Muslims constituted 97.1%. Before the partition, the population of Muslims in the undivided India was roughly 150 millions and at the time of partition, 35 million Muslims remained in India but the rest found themselves in the new State of Pakistan. After the migration of Muslims from India to Pakistan, the percentage of Muslims in India (after partition) came to 9% whereas in the undivided India, the figure was 25%. (Madhav Godbole: The Holocaust of Indian Partition: An Inquest. P.207).
After Bangladesh was formed, the population figures of Pakistan as per 1998 census are as follows:
Muslims – 96.28%
Hindus – 1.6%
Christians – 1.59%
(The Times of India – August 20, 2012 – p.20)
It is true that several Muslims also from these countries crossed into India. This crossing is not because they suffered any religious persecution. The question of their being subjected to religious persecution would not arise since they belong to the State religion. Their entry into India is only for the purpose of bettering their economic position, to seek employment and some of them have entered willfully in order to resort to subversive activities. They do not stand on the same footing as those who suffered religious persecution. The classification in this regard is clear and discernible. Unequals cannot be treated as equals. The Indian Constitution, by Article 14, mandates that there shall be equality before law and equal protection of laws. The essence of Article 14 is “likes should be treated alike”.
Minorities of Pakistan, Bangladesh and Afghanistan entered into India long ago. Their stay has been extended for longer periods by orders issued by the Government of India dated 8-1-2016 and 19-9-2016. None of the political parties have raised objection with regard to the orders of the Government of India permitting their stay in India for longer periods.
The fundamental rights guaranteed under Article 19 of the Constitution of India are not available to foreigners. Article 14 has to be read in the context of Article 19, which is available only to citizens. It is also on record that the Congress and Communist parties have demanded citizenship rights for the minorities in Pakistan and Bangladesh.
A democratically elected Government is entitled to continue in power for the duration for which it is elected. Sound principles of democracy and constitutional morality require that political parties opposed to any legislation should not resort to violence for the purpose of compelling the State to withdraw any legislation. In a federal set up, when the legislative field is distributed between the State and the Centre, the court is the final arbiter to decide whether a legislation conforms to the constitutional provisions. Although democracy and dissent go together, the latter cannot be a weapon to destroy the former. Dissent is not always disobedience. Ventilation of grievances by individuals sometimes takes the form of expression of dissent; groups ad organizations may articulate their dissent to right, what according to their perceptions, are wrongs. Articulation of dissent by political parties to pressurize the Government to concede to their “just” demands is qualitatively different from dissent backed by violence organized by individuals or organizations to overthrow the elected Government. To what extent dissent should be tolerated in a democratic set up in such cases assumes relevance. Can dissent descend to violence? The justness or otherwise of a cause espoused or grievance ventilated by any section of the society has to be judged on its merits but not with reference to the degree of violence with which the demand is backed.
Restraint is the need of the hour. Already divisiveness is spreading its ugly tentacles. There are no victims of the CAA. A remedial legislation like this cannot be targeted as anti-Muslim without any legally tenable reasons. The class of people left out of the remedial legislation viz., Muslims who illegally entered into India from Pakistan, Bangladesh and Afghanistan stand on a totally different footing. They are not persons who suffered religious persecution and they cannot claim to be the same as the religious minorities who suffered persecution in those countries on the ground of religion.
The constitutionality of the CAA is pending adjudication in the Supreme Court of India and one can reasonably expect the court’s decision in another six months, given the urgency of the matter. The fact that the present Government commands overwhelming majority in Parliament can never constitute a valid guiding principle for deciding the constitutionality of the legislation. It is said very aptly by Laurence Tribe, an eminent Professor of Constitutional Law:
“Every right protected by the Constitution is a right protected against majority legislation.”
(Laurence H.Tribe & Michael C.Dorf – On reading the Constitution p.29)
Let the political parties and organizations agitating against the legislation await the judgment of the Supreme Court.
Former Chief Justice of Himachal Pradesh
Former Chairperson, National Commission for Backward Classes,
Government of India,
Senior Advocate, Supreme Court of India