From annus horribilis to annus mirabilis: Debate on CAA s 

There are many lapses since the partition of the country, some are rectified and a few are still unresolved. The CAA is one of the initiatives which restored the long pending sins of the sub-continent. The notification of rules for implementation of the Citizenship Amendment Act (CAA) 2019 on Monday had once again stirred the […]

CAA (Citizenship Amendment Act)
CAA (Citizenship Amendment Act)

There are many lapses since the partition of the country, some are rectified and a few are still unresolved. The CAA is one of the initiatives which restored the long pending sins of the sub-continent. The notification of rules for implementation of the Citizenship Amendment Act (CAA) 2019 on Monday had once again stirred the hornet’s nest. While the critics lament it as the final nail in the coffin of Indian secularism, proponents of CAA call its implementation as fulfillment of a long-forgotten commitment. However apart from these polarizing reactions, this whole debate around CAA raises some very pertinent questions regarding citizenship, civic rights, and the nature of the Indian state, thus needing a through probing.

Critics of CAA cloak their argument in a three-fold manner; first, they argue that CAA is violative of article 14 of the constitution which guarantees the right to equality by excluding Muslims from its purview. Another criticism of CAA is that it is arbitrary in the sense that it covers only selected refugees from Pakistan, Afghanistan, and Bangladesh while excluding other prominent ethnic groups in India’s neighborhood like Tamils, Rohingyas, and Tibetans. Finally, critics argue that CAA alters the fundamental precepts of the Indian state by linking citizenship with religion thus shaking the secular foundation of the Indian republic.

Article 14 of the constitution while prohibiting class legislations doesn’t prohibit the state from making a “reasonable classification” of persons and objects since article 14 lies on the dictum that “only likes should be treated alike”. Supreme Court held that a reasonable classification test must satisfy the twin condition of “intelligible differentia” and its rational nexus with the object of the legislation. In plain terms, parliament is competent to distinguish between Muslims and non-Muslims but such a classification must be reasonable hence much of the opposition to CAA is based on the erroneous notion of Article 14 granting absolute equality.

As stated in the statement of objects and reasons of CAA 2019 the basis of classification is the religious persecution of non-Muslims since Islam is the official state religion of the three countries covered in CAA. In the case of Pakistan constitution explicitly discriminates against non-Muslims by forbidding them from occupying key positions such as head of state. Apart from the de-jure discrimination, the situation of non-Muslims especially Hindus in Pakistan are horrendous through state-enabled force conversion of young girls.

Hence it is a logical corollary in this case is that if the ground for persecution is religion then the basis of classification automatically became religious. The second criticism of CAA regarding its limited territorial scope ignores the historical context of this debate. Partition of India along religious lines grants a de facto recognition to the “Two-nation theory” thus putting the religious minorities in areas which eventually become Pakistan in a state of perpetual peril.

Soon after the partition, the Nehru government tried to ameliorate the situation by signing the Nehru-Liaqat pact which guaranteed the protection of religious minorities in both countries. The work of scholars like Ali Usman Qasmi in Pakistan shows how Pakistan›s bureaucracy actively stifled any attempts by non-Muslims to return to Pakistan putting remaining religious minorities within Pakistan in a hostage situation. Hence, Pakistan›s disingenuity regarding its implementation has put a historical burden on the Indian state which is now been lifted by implementing CAA.

The responsibility of the Indian state vis-a-vis the religious minorities in areas that become Pakistan is prominently reflected in the constituent assembly debates. Members like Jaspat Roy Kapoor, and Bhopinder Singh Man raised the point of favourable treatment of Hindus and Sikhs returning from then West Punjab and East Bengal. As far as the exclusion of other neighbors like Sri Lanka or Myanmar is concerned, the thing to keep in mind is that the Indian state has no historical culpability regarding those countries.

Further, a nuanced reading of the situation in Sri Lanka or Myanmar shows that they are in a case of ethnic conflict where minorities are demanding their fair share in state resources and power arrangement through various methods including armed resistance for example LTTE in the case of Sri Lanka and Arakan Rohingya Salvation army in case of Myanmar. As a responsible neighbor, India has constantly prodded these countries to accommodate their ethnic minority through a fair distribution of power as exhibited by India›s steadfast support of 13 amendments in Sri Lanka.

This is entirely different from the case of countries covered under CAA where there is an incipient state-enabled persecution of a tiny helpless minority of Hindus and Sikhs who lack any political representation. Finally, the criticism of CAA fundamentally altering the secular nature of the Indian republic is superfluous since it ignores the simple fact that CAA only fast-tracked the acquisition of citizenship for a selected group but it doesn’t prohibit Muslim migrants such as Ahmadiyya or Hazaras from availing of the conventional route for acquiring citizenship via naturalization.

Also, just like Indian secularism differs from its Western counterpart due to the unique circumstances of India, similarly state relations with its potential citizens can’t be completely divorced from the historical reality. India has since millennia has been a beacon of hope for those who are persecuted in the name of race or religion be it Parsis or Jews, hence it cannot turn a blind eye to its own who are left behind as a consequence of a historical tragedy.

Partition of the Indian subcontinent is the failure of the Indian freedom movement to effectively counter the divisive politics of the Muslim league and the machinations of Britishers, but the consequence of this failure shouldn’t be boar by those who are the margins. It was a grave injustice that the fate of Hindus and Sikhs from Sindh to Sylhet was decided by those sitting in the Viceroy palace in Delhi. Nothing can compensate for the suffering and trauma suffered by generations of those left behind but CAA is the step in the right direction.