CAA Protests: Why Only Six Religions And Three Countries?
It all begins with an event called Partition. And given its essentially communal nature, and communal consequences, the solution also has to be communal.
The legal attack against the Citizenship Amendment Act (CAA) is not that it benefits the undeserving but that it does not benefit groups supposedly deserving similar benefits.
So, if these critics do succeed in having it struck down by court, they would have achieved the grand feat of ensuring no benefits to anyone. So much for humanitarian arguments.
The parliament has opened up Indian citizenship to hitherto ineligible people on the basis of some criteria. It cannot be anyone’s case that this benefit should be granted to anyone persecuted anywhere in the world.
The government has to justify why it chose persons from only five religions of three countries for citizenship. The CAA’s statement of objects says that “trans-border migration of population has been happening continuously” from these countries owing to the fact that they have a state religion.
If this fact is true, is it not sufficient distinction to club together only these three countries and their six religious minorities who are not a part of this state religion?
More importantly, if there was no speciality in the relationship between India and these religious minorities, why did Nehru have to sign a pact only with Pakistan’s Liaquat Ali, and not with the entire world, seeking assurance that “minorities throughout its territory” should have “complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality.”
The answer to these questions lies in the most tumultuous event to shape not just our recent political history but also our constitutional history — the Partition.
If the Partition happened on religious lines, any effort to address its consequences has to be on religious lines. One needs no better example of such discrimination than Articles 29 and 30 of our Constitution.
The basis on which these Articles discriminated in favour of minorities has been explained by the Supreme Court in the following words:
The people inhabiting this vast land profess different religions and speak different languages. Despite the diversity of religion and language, there runs through the fabric of the nation the golden thread of a basic innate unity…The closing years of the British rule were marked by communal riots and dissentions. There was also a feeling of distrust and the demand was made by a section of the Muslims for a separate homeland. This ultimately resulted in the partition of the country…Special safeguards were guaranteed for the minorities and they were made a part of the fundamental rights with a view to instill a sense of confidence and security in the minorities. Those provisions were a kind of a Charter of rights for the minorities so that none might have the feeling that any section of the population consisted of first-class citizens and the others of second-class citizens.
So, it was on the basis of events surrounding the Partition that minorities within India were granted special rights. These special rights are still continuing. How can help, howsoever belated, to victims of the same events be violative of Article 14?
It is important to understand how members of these six religions remained in Pakistan and Afghanistan to understand why they are different from immigrants from any other country or any other community.
When the idea of Pakistan was being considered, the communal nature of the problem was so prominent that some of our tallest leaders held extreme views. Dr. Ambedkar’s early views on the question were the following:
“The constitutions of the post-war states, as well as of the older states in Europe which had a minority problem, proceeded on the assumption that constitutional safeguards for minorities should suffice for their protection and so the constitutions of most of the new states with majorities and minorities were studded with long lists of fundamental rights and safeguards to see that they were not violated by the majorities.
What was the experience? Experience showed that safeguards did not save the minorities. Experience showed that even a ruthless war on the minorities did not solve the problem. The states then agreed that the best way to solve it was for each to exchange its alien minorities within its border…”
He did not voice these views in the Constituent Assembly though. Nonetheless by September, 1947, Nehru’s official policy for Punjab was a formal exchange of populations across the border.
Up to 15 million people from Punjab left their homes to begin a new life in India or Pakistan, leading to early mitigation of tensions. On the eastern border, however, things kept getting worse over the next few years.
But Nehru refused to take responsibility for the plight of Hindus in east Pakistan. His only solution was the Nehru-Liquat Pact of 1950 which, as events of the following decades proved, was nothing more than dead letter.
The demand for special citizenship rights for Hindus, Sikhs wanting to come back from Pakistan was made by several members of the Constituent Assembly. Pandit Thakur Das Bhargava moved a specific amendment in the draft Article on citizenship in favour of persons who returned to India from Pakistan due to “civil disturbances or the fear of such disturbances.”
Support for this amendment was described by Rohini Kumar Chaudri of Assam thus:
The same amendment was also tabled by my honourable friend Mr. Jhunjhunwala, and was tabled by me who is supposed to represent the Assamese Hindus, by my honourable friend Mr. Basu Matari who represents the tribal people in Assam and by my friend Mr. Laskar, who represents the Bengal Scheduled Castes of Assam. These are the three different groups of persons who have supported Pandit Bhargava…I want citizenship rights for those persons —…— who had come from East Bengal because they found things impossible for them there.
Many other members from Punjab and West Bengal supported this amendment. The Constituent Assembly did not include such special provisions, presumably because of lack of anticipation of things to come.
Today the only question before the Supreme Court is whether the class of immigrants identified by Parliament constitutes a reasonably classifiable group keeping in mind the Parliament’s policy.
Having remained and suffered in these three countries due to events following the Partition, certainly these persons form a constitutionally valid class warrant favourable discrimination. This policy is neither arbitrary nor illegitimate.
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