Is CAB against secularism?


Rohit Dhankar

It is a general response to comments my last few blogs and particularly a Facebook post on CAB 2019 that has attracted many comments. It is an attempt to respond to those particular comments which raise some point of substance. May or may not respond to attacks and derogatory comments which are directed to person, but do not have any substantial point to make. I believe people who have high self-image of conscientious citizens should also have the capability to grant freedom of expression to ideas even if they are against their thinking. I see personal attacks as devices to stop people from expressing their ideas on the pain of ridicule and public insult. Even the worst idea has the right to be expressed and examined.

Formation of beliefs, arriving at conclusion and being self-guided

Our beliefs are formed on the basis of our experiences in interaction with natural and social environment. Many of them we borrowed from others. Many others are formed without much intervention of critical reason. They have the possibility of being justified (right?) as well as unjustified (wrong?). When we want to make decisions, draw conclusions on issues of general social importance, it is our duty as democratic citizens to examine the beliefs, facts, principle and ways of reasoning we are using. Democracy is premised on the assumption that citizens can form informed judgement in the manner indicated above. They may agree or disagree with each other; but every one has the right to arrive at his/her conclusion and to express it. They are also expected to agree or disagree according to their reasoned conclusions; not by herd-instinct nor by following a leader, influencing figure or Guru. Using one’s own mind and facing the consequences of mistakes thus made is better than submitting one’s mind to a master and enjoying security of supposed to be correct judgment.

Now, after these preliminaries, I will discuss the CAB-2019 and why do I think what I think about it.

How can a foreigner not living on Indian soil today become an Indian citizen if s/he wants to?

The principle act that governs citizenship in India is the Citizenship Act 1955 (CA-1955), with its many amendments and other related laws, all mentioned in the act. There are many ways. One way a foreigner who is not living in India today and wants to become a citizen is to come to India on valid papers, live here for 12 years, then apply for naturalization after one-year continuous living, then s/he may be granted citizenship of India. This does not differentiate or discriminate on the basis of religion or nationality or anything else. This is the method which is relevant to CAB-2019.

Another method open to people of Indian origin is to stay in India for seven years and then apply for citizenship. This is also relevant to the CAB-2019. There are many other ways, which are not relevant here.

Will these two or any other way be changed when CAB-2019 becomes operational? Not at all. The CAB-2019 will have absolutely no effect on the general procedure of acquiring Indian citizenship.

Then, has granting of citizenship to general applicants become based on religion in todays India? No, absolutely no. Then why critics of CAB shouting from the roof tops that citizenship has become based on religion is India and Muslims are excluded from granting citizenship now?

Does it malign India internationally? Does it tarnish India’s image? Yes, it does. Are these critics naive enough not to understand it? NO, definitely not, they may easily be the most informed people in India. Then what is their motive behind this malicious propaganda against India?

Will CAB change any of the rights an Indian citizen has today?

No. Absolutely none. There is nothing in CAB-2019 which affects any right of an existing citizen of India, irrespective of caste, creed, region, language, color, or whatever.

Are critics claiming that CAB is against Indian Muslims? Yes, they are. Are they unaware that CAB does not affect the rights of Indian Muslims at all? No, absolutely not.  Then why are they indulging in the false propaganda that CAB-2019 is against Muslim citizens of India? Does it divide Indian population and creates animosity between supporters and opposers of CAB? Yes, it does. Does it malign India internationally? Yes, it does. What are their motives then? Are they helping Indian population make informed decisions or are they misguiding it? You decide.

Who are the people CAB is concerned with?

The CAB-2019 is a narrowly drafted bull that is concerned with people who have entered into India on or before 31st December 2014 from Afghanistan, Bangladesh and Pakistan (ABP). It is not concerned with people ho have entered India from any other country and in any other times. Therefore, advantages or disadvantages of people who have come from countries other than ABP are completely unaffected. Their advantages and disadvantages remain the same as they are under CA-1955.

Thus, the only people who are affected by CAB are foreigners who came to India on or before 31st December 2014 from AFP. Most of these people belong to the religious communities of Hindus, Sikhs and Muslims. There might be some Jains and Buddhists as well. Personally, I think Parsis and Christians are very few. There are estimates from slightly less than one crore to 1.5 crores Hindus, Sikhs, Jains and Buddhists. There are also, according to some estimates, 1.5 crore to more than 2 crore Muslims, mainly from Bangladesh. These are the people we are talking about in connection of CAB.

What are the provisions of CAB?

As far as I understand CAB does two things: one, it changes definition of illegal migrants for the people it covers; and two, it speeds up the process of granting citizenship by reducing the number of years required to apply for citizenship by naturalization.

Illegal migrant: CA-1955 defines illegal migrant in Section 2(1)(b) as any one who either entered India without valid travel documents or over stayed the validity of such document. The CAB changes this definition by incenting the following proviso in this clause:

“Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;”

 

The status of illegal migrants makes these people ineligible for applying for citizenship through registration and naturalisation. Removing that makes them eligible for the same.

Another provision the CAB makes is to shorten the period of naturalization from 12 years to 5 years. Which means that they can get citizenship by naturalization in 6 years rather than in 13 years, which is normal time for others.

There is also a provision to drop all legal action that may have been initiated in courts for being illegal migrants and granting them citizenship from the date of their entry into the India.

We should remember that Hindus, Sikhs, Jains, Buddhists, Parsis and Christians who came from ABP are granted these privileges. No provisions which existed for all others coming from any country and of any religion are removed, restricted, curtailed or denied. They stand as they were in CA-1955. This this is not at all a case of snatching anyone’s opportunity, if is a case of making available some facilities to these people.

What is the basis for extending this facility of faster procedure of citizenship to some?

First the countries: two of the three countries names were part of undivided India before 1947. At the time of partition large scale riots and bloodshed led to migration of Hindus, Sikhs, Jains and Buddhists to India from the territories that went to Pakistan, East as well as West. Muslims migrated to Pakistan from the territory of India. The partition was on the basis of primarily Muslim demand of separate home land for them. The Provincial and Central Assembly election in 1956 and 46 were mainly fought on the demand of Pakistan and overwhelming majority of Muslim voted (above 89%) for Muslim League which was demanding Pakistan. Therefore, this kind of migration was a natural outcome of this partition.

The flow of Hindus and Sikhs into India and Muslims into Pakistan was continuing unabated till 1950. To stop this migration and provide security to minorities in both countries Nehru-Liaqat Pact was signed in early 1950. According to this both countries should have provided security to the minorities. India tried and reasonably succeeded, Pakistan did not.

Thereafter, the people of Indian origin who got stuck in these two countries became victims of declared Islamic States and intolerance of majority Muslim population.

The third country included in the list is Afghanistan. This is also a Muslim state. And even much more intolerant than the other two. All thee have a common boarder with India. Thus, the communities names in the CAB from these three countries come to India. and have very limited options to go anywhere else.

Why Muslims are not included? Let’s look at the reasons why this fast tack citizenship provision is being given to the six religious groups mentioned. (1) many of them, particularly some of Hindus and Sikhs, are here for over 50 years without citizenship now. (2) They are illegal migrants as per the definition in CA-1955, and many of them do not have papers to prove their Indian origin as well. Therefore, can apply neither for registration, nor for naturalization. (3) their countries are declared Islamic theological states, which by definition discriminates on the basis of religion. The Muslim majority in these countries is intolerant, that makes life of minorities miserable. (4) Therefore, they can not go back. Meaning: some way has to be found for them to make them Indian citizens.

Maximum number of Muslims who have come here are Bangladeshi. They did not come here for any kind of religious or any other persecution by the state. Actually, there was never a good reason to allow them to cross the border. They came here for economic reasons. If they want to become Indian citizens, they can apply for naturalization, and if they meet the criteria and Indian government thinks fit, can be granted citizenship. Why should the Indian government facilitate their citizenship through faster track? What are the reasons critics of CAB advance for extending the same facility to them? Should the reason for fleeing their country be considered in providing fast track option for citizenship or not? If not, why?

Why Shias and Ahmadis not included?

Shias and Ahmadis are definitely persecuted in Pakistan. But that is a matter of factions within Islam. Ahmadi call themselves Muslim, the whole world recognizes them as Muslims, but Pakistan does not. Under what category would one facilitate their citizenship? And why citizenship? They can seek asylum as refugees and can be treated as so. Shisas in Pakistan are not persecuted by the state, Ahmadis may be. They both are victims of bigotry of the majority. The distinction with the CAB makes is persecution by the state on the basis of religion. Shias and Ahmadis can hardly pass the scrutiny under Article 14 of Constitution of India, while the six religions mentioned in the CAB are likely to.

Why Rohingyas are not included?

May be Rohingyas can be considered for temporary refugee status. But why should any one expect India to extend fast track citizenship to them? What is the logic? Religious persecution, say the Rohingya supporters. One problem is history of Rohingyas. This history includes violence on Rakhines, separatism and terrorism. The one time darling of present day Rohingya supporters Aung San Suu Kyi has fallen from grace because she dared call a spade a spade; that Rohingyas have been involved in violence, separatism, deliberately disrupting process of separating illegal migrants and genuine residents of Myanmar and terrorism. Why should India have special considerations for them?

Why Balochis are not included? 

Balochis don’t want your citizenship. On the maximum they may want temporary political asylum and help in their political struggle. This is a none issue which cri/tics of the CAB are trying to create.

Why Sri Lankan Hindus not included?

They are not persecuted for their religion. It was an ethnic political struggle. And there are chances of rapprochement and their going back.

Is the bill against secularism?

The option of fast track citizenship, change of definition of illegal migrants, withdrawal of legal action if any, and citizenship from date of entry is available to six religious communities, but not to Muslims. ‘Secularism is a doctrine that rejects religion and religious consideration’ in state policy making. This policy clearly considers religion in deciding who is allowed to use the provisions of CAB and who is not. Therefore, the decision is against secularism, it is discriminatory against the Muslims. This is the argument as far as I understand advanced by CAB critics.

I have a few issues with this argument. In today’s half-thought-quick-blame atmosphere I must repeat that the problem I see is not with the principle of secularism, but with the application of above stated argument in this particular case.

One device through which the principle of secularism becomes operational is equality rights, another is special minority provisions. The constitution of India provides for special minority rights, and minorities include religious minorities as well. Some of these rights are listed under articles 29, 30, 347 and 350. Thus, Indian constitution does consider religions as a basis for policy making when there are good enough reasons and when protection is being provided to minorities. These are the examples of rights which I think the minorities should have and to my mind do not violate the principle of secularism in spite of religious minorities being included in them. This to my mind is thoughtful application of principles of secularism and equality; as against dogmatic rigidity of the same.

There are also examples of legal differences based on religion which to my mind violate the principle of secularism but are part of the Indian legal system. One such difference is separate personal laws for religious communities. Another is a little known acceptance of an Islamic concept of ‘Waqf by User’. Ayodhya judgment of the Supreme Court discusses this principle in detail. In a nutshell the principle state that: if a group of Muslims is allowed to offer namaz on a piece of property, if namaz is public in charater (that any muslim can join) and continues for a sufficiently long time; then that property automatically turns into Waqf property and the original owner can not get it back. This is even if the original owner was not aware of this law, had absolutely no intention of gifting the property, and is not even a Muslim. The same right is not available to any other religious community in India, as far as I know.

What do these examples mean? To me they mean that the principle of secularism has to be applied thoughtfully and not dogmatically. And when exceptions are made to protect genuine rights or addressing genuine problems of minorities, then the principle of secularism is not considered violated.

The six religious communities mentioned in the CAB are clearly persecuted in the three Islamic states of ABF, actually a genocide is going on, whether we admit or not. Muslims are not persecuted because of their religion. There might be within the religion sectarian issues (Shisas and Ahmadis) and political issues of Balochis, but they are different in character; do not fall under the same category. Therefore, making special provisions for these six minorities in these three Islamic countries is not a violation of the principle of secularism to my mind.

The issue of article 14

The article 14 of constitution of India states: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. We can consider two questions here, (1) Can the minority argument we saw in the last section for Indian citizens be extended to persons who are not Indian citizens but are in the territory of India? (2) does CAB violate this article?

Regarding question (1) I do not see why it should not be extended to people who are on the Indian soil but are not citizens?

Question (2) demands a little more thought. The first part of the article is about equality before the law, and the second is about equal protection of the laws. The equal protection of law demands that “equals would be treated equally, whilst un-equals should not be treated unequally”. I am not a legal person but at this moment (till someone enlightens me) I believe that this principle is accepted under Indian constitution and referred to as “principle of reasonable difference”. I do not know what could be a clearer reasonable difference than continuous religion-based persecution for some and in principle absence of such persecution for others. We should remember that the persecution here referred to is persecution by the state, and not because of sectarian attacks on each other within a religion. Thus, to my mind the CAB does not violate this article. Yes, there is difference, but this difference does not constitute ‘discrimination against Muslims’, neither the bill target Muslims.

Can the bill be used against Muslims in NRC?

In a country like India, riddled with corruption and religious biases (even bigotry) what sane person can deny such possibility? Yes, this is possible. But how many laws do we have which have been and continuously being misused to harass people? Just to name a few, laws against dowry and against caste atrocities are misused many times. Still we need them in our patriarchal and casteist society because otherwise the weaker will be more vulnerable. And also, because by cleaning and tightening the system we can reduce the instances of misuse.

In my view we should spend our energy, good will, zeal and power to prevent misuse of the CAB rather than in opposing it and proving ourselves insensitive to the unfortunate people who have tried to escape religious persecution. It is interesting that no critic of CAB has suggested anything serious to solve the problem of these people.

Should imputing motives be acceptable in public debate?

The record of BJP in not taking a tough stand against cow-lynching cases, statements of its leaders, involvement of some of leaders in riots, etc. can not be denied. Its obvious use of religion (ex. Ram Mandir) in elections also cannot be denied. One can neither support such acts nor can condone. And still I believe one has to be very careful in imputing motives in every single case.

The liberals all opposed triple talaq bill on unreasonable ground and imputed motives of exposing Muslim men to punishment while Hindus remain unaffected if they abandon their wives. The argument is clearly wrong. Simply because the law does not allow a Hindu husband to escape responsibility if he abandoned wife goes to court. What motive did liberals have here? The question I am asking is: what makes liberals above suspicion of motives? If someone say that the critics of CAB are against Hindus (as Hindus are the majority among the beneficiaries of CAB) and do not want to allow the state to give them citizenship, or that the liberals are actually indirectly bargaining for allowing Muslim illegal migrants from Bangladesh; how can such charges be answered?

To my mind in the current dishonest scenario all have objectionable motives and we as citizens are condemned to live and navigate our paths in this muck. Therefore, staying with the things which could be established with facts and reason is the best way at the moment.

Meaning of my story

Finally, coming to my story on the FB which attracted adverse comments and some personal attacks. First, I stand by what I said in that little fable, stand by all its meaning. Second, fable writing is not my area, I should have been more careful against possibility of misinterpretation, deliberate as well as genuine. Third, people did misinterpret.

I thought that I am addressing people who are in this debate and have been reading some of my pieces on CAB. Therefore, took much common understanding for granted. The fable obviously is too direct, that is how I meant it. The six critically ill patients are obviously taken from the CAB list of religious communities. Critical illness is their problem of citizenship in the absence of any possibility of going back. Thus, they face either persecution and be condemned to misery in their original countries or live in India without citizenship rights. The 15 not critically ill are to indicate illegal migrants without persecution. India has no obligation to them to grant citizenship as I explained above. And their possibility to return back to their countries is still open. Or since they have come of their own freewill illegally, some other provision should be made to them. The numbers 6 and 15 are somewhat disproportional, but as far as I know the number of six religious communities who will get CAB benefits is less that the illegal migrants from Bangladesh. I may be mistaken there and would be willing to change my mind if get authentic figures. But want to make clear that both the numbers, 6 and 15, indicate illegal migrants only.

I still say the something, under the misguided interpretation of secularism opposing CAB means either being insensitive to the persecuted or demanding equal treatment for unequal. Both are objectionable as far as I understand.

Conclusion

I am under no illusion that this article will convince people in favor of CAB or that it will make my thinking any clearer to them. I also needed it purely for myself, to examine my own contentions as clearly as possible. Therefore, it is to convince no one and it is to convince everyone. That is the character of public debates.

I do not agree with the current dominant sentiment expressed in public debate against CAB. Those who do not like it can argue against it, if they like. Will try to respond to such people, even if their views are completely opposite of mine. Those who get too angry can attack, and I reserve my right to decide to respond or not; or when.

All I say is: clear, free from politically correct expression of views and arguments serves democracy and freedom the best. Paraphrasing on Socrates will also add, unexamined positions and views of our gurus, teachers, masters, icons and leaders are not worth supporting and chanting.

*******

15th December 2019

 

 

 

 

 

 

 

 

 

 

2 Responses to Is CAB against secularism?

  1. Dolashree Mysoor says:

    Rohitji,

    The article 14 test is to see whether there is arbitrariness in how identified groups are categorised as a class of persons to whom the benefit of citizenship will be provided. A further test is to see whether there is a nexus between the the identified group as a ‘class’ and the object of the legislation. This is where the problem comes up. The legal debate is focused on whether the identified groups form a class that doesnt arbitrarily discriminate against one particular community. There are three grounds for creating this identified ‘class’ – sharing a border with India, face religious persecution or a common ethnic origin. This is why people are bringing up the issue of Tamils from Sri Lanka and Rohingyas in Myanmar. It is difficult to see how both these groups dont fall into the class identified by the government. Saying that Ahmadis are muslims and because they are persecuted by an Islamic polity they are excluded just doesnt seem to make any sense to me especially when one of the characteristics of the class is religious persecution. This is pretty much not recognising their persecution as ‘religious persecution’ because they are considered Muslims – it’s akin to saying Dalits are not persecuted on the basis of religion in India because they are largely considered Hindu. It’s a problematic classification. Second, if the object of the act is to provide relief to those who have been persecuted by the state for religious beliefs or ethnic origin, then I dont see why or how other groups have been excluded in that class. Finally, in an unrelated point – I think you are grossly underplaying the Rohingya crisis. It is difficult to justify or dilute the issue on the basis of historical violence that the Rohingyas indulged in. What is happening to the Rohingyas is being discussed in terms of genocide and it is difficult to say that Aang San Su Kyi has fallen from grace for recognising historical violence and acts of terrorism. We are talking about a state going after a particular community in Myanmar. This argument would be deeply problematic if applied to separatist movements in India.

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: