The Union Cabinet reportedly has cleared the Citizenship (Amendment) Bill this morning. The Draft Bill was first brought in 2016 and the government was forced to refer it to a Joint Select Committee of both houses of parliament. The CPI(M) gave a dissent note to the committee which is attached.
The dissent note submitted by Mohd. Salim, then Lok Sabha MP on January 3, 2019 highlighted that:
- This Bill must be withdrawn
- This Bill is violative of the fundamentals of the Indian Constitution
- The preamble, citizenship provisions (Article 5 to 11) and the section on fundamental rights underline the fundamentals of equality regardless of gender, caste, religion, class, community or language. This Bill violates all of them.
- This Bill is not a mere change in the statute but is a law that will fundamentally alter the character of the Indian Republic.
Mohd Salim, Member of Parliament, Lok Sabha CPI(M)
Dissent Note: Citizenship Amendment Bill, 2016
Point One: Functioning of Joint Parliamentary Committee
The tardy, even selective manner of functioning of the Committee is a matter of concern. The very purpose of such Committees --constituted to review and critique proposed amendments to Indian statutes-- are meant to be consultative, not mere symbolic tokenisms that reduce the process to a farce. The Committee on such a vital issue such as Citizenship that draws its Rights and Base from the Indian Constitution and ought to have been treated with both substantive rigour and procedural correctitude..
For three years since its constitution, this Committee on the Citizenship Amendment Bill, 2016, never took the task seriously despite the fact that it was constituted on an all important issue. For months together, the Committee never met, when it did so in quick succession and abruptly like last 10 days during Winter Session.
Most Importantly, the discussions and consultations with stakeholders have been reduced to a complete farce. The states of West Bengal. Tripura, Jharkand, Orissa, Andamans were never visited. The visits to these states were required and the absence therein is stark especially given the fact that this is where, mainly Bengali speaking migrants live. There was one almost wholly aborted trip to Assam, a troubled visit, where in all the rest of the places internal Bengali migrant are being subjected to harassment. This will enhance this harassment especially the target will be Bengali Muslims as is possibly intended by a regime that is governed by a supremacist and majoritarian ideology.
The manner in which pre-Organised Memoranda,(copies and single page zeroxes) near identical, in their thousands (mainly from Assam, some from Kolkata) were collectively submitted by fly by night operators to make a show of the fact that people have been consulted further reduced the consultative nature of the committee to a mere farce. Given the grave nature of the amendments being sought, the Committee's functioning ought to have been more transparent, consultative and pro-active: more meetings with stake holders and affected people were required and detailed talks and deliberations needed to be held. One visit to Assam (after much persuasion, and that too an aborted visit, given the protests) was not even followed up by a second visit as promised.
Point Two: Basic Fundamentals of Indian Constitution Undergoing Change/Shift
Indian Citizenship is a fundamental right and premise drawn from India's Constitution that is republican and secular. Indian Citizenship is based on the Fundamental Premise of Equality of All regardless of Gender, Caste, Class, Community, Region or Language, principles enshrined in the Preamble, Citizenship Provisions (Articles 5 to 11) and the Fundamental Rights.
Besides the guiding principle of India has been the Principle of Vasudhaiva Kutumbakam (Sanskrit: वसुधैव कुटुम्बकम्) that has meant that all persecuted peoples, be it Jews, Yemenese, Parsees (Zorastrians), Iranians, Afganis, Tibetans, Bangladeshis have all found home here. The phrase appears is engraved at the entrance hall of the parliament of India. [It means:
Point Three: A Political Manifesto Not a Statute Change
The Machiavellean Aims and Ideology behind the proposed Bill as it Stands shows that these Fundamentals have Changed and are being Changed without Democratic Debate and Discussion by a Regime that has reduced Healthy Debate within a Democracy to a Farce.
Indian Citizenship flows from the Constitution of India that grants it as a Fundamental Right. Right cannot be Religion Specific or Country of origin Specific.
This Amendment does not offer solutions to the issues and problems that the country is facing around but will actually create more problems. Divisiveness and Suspicions between Peoples and Languages will Mount. According to the proposed Amendments, Citizenship will now be determined on the Language and Religion (and Country of Origin) of the proposed applicants.
This actually meets the Ideological Persuasion of the Rashtriya Swayamsevak Sangh (RSS) that regards this move as "the Unfinished Agenda of Partition." India and the Sub-Continent has already lived through one holocaust caused by religious divisions. This will create again the potential of several mini-holocausts of the kind Nellie, Assam has seen in 1983 and other parts of India have also witnessed.
The proposed Amendments extending an open invitation to all Hindus from persecuted neighbouring countries and the underlying threat is that it is Muslims who can be sent off, or reduced to pathetic conditions in Detention Camps or face inhuman treatment as usual suspects.
Point Four: Assam on a Tinder Box and the National Register of Citizens(NRC):
The Joint Parliamentary Committee considering the bill decided on Monday to move ahead with adopting a draft report after all opposition amendments were voted down. The government has argued that the bill is intended for those fleeing persecution and is not for economic migrants seeking a better deal. The Bill proposes citizenship to six persecuted minorities — Hindus, Jains, Sikhs, Parsis, Christians and Buddhists — from Pakistan, Afghanistan and Bangladesh who came to India before 2014. Dissenting Opposition members have argued for the inclusion of all refugees and persecuted persons whether from the abovementioned countries or even 'Sri lanka or Myanmaar.'
The implications of the committee having cleared an amendment moved by BJP MP Meenakshi Lekhi seeking to drop legal proceedings against six persecuted minorities, is potentially disstrous and discriminatory. The amendment, if accepted, could mean that Bangladeshi Hindus lodged in detention centres in Assam, facing deportation or declared illegal foreigners would get relief while their compatriots, simply because they are Muslims, would face hardships and persecution.
In fact the proposed Bill will ensure complete institutionalised incarceration and persecution of the Rohingyas facing acute persecution from Myanmaar and not being offered any succour even by Bangladesh.
The proposed amendment, in its current formulation, seeks to exclude undocumented immigrants belonging to certain minority communities from Afghanistan, Bangladesh and Pakistan (all majority-Muslim countries) — Hindus, Sikhs, Buddhists, Jains, Parsis and Christians—from the category of illegal migrants making them eligible to apply for Indian citizenship. The list of religious minorities, inexplicably, excludes Muslim groups like the Ahmadis, who are also among the most persecuted religious minority in Pakistan. This essentially means that, while non-Muslim migrants become eligible for Indian citizenship, Muslims are denied this right.
There has been a strong resistance to the Bill in the BJP-ruled Assam as it would pave the way for giving citizenship, mostly to illegal Hindu migrants from Bangladesh, who came to Assam after March 1971, in violation of the agreement in the Assam Accord of 1985. The BJP government in Assam is fiercely opposed to the Bill. The BJP’s ally Asom Gana Parishad too has been protesting against it and has threatened to walk out of the alliance if the Bill is passed.
Over 40 lakh people in Assam have been excluded from the final draft of the National Register of Citizens published in July 2018. Reports suggests that 33 lakh of those excluded have successfully re-applied. The underlying intent of the proposed Amendments is to ensure that those 'Hindu Bengalis' excluded from the NRC are promised (whether or not this is eventually legally or Constitutionally valid) to be brought in through the Citizenship Bill Amendments. The socio political outcome will be disastrous: People within Assamand Bengal if not elsehwere will be divided, again. between the 'Hindu' and the 'Muslim.'
Betrayal of the Assam Accord
There is a deep rooted contradiction in the bill as regards the terms of the Assam Accord — which calls for repatriation of all migrants irrespective of religion who arrived after March 24, 1971 — and this remains unresolved. The terms of the National Register of Citizens will exclude Hindus from Bangladesh but they will be covered by the provisions of the bill. Prime Minister Narendra Modi is scheduled to address a rally in Silchar on January 4, 2019 and given the tone and tenor of his and the BJP Leadership's Provocative Exhorations on the issue, his speech is likely to create dissensions and divisions. The AGP in Assam has strongly protested this Bill with its Amendments.
The JPC’s decision to apparently ride roughshod over political debate and opposition is yet another example of this dispensation pushing through legislation without necessary political debate. In this instance, the ruling party appears unwilling and unprepared to engage in a serious public debate on an issue that involves how the membership in the nation is defined. Winning elections by any means necessary is its priority.
Assam today because of the controversial NRC process sits on a tinder box, a volcano. These proposed amendments to the Citizenship Act will only inflame the situation further causing unimaginable social turmoil and even targeted violence.
For the present central leadership of the Bharaitya Janata Party (BJP) and the Rashtriya Swayamsevak Sangh (RSS), this basic alteration of Indian citizenship is in line with what they see as the unfinished business of the Partition. They believe that Indian citizenship laws should recognize a right of return for Hindus from Pakistan and Bangladesh to India, similar to the right of Jews to return to Israel, or of ethnic Germans to Germany.
Point Five: Regime Unhappy with Rejection of India's Rejection of Two Nation Theory
The proposed Amendments will do nothing short of foment Political, Religion, Linguistic and Ethnic Divisions. Those of this dominating persuasion are unhappy with the Indian Constitution’s unequivocal rejection of the two-nation theory. Today, based on the fundamentals of equality and non-discrimination within the constitution, Indian law cannot distinguish between Hindu and Muslim arrivals from Pakistan and Bangladesh. The real purpose of the citizenship amendment bill seems to be to introduce this distinction into India’s citizenship laws.
The BJP’s 2014 manifesto rather crudely states that “India shall remain a natural home for persecuted Hindus and they shall be welcome to seek refuge here.” Such a statement mimics the policy of only one other country, Israel—which sees itself as a sanctuary for Jews who are given an automatic right to enter the country and earn citizenship.
In February 2014, Prime Minister Modi (then on an election campaign) infamously said, “We have a responsibility towards Hindus who are harassed and suffer in other countries. India is the only place for them.” Israel, it is well known, has a dismal track record not just on the human rights of other peoples in general but of the Palestinians at the West Bank, in particular.
In the paragraphs preceding this ill-considered statement in its 2014 manifesto, the BJP praised its “NRIs, PIOs and professionals settled abroad” who are a “vast reservoir to articulate the national interests and affairs globally.” The hypocrisy is patent. These NRIs and PIOs are able to live in these countries because of the relatively liberal immigration policies of their countries of residence. The BJP’s concern, in its manifesto, is only for middle-class and upper-class professionals (they too, Hindu), and it provides no reassurances for the Indian workers across the world whose remittances support their families and Indian foreign exchange balances.
Point Six: India’s Compromised Refugee Policy
In the early 1980s, xenophobic utterances—fiercely anti-Bangladeshi statements—had catalyzed targeted pogroms in Assam, where BJP now rules, but dictated its political consolidation in other parts of “mainstream” India. This occurred even as the term “Bangladeshi” was deliberately collapsed at really meaning “Muslim,” just as the terms “Pakistani,” “Muslim” and “anti-patriotic/national” are potently expressed interchangeably.
It was in 1983 that the government in New Delhi enacted The Illegal Migrants Determination by Tribunal (IMDT) Act, which was an Act of the Parliament of India implemented by the Indira Gandhi government. It was struck down by the Supreme Court of India in 2005 in Sarbananda Sonowal v. Union of India. It described the procedures to detect illegal immigrants from Bangladesh and expel them from Assam. The Act was pushed through mainly on the grounds that it provided special protections against undue harassment to the “minorities” affected by the Assam Agitation. It was applicable to the state of Assam only whereas in other states, detection of foreigners is done under the Foreigners Act, 1946. The current chief minister who shifted political allegiances to join the BJP on the eve of the state elections was the petitioner in the case.
Operation Pushback and Operation Flush Out derive as much from xenophobic political pressure as from India’s lack of a refugee policy fully in line with international law.
Re-Look at India's Refugee Policy
More than anything else, a closer look at India’s refugee policy is in order. We are neither a signatory to the United Nations’ 1951 refugee convention nor its 1967 protocol. The reasons why India did not join these is based on a genuine understanding of the state of affairs then — the 1951 convention defined “refugees” as Europeans who had to be re-settled and suggested that “refugees” were those who fled the “non-Free world” for the “Free world.”
It was in December 1950, at the UN’s third committee, that Vijaylakshmi Pandit (sister of Jawaharlal Nehru, India’s first prime minister) objected to the Euro-centrism of the definition of refugee.“Suffering knows no racial or political boundaries; it is the same for all,” she said.“As international tension increases, vast masses of humanity might be uprooted and displaced.” The refugee crisis across the world is now severe for reasons of war and economic distress. Three years later, the foreign secretary, R.K. Nehru, told the UNHCR representative that the UN agency helped refugees from “the so-called non-free world into the free world. We do not recognize such a division of the world.”
Despite of its reluctance to join these international conventions, India has obligations under international law. India has signed onto the 1967 UN Declaration on Territorial Asylum and the 1948 UN Declaration of Human Rights. Even though it is not a member of the 1951 refugee convention that frames the work of the UNHCR, India is on its executive committee, which supervises the agency’s material assistance programme.
Following this international human rights law, the Indian Supreme Court ruled in 1996 that refugees could not be forcibly repatriated because of the protections to life and personal liberty in Article 21 of the Indian Constitution.
India’s current refugee policy is governed by the Foreigners Act of 1946 that does not even use the term “refugee.” Without a clear-cut policy, Indian governments have, over the years, dealt with different refugee populations depending on their political worldview at the time. For example, India’s treatment of Tibetans conforms to its relationship with China.
It is this absence of a cohesive refugee policy that set the ground for Operation Pushback in the 1990s, which used the Bangladeshi refugees as a tool for communal politics. And today, this is dictating a political desire to fundamentally alter Indian citizenship law.
In the United Nations too, things have changed. The fundamental principles on which a universal and accepted regime on refugees and asylum has evolved is universality, under the UDHR or the 1951 Convention on Refugees that mandates that all people who seek refuge should be treated equally.
I strongly argue that India—by its standing in various international protocols—has a responsibility to all asylum seekers and migrants, and must treat them equally. To do anything less than that would move India to join the wave of anti-immigration hysteria that has taken hold in Europe and North America, and has been structured into state policy in Israel. Worse than anything it would be back-peddling on our own tradition of a visionary and inclusive international foreign policy.
It was not long after the deplorable Operation Pushback of the 1990s that the former chief justice of India, P. N. Bhagwati, chaired a panel to create a model law for India on refugee rights. Bhagwati—who had also served as regional adviser for Asia and the Pacific for the UN High Commissioner for Human Rights — suggested that “an appropriate legal structure or framework” would give Indian states “a measure of certainty” in their policy-making and it would give “greater protection for the refugees.” Bhagwati’s model law defined refugees as people outside their country of origin who could not return there because of “a well-founded fear of persecution on account of race, religion, sex, ethnic identity, membership of a particular social group or political opinion.”
This was a very broad and important standard, which would greatly improve Indian refugee policy. Bhagwati’s report—like so many other well-meaning commissions—has made little impact. It was turned into a draft law—the Refugees and Asylum Seekers bill, but was unable to leave the home ministry for Parliament because of pressure from the Indian security establishment and various political calculations. Even before the extreme right-wing present government assumed power, earlier political formulations simply did not have the will to see the law through.
So today, in 2019, when India’s parliament seeks to fundamentally alter the very basis of Indian citizenship laws, and may even do this without honouring Indian federalism, the implications of the change are huge for the country and subcontinent.
The Indian Constitution’s rejection of the two-nation theory is crucially important for the status of Indian Muslims as equal citizens.
The proposed amendments will impact not only the sense of security of Indian Muslims, but also the future security of Hindus in Bangladesh, and the credibility of India’s historical position on the Kashmir question. A hard national question across the political spectrum is in order. The implications of the bill are far more profound, ill conceived and downright dangerous.
I therefore demand, in this Dissent Note, that this Bill must be withdrawn.