Citizenship Amendment Act is misunderstood; it gives persecuted minorities Indian citizenship, doesn't seek to expel Muslims

"The desperation at grossly misrepresenting CAB reveals the frustration that an average Indian Muslim can no longer be blinded to a narrative"

Asia Bibi, a Christian Pakistani, was convicted of blasphemy and sentenced to death by a lower court in Pakistan, upheld by the Lahore High Court. Asia happened to drink water from the same container as other Muslim berry-pickers. This act by an "unclean" minority led to a heated argument that involved religion and Asia was accused of insulting Prophet Mohammad.

So vitiated was the persecutory environment that Salman Taseer, the then Punjab governor who advocated for her release, was assassinated and his killer revered as a hero. Bounties were announced on Asia's head, her family lived under a constant fear of death threats.

Despite the Pakistan Supreme Court acquitting Asia in October 2018, the Pakistani government buckled in, signing an agreement with an Islamist political party barring Asia from leaving Pakistan. Despite the rejection of a review petition against the apex court's acquittal in January 2019, Asia could finally leave Pakistan only in May 2019. A "complication" was cited by Pakistan prime minister Imran Khan — of which he said he could not speak — in April that delayed her departure.

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Asia had the vociferous support of several groups advocating on behalf of Christian minorities. Even Pope Benedict XVI and Pope Francis called for the charges to be dismissed. Asia has since found safe haven in Canada.

Not every person practicing a minority religion in Pakistan, though, has been even half as fortunate as Asia Bibi. The Citizenship Amendment Act is India's effort at giving these minorities who managed to flee persecution the dignity of Indian citizenship.

Several moments in India's recent history such as revocation of Article 370 opening the way to Jammu and Kashmir's integration with India, the Ayodhya judgment laying the pathway to the construction of a temple in the name of Lord Ram and the Citizenship Amendment Act haven't riled up the average Indian Muslim in the way many feared or expected.

Much of the criticism, ostensibly indicating ignorance or misunderstanding of the actual text of the Act, seems to actually be about misrepresenting what it does and does not do in order to provoke the Indian Muslim — not dissimilar to what religious fundamentalists in Pakistan did in Asia's case and continue to do.

File image of Prime Minister Narendra Modi. PTI

Indian Muslims are made to believe that this Act is asking them to pack their bags when it is about giving citizenship to those who are not Indian citizens. Statements that only Hindus will be 'allowed' into India and Muslims are not welcome ignore the basic premise of this Act which is to enable refugees already inside India on or before 31 December, 2014 to apply for Indian citizenship.

The goalposts are then shifted to questioning this specific cut-off date. Is it to give citizenship to Hindus who can then vote for the BJP in 2024? Is the motive electoral? This needs a little explanation.

As previously noted by this author, before the CAB was introduced, amendments were made as early as September 2015 to two laws: Passport (Entry Into India) Act, 1920 and Foreigner Act, 1946. These amendments effectively pardoned refugees from six minority religions from proving the possession of a valid unexpired passport or travel document.

This Act was always meant to be an amnesty of sorts — a one-time pardon to those who illegally migrated to India fleeing religious persecution. Hence, the cut-off date of December 31, 2014 was stipulated in amendments which were noted in the legislative books in September 2015.

Introduced in 2016 for the first time, the Citizenship (Amendment) Bill was then referred to a Joint Parliamentary Committee which submitted a report in January 2019 following which the bill was introduced in the Lok Sabha in the same month. However, the bill lapsed due to the dissolution of the then Lok Sabha.

Illegal immigration in India is an offence. No government can pass a law that condones future illegal immigration by using Indian citizenship as an incentive. The object of the Act was already public knowledge at least as of September 2015 given the two amendments.

Therefore, despite the fact that the bill was eventually passed by the Parliament this week, it could not have extended the cut-off date of 31 December, 2014 lest it benefited, even if theoretically, those who entered India with the hopes of getting Indian citizenship after this legislative intent became clearer.

There is then the reliance on protests in Assam and other states in the North East to air objections to the Act forgetting that the locals in those States want neither Muslim refugees nor the non-Muslim persecuted refugees.

There is also the Article 14 argument. "How can a law discriminate on the basis of religion?" is the question, ignoring the blatant fact that, if persecution has happened on the basis of religion, a solution will inevitably touch and concern religion. This is the very basis of the doctrine of reasonable classification developed by the Supreme Court of India in its jurisprudence spanning decades.

This approach is rather clear: If there is an object sought to be achieved (for example, to redress persecution of lower castes), a facially discriminatory law granting special privileges/benefits to those lower castes would not violate Article 14. It's the doctrine of reasonable classification which permits this positive discrimination on intelligible differentia. What the SC recognises is that a reasonable classification of beneficiaries may be done for unequal application of laws if such classification is based on some real and substantial distinction and if such a classification bears a reasonable relation to the object sought to be achieved by such unequal application of laws.

A solution to address a historical wrong which has happened on the basis of caste (mistreatment of lower castes) or religion (persecution of minorities because of the religion they practice) would necessarily entail a solution which discriminates in favour of those victims of historical wrongs.

The historical injustice/wrong may not necessarily have been a violation of Article 14 (it might just be entrenched biases and intolerance in society not attended to by the State). And the solution to it would not violate Article 14 either because of the doctrine of reasonable classification.

Scholarships for minorities comprise a classic example of positive discrimination on the basis of religion which has been held constitutionally valid (so far).

And, simply because citizenship of those belonging to the six religions is fast-tracked under this law does not mean that Muslim refugees inside India must pack their belongings and leave. They continue to be processed under the government’s refugee policy.

There are, then, questions on exclusion of other refugees. In this era of increasing global interaction, a country's refugee policy has to take into consideration several aspects – the likelihood of conditions getting better in countries from which refugees fled, the effect on bilateral relations, the potential deprivation refugee may face in regard to their assets/property in their home country if India hastily offers them citizenship and so on.

The passage of the Citizenship Amendment Bill has, indeed, offended the governments of Pakistan, Afghanistan and Bangladesh, but the Narendra Modi government weighed the net benefit of this exercise as elaborated by Home Minister Amit Shah in Parliament.

Notably, Article 2 of the Pakistani Constitution, Article 2A of the Bangladeshi Constitution and Article 2 of the Afghanistan Constitution state that Islam is the official/state religion of those three countries. This, coupled with Islamic extremism widely prevalent in these three countries, the nature, length and extent of persecution suffered by the six groups and the highly likely irreversibility of factors encouraging persecution in those three countries, was, in the Modi government's view, sufficient a factor to give permanent rights to persecuted religious minorities.

Virulent opponents adding every possible suffix an 'anti' to label the Act do not realise that India has gone above and beyond basic refugee obligations the international community expects from democracies. India isn't merely placing them in a camp where they would be safer than where they came from. Nor is India favoring Hindu refugees alone unlike the United States (see this) or Australia (see this) who have recently indicated an explicit preference for Christian refugees.

By giving them a life of dignity as Indians, the Modi government has regularised the immigration status of hapless Christians, Hindus, Sikhs, Buddhists, Parsis and Jains who fled the same environment that nearly killed Asia Bibi for sharing a vessel from which to drink water.

The section of this article which deals with Article 14 has been expanded to further clarify the author's position on arguments against the constitutional validity of CAA.