PROMINENT CONSTITUTIONAL expert and former secretary general of the Lok Sabha, Subhash Kashyap, had warned the Joint Parliamentary Committee on the Citizenship (Amendment) Bill two years ago that the legislation should omit any “reference to religions like Hindus, Sikhs, Parsis, etc.” — and use only “persecuted minorities”.
Tendering evidence before the JPC on CAB 2016, Kashyap suggested that “persecuted minorities” would include all those whom the legislation aimed to cover. “My view was that it would have meant the same thing. I had said it to the Joint Parliamentary Committee. It was not necessary for them to specify Hindus, Sikhs, Christians, etc. They could have achieved the purpose without that, too,” Kashyap told The Indian Express.
Kashyap, who was secretary general of the seventh, eighth and ninth Lok Sabha, said that with both Houses of Parliament having passed the CAB, and the President giving assent, the only way to “correct it” is through the “court of law” or by Parliament amending the Act.
Criticising the violent protests against the Citizenship (Amendment) Act as “lawlessness”, he said the protesters should remember that “the same Constitution of this democratic country holds Parliament as supreme”.
“As believers of the Constitution, we should accept that there are ways to correct it, not by protesting violently or Constitutional expert told House panel 2 yrs ago: Omit reference to religions in CAB damaging public properties,” he said.
Referring to himself as “a student of the Constitution”, Kashyap said: “It (the CAA) can be questioned in a court of law. Or in a democratic way, you can also try to change it in Parliament, either by changing the complexion of the Lok Sabha in the coming elections or moving an amendment to the Act and getting a majority for it.”
Pointing out that those who opposed the Bill in Parliament were in a “minority”, Kashyap said that those who voted in favour of the CAB and are opposing it now are “playing to votebank politics”.
“Those who are protesting are not elected representatives of people… So far as the Constitution is concerned, rightly or wrongly, the elected representatives have taken a decision,” he said.
Kashyap, however, asserted that another question to be addressed in relation to the new citizenship law is whether the country, which is facing an economic slowdown and joblessness as well as other issues, should “open the floodgate for refugees from these countries”.
Speaking to The Indian Express, Sushmita Dev, Congress leader from Assam who was part of the JPC constituted during the 16th Lok Sabha and submitted a dissent note, pointed out that Kashyap had proposed that the issue or refugees could have been solved through the Constitution. “Why did BJP bring such a Bill? It was purposefully drafted in a way that they can use it as a political tool,” she said.
The report of the JPC, which was tabled in Parliament in January this year, details Kashyap’s view without mentioning his name.
“While making an observation on the word minority included in the proposed amendment Bill, one of the Constitutional experts while tendering evidence before the Committee opined as under: ‘Firstly, the term minority has not been defined in the Constitution. I would submit that minority does not mean only religious minority. It may be minority on other grounds…If you say persecuted minorities, it will cover all those people you have in view’,” the report said.
“The Constitutional expert further stated: ‘…If you want to be on the safer side, we would have to omit reference to religions like Hindus, Sikhs, Parsis, etc. I again submit that if we use the term ‘persecuted minorities’ the purpose would be served. As compared to communities, minorities would perhaps be more useful from the legal and constitutional point of view’,” it said.
Incidentally, the JPC had sought the Law Ministry’s view on the issues raised by Kashyap. “In response, the Legislative Department submitted as under: ‘Using persecuted minorities from the neighboring countries instead of its current form may negate the objectives of the Bill. As there is a possibility for wider scope of interpretation, it may be construed to include other communities (religious or otherwise). Moreover, the aspect of ‘religious persecution’ would also be lost sight of’,” the JPC report stated.
The report also said that when asked about the mechanism available with the government to “establish religious persecution in a foreign land”, the Home Ministry said: “Inputs from security agencies along with other corroborative evidence in the print/electronic media would help to establish religious persecution in a foreign land.”
The Citizenship (Amendment) Bill was first introduced in the Lok Sabha in 2016, after which it was referred to the JPC. After the committee submitted its report, CAB 2019 was passed by the Lok Sabha on January 8 but kept pending for consideration by the Rajya Sabha. The Bill lapsed after the 16th Lok Sabha was dissolved for the elections in May.
The Bill was brought again to the House in the winter session, with the government, which enjoys an overpowering majority in the Lok Sabha, managing the numbers for it to be cleared in the Upper House, too.