The Citizenship Amendment Act has created a political storm in the country. Several state governments have opposed the Act and declared that they will not implement it. No other legislation has met with such strong reaction and that too from several sections of society. It brings out that, contrary to popular perception, majoritarianism has severe limitations in a functioning democracy.
It has become a fashion these days to invoke the Constitution every now and then but in doing so, more often than not, it brings out the lack of knowledge of what the Constitution has ordained. Otherwise, the chief minister of West Bengal, Mamata Banerjee, would not have declared that the Act will not be implemented in the state. She also declared that the National Register of Citizens (NRC) exercise will not be permitted in her state. She has even challenged the Centre to impose President’s Rule in West Bengal. One is aghast at such pronouncements. The chief minister seems oblivious of the fact that “citizenship, naturalisation and aliens” are subjects listed in entry 17 of the Union List of the Seventh Schedule of the Constitution. Further, founding fathers of the Constitution have, with foresight, provided for situations of state governments opposing the implementation of acts passed by Parliament. Article 256 of the Constitution states: “The executive power of every state shall be so exercised as to ensure compliance with the laws made by Parliament.” If the states defy this provision, it will be nothing less than a breakdown of the Constitution.
Leaving aside these immature pronouncements, what is of concern is that the main issues have been side-tracked by the Centre by getting the CAA passed, primarily to fulfill its agenda of converting India into a Hindu Rashtra. The government invoked Partition, Jinnah’s two-nation theory, and the Nehru-Liaquat agreement to justify its stand. But its reasoning is untenable.
That there has been massive illegal migration to India in the last few decades is an undeniable fact. Parties now in the opposition, particularly the Congress, should not forget their invidious role in facilitating it. It is well established that illegal migration in Assam was overlooked, if not encouraged, by successive Congress chief ministers since Fakhruddin Ali Ahmed in the 1970s. It was only after the matter was raised in the Supreme Court through a public interest litigation (PIL) that it became a part of the national agenda. The apex court castigated the Union government and said such large-scale illegal migration was nothing less than foreign aggression and had to be defended against as such. Even then successive Congress governments failed to take any action. As a last resort, Assam students launched an agitation which held the state to ransom for years. When Rajiv Gandhi became prime minister, the Assam Accord was signed with much fanfare. But the Centre failed to grasp the full implications of it. The Accord remained on paper for years when the Congress was in office. The matter had to be taken to the Supreme Court through a PIL, which led to the updating of the NRC in Assam under the supervision of the apex court. The problem has been in the making for years. Parties such as the Congress at the Centre, the CPM in West Bengal and Janata Dal in Bihar, actively encouraged resettlement of illegal migrants in their states and contributed to the problem.
The migrants can be divided into four groups: Refugees, legal migrants, illegal migrants, and infiltrators. The Oxford dictionary defines refugees as persons escaping to a foreign country as a result of religious or political persecution; migrants as person moving from one place (country, town) to another; and infiltrator as gradual, unobserved occupant of ground or territory by detached parties or settlers. Refugees in India were mainly from Pakistan after Partition and also before the Bangladesh war, and during the uprising against the Tamils in Sri Lanka. Almost all of them have gone back. Migrants who have come from other countries with prior permission are few. The main problem is of illegal migrants and infiltrators.
How are we going to deal with them? By declaring the Muslim migrants as stateless persons? After denying them citizenship, are they to be removed to camps guarded by security personnel? Do we have the infrastructure to keep lakhs of such stateless persons in designated camps? Refugees who came after Partition were housed in huge camps such as in Dandakaranya. Do we have such open spaces now? Is it possible to acquire land for such camps and provide facilities such as water and civic amenities? The experience of camps set up after the massacre in Nellie, Assam in 1983 and major communal riots in Delhi, Godhra and Mumbai should not be forgotten.
Making only non-Muslims eligible for citizenship could have been avoided by proposing that any migrant persecuted on religious or other grounds will be eligible for citizenship. This would have qualified Ahmediyas from Pakistan, who are undeniably persecuted in Pakistan. It could have also covered cases like that of Bangladeshi writer Taslima Nasreen. Very few Muslim illegal migrants would be able to show that they were persecuted in Afghanistan, Bangladesh or Pakistan. In fact, it was not necessary to name any country at all in the Citizenship Act.
Finally, where are the Muslim migrants expected to go? When the Shiv Sena-BOP government was in office in Maharashtra in the mid-1990s, efforts were taken to round up illegal Bangladeshi migrants in Mumbai and deport them to Bangladesh, after obtaining court orders. The police party that took them to West Bengal for deportation met with stiff resistance not just from the state government but also civil society groups. The police had to return to Mumbai and the illegal migrants had to be released.
The task force on border management under my chairmanship, appointed by the Union government after the Kargil war, had, in its report submitted in the year 2000 recommended that the government should enact a refugee law and introduce work permits to address the issues. The task force had also recommended that the work of border-guarding forces must be scrutinised closely to ensure that illegal migration is reduced to the minimum. Even after two decades, these recommendations remain on paper.
Finally, declaring Muslims as non-eligible for citizenship is not an answer to the problem. That is to side-step the real issues for political mileage. The issues need to be addressed holistically and a realistic policy has to be evolved. For this purpose, the enforcement of the Act needs to be kept in abeyance until a conducive atmosphere is created. The government must bring out a white paper for national debate and discussion.
Let the issue not be left to the Supreme Court to decide, for these do not pertain merely to the constitutionality of the Act. This is an opportunity to show the world that India is a mature democracy and can address such complex issues wisely and in a democratic way.
The writer is a former union home secretary and secretary, justice. His recent books are Babri Masjid-Ram Mandir Dilemma and India’s Governance