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Wednesday, September 22, 2021

A State can have reasons to discriminate among non-citizens

The Constitution of India provides for positive discrimination. The CAA extends this principle to persecuted minorities in the Subcontinent.

Written by Shiv Narayan Dhingra |
Updated: February 11, 2020 10:16:09 am
Citizenship Amendment Act, citizenship amendment act, caa, nrc, caa nrc protests, npr, national population register, caa protests India, indian express The word secular has not been defined in the Constitution of India. Article 15 is the first article in the Constitution, which mandates that the state shall not discriminate against any citizen on ground of religion, race, caste, sex or place of birth. (Illustration by C R Sasikumar)

By the Citizenship Amendment Act 2019, a proviso has been added to section 2 (1)(b) of Citizenship Act 1955, modifying the definition of illegal migrants and specifying that the persons belonging to Hindu, Sikh, Buddist, Jain, Parsi or Christian community from Afghanistan, Bangladesh and Pakistan, who entered India on or before 31.12.2014, were not to be treated as illegal migrants, if exempted by the central government. Section 6 (b) has been added in the Citizenship Act for grant of citizenship to such persons on fulfillment of certain conditions and restrictions as prescribed.

Section 6 of the Citizenship Act 1955 otherwise provides for citizenship by naturalisation of a category of persons as per the provisions of the 3rd schedule of the Act. The purpose of enacting Citizenship Amendment Act 2019 is to give citizenship by naturalisation to the persons of such communities, who faced persecution in three neighbouring countries because of them belonging to said communities. It has to be kept in mind that these communities are minority communities in three neighbouring Islamic countries. The persons of above minority communities, now living in India, were made to flee from these countries due to fundamentalism, intolerance and torture on the ground of religion: Blasphemy laws in these countries are so rigid that the onus of proving innocence lies on the accused and not the complainant. A student can lodge a complaint with the police that his teacher committed blasphemy by not properly interpreting the religious scriptures or showing the religious scriptures in bad light. It is not a secret that in many such cases, in these neighbouring countries, people have lost their lives at the hands of violent crowds. The punishment for blasphemy is death. The terror in the minds of minority communities — of being implicated in false cases of blasphemy has come to light in many instances. The USA and other European countries have been using strong-arm tactics against harassment of Christian communities in these countries, especially in Pakistan, and have ensured that members of the Christian community who face blasphemy get proper legal help. However, the fear is so much that Pakistani lawyers appearing on behalf of such accused have faced threats to life. Minority communities have been decimated in these countries either by killing them or by converting them forcibly to Islam.

The problem of granting citizenship to those who had taken shelter in India was pending for long. Almost all political parties at different times had expressed their concern for these communities and advocated for granting citizenship to them. However, since the advent of coalition governments in India, no political party in power had the courage to bring such a law, lest it affect their vote bank. After this law was passed recently by the Parliament, those very political parties, who in the past had been advocating for citizenship to these minority communities, started opposing it in the name of secularism.

The word secular has not been defined in the Constitution of India. Article 15 is the first article in the Constitution which mandates that the State shall not discriminate against any citizen on ground of religion, race, caste, sex or place of birth. The mandate given to states is in respect of citizens — that the citizens of this country cannot be subjected to any disability or discrimination on the grounds of religion, race, caste or place of birth. The Constitution has not mandated that non-citizens also cannot be discriminated against on the grounds of religion, race or caste. A State can have reasons to discriminate among non-citizens.

These reasons may be various and one may be the security of the State. India has been facing terrorism from across the border for decades. This terrorism in India is primarily sponsored terrorism by the neighbouring state: Some terrorist organisations based in Pakistan have proclaimed their goal of establishing an Islamic fundamental order in India. This goal is openly pronounced in the meetings of terrorist organisations. The sole motive of these terrorist organisations is to establish Islam’s rule in India and to crush all other religions and communities and subjugate them. Afghanistan is fighting a bitter battle against terrorists who have the support of Pakistan. Terrorist organisations in Bangladesh also get support from Pakistan. This is good enough reason for the Indian State to deny naturalisation of illegal migrants/infiltrators belonging to the majority religion of these neighbouring countries.

Secularism in the Constitution is spread over its different articles. The word secular in the preamble was not present when the Constitution was framed. Indian secularism is based on equal respect for all religions of the citizens of India, that is the Indian concept of “Sarva Dharama Savabhav”. Based on this concept of secularism, an attempt was made in the 45th Amendment Bill of the Constitution to define secularism. This definition could not be adopted by Parliament because of inadequate support in Rajya Sabha. The definition read — the expression secular Republic meant that there was equal respect for all religions. Interestingly, the Congress party in opposition at that time opposed the adaptation of the definition introduced vide 45th Constitutional Amendment Bill 1993. This amendment proposed to insert a new Article 28(a) reading “the State shall have equal respect for all religions”.

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Despite the Indian State being a proclaimed secular state in view of the various articles of the Constitution, the central and state governments, right from independence, did not profess secularism even in making laws. What was needed was to separate religion from the civil rights of the citizens. The Constitution had mandated enacting a Uniform Civil Code which would have protected all the citizens, irrespective of their caste, creed and religion in respect of their civil rights. It would have left them free to profess any religious practices in respect of worship of God, Deities, Prophets or Holy Books, adopting any ritualistic practices in their worship, provided the rituals did not interfere with the rights of other citizens.

However, instead of framing UCC for all citizens of India just like the Uniform Criminal Code — which treats as equals all citizens of India, the governments went on to regulate the practices associated with Hindu community and made significant changes in the Hindu personal laws. It is not that these changes were not required but similar changes were equally required to be made for all citizens of this country, irrespective of their religion. While the state took steps in respect of Hindus, it did not take similar steps of enacting progressive laws in respect of Muslims and Christians and even when the courts tried to give such rights to followers of Muslim faith, the government at the Centre overturned the decision because it enjoyed majority in the legislature. The word secularism was present in the preamble when the Shah Bano ruling given by the Supreme Court was overturned by Parliament. The principle of secularism is there in the Constitution from the very beginning. Non-framing of the UCC by Parliament defeated the very concept of secularism. The first step to be taken by the legislature towards secularism is enacting UCC.

The developments until now have exposed the sham secularism of the contemporary politicians, the governments and the legislature. Therefore, the State has, from the beginning, been accused of showing undue protection of even the most foul practices of minority religions and interference with the majority community at will. The propagators of secularism have been using the word only as a tool for vote mopping: Their real credentials have never been secular.

Article 14 of the Constitution mandates the State equality before law for every person. Article 14 is not qualified by the word citizen, whereas Article 15 is qualified by the word citizen and mandates that the State shall not discriminate against any citizen only on the ground of religion, race, caste and sex. While interpreting Article 14 as early as in 1953 in Satish Chandra Vs. UOI (AIR 1953 SC 250), the SC stated that the guiding principle of Article 14 was that persons and things similarly circumstanced shall be treated alike. The provisions of Constitution do not forbid different treatment of unequal: The rule is that like should be treated as like and unlike should be treated differently. Uniform treatment of unequals is as bad as unequal treatment of equals (AIR 1989 SC 88).

As stated earlier, the position of minority communities in all the neighbouring countries and the position of Muslims in the same countries has never been equal and the minority communities there have consistently suffered at the hands of the majority community. The Indian statute book is full of instances of special legislation applying only to a particular class or group. Discrimination on the ground of caste and sex has often been approved by the Supreme Court if it is done as positive action by the legislature to protect the groups or to undo the historical injustice. Despite Article 15 (I) mandating that there shall be no discrimination on the ground of religion, race, caste, sex and place of birth etc. Article 15(IV) mandates that the State has a right of making special provisions for advancing any socially or educationally backward classes. The State has been making laws preferring women over men or making special laws for securing protection for certain sections of the society on the ground of historical injustice done to such communities. The State has full authority to pass a law to undo injustice done to minority communities of neighbouring countries, who have sought refuge within its borders.

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The Indian Constitution meticulously lays down the power of the State and the Union. It creates a balance between the power of State and Union. While the Union normally cannot interfere with the powers granted to a State by the Constitution, the States also cannot refuse to administer the laws passed by the Union. The Constitution has given authority to the Centre to enforce its administrative directions against the States and to compel them to comply with them. This power is intended to ensure harmony between the Union and the State. The executive authority of the States have to be so exercised that it ensures compliance with Union laws and its administrative directions. Where a State exercises authority to impede or obstruct the execution of Union Laws or services, the State exhibits a definite attitude of hostility against the central government, and, the central government — in order to maintain the integrity of the country, has been empowered to intervene. States have no option but to implement the laws passed by the Union.

The Indian Constitution does not envisage dual citizenship, one of the State and other of the Centre — there are no state citizenship laws. The power in respect of the laws for citizenship exclusively lies with the Union. The State has only one option: To approach the judiciary only if it feels that the law was not as per Constitutional provisions. Passing of a resolution by a state assembly is a meaningless exercise, only having a palliative effect.

The Constitution makers and the people of this country have opted for Parliamentary democracy, which works by the principle of majority rule. This implies the willingness of the minority for the time being to accept the decision of the majority. Normally the political parties have their own agenda and they go to the people with this agenda at the time of contesting elections. The political parties are divided on the issues of policies. In a country like India, there is an existence of a large body of voters who owe no allegiance to the vision of any party and they at the time of election decide, which political party would serve the national interest in the best way or whose policies should be considered best for the nation and best for the people. Once the people have exercised their right, the minority is supposed to respect the majority opinion and wait for the next election and convince the people that the policies of the political party in power were not good for the country. The minority cannot take the law into its own hands nor can it undermine the will of the majority expressed through their representatives in the Parliament. If they do not want to wait for the next parliamentary election, they have the option of bringing a no-confidence motion against the present government. The battle for political parties is fought during the general elections or within the Parliament during debates and it is not fought on the streets, as the same leads to anarchy.

This article first appeared in the print edition on February 11, 2020 under the title ‘A welcome reservation’. The writer is a former judge, Delhi High Court.

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