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The Citizenship Amendment Act (2019) and Designed Protest

Prof. Anand Paliwal

Every Country has the sovereign right to decide to whom to admit as citizens, according to which criteria and under which selection procedures. This not only governs the present situation but also the question what type of Nation it wants to be in future.

States are legal entities. Their character and identity, destiny and aspiration, are defined by peoples. Shakespeare one remarked “What is the city but the people?… The people are the city. When the people change, the city changes as well. It may be the same geography with the same city hall, but its character will be different. In referring to ancient Greek cities, Aristotle observes, “Every state is a community of some kind, and every community is established with a view to some good.” This community of some kind, which shares a view of some good, is established through a social contract-a partnership of citizens in constitution. Aristotle states that a “Constitution” is not a formal legal document; rather, it is the community’s essential way of life and its form of government. When the defining principles of the constitution change, the city changes. When the form of government changes and become different, then it may be supposed that the state is no longer the same, just as a tragic differs from a comic chorus, although the members of both may be identical, the sameness of the state consists chiefly in the sameness of the constitution, and may be called or not called by the same name, whether in inhabitants are the same or entirely different.

The city can be composed of “unlike”- that may even be desirable – yet people should share a bond that keeps them together, a common goal. On a sailing ship, Aristotle argues, sailors have different functions. One is a rower, another is a pilot, and a third is a look-out man. But in spite of their different functions, they all have one common goal- the safety of the ship. In a city, Aristotle analogizes, “one citizen differs from another, but the salvation of the community is the common business of them all.” The essence of the community “is the constitution” and “the Virtues of the citizen must therefore be relative to the constitution of which he is a member.”

There are plenty of unresolved questions: for example, what is this bond or common object? Who shall decide and according to which criteria? But the most puzzling question is how legitimate is it to protect fundamental changes in the city’s character by controlling its gates; can the city preserve its character by setting selective rules of admission? Aristotle replies to this question in the affirmative. He argues that citizenship law can be used to preserve the character of the city. “The law is relaxed when there is a dearth of population.” he declares, “but when the number of citizens increases,” the rules have to be changed by restricting the option of becoming a citizen, for example, by grating citizenship only to a person ” who shares in the honours of the state.” Indeed, when the number of non-Athenians who settled in Athens following the Greco-Persian Wars sharply increased. Pericles, the Greek statesman, changed Athenian law so as to grant citizenship only to children whose mother and father were both Athenians (the previous law was content to grant citizenship to every child, provided his father was Athenian). Pericles’ citizenship law was a means of constitutional design in order to preserve the identity of Athens. One may hold a different view, but the question is worth pondering as it goes to the heart of the most fundamental issues of politics: who are “we” and in what type of city do “We Want to live?

In Nottebohm case, Liechtenstein is Guatemale I.C.J. Rep. 1955 page 23, April 6, 1955. The International Court of Justice ruled that “International Law leaves it to each state to lay down the rules governing the grant at its own nationality”.

In the Costa-Rica nation, the Citizenship by Nationalization, allows five years for the citizens of other Central American Countries, Spaniards or Latin Americans by birth and seven years for other Nationalities.

The reason to favour is that those who objectively have with the Costa Ricans much deeper historical, cultural and spiritual ties, which lead to the assumption that they will incorporate themselves into the national community faster and more simply and that they have a more natural identification with the beliefs, values and institutions of Costa Rican tradition, which the state has the right and duty to preserve.

Earlier before invoking the same, the Govt. of Costa-Rica sought Advisory opinion from Inter American Court at Human Rights (Advisory opinion OC-4/84 of Jan 19, 1984). The Six Judge Court by unanimous vote held that the provision stipulating preferential treatment in the acquisition of Costa Rican nationality through naturalization, which favours Central American, Latin Americans and Spaniards over other aliens, does not constitute any discrimination. The Court while accepting the advisory opinion states which is worth mentioning here:

“To this end, the court will have to exercise great care to ensure that its advisory jurisdiction in such instances is not resorted to in order to affect the outcome of the domestic legislative process for narrow partisan political ends. The Court, in other words, must avoid becoming embroiled in domestic political squabbles, which could affect the role which the convention assigns to it. In the instant case which, moreover, is without precedent in that it involves a governments request for the review by an International Court of a proposed constitutional amendment, the court finds no reason whatsoever to decline complying with the advisory opinion request.”

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Nationality is based rather on a voluntary act aimed at establishing a relationship with a given political society, its culture, its way of life and its values. The conditions and procedures for the acquisition of Nationality should be governed primarily by the domestic law of that state.

The Court held that the proposed amendments though impose stricter requirements for the acquisition of Costa Rican nationality by naturalization, but since they do not purport to withdraw that nationality from any citizen currently holding it nor to deny the right to change that nationality. The court held that they do not contravene any provisions of International Law and Human Right Conventions. It is within the sovereign powers of the Costa Rica to decide what standards should determine the granting or denial of nationality to aliens who seek it and to establish certain reasonable differentiations based on factual differences which, viewed objectively, recognize that some applicants have closer affinity than others to Costa Rica’s value system and interest.

International law has traditionally provided states with broad discretion in regulations immigration. The British House of Lords in R (BAPIO Action Ltd. and anor v. Secretary of State for the Home Department and anor [2008] I A.C. 1003:p.1007). Reaffirmed this position by ruling that “It is one of the oldest powers of a sovereign state to decide whether any, and if so which, non-nationals shall be permitted to enter its territory, and to regulate and enforce the terms on which they may do so.”

About a year later, the U.S Court of Appeals for the D.C. Circuit in Kiyemba v. Obama 555 F. 3d 1002,p.1025 (D.C.Cir.2009) held that ” a nation-state has the inherent right to exclude or admit foreigners and to prescribed applicable terms and conditions for their exclusion and admission.

It is an accepted maxim of International Law, that every Sovereign Nation has the power, as inherent in the sovereignty, and essential to self- preservation, to forbid the foreigners within its dominions, or to admit them only in such cases and upon such conditions as may see it fit to prescribe.

The Citizenship Amendment Act 2019 (CAA) is not depriving any existing citizens from their citizenship rights nor is it denying citizenship to any person on any religious or regional grounds. The Act simply relaxes the Citizenship by Naturalization to the persecuted minorities of the Pakistan, Bangladesh and Afghanistan. Further it is for the nation to decide the rules and regulations for governing the citizenship and it cannot be dictated to the nation by any external forces. The granting or refusing the Citizenship is the sovereign function and is to be governed by the domestic laws of the State. The United Nation High Commission for Human Rights intervention application in the Supreme Court over the Citizenship Amendment Act, 2019, is unwarranted. The United Nation High Commission for Human Rights has no locus standi on the citizenship issue because this is the internal subject matter of India and is to be governed by the domestic laws. The sovereignty of a nation cannot be interfered on the presumed apprehensions of Human Rights violations.

Next comes the question than why there is the protest going and terming the CAA as against the Right to Equality of Constitution of India. The main argument is that the word Muslim is missing from the Act and the relaxation benefits is extended only to the Hindu, Sikh, Buddhist, Jain, Parsi and Christian religious minorities, who had fled persecution from Pakistan, Bangladesh and Afghanistan. The Opposition parties and the Left forces has gone to the extent of terming the Rashtriya Sayam Sewak Sangh (RSS) and Bhartiya Janta Party of dividing the nation on religious grounds and working to create the Hindu Rashtra.

Let it be specifically clear that the Nation has already been divided on religious grounds. The historical analysis of the past events right from the creation of the Pakistan as a nation on religious grounds and dividing the Hindu Community will unfold the reasons behind these protest. Be it Mahatma Gandhi or Netaji Subhash Chandra Bose, they have to endorse the religion related issues of Muslims i.e. Khilafat Movement and Removal of Holwell Movement respectively to encourage and ensure the participation of Muslims is the freedom struggle, but to the contrary when Jinnah promised the Muslims the dream of a Dar-ul-Islam, a promised land where Islam would flourish with its dignity resorted, the Muslims were ready to fight for it and go to any extent.

This religious fundamentalism the nation has witnessed which resulted in the partition of the nation as India and Pakistan and brutal atrocities on the Hindus who were residing in newly created the Pakistan State. The strategy to divide Hindu on caste lines for their ulterior motives as always been a strategy part of Muslim league in pre-partition era and they succeed in this too. The same strategy is now being adopted by some political parties and Muslim Organisations.

 

When the Report on Minority Rights was presented for discussion along with the schedule the Prof Shibban Lal Saksena and Sh. K.M. Munshi strongly objected on placing Schedule Caste at point seven in Group C along with Muslim in Schedule. They stated it as Jinnah Strategy to include the Schedule Caste as minorities and disintegrate them from Hindu community whereas Schedule Caste are integral part of Hindu community. (CAD Vol. NO. (I-VI) Book –I Lok Sabha Secretariat page 235).

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Jinnah’s Muslim League, has previously too paid money to Santhals Tribes in Bengal (pre-partition) to do Anti-Hindu propaganda and to disassociate themselves from Hindus. (Express letter no. 246C from the D.M. Bankura to the Additional secretary, home political department, Govt. At Bengal, 3 March 1941, in the report of the commission, Burdwan Division LOFCR for the first fornight in March 1941, GBHCPB file 13/41.)

Chaudhary Sir Muhammad Zafarullah Khan who belonged to Ahmadiyya Community was one of the most vocal proponents of Pakistan and led the case for the separate nation in the Radcliffe Commission which drew the countries of modern-day South Asia. He is considered as one of the leading founding fathers of Pakistan and was the first foreign minister. Therefore the stand that certain sect of Muslims too are being persecuted is a weak argument against other religious minorities who were assured freedom and safety but with the passage of time, they were terrorized, converted and forced to flee because of Islamic Fundamentalism.

Jogendra Nath Mandal, who as a leader of Scheduled Castes made common cause with the Muslim League in their demand for Pakistan, hoping that the scheduled caste would be benefitted from it and joined the first Cabinet in Pakistan as the Minister of Law and Labour. He later migrated to India in 1950 after submitting his resignation to Liaquat Ali Khan, the then Prime Minister of Pakistan, because of the atrocities against the Hindus which include brutal killings, rapes and abduction of women and forcible conversions to Islam. He realised the biggest mistake of convincing the community of safety against the Muslims in Pakistan, which he failed to fulfilled as a Law Minister. When Mandal realised this it was too late. What the U.N or the others nations expert from us by being liberal on national policies. The Nation has suffered the partition on religious grounds

Terming RSS (Rashtriya Swayam Sewak Sangh) as communal and behind this is to divert the crucial aspect of growing Islamic Fundamentalism. The blame game on RSS from the Opposition parties and the Left forces has been the tactical stand of these parties to remain in power despite putting the future of the nation and constitutional identity at peril. Even when the communal tension was at peak in the year 1945-47, the then Government regarded the tiny Byam Samitis which were associated with the Forward Block as ‘potentiality dangerous’, while sticking to the view the RSS (Rashtriya Swayam Sewak Sangh) held no threat to public order. (Special Branch Memoranda on Volunteer Organisation, tabled in GBSB ‘PM’ series, files 829/45 and 822/47 I.)

To be concerned about the National Identity and for its citizen’s cannot be termed as communalism. This self-created notion by Left academia has to be changed and required to be interpreted in light of Integrity and National Identity reflecting the spirit of the Indian Constitution.

The changes in the scale, composition and pace of illegal immigrants and further the rise of Islamic fundamentalism in India has made this notion false that “Majority can take care of itself and require no attention”.

The United States of America and European Nations have kept the issue of National Identity intact and secured, and this right is available to every sovereign nation. There are instances where the European Nations have acted and preferred their values and culture supreme over the religious one and there is no protest, but in India even the Act passed by the Parliament and in accordance to the Indian Constitution and Indian Citizenship Act is being protested.

Shifting demographics have always been a source of concern. The majorities view the immigrants as a challenge to their identity which comprises the religion, language dress code, tradition, cultural and values. Even the United States passed the Chinese Exclusion Act in 1882 which was motivated by demographic threat of large influx of Chinese immigrants, who were perceived to be culturally different and incapable of integration.

In the Baltic Countries or in Ukraine, for example, the non-Russian majority lives in countries bordering the powerful Russian Federation. The idea that these countries should admit massive Russian immigration is perceived as dangerous by the majorities. While it is impossible to provide an Archimedean point from which one can exactly identify of regional-minority; some factors may be considered: the level of the cultural gap and its manifestation; the numerical ratio between the majority and the neighbouring countries, as well as the size of the minorities joined by the immigrants; the strength of the majority cultural; geographic proximity; the potential scale of immigration from neighbouring countries; and the level and pace of integration of newcomers into the majority cultural. The point is sense of anxiety on the part of the majority group that is not purely subjective, but is supported by evidence.

Kymlicka, W., provides in “The Internationalization of Minority Rights,” International Journal of Constitutional Law 6 no. I (2008) some examples; the German minority in Poland, the Hungarian minority in Romania, the Russian minority in Ukraine and Moldova, the Serbian minority in Croatia and Bosnia, and the Turkish minority in Bulgaria. “In such cases,” he observes, “minorities are seen (rightly or wrongly) as allies or collaborators with external powers that have historically apprised the majority group, and the majority group, in turn, reacts as a ‘minoritized’ majority’. In these scenarios, further immigration of people sharing the minority background is perceived by the national majority as a threat to its territorial integrity and sovereignty.

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The metamorphosis of the immigration which is adding to the already existing minority, who has the history of victimizing the majorities cannot be taken for granted by the nation. The European nations and the USA has framed the policies not only against illegal migration but has taken strict steps against growing Islamic fundamentalism.

The Nation requires to act in this direction only because here the migration is not labour migration but family migration which is going to change the demographic structure if appropriate steps as taken by the European nation is not done. It is a time when Europe has started enforcing assimilation. India too should stop appeasement and introduce Uniform Civil Code. When Hindu Code Bill was introduced in 1955 it was stated that soon in next phase the uniform civil code too will be introduced. The succumbing of past governments before Islamic Fundamentalism has weakened the secular fabric structure of Constitution.

In the present era, the changing pattern of population growth and further illegal migration have given rise to a new questions that the majority rights too should be taken care of.  Majority culture should not be threatened and they should remain neutral in public sphere has changed. The Total Fertility Rate (TFR) religion wise in India is a matter of concern and the nations like Austria, Denmark, France, Germany, Netherland, UK has suffered because the TFR of the non-Muslims is below the TFR of Muslims and therefore, now the minority has become sizeable and dominant too.

This fact also requires a strict consideration which has been the outcome of PEW Research Centre and other numerous studies that the majority of Muslim students have stated that for those religious commands are superior than the constitution. Quaran commandments are more important to them then the democratic principles. They will prefer to live in a country where ‘Saria Law’ is source of law. The liberal policies of India and the opportunistic political parties are strongly compromising on these vital issues regarding the Nation’s future. These debates and true factual position should not be treated as communal but in the interest of nation’s future and integrity

If the European Union and the United State of America has the reason to go for National Identity and against Islamic Fundamentalism, then India has much more stronger reasons to frame act and ensure it’s implementation. The India is a case in which the majorities has been victimized and has a history of being persecuted by Islamic Fundamentalism.

George Bernard Shaw once claimed, “A healthy nation is as unconscious of its nationality as a healthy man of his bones. But when its sense of nationality become insecure, ” it will think of nothing else but getting it set again. (Bernard Shaw, John Bull’s other Island and Major Barb, New York: Brentano’s, 1916).

They expect us to succumb before the Islamic fundamental fore on the sovereign issue. The EU are conducting the research and publishing the books, which the India till now has not done. If the same had been done the outcome would have strongly supported the need of CAA & NRC and it would have rebuffed those who aspire to gain selfish goals in creating upheaval in the country. India has been ailing under the pressure of Islamic fundamentalism since long. The institutions like Deoband, Aligarh Muslim University, Jamia Milia University and substantial number of Madarsas operating propagate religious radicalism among the youth and thus misguide them.

The UNHRC has aligned with the minorities who have gone for armed rebellions, but has never strongly represented the case of those who belong to the persecuted minorities. The protest is not because of CAA but because the government has taken the steps in ensuring secularism and not Muslim appeasements. Further the steps which are being taken to bring National Identity first and equal treatment to all the Citizens has disgruntled the hopes of the Islamic Fundamentalist Forces who were leading Nation towards a quagmire. The International Community and United Nation High Commission for Human Rights should understand now that the Nation has the sovereign power to make or even enforce the law to conserved and preserve the integrity of the nation as a whole. The most fundamental question which requires introspection is who are “we” and “what” type of Nation “we want to live”.

Sources:

  1. William Shakespeare, The Oxford Shakespeare Coriolanus, R.B. Parker, ed (Oxford; Our, 2008)
  2. Aristotle, Politics, Benjamin Jowett, trans. (New York: Dover Publication, 2000) (Book 1,I)
  3. Aristotle, The Athenian Constitution, Peter 5, Rhodes, Trans. (New York; Penguin Books, 2004).
  4. Ian Buruma, Murder in Amsterdam: Liberal Europe, Islam, and the Limits of Tolerance (New York: Penguin Books, 2006): pp. 94-95.
  5. John Thorne and Hannah Stuart, “Islam on Campus: A survey of UK student Opinions,” Centre for Social Cohesion, 2008: p. 43.
  6. Pew Research Centre, “Muslim Americans: Middle Class and Mostly Mainstream,: 2007: pp. 53-54.

(Author is National Vice President of ABVP &  Dean, University College of Law Mohanlal Sukhadia University, Udaipur)

 

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