CAA-NRC and the Supreme Court

One is a relative, the other a stranger, say the petty minded

The entire world is a family, say the magnanimous

[[Maha upnishad: Chapter 6, verse 72]

Note: Vasudhaiva Kutumbakam (the entire world is a single family), the verse above, is engraved at the entrance to the hall of India’s parliament.

Crime of the descendents

In June 1971, Sabbir Rafi fled his village near Dhaka and crossed the border into West Bengal. The Pakistani military was raping, looting, torturing and killing the East Pakistanis in what was the largest genocide operation since Hitler. Sabbir was fortunate to run away with his wife and children. His son Nabil was 10 and daughter Safina, 6. In India, Sabbir began working as an electrician, his children graduated, Nabil worked in a bank and Safina taught in a school. Sabbir had four grandchildren born between 1988 and 1990. The family further expanded with great-grandchildren born between 2010 and 2013. At the time of his death in 2015, Sabbir Rafi had two children, four grandchildren, and four great grand-children. Other than Nabil and Safina, who entered India as kids, the rest of the family was born in India, had never left India, and had never set foot in Bangladesh. Not having seen or been to another country, they considered themselves Indian.

India’s CAA-NRC package (citizenship amendment act/national register of citizens) now prescribes sending Nabil, Safina, their four children and four grandchildren to detention camps. All existing Indian detention centers are inside jails. The Rafi family can be officially detained there for three years with no right to bail. In case Bangladesh doesn’t accept them as citizens, they can be held in jail for ever. As the descendents of illegal immigrants, they can never become Indian citizens.

If Sabbir Rafi and his family had been Hindus, they would be awarded Indian passports in a government ceremony instead of rotting in detention camps.

Inclusion includes exclusion

It is argued that the CAA is about giving, rather than taking away, citizenship. Sounds like a bunch of schoolgirl bullies ostracizing a girl by not talking to her. Anyone who has studied the set theory in mathematics knows that what is not included is excluded. At the toss before a cricket match, a team of 11 players is announced. They are the privileged ones. Try telling others that the team selection was about picking the 11 players, not un-picking the rest. Whichever angle you choose to look from, the fact is that those not in the team are denied the honour of playing in the match.

CAA is not a standalone act. CAA along with the proposed NRC (National register of citizens) and the government order to build detention centers across India is a comprehensive initiative.

Persecution of minorities

People like Sabbir Rafi fleeing East Pakistan were persecuted by Muslims (West Pakistanis). The argument that Muslims can’t be persecuted in Muslim countries is false. Most Bangladeshi refugees in 1971 were persecuted in a Muslim country by fellow Muslims. And their children, grandchildren and great-grandchildren, forming a majority of the illegal population, are India-born and India-bred.

The Indian government has chosen Trumpism as its model. But it has managed to out-trump Trump himself. In the USA, children born of parents, however illegal, are American citizens as long as they are born on American soil. India now plans to arrest, detain and deport all Muslims under 32 years (1 July 1987 is the cut-off date) whose ancestors entered India after 1971.  

Human existence is the proof

For decades, Indians could take pride in that they could live their entire life without any documents. My own father, (who never went to school) has no birth certificate, naturally no school-leaving certificate nor a marriage certificate. But at 86, he exists, is happily married and thinks of himself as an Indian.

Human existence itself should be the proof of human existence, not documents. In the welfare societies of Europe and America, documentation helps citizens procure benefits- unemployment allowance, pensions, social security and so on. India is a poor country; its government offers no social security. Why then imitate the welfare States by being obsessed about documents?

By threatening imprisonment, the proposed legislation shifts the onus of proving existence to the citizens. Unlike America, birth in India (after 1987) no longer makes you a citizen. You need to prove none of your ancestors, alive and dead, migrated to India illegally. Not only Sabbir Rafi’s family, whose ancestors really entered India from East Pakistan, but each and every Muslim family must prove their ancestors were legal.

In a country that had little or no documentation, this is a burden that will be a source of harassment, corruption and mental torture. In a country where birth certificates were not mandatory, its government is now asking its Muslim residents to prove the pedigree of their ancestors. Since this is done with retrospective effect, it is illogical and bad in law. The Indian state can make birth certificates mandatory if they wish, create a State mechanism to ensure everyone gets one at birth, and only then require the residents to offer it as a proof of their existence, not with retrospective effect.

The hypocrisy

This is not the first time for a CAA initiative - there was a previous attempt four years ago. The Ministry of Home Affairs had issued a notification on 7 September 2015 to amend the passport act. That notification had a similar, but not identical, wording.  

On 12 December 2019, the CAA (citizenship amendment act, 2019) was passed by both the houses. It came into force on 10 January 2020.

If you read those two documents carefully, there are three key differences.

a.      The wording “Persons belonging to minority communities” is now omitted. Minority communities, I presume, is a sensitive phrase.

b.      Afghanistan has been included for good measure. In 2015, only Pakistan and Bangladesh were mentioned. Why this change? Afghani refugees are tiny in number; India’s foreign ministry gave a figure of 18,000 in 2011. This inclusion is probably a result of lobbying. Or it’s a prelude to inclusion of more Muslim countries in the future – à la Trump.  Pakistan and Bangladesh are any way the most sensitive and controversial. Because their migrants speak the Indian languages, and are indistinguishable from Indian Muslims. That opens up an opportunity to question the origins of every Indian Muslim.

c.       The words “… who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31^st December 2014…” are a surprise omission.

India’s Home Minister has been talking of persecution of Hindus and other minorities, but in the Act, references to minorities and persecution are both omitted. Why? Because only during the 1971 war, there was major persecution (including that of Muslims by a Muslim state). The majority of illegal entrants in later years have come for economic reasons. Keeping the word persecution would have meant kicking out Hindu economic migrants. This is, in fact, what people in Assam want. They want all illegal immigrants, Hindus and Muslims alike, to be removed from India.

Talking to the media about persecution and omitting it from the Act is as great a hypocrisy as writing ‘world is a single family’ on the parliament’s entrance and introducing this act inside.

The problem started in Assam in the 70s. That post-war immigration problem has now been distorted to give it a Muslims persecuting Hindus colour.

Which country sends the highest number of visitors to India? Bangladesh. It’s the only country from which more than 2 million tourists visit India each year. If it was such a persecuting nation, why would India issue millions of visas to its residents, and increase the risk of illegal migration? No, it’s simply another example of duplicity. Bangladesh has more than 12 million Hindus, the largest minority group. Though declining in percentage because Muslims are more fertile than Hindus, the absolute number grows each year.

Pakistan statistics quoted by India’s home minister qualifies as ‘alternative facts’. He repeatedly quotes Pakistan with 23% and Bangladesh with 22% non-Muslims in 1947. A deliberate case of double counting. West Pakistan (today’s Pakistan) had only 3.4% non-Muslims, not 23%. The proportion of non-Muslims in Pakistan has gone up from 3.4% (1951) to 3.7% (1998) as per the Pakistani census.

Identifying Hindus and Muslims

Rajan Khan is a prolific best-selling Marathi writer. He is an atheist. He was born a Hindu. To protest against bigotry, he changed his name to Khan. Everyone in his family carries that surname. How will the police classify his family? As Hindus? As Muslims?

Nature and science can only distinguish between a man and a woman. Or between a man and an animal. Religion is man-made. No Indian ID mentions a person’s religion. India has no procedure to register a person’s religion at a temple. Will the government specify how to identify a Hindu and a Muslim? Features such as a beard? Skull cap? Pierced ears? Circumcision?

What if a Pakistani migrant converted to Hinduism? Does he become a citizen? What if a Bangladeshi Hindu converted to Islam? Is he sent to jail? And what about atheists? The Act doesn’t offer pardon to atheists.

The updating of the NRC for Assam started in 2013. Mainly because a judge from Assam (Ranjan Gogoi) became a Supreme Court judge in 2012. It took six years to update the register. Out of 33 million, 1.9 millon applicants were excluded. If it took 6 years for 33 millon (Assam), mathematically, for 1.4 billion (India) it will take 254 years. To shorten the time, India will need to abandon all economic activity, recruit a few million people to create the NRC, and a few million policemen to investigate and arrest.

Supreme Court has little choice

Above are only a few of the key arguments.

The Act does not reflect the Government’s stand (no reference to persecution or minorities).

The Act coupled with the National Register is unconscionable in that any Muslim under 32 can be arrested, detained and deported, even when born and bred in India.

The Act is discriminatory and unconstitutional in that while an Indian-born Muslim under 32 can be imprisoned, a non-Muslim under 32 is awarded citizenship.

The Act is bad in law because the burden of proof is shifted to the citizen with retrospective effect. Particularly bad, because such proof (birth certificate and others) was never mandatory. The proof required now includes proof of citizenship of ancestors long dead.

The Act doesn’t specify the way to identify a person’s religion. It is silent on converted Hindus, converted Muslims and atheists. Creating the NRC (National Register of Citizens) on the lines of Assam is likely to take 254 years.

The Act converts India from a democratic to a police state. An order to build detention centers in each state and filling them with young Muslim families is a bigoted, immoral action. Having a great-grandfather who ran away from a Pakistani war zone fifty years ago is defined as a crime of Indian Muslim youth.

India’s Supreme Court has little choice. In 2006, it struck down a similar but less horrifying initiative (IMDT act, 1983) by the Indira Gandhi government (Sarbananda Sonawal vs Union of India on 5 December 2006). It took the court 22 years to decide the case by calling the act ultra vires the constitution.  

This time, hopefully, the Court will be faster in banning the CAA-NRC package. It’s not a great feeling to belong to a Police State.

Ravi

References:

1.       https://indianfrro.gov.in/frro/Notifications_dated_7.9.2015.pdf  Notification in September 2015 which talked about the persecution of minorities, a reference now omitted.

2.      https://indiancitizenshiponline.nic.in/UserGuide/E-gazette_2019_20122019.pdf The text of the 2019 Citizenship Amendment Act.

3.      https://economictimes.indiatimes.com/news/politics-and-nation/cab-shows-bjps-ignorance-about-assamese-sensitivities/articleshow/72500425.cms Criticism by Assam’s chief minister.

4.      https://www.pscp.tv/w/1RDGlNvpWozxL India’s home minister offering alternative facts.

5.      https://www.indiatoday.in/india/story/pakistan-bangladesh-non-muslim-population-citizenship-amendment-bill-bjp-1627678-2019-12-12 Since its formation, Pakistan’s (today’s Pakistan) non-Muslim population was never more than 3.5%. Including East Pakistan is a case of double counting.

6.       https://indiankanoon.org/doc/1436100/ The Supreme Court strikes down the Illegal migrants act, 1983 (Indira Gandhi government) declaring it ultra vires the constitution.

7.      https://www.loc.gov/law/help/undocumented-migrants/india.php Children of undocumented migrants. A disturbing document.

8.     https://www.hrln.org/admin/issue/subpdf/Refugee_populations_in_India.pdf  Report of refugee populations in India. Though outdated (2007), makes an interesting reading.

9.      https://www.cia.gov/library/publications/the-world-factbook/geos/bg.html CIA states Hindus in Bangladesh constitute 10% of the population.

10.  https://www.upsciq.com/magazine_months/march-2019/?shaarSlug=model-detention-manual The Indian central govt has asked all states and union territories to set up at least one detention center. It is suggestive that the detention manual is not available anywhere in the internet.

R.