Today India is facing a wave of protest, dissent, and infidelity towards the Central Government, especially in light of the recent amendment to the Citizenship Act. Any citizen has a democratic right to peaceful protest and expresses his dissent against the policies of the government. While some accuse that the protests are not organic, and rather politically motivated; however, that does not reduce the rights of the protesters. At the same time, protest does not give a license for indulging in arson, stone-pelting, damaging public-private property, or causing violence. Having said that, this article mainly deals with the persecution of religious minorities in the countries Pakistan, Afghanistan, and Bangladesh.

Citizenship:  A very important question that arises in the beginning is who is a citizen of India and how can he acquire that. According to Article 5 of the Indian Constitution, a person is an Indian citizen who has his domicile in the territory of India and-

  • ·       Who was born in the territory of India; or?
  • ·       Either of whose parents were born in the territory of India; or
  • ·     Who has been ordinarily resident in the territory of India for not less than five are years immediately preceding such commencement?


Under the Citizenship Act of 1955, citizenship can be acquired in the following four ways: -

  1. 1.     1) By birth- this was changed by many amendments and the cut-off for eligibility kept changing.

2.    2) By registration- another way through which one can acquire the citizenship of India, but this is followed by some rules such as being a resident for 7 years before applying for the registration.

      3) By descent- the third way to acquire citizenship is conditional upon the rules that either of the parents of that person should be a citizen of India and the parents have to declare that the minor child does not hold a passport of another country.

4.     4) By naturalization- the most prevalent and commonly practiced way of acquiring citizenship is by naturalization, which before the The 2019 amendment required the person to be a resident for the past 12 years.

 

Persecuted Minorities: This is the central most term of the Amendment Act; since defining a persecuted minority determines the status of that persons eligibility for citizenship in India. The government has been advocating this Act on the assumption that a persecuted minority refers to a religious minority per se, which faces persecution and the atrocities by the dominated religious majority. The amendment gives protection to 6 religious minorities, namely- Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians in the three neighboring countries of Pakistan, Afghanistan, and Bangladesh.

The Citizenship Amendment Act of 2019 has brought out many amendments with an objective to protect the religious minorities that face persecution in the Islamist states of Pakistan, Bangladesh and Afghanistan. But the prominent changes brought under it are: -

1.     That anyone of the 6 religious minorities from the three above mentioned countries, who’ve been persecuted in their respective countries and try to seek shelter in India, won’t be treated as illegal immigrants.

2.     That the aggregate time of residence or service of the government of India for these people will now be five years instead of the earlier provision of eleven years.

3.     That the registration of Overseas Citizen of India (OCI) Cardholders may be canceled if they violate any law. This is a wide ground covering minor offenses like violations of traffic rules.

This legislation has raised several concerns which directly question the objectives of this legislation. To answer these concerns, it is essential to review the past. On 15th August 1947, two countries had come into existence, India and Pakistan. The partition had taken place solely on religious grounds. Many were unhappy with this decision as Hindus who were in minority in Pakistan and Muslims, who were in minority in India faced a threat of attack and suppression from the majority. This was anticipated by the Indian leaders, who while drafting their Constitution had taken a decision to frame our Constitution on the principles of secularism. This was missing in the Objectives Resolution of Pakistan who had declared themselves explicitly as an Islamist state.

The minorities in Pakistan and the then Bangladesh used to face suppression and atrocities due to which they started migrating to India. The government then decided to define and secure the rights of citizens of the country and drafted the Citizenship Act of 1955. This same Act was amended 5 times namely in 1986, 1992, 2003, 2005 and 2015.

Now, the major question that arises is that why to protect only these 6 religious minorities and leave out the Muslims as it goes against the secular principles of our country? The government in response states that these are the communities that face persecution and discrimination on the basis of religion. In all these three countries, Muslims are there in majority and they are therefore highly unlikely to face persecution on the similar grounds on which the others face. Further, the records have shown the extent to which these communities face discrimination.


1. Pakistan: 1000s of women belonging to religious minorities in Pakistan are abducted, converted to Islam and are married off to their abductors every year. Also, the Sindh Criminal Law (Protection of Minorities Bill) which seeks out to protect these minorities from the atrocities faced by them has been kept pending for years. The Human Rights Commission of Pakistan had also published a report named as State of Human Rights 2018, which states that every month, 20 to 25 Hindu girls are abducted and converted to Islam forcefully (a recent case of these atrocities being that of Asia Bibi).


2. Afghanistan: During and after the time of partition, many Hindus and Sikhs had migrated to Afghanistan. But after subsequent years their number has declined rapidly. Now only a few of them live over there as many of them have left the country due to fear and regular incidents of persecution on religious grounds. The most common examples are forceful conversions and forceful land grabbing.


3. Bangladesh: The people belonging to the minority communities living in Bangladesh become victims of persecution. Land for temples are forcefully grabbed by musclemen. Further, a total of 8,000 incidents of persecution are left unreported along with 20,000 criminals who are yet to be put on trial as they roam around freely causing a big threat for the people living over there in minority. Also, the Mahajote (an umbrella body for 24 Hindu organizations) had stated that over 50 temples and Hindu religious institutions have been attacked there.


These incidents show that the religious minorities living there in these countries live under a constant threat of suppression and persecution by the dominating majority. These incidents of forced conversions, abduction of Hindu and Sikh girls and forceful land clearly violates the basic human rights that these communities are facing, the advocates of The Citizenship (Amendment) Act consider this a very strong reason as to why we should give protection to these minority groups as they have nowhere else to go.


An argument put forward by its critics is that along with violation of the secular character of our constitution, it also denies people of their right to equality. This argument also has been taken care of by the advocates of the Act as it becomes really essential for it to pass the Article 14 test. Article 14 of our Constitution states that there should be equal treatment for equals, this at the same time does not forbid the state to make reasonable classification for the unequals. But the classification should be based on intelligible differentia and the differentia should have a direct nexus to the objective sought to be achieved by the act. The advocates state that both these conditions are fully satisfied by the Act as the basis of classification is reasonable enough as these minority groups face discrimination and persecution by those there in the majority, thus affirmative action is taken by the state to achieve the objective of equality. The system of reservations in our country serves as a parallel to this concept of intelligible differentia where unprivileged ones are given rights to ensure equality.

Another question that arises is that is it going to affect Indian Muslim Citizens in anyway? A simple and clear answer to this question is a big no! The Act does not in any way affect Indian Muslims. Its sole objective is to protect and give citizenship rights to the religious minorities in the three countries facing persecution by the majority. Another argument in opposition to this Act is that it violates the Assam Accord of 1985. In a way that, according to the Assam Accord, the cut-off date set to grant citizenship to the illegal immigrants for the state of Assam was set as 25/3/1971. However, the latest cut-off date as per the Amendment is 31/12/2014. This is an issue that poses a threat to the Assamese and their culture, identity and economy. The Union Government claims that its has taken care of the Assamese people as well as the concerns of the North-East Region. It is really important to understand the plight of these minorities who have taken refuge and shelter in India, because they have nowhere else to go where they do not face persecution on the grounds of religion, which is unlikely to happen with the majority group present in those respective countries. And thus, these minority communities form a constitutionally valid class deserving favourable discrimination. Further, the dissent against this Act is not that it benefits the undeserving but that it does not benefit groups supposedly deserving similar benefits and getting this act to be struck down, wont lead to benefiting any of the groups. Even if the other groups remain dissatisfied with the governments policy of favourable discrimination, India will still accept the bona fide claims of the Muslims who are persecuted. At the same time, it needs to be reminded that an Act of Parliament is the law of the land. It has a presumption of constitutionality unless declared otherwise by the constitutional courts. The optimal logical and legal approach at this point of time will be that the government should listen to all the groups and take decisions within the bounds of the Constitution.