By amending citizenship act, government has given ideological treatment to law it believed was sick

“Strategy is better than strength,” they say. Had this proverbial prudence been kept in mind by the powers that be, the new citizenship law would probably not have led to the multi-dimensional unrest the nation is facing today.

The enactment of the new controversial law was sandwiched between the National Register of Citizens imbroglio in Assam and bumptious outbursts scaring people with a similar nationwide exercise. Be this a case of political naivety or calculated approach, it was bound to create misgivings, which it largely did throwing the nation out of gear. As a concerned citizen of India I am anguished and must speak my conscience – to use rulers’ oath-taking words, “without fear or favour, affection or ill-will”.

The Constitution of India had laid down the basic law of citizenship in seven brief articles and left it to Parliament to elaborate it for the future. A Citizenship Act was accordingly put on the statute book in 1955 containing detailed provisions sufficient for the needs of the day. The present political dispensation is not the first in power to amend the Act – until its fiftieth anniversary in 2005 there had been seven amendments of varying contents. The major amending laws were those of 1992 eliminating gender bias from the initial text, of 1985 inserting a special provision drawn on the Assam Accord of the year, and of 2004-2005 adding a chapter on overseas citizenship.

Overhauling the law

A decade later, the new custodians of state authority decided to treat with their own ideological therapy the 60-year-old Citizenship Act that they saw as a sick law. The first dose was administered under the Citizenship Amendment Act 2015 overhauling the chapter on overseas citizenship incorporated by the preceding regime. Meant mainly for Indians in foreign lands, the dose did not cause many side-effects inside the country.

Less than a year later was prescribed the second dose under another amending bill moved in Parliament in February 2016. Unprecedented in its letter and spirit, it did not become law for over three-and-a-half years owing to known and unknown reasons. Then came, rather dramatically, a new bill in the form of old wine in a new bottle. Swiftly passed in both houses of Parliament, instantly assented to by the President and quickly notified in the gazette – all this within a few days without explaining the urgency – the bill is now a binding law. Lying in the pipeline over the years, enjoying its dissenters’ complacency, the new law of course cannot be seen as a medicament dropping out of the blue and shoved down our throats.

Volunteering citizenship to a large group of foreign migrants while perpetually grumbling about “population exclusion” amounts to an irreconcilable contradiction. Yet, if the rulers of the day were determined to enact the new law, with whatever motive, it could have been at least done tactfully avoiding religious overtones. The three countries the new Act speaks about are predominantly Muslim. Instead of inviting provocation by specifying six of the seven major religious communities of India unceremoniously leaving out the seventh – the second-largest next to the national majority – the law could have employed the words “local minorities” for saying what it does. That way the law would surely have sounded more civilised.

Arbitrary criteria

The choice of countries under the amending law must also raise eyebrows. What was the criterion, one may ask, employed for this narrow pick and choose? If the calamitous partition of the subcontinent into two and eventually three sovereign states was the basis, then Afghanistan is an odd man out – and if the United Nations-recognised South Asian Association for Regional Cooperation was in mind, why were Maldives, Sri Lanka, Bhutan and Nepal left out? While the first of these (virtually India’s protectorate) has hardly any non-Muslims, in the Buddhist-dominated Bhutan and Sri Lanka and the Hindu-dominated Nepal Muslims are the minority. Are then the critics wholly unjustified in noticing religious basis for the choice of countries under the new law?

Moreover, the alleged religious persecution of the six specified minorities in the three chosen states is presumptive and not even specified in law as the motivation for admitting them to Indian citizenship. For this reason too, the choices, of both the countries and the communities, under the new law are conspicuously vitiated by the vice of what is known in internationally recognised juridical norms as unreasonable discrimination.

As the new law was only to authorise, not obligate, the government to confer citizenship on chosen migrants, it could have been enacted in generic terms using the compendious expression “migrants from other South Asian states belonging to local minorities” – leaving inclusion or exclusion from the group to its discretion to be exercised on a case to case basis at the implementation stage. By so doing, the law could have escaped violation of all international human rights instruments prohibiting religious discrimination and the global laws on refugees, migrants and displaced persons which also leave no room for it.

While the religion-based selectivity and discrimination under the amended citizenship law and its highly probable linkage with the planned countrywide NRC had the potential to alarm the entire country, its likely impact on the North East was clearly misjudged. Almost the whole of that region is governed by special provisions enshrined in the Constitution that the new law, despite its limited safeguards for four of the Seven Sisters, could largely unsettle.

Concerned sections of citizens in the whole of India are awfully agitated. Is it too much to expect the rulers of the day to be equally considerate, if not more, to the worries of the country’s present citizens than to problems of foreigners proposed to be made citizens anew? Rhetorical claims to the new citizenship law being innocuous and the proposed all-India NRC harmless will not salvage the situation. The worsening situation merits urgent statutory measures putting implementation of the former on hold for a national consultation and effectively allaying citizens’ bona fide fears arising from the latter.

Tahir Mahmood is a former chairman of the National Minorities Commission and member of the Law Commission of India.