CITIZENSHIP AMENDMENT ACT

Democratic principles have been knocked down and dragged out of the political arena in a free for all between presumptuous self-proclaimed “democrats” utterly unversed in the canon they purport to subscribe and a demonised “majoritarians” shut out from the debate and condemned as unlettered obscurantists for attempting to support Citizenship Amendment Act by applying the very principles the “democrats” claim to abide by.

It is the ability to make dialogue across differences which is the stamp of a liberal. This is also the psychological aspect of citizenship creating as it does a sense of belonging and consequently contributing to strengthening of social cohesion. A post-nationalist identity recognised in the norms and values of the Constitution not in ethnocultural markers has been abandoned by these “democrats” to impose a universalist model citizenship which is difference blind.  Celebration of difference is no longer a virtue for such “democrats”. This is apparent in the virulence of their comments on Citizenship Amendment Act.

The Act amends Section 2 of the original Act which defined “illegal migrant” by adding a proviso that Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Pakistan and Bangladesh who entered India before 31st day of December, 2014 exempted from Passport (Entry into India) Act, Foreigner’s Act or rule or order made thereunder shall not be treated as illegal migrants under the Act. Special provision as to citizenship is made for these persons in Section 6B while excluding tribal areas in the Sixth Schedule and Inner Line identified by Bengal Eastern Frontier Regulations and changes made in The Third Schedule of the Act.

This amendment is the application of differentiated citizenship through acknowledgment of multicultural rights. The exempted groups are admittedly smaller groups in larger societies with unique identity and values fighting against their cultural assimilation into the larger group and the resultant annihilation of their beliefs, behaviours and attitudes. They are disadvantaged groups facing alienation. At risk is their heritage the status of a subaltern in their relationship with the majority.

This is an intelligible differentia distinguishing them from community excluded and their protection through grant of citizenship by India is the celebration of the values of Liberty, Equality, Fraternity and Justice mentioned in the Preamble. If the Preamble has to be waved it is in celebration of its ideals and creed in the Citizenship Amendment Act not in the condemnation of the same. Differential treatment does not per se constitute violation of Article 14 and denial of equal protection arises only when there is no reasonable basis for differentiation. As stated there is a basis for the differentiation. Moreover principle of equality does not mean that every law must have universal application for all persons varying circumstances permitting separate treatment. And remedying of any mischief can always be done in stages. Exclusion of any country (Myanmar) or any community (Rohingyas or Ahmadis) therefore, will not by itself justify the criticism of violation of Article 14. Rohingyas are reported to have created several terrorist organizations and a few terrorist organizations in Pakistan are assisting these outfits. And with no details of a significant number of Ahmadis amongst the refugees in India the necessity to include them in the Amendment Act does not arise. The exclusion therefore is not based on religion alone. In any event the Citizenship Act as originally enacted recognises jus sanguinis thus not making ethnicity is not irrelevant to citizenship. And the sub-classification made by the Amendment Act, as already stated, is legal.

The liberal concept of citizenship after all lies in protection by law and confers on a citizen a legal status and the resultant right to participate in the affairs of the community. It was the absence the absence of this right which made the migrant leave her country. The movement to the destination country was not to seek employment or merely to settle or reside as a migrant; it was instead like an asylum seeker or a refugee who is forced to move across national boundaries and who cannot return home safe. Those beating their chests invoking the principle of non-refoulement – the foundation of international refugee law  while demanding it for Rohingyas, seemed to have forgotten it when it comes to the exempted communities under the Citizenship Act.

It is pertinent to refer to the complaint with regard to change in the cut-off date (25th day of March, 1971) as contained in Section 6A, Special Provision as to citizenship covered by the Assam Accord. The point which such a complaint misses is that the conditions contained in Section 6A(3) are cumulative and require for their applicability, apart from the said date, the detection of a person as a “foreigner” which is defined by the Foreigner’s Act as a person who is not a citizen of India and the Parliament retains the power under Article 11 to make any provision as to acquisition or termination of citizenship. The Amendment Act is in terms of Article 11. There is no violation of Section 6A. Even otherwise there will not be any substantial change in the demography of the State and the cultural insularity which the protests in Assam show conflict with and are detrimental to the principles of equality, liberty and rule of law as not to provide any justification for the opposition to the Citizenship Amendment Act.

No right of any minority in India is affected by the amendment. Their self-governance and autonomy remains in tact. While the rights of the citizens remain in tact, the rights of refugees (as opposed to migrants) are restored and sought to be preserved. It is a rational application of multicultural politics and egalitarian policies addressing the issue of alienation of disadvantaged groups in certain countries. The rights conferred are non-rivalrous as not to affect the existing citizenry and the classification to restore this benefit is not only intelligible but has a rational nexus with the object behind grant of citizenship. The Amendment Act is clearly the application of universalistic legal principles and not re-enforcement of cultural moorings of those being granted the benefit. All minorities (those covered by the Amendment Act and such as exist in the country) are being treated on par and being conceded the same advantages. It is nothing but triumph of the principles which the country holds dear.

Referendums, Brexit, Bregret & Democracy

I am surprised that issue of United Kingdom’s withdrawal from the European Union was made subject to a referendum. There iseprecedent in its history of the dangers implicit in the choice. Referendums generally, despite nominal similarity with democratic practices, offend against reasoned deliberations which alone make participation on popular issues a meaningful political exercise.

It is doubly unfortunate that the Chief Minister of Delhi is planning to hold a referendum on statehood for Delhi. The Chief Minister’s sense of history is limited to the immediate past and he seems to be unaware that referendums have often been tools in the hands of dictators and can at many times be anti-democratic.

In the United Kingdom the Race Relations Act, 1968 made amendments to Race Relations Act, 1965. The Act of 1968 sought to make illegal racial discrimination in public-services, housing and employment. However at the time of the second reading of the Race Relations Bill (which was later to become Race Relations Act, 1968) Enoch Powell, a British Member of Parliament, gave what is notorious as Rivers of Blood Speech. The speech criticised the proposed legislation creating fears about “immigration descended population” and the prospect of British becoming strangers in their own country. Significantly Gallup’s opinion poll found an overwhelming majority agreed with Powell. If a referendum had been held on the need to make the Bill into an Act the Race Relations Act, 1968 would never have been passed. The referendum would have brought about an anti-democratic result offending liberal and democratic values through ostensibly democratic means.

Referendums in fact were the favorite of the plebiscitary democracy of Hitler – no exemplar where democratic traditions are concerned. Hitler used referendum to legitimise his holding the posts both of Chancellor and President and assume supreme power in 1934. He had actually assumed the offices earlier (and the sequence of events which preceded that assumption showed he had scant regard both for democracy and parliament) and the referendum was meant only to legitimise that assumption of authority. referendum was held even during the Reign of Terror in France and Napoleon used a referendum to become the Emperor of France.

Some referendums are not conclusive despite seeming to be almost unanimous. Take the example of the Crimean referendum on whether the people of Crimea would join Russia or remain part of Ukraine. Over 95 per cent of the voters, it was claimed, answered “yes” to the Republic joining Russia. The Ukrainian Government however called it a farce a fake and crime against the Ukrainian State.

And even where referendums are constitutionally sanctioned, as in Switzerland, the results (as in the case of Swiss Minaret referendum, 2009) may disregard the interests of minorities. In the Swiss case in fact the referendum was unnecessary as the zoning law which was in place may not have allowed the raising of minarets in any case. The holding of the referendum, therefore, may have more to make a point than to achieve a result and cause further polarisation in society.

Irrespective of who calls for referendums and without getting into controversies about their being free and voluntary or not referendums are singularly inappropriate for complex issues. Opinions on such issues are usually subjective and based on experience or knowledge which is not necessarily precise or accurate and in any event the range of probabilities which issues represent makes a conclusions right for one and wrong for the other and no means of objectively verifying who is actually correct. There can be many sides to an issue and the whole truth may elude everyone. Answers sometimes cannot be cabined in a “yes” or a “no” and the “yes” or “no” may themselves be swayed by emotions not facts. There are different sections of society with varied and competing interests and general well-being mandates accommodating all. A mechanism which operates in binaries can well result in tyranny of the majority sacrificing interests which may be significant even if less numerous. It is for this reason Brexit results in Bregret!

Democracy cannot be what John T Wenders said, “two coyotes and a lamb voting on what to have for lunch”! Yet this is precisely what referendums reduce democracy to.