Contextualizing NRC and the CAA – Exorcism, Xenophobia, or Protecting Borders?
October 18, 2021
India is a country home to four major religions globally- Hinduism, Islam, Christianity, and Sikhism, along with Jainism, Buddhism, etc. In addition to the religious division, there are further factions among them from the caste system to the sects of Islam. It is a given that, the tension between two groups can lead to transitory hostility amid such cultural differentiation. The cause could be politically, socially, or even economically fuelled, as has history witnessed few times from the Anti-Sikh riots to the riots of Muzaffarnagar. Nonetheless, legislation alone was not responsible for such agitation – the 2020 Delhi Riots born from the Anti-CAA and NRC protest.
The year 2019 witnessed some of India’s most tumultuous events since the Bharatiya Janata Party come to power and formed up the government. With the Centre introducing the Citizenship (Amendment) Act, 2019 and the NRC and actively pursuing its implementation, the question of its constitutionality and violation of individual rights brought along a situation that left the country baffled and divided in two- one side arguing it is an Act to discriminate against a certain religious group. In contrast, the other argued that it was a necessary law to protect India’s borders from both internally and externally stimulated threats.
In this article, the author discusses the debate of whether the CAA and NRC were created with the intent to ostracize a religious minority or the issue goes above and beyond to protect India’s delicate security and military arsenal. The contentions and clarifications have been deliberated to enable readers to form coherent, independent arguments on the issue. Before going ahead, it is imperious to understand that a country’s security is not just limited to its military and paramilitary resources. It goes beyond to encompass the economic, social, and political security of the citizens as well. Therefore, it is to be borne in one’s mind to study and analyze the Act’s intent from a multifarious lens of national interest.
The Question of Constitutional Validity
Article 15 of the Constitution of India lays down that no one shall be discriminated against on the grounds of their gender, sex, caste, religion, etc., and Article 14 of the Indian Constitution says that every citizen of India shall be treated equally before the law and provided equal protection of laws. Article 15 is an extension of the equality principle of Article 14, an inference that one who is discriminated against will not enjoy equal status or protection before the law can be deduced.
Now giving the CAA a bare read, a prima facie case of violation of Fundamental Rights is made out. However, under Article 14, a principle of Reasonable Classification and Intelligible Differentia exist that enables the State to formulate laws that may be discriminatory although positive. While one may argue that the principle itself is an oxymoron to the objective of Article 14, it is vital to the question of equality versus equity. Equality is a negative concept- no two persons can be equal in terms of intellect, conditions, status, or fortune however, the principle of equity is a positive aspect because it provides the disadvantaged with the opportunity to avail services despite these differences.
What the Reasonable Classification test helps to determine whether the purpose of such discrimination is to achieve the objective intended by the law. Intelligible differentia means intelligent differentiation – quite self-explanatory, the differentiation upon which such classification is founded cannot be arbitrary. If such a legitimate nexus is established on the grounds of intelligible differentia, then such differentiation is valid. The test of Reasonable Classification was deliberated thoroughly in the case of Anwar Ali Sarkar v. The State of West Bengal(1951)where the Supreme Court laid down two essential conditions-
Classification to be founded on intelligible differentia justifying the distinction sought after
The differentia must be in accordance with the objective intended by the Act
As stated above, equality as a standalone concept portrays a negative picture, but the objective of Article 14 is not equality in the sense of “everyone is equal, truly and literally”. It means that equals shall be treated equally while the underprivileged must be treated differently to bring them at par with the well-placed. Thus, Article 14 aims to achieve equity through equality. Does the question thereby arise whether religion is a legitimate ground for such differential treatment? To understand how the Legislature came to this ground, one has to read Section 2 of the CAA that includes the phrase- Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh, or Pakistan, who entered into India on or before the 31st day of December 2014 and…
The threat of forced conversion to Islam and eviction from one’s property through forged ownership documents has become the new normal for the minorities who live in destitute conditions because of the oppression the majority has subjected them to. The news of Afghanistan’s fall into the hands of the Taliban is known to one and all. However, even before that, religious persecution existed against the minority groups of the Hazaras (9% of the population) and Hindus, Christians, and Sikhs together, making up less than 0.3% of the population. Most of the minority members fled to India, Europe and America during the 1990s alone, but for those who remained, with the Taliban’s rise to power once again, fate is rigged with the impending doom of either forced conversion through marriage or brutal but unreported death.
Realizing the statistics is crucial to understand why religion was chosen as a ground for differentiation. In all three countries, due to prevailing circumstances of the past or present, the religion of Islam has been put on a superior pedestal leading to even the laws failing to remedy the wrongs the minorities have been subjected to. Systemic discrimination and oppression have forced minorities to either convert or flee to other countries.
India being a secular country, has accommodated refugees from every religion, but it cannot be denied that in these three countries, Hindus, Sikhs, Christians, and other non-Muslim sects have been especially targeted. Till now, India has emerged as the only country that has actively advocated for the rights of these minorities. In these countries, Muslims are not persecuted for their religion, but the others are. Consequently, how can anyone compare the circumstances of one belonging to the majority and the other to the minority? In this case, treating both equally is as good as watering down the ghoulish trauma the hapless faced.
There are two more grounds for law being eligible for invalidation-
Lack of legislative competency
Violation of a constitutional provision
Both of these elements are missing in the picture. In the case of Sarbananda Sonowal v. Union of India, the Supreme Court held that the power to grant citizenship is consistent with a State’s territorial sovereignty. It is an executive function. Also, there is no violation of a constitutional provision because, according to the Doctrine of Basic Structure, violation of principles embodied in the Basic Structure can only be brought in where the question in respect with a Constitutional Amendment. The CAA is not a Constitutional Amendment. It is statutory law.
Thereby the claim that it violates the Basic Structure (here, Secularism) is not a substantive argument. Furthermore, as per the case of General Manager, North West Railway v, Chanda Devi, the State is empowered to make rules that benefit a certain class of individuals over the other, and illegal immigrants are also a class in the social hierarchy, and the same can apply to them too. Nonetheless, the final decision on the constitutionality of the CAA rests with the apex court but if to speak of the context where the CAA is sought to be applied, till now religion seems to be a fairground for differential but affirmative treatment.
The need for Identifying Illegal Residents in the State – National Security supersedes the Individual Interest
The tension in the state affairs of Assam, West Bengal, and Tripura have been felt across the nation, with illegal Bangladeshi immigrants settling there. The large influx of illegal immigrants has caused a stir due to the number of challenges they have caused to the State that includes-
Increase in Crime Rate and disturbance in Law and Order Illegal immigrants are usually poverty-stricken individuals who have nothing left to fend for themselves, and money is essential for survival, especially in a foreign country where one has little to no form of support. In those cases, there is a higher chance the poor will get exploited or indulge in desperate, usually illegal acts to make a living. This proportionally causes a spike in the crime rate of a State. Ultimately, the system of law and order itself is disturbed due to continued indulgence in internal as well as illegal cross-border activities like smuggling and human trafficking.
Micro-Economic Impact The north-eastern states of India are heavily reliant upon the primary/agricultural sector. That is the predominant sector where the human capital is invested for employment, income generation, and sustenance. The fixed resources like land and infrastructure are already limited, and with the illegal immigrants coming in and settling down, sharing such resources has led to conflicts. Also, the migrants have displaced native workers because they are willing to work for lower wages than the natives which leads them to be recruited for the employer’s higher profits, further propelling competition and conflict.
Macro-Economic Impact The migrants have access to government subsidy programs, health care facilities, and education facilities that were originally intended for the citizens and rightful residents of the State. The increase in their population and unreported usage of government services leads to an increase in the State’s fiscal cost. On the national level, causes an imbalance or, rather, unpredictable spike in the Government’s expenditure. With a lack of ability to pump money into the economy to keep the flow of services going and generating revenue, but the demand still rising, the issue of inflation and recession impedes economic growth.
Environmental Impact Most migrants have settled in forested areas. They not only use the fixed forest resources for their sustenance, but they also utilize them to earn a livelihood as well. The most common economic activity for the migrants includes selling timber or fuelwood. Increased deforestation with no active afforestation affects the ecological balance and the economic value of forest produce.
Jamaat-e-Islami, although banned, was Bangladesh’s largest Islamist political party and has been found to fuel the idea of Islamic extremism. What is worrisome is that the party has been found to have some link to illegal Muslim immigrants. India is already battling the problem of radical Islamic extremism affecting Jammu and Kashmir fuelled by the constant intervention of unwelcome Pakistani elements. Therefore, it is a legitimate cause of concern the mushrooming numbers of migrants pose.
Under Article 355 of the Indian Constitution, the Union must protect the States from external and internal aggression and disturbance. The National Register of Citizens (NRC) is essential to the peaceful state affairs of India because it demarcates who qualifies as an Indian and who has been residing illegally. The function of NRC came to light specifically regarding the illegal immigrants from Bangladesh. It is important to know who is a legal or illegal citizen because it affects the demography, economy, finance, and socio-legal rights of Indian citizens. While India, on previous occasions, has been active in aiding the refugees from Tibet to Myanmar, the same aid was not provided to Rohingya Muslims.
While many again argued that it was a religiously instigated political move, it has more to do with protecting the national interest as well as citizens from external and internal aggression. Over the last decade, the number of Rohingya Muslims has increased to roughly 40,000 via illegal occupancy, and many of the members from this community have been involved in militant attacks linked to the involvement of Pakistani Islamic terror groups. India has only refused to provide them with physical shelter. Other forms of relief materials have not been denied. Funnily enough, less than half of those residing in the country are recognized as ‘refugees’ by the United Nations.
The argument boils down to that people fear that country’s Muslim population will be left out of the records and subsequently stripped of their national identity. However, it only concerns itself with illegal immigrants and not the Muslim citizens of the country. Furthermore, India is not bound by any international treaty to keep refugees in her territory- is not a signatory to the UN Refugee Convention or its 1967 protocol, nor did it ratify the 1954 UN Convention on Statelessness or the 1961 UN Convention on Reduction of Statelessness.
Unlike the NRC in Assam, the NRC proposed for the entire country is based on proof of certain documentation. The documents do not refer to the proof of one’s forefather having migrated to the country and then becoming a citizen through naturalization or otherwise. What needs to be proven is that one has a valid government-recognized identity card or any other document like date and place of birth should also suffice as sufficient proof of citizenship. In case of illiteracy of the person, another form of evidence like community verification will be called for. NRC is to account for who is and who is not a citizen of India. It is not to exclude anyone from any religion, as was seen when the government rejected the NRC in Assam because legitimate citizens of the State were the ones who were left out from the count. From a bare reading of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, there is no provision for excluding a legal Muslim citizen from the NRC
Desperate times call for Desperate Means
The debate surrounding the CAA and NRC implementation cannot be summed up simply by looking into the pre-determined legal logic because it is not a one-dimensional issue. Social, economic, and welfare necessities compel one to account for the factual rationale behind such a controversial law. India has never shied away from aiding the global community in times of need, be it when dealing with internal or external aggression, irrespective of the religious stance of the country. Protecting a country’s legitimate national interests should not be seen as a sign of xenophobia or in this particular case, Islamophobia.
India has always been a secular country where each has their say and right to be heard. With the introduction of the CAA and NRC, secularism itself has not been eradicated nor challenged. It is simply a measure to understand the real headcount of a country and protecting its borders from letting in external deviants. In short, the CAA and NRC do not intend to strip a rightful citizen of their status nor does it intend to violate a legal citizen’s rights under Article 14, Article 15, and Article 25 of the Indian Constitution.
It only seeks to reinforce the enactment of administration in a manner that the State’s resources are allocated to meet the needs of true or natural citizens and not permanently invested in illegal human capital other than what is necessary to protect their interests. Secularism cannot be used as a blanket to cover the niche problem of religious persecution non-Muslims face. As a democracy, India will continue to fulfill democratic ideals, but a guarantee of equality is arbitrary. Guarantee for an opportunity at equality through equitable means is what makes a democracy a true democracy, and that is what India is working toward.
Despite the arguments made above, the final question that arises after the entire debate is the evidentiary burden that the government has to prove before the apex court regarding the question of when does religious discrimination makes sense. This notion revolves around the “strict scrutiny” the government is placed under when it has to show “no less discriminatory” alternative was available.
Despite the socio-legal stand of one in this issue, the final verdict lies with the Supreme Court and the possible questions that may relate to the presumption that is every minority in the said countries persecuted? How do access the fact that Muslim minorities have or have not faced such prosecution? Are some members of the Rohingya community not qualified to be citizens? But the glaring question is that in a country as large as India, how does the government aim to administer the efficient implementation of the NRC to not leave out legitimate citizens? Historical accounts of discrimination are valid but in an ever-developing nation with far diplomatic reach, how much weight does it hold? A middle path to any law that borderlines arbitrariness has to be formulated to not lose its credibility on the apparent ground of selective treatment despite its potential of being a national instrument to secure the rights of genuine citizens.
Editor’s Note The author of this article talks about NRC and CAA, emphasizing exorcism, xenophobia, and protecting the border. It talks about the constitutional validity of the CAA and NRC concerning the religion clause. The author also talks about the need for identifying illegal migrants. Finally, the author concludes that a middle path to any law that borders arbitrariness has to be formulated to not lose its credibility on the apparent ground of selective treatment despite its potential of being a national instrument to secure the rights of genuine citizens.