By: Aditya Saraswat & Anmol Jain
The NDA-ruled 16th Lok Sabha is due to retire in May 2019. In its last winter session, the ruling party arduously attempted to defend its ‘Sabka Saath Sabka Vikas’ vision by introducing multiple debated legislations amid regular disruptions and walkouts. These include the law criminalising triple talaq; the law provisioning 10% quota for economically poor among the general category citizens; the law criminalizing commercial surrogacy, et al.
One such event is the passing of the Citizenship (Amendment) Bill, 2016 (hereinafter ‘the Bill’) by the Lok Sabha on 8th January 2019 intending to ease the norms concerning grant of citizenship to the persons belonging to religious minorities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis, Christians coming from Afghanistan, Bangladesh and Pakistan. The prime reason for the introduction of the Bill, as stated by the Government, is to save these minorities from persecution in their domestic jurisdictions. The Bill has already been challenged in the Supreme Court on 15th January 2019, contesting that it defeats the principles of secularism; however, the Court has declined to hear the matter until the Rajya Sabha clears the matter.
This article is an attempt to argue that the Bill fall fouls of the secular setup of the Indian Constitution, is a mere façade to appease the Indian citizenry before the upcoming General Elections, and is a desperate attempt to return to power in Assam.
The term ‘secularisation’ find its derivation from the act of transfer of the Church properties under the exclusive control of the King. Reflecting on the Indian context, immediately after the independence, on October 12, 1947, Jawaharlal Nehru enlightened India about his aspiration by stating that:
“So far [as] India is concerned, we have very clearly stated as Government and otherwise, that we cannot think of any State which might be called a communal or religious State. We can only think of a secular, non-communal democratic state, in which any individual, to whatever religion he may belong, has equal rights and opportunities.”
The drafting of the Indian Constitution followed and many members including Prof. K T Shah and H V Kamath of the Constituent Assembly attempted to incorporate the word ‘secular’ in the Constitution. However, the term ‘secularism’ was not mentioned in the Constitution but it was overwhelmed with multiple provisions expressing the essence of secularism. To name a few, Article 14 restricts the State to discriminate any citizen on the basis of, inter alia, religion; Article 15 allows access to all public amenities without any discrimination based on, inter alia, religion; Article 325 restricts ineligibility for inclusion in the electoral rolls based on, inter alia, religion, et al. Pertinent to note here is Article 5 of the Constitution, wherein grant of Indian citizenship is not based on religion of the applicant. Despite the non-religious character of the State, the Constitution allows freedom of religion under Articles 25-28. Thence, in the words of Indira Gandhi, “secularism is neither a religion nor indifference to religion, but equal respect to all religions”.
The Supreme Court of India, for the very first time, expressed its views on the secular nature of our constitution in Sardar Taheruddin Syedna Saheb v. State of Bombay, wherein Justice Ayyangar stated:
“[Articles 25 and 26] embody the principle of religious toleration that has been the characteristic feature of Indian civilization from the start of history. The instances and periods when this feature was absent being merely temporary aberrations. Besides, they serve to emphasize the secular nature of the Indian democracy which the founding fathers considered to be the very basis of the Constitution.”
In Kesavananda Bharti v. State of Kerala, the Court held that secularism is an inalienable part of the ‘basic structure’ of the Indian Constitution and is sacrosanct. Recognising the same, the 42nd Constitutional Amendment of 1976 added the word ‘secular’ to the Preamble to the Constitution, expressing the implicit notion of secularism.
This being the premise of secularism in the Indian jurisdiction, easing the provisions for the grant of citizenship for people belonging to particular religions is a grave blow to the secular fabric of the Indian Constitution and thus, violates the basic structure. In the words of S. R. Bommai v. Union of India, this policy of the Parliament enters into the prohibitive space – “the encroachment of religion into secular activities is strictly prohibited”.
Moreover, a combined reading of Articles 14 and 15 of the Constitution provides that each individual is conferred the right to be treated equally irrespective of his/her religion. In the words of the Supreme Court, expressed in Ismail Fauqui v. Union of India:
“It is clear from the constitutional scheme that it guarantees equality in the matter of all individuals and groups irrespective of their emphasizing that there is no religion of the State itself. … Secularism is embodied in the constitutional scheme as a creed adopted by the Indian people… The concept of secularism is one facet of the right to equality woven as the central golden thread in a fabric depicting the pattern of the scheme in our constitution.”
Therefore, when the Parliament introduces Section 2 of the Bill exempting persons belonging to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from the application of Section 3(2)(c) of the Passport (Entry into India) Act, 1920 or the provisions of Foreigners Act, 1946, then it disregards the promises made by the Constitution to its subjects. The Government has put certain religious groups in a different pedestal while framing its citizenship policy. By doing so, it has shredded its religion-neutral approach, which is a fundamental requirement aspired by the Constitution.
Similarly, Section 4 of the Bill, which reduces the number of years required to qualify for naturalization from ‘not less than eleven years’ to ‘not less than six years’ for the said religious minorities of Afghanistan, Bangladesh and Pakistan, is constitutionally untenable for being violative of the right to equality.
THE BILL IS A MERE APPEASEMENT FAÇADE
The Home Minister has tried to cast a humanitarian image while stating in the Rajya Sabha [Rajya Sabha Debates, 09.01.2019 at p.66] that the reason for the introduction of the Bill is to provide shelter to the minorities of the three states who are facing religious persecution. However, the ‘Statement of Objects and Reasons’ explicitly states that the reason underlined the Bill is to grant citizenship to those illegal migrants (of the six religious minorities) who are ineligible to apply for Indian citizenship due to the lack of valid travel documents or expiration of their documents.
Had the Government been indifferent in their attitude towards the persecuted minorities, the Bill would have been a matter of applause. Per contra, the Bill excludes from its application all those Muslims who face religious extremism in Afghanistan, Pakistan and Bangladesh and intend to migrate to India, most pertinent being Ahmadiyas and Shias. It also overlooks the grief and security of the Rohingya Muslims who were forced to flee from the Rakhine State of Myanmar owing to ethnic cleansing and are presently stateless. The Government has attempted to portray its altruistic image before the nation. However, the reality speaks that it is nothing more than a mere appeasement façade to consolidate Hindu vote bank.
Moreover, grave political consequences lurk underneath the Bill. The Bill presents the Indian dispensation as a Hindu state and it might change the political attitude of the leaders of the neighbouring nations and weaken the political rights of the religious minorities. It has been very correctly pointed out elsewhere that the Bill will provide an easy weapon in the hands of the Muslim leaders to enthusiastically persecute the religious minorities and show them the path towards India. It might turn the remaining democracies surrounding India into theocratic states like Pakistan, which is the last thing that India aspires in the race to establish itself as the superpower of the sub-continent.
Appeasement policies have been the mark of Indian politics and the last winter session of the 16th Lok Sabha is self-evident to that fact. The attempt of the ruling party to pass the Muslim Women (Protection of Rights on Marriage) Bill, 2018 criminalizing triple talaq has already failed strike majority support in the Rajya Sabha, which has resulted in the re-promulgation of an Ordinance on January 13, 2019. This proves that the Government is desperate to play vote politics, either by using the ‘whip mandate’ to get the laws passed or by the promulgation of Ordinance.
The situation becomes worse when the Judiciary comes in support of the Government’s ideologies, irrespective of its clear contradiction to the Constitution. Last December, Justice S. R. Sen of the Meghalaya High Court has officially stated in Shri Amon Rana v. State of Meghalaya & Ors. [¶5]:
“Therefore I request our [beloved] Prime Minister, Home Minister, Law Minister and Hon’ble Members of the Parliament to bring a law to allow the Hindus, Sikhs, Jains, Buddhists, Parsis, Christians, Khasis, Jaintias and Garos who have come from Pakistan, Bangladesh and Afghanistan to live in this country peacefully and with full dignity without making any cut off year and be given citizenship without any question or production of any documents. Similar principle should be taken to those who live in Pakistan, Bangladesh and Afghanistan. They may be allowed to come at any point of time to settle in India and Government may provide rehabilitation properly and declare them citizens of India.”
We humbly express our grave dissatisfaction with the non-secular views officially stated by the Court. A Judge of a constitutional court is under the duty to express the words of the Constitution without being influenced by either his or the incumbent’s ideology. This gives much force to the words of Justice (Retd.) Chelameshwar expressed in recent past:
“The political class now is not unduly worried about the nuances of the Constitution. And the high priests (the Judges) do not care. I am only reminded of Robert Brok’s statement – the question nowadays is not how to read the Constitution, but whether to read it. … God save the Indian Democracy!”
The understanding of secularism under the Constitution is simple – let people profess their religion, and let Government secure this right and act neutrally. This simple understanding seems to be beyond the knowledge of the incumbents. The Citizenship (Amendment) Bill, 2016 is an upfront unsecular piece of legislation that classifies people based on their religious affiliation and not their actual deprivation. Now, the Constitution demands a mature step from the Rajya Sabha by not letting this Bill become law.
 S. M. A. W. Chishti, Secularism in India: An Overview, 65 (2) Indian Journal of Political Science 183 (2004).
 Ganesh Prasad and Anand Kumar, The Concept, Constraints and Prospect of Secularism in India, 67(4) The Indian Journal of Political Science 793 (2006); Constituent Assembly Debates, Vol. 7, p. 822.
 Md. Mahtab Alam Rizvi, Secularism in India: Retrospect and Prospects, 66(4) The Indian Journal of Political Science 901 (2005).
(Aditya is currently a third-year law student at National Law University, Jodhpur. He traces his interests in commercial law studies.
Anmol is currently a third-year law student at National Law University, Jodhpur. In particular, he finds his interest in constitutional law studies.)