India's Roman mob and Constitutional validity of the Citizenship Amendment Act 2019 and NRC

Justice A.B Pal, former Judge of Gauhati High Court.

The furore over the Citizenship Amendment Act 2019 (CAA) passed by the Parliament on 11th December 2019 does not seem to die down soon. Provocated, fuelled and misled by most of the opposition political parties with the only motive to fish in the troubled water for selfish and petty political gains the protest against the CAA and NRC has turned violent and taken the shape and character of a Roman mob of Julius Caesar's time which goes by false impulses, misinformation, devoid of any reason.

Background, Necessity and Validity of CAA:

Firstly, the constitutional validity of the CAA about which wrong interpretations by even legal pundits of opposition camps have created huge misgivings among the innocent and the ignorant people most of whom go by canard of discrimination on grounds of religion and of destroying secular fabric of the constitution. CAA was overdue after partition which had to be done only on ground or religion and Pakistan was created on demand of the Muslim league for a separate homeland for Muslim only. After partition Pakistan declared itself an Islamic country followed by state sponsored persecution of religious minorities. The rich and the upper middleclass among the minorities could afford and manage to flee religious persecution to settle in India, but the lower middle class and the poor could not leave their ancestral property, hearth and home and so preferred to surrender to their fate and remain in Pakistan under constants threat, fear, discrimination, physical and mental torture. Partition of Punjab was followed by exchange of population saving thereby Punjabi Hindus, Sikhs and other religious minorities who got shelters and rehabilitation in India. This did not happen in Bengal (East Pakistan) and so the lot Hindu Bengalis there did not improve even after creation of Bangladesh which was achieved mainly by sacrifice of the Indian soldiers. Muslims are by and large intolerant people which is a historical fact world over. The Parsees of today's Iran who were adherent to Zoroastrianism (the worshippers of fire) had to flee religious persecution after Muslim invasion and occupation of their country. They had taken shelter in India in 7th and 8th Century AD though majority of them had to convert to Islam. Bengali Hindus continued to suffer in their own country now Bangladesh like Parsians and after every genocide they in large number had to cross border to India leaving everything they had. The Hindu refugees from West Pakistan were treated well by the Indian government. They were given houses, licences, grants, loans and jobs. The Bengali Hindus from East Pakistan who lost everything, moveable and immovable possessions, were treated differently with  step motherly attitude giving nothing of the sops extended to the evacuees from West Pakistan. My own family, my parents with eight offspring had to leave East Pakistan with nothing but  wearing clothes only for India during infamous Noakhali riot. We got no generous treatment from the Indian government and left all refugees like us to fend for ourselves. Driven by abject poverty my parents had to give their eldest daughter to marriage in 1954 with another Bengali Hindu refugee who settled in Lumding, Assam. She continuously lived there for 65 years with her husband and even today got no citizenship. She is now above 80 yrs.

The Telegraph, Calcutta, published on 28th December the story of plight of another Hindu Bengali refugee from East Pakistan. His family migrated in 1949 to west Bengal and one year after, in 1950 he was born. Today he is 69. He was a part of the anti CAA procession on 27 December organised by Left and Congress to resist what he thought was a push towards another partition. Nabyendu Dasgupta said:- "My family has been uprooted once. I can't see that happen again". Seven thousand people like him live in a colony in Belgharia since partition but got no document recognising them as Indian citizens during long 70 years. They live in constant fear as they have nothing to prove that they are Indian citizens. The CAA is only to grant them and all others like them citizenship who fled religious persecution in their own country which suddenly became a foreign and hostile country followings partition to create Pakistan as Islamic country for Muslims only. All previous rulers in India during every election used to make false promises to grant all such refugees citizenship which was never kept. For the first time the present government passed the law to confer citizenship to all these hapless refugees. Why then, instead of congratulating the present govt the opponents have instigated country wide protest by false propaganda? Why people like Nabyendu Dasgupta for whose benefit CAA has been promulgated walked in the procession to protest against CAA? Why Matua community of West Bengal who were the Namasudra community from East Pakistan (now Bangladesh) is protesting against the CAA. They have been demanding since they fled persecution in East Pakistan, recognition as Indian citizen and CAA is to grant citizenship to all of them. This shows that like them almost all the members of the anti CAA procession or mob are ignorant about CAA and mislead by opposition political parties to indulge in violence, destroying properties, shedding blood, committing arson and running riot. The Prime Minister called upon them to first read CAA before protest.

Let us see now what new provision has been incorporated by CAA in the existing Citizenship Act 1955. The provision reads in section 2(I) clause(b):-

"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 31st day of December, 2014 and who has been exempted by the Central govt by or under clause(c) of subsection (2) of section 3 of the passport (Entry into India Act), 1920 or from the application of the provision of the Foreigners Act, 1946 or any rule or order made there under, shall not be treated as illegal migrant for the purpose of this Act!"

After section 6A of the Act the following section 6B has been inserted.

"6B.(I) The Central govt or an authority specified by it in this behalf may, subject to such conditions, restrictions and manner as may be prescribed, on an application made in this behalf, grant a certificate of registration or certificate of naturalisation to a person referred to in the proviso to clause (b) of subsection (I) of section 2.

Subject to fulfilment  of conditions specified in section 5 or the qualification for naturalisation as per the provisions of the third scheduled a person granted the certificate of registration or certificate of naturalisation under sub-section(I) shall be deemed to be a citizen of India from the date of their entry into India"

These are the substantive provisions in the CAA and there is absolutely nothing to take away citizenship from any person, belonging to any community including Muslims who are already citizens of India. This is a special law to address a special evil arising out of religious persecution of the religious minorities in Islamic Pakistan, Afghanistan and Bangladesh. The law makers did not and could not intend to give redress by providing accommodation and citizenship to all victims of religious or ethnic persecution in all other countries of the world and India definitely cannot afford to do that. Secularism means leaving peacefully by all citizens of different faiths. It does not apply to citizens and non citizens. Art 14 & 15 donot apply in matters of conferring citizenship to non citizens. Equality doctrine applies only among persons who are already citizens of India. It is an absurd criticism that CAA is discriminating on the basis of faiths. Pakistan, Afghanistan and Bangladesh are Islamic countries meaning thereby that only Muslims can live there with full honour, freedom, dignity and security. Religious minorities are not all wanted and safe there. Therefore, Muslims can not be said to be persecuted in their own countries and therefore, the secularist argument of discrimination is ridiculous.  Persecution may be there for other reasons between sects like Shias, Sunnis, Ahamedians etc for differences within their same faith as happens among Christians, Hindus and other faiths. That cannot be compared with and said to be religious persecution like genocide as the world witnessed in Pakistan, Bangladesh and Afghanistan. The noted Supreme Court lawyer Harish solve, who represented India in the International court of Justice, firmly held that CAA is a constitutionally valid piece of legislation. The greatest beneficiaries of this law will be the Hindu Bengaliesfrom East Pakistan who are today indulging in suicidal violent protests. Hindu Bengalies are actually a suicide- community like Jhatinga birds of Assam who commit mass suicide every year in a particular place. The reason is very much evident and clear. The Bengal political leaders who are blind by greed for power can do anything, jump, shout somersault at every drop of hat at the cost of harming the community without knowing  what for they are doing this. It seems the opponents of CAA do not know that in April 1948 in the first inter-dominion conference  Indian leaders assured that after partition  the religious minorities would not be abandoned and Indian citizenship for all Hindus in Pakistan was promised. But that promise was not kept for more than 70 years and Hindu-Bengalis in particular was abandoned. Today, when BJP government is trying to atone the betrayal by enacting CAA, the hydra headed politically motivated mob are indulging in violence and protest against it being emotionally fooled, blackmailed and misled by false propaganda everywhere threatening stability, peace and harmony. In a recent article in 'Telegraph' the noted columnist Sunanda K Datta-Ray very rightly commented-

"Middle class fear of competition and Mamata Banerjee's spoiler's role has reduced the potency of what could have been a powerful inducement in amputed Bengal. Nevertheless, the East Bengal Hindu hasn't disappeared from the radar. Indian citizenship for all Hindus in Pakistan was mooted soon after independence. Some proposed exchanging populations. A third suggestion was that East Pakistan should cede territory west of Padma as a homeland for the unwanted Hindus." None of the three proposals was materialised. The fleeing Hindus suffered more because of Nehru-Liaquat Ali pact which banned selling of evacuee properties in Pakistan and thus threw Hindus future in peril. "Syama Prasad Mookerjee and Kshitish Chandra Neogi quit Jawaharlal Nehru's cabinet protesting against the ban which protected Indian Muslims but gave Pakistan an additional means of bullying and robbing the vulnerable minority." As a result properties of many Hindus in West and East Pakistan were seized by Islamic Pakistan though those properties were not evacuee properties as per report of the custodian of the Evacuee properties. As a result, apart from other forms of persecution, the Hindus whose properties were thus taken away by Pakistani govt were suddenly left with no means of livelihood and compelled to leave their home and motherland for shelter in India. The exodus of the Hindus to India was encouraged by Pakistan to make it exclusively a Muslim country driving out all Hindus and other religious minorities. The Finance Minister of Pakistan Ghulam Muhammad praised the role of India to give shelter to fleeing Hindus and other minorities. The opponents of CAA seem to be ignorant or oblivious of this fact when they demand inclusion of Muslim also in CAA raising the bogey of secularism. They also ignore the fact that no voice or issue was ever raised about any Muslim leaving their Muslim country for religious prosecution to settle in India.

Another amusing and bewildering question is why Muslims in states like Uttar Pradesh, Rajasthan, Karnataka and Tamil Nadu are up in arms against CAA which in no way touch them as the evil of partition did not take place there? One view is that it may not be CAA, but the wounds of criminalising triple talaq, abrogation of Article 370 and Ayodhya verdict of the Supreme Court, exploded Muslim anger. The other view is related to Pan Islamic Agenda of Pakistan to constantly keep India is trouble by encouraging divisive forces, infiltration of Muslims illegally in India for demographic changes, conversion and various other ways to revenge division of Pakistan and creation of Bangladesh. Pakistani agents and terrorist groups like ISI, SIMI, PFI, Tukde Tukde gang are very much active in organising violence in almost all the states and the political opponent of CAA are extending support to see fall of BJP, even if it means cessation of other parts of the country, particularly the Northeast.

The third view is that there have been huge illegal Muslim migrants in India from Pakistan, Bangladesh and Afghanistan since independence in search of jobs and better livelihood. They may not be part of the Pan-Islamic Agenda, but they prefer to stay in India and obtained all necessary documents for the purpose. One of my friends, a retired District Judge, recently stayed in a hotel in Calcutta airport area on way from Hyderabad to Agartala. The young Muslim boy who served him food admitted to him that he was from Bangladesh and came to Kolkata to see his relatives. They persuaded him to stay back and arranged for him this job. Within a short period he got Aadhar card, Ration card, PAN card and also voter identity card, all for money. His relatives told him that Mamata Banerjee's government is very liberal towards Muslims and allows Bangladeshi Muslims to come and stay in West Bengal. All Muslims are very happy here, love her and support her whatever she says and does. They are now told that if NRC is introduced lakhs of Bangladeshi Muslims like him will have to leave India and all these documents given to him for money will be of no value for getting their names in NRC. This fear has gripped these illegal migrants who were a strong vote bank for the left when they were in power and now for Trinamool Congress. This picture is everywhere in the country and the terrorist groups including Tukdre Tukdre gang and pro-Pakistan gang are working hard in unison to instil this fear among the Muslims to join them in violence and other destructive activities which we are now painfully witnessing. The fool-hardy among the political opponents of CAA who are in power in good number states are engaged in false propaganda misinterpreting the provisions of CAA and NRC and sending wrong message to other countries.

I have heard several panellists speaking and debating in news channels, some of whom belong to Muslim community. The trend of their argument is that they have no objection to granting citizenship to the persecuted religious minorities from Pakistan, Bangladesh and Afghanistan. Their objection is exclusion of Muslim community from CAA which will lead to their exclusion from NRC. They argue that this is discrimination on the basic of religion which is unconstitutional.

But they forget that CAA is a legislation only for a specified group of persecuted people and illegal Muslim migrants do not fall in this category because they were not persecuted for religion. Indian Muslims have nothing to fear as CAA is not intended to take away their citizenship. True, illegal Muslim migrants or infiltrators will  not get the benefit under the CAA because they cannot be said to be persecuted people for religion in their own Islamic country. The truth is, these panellists are actually arguing for these infiltrators to get the benefit of CAA. But long before CAA, in the first inter-dominion conference held in April 1948 in the writers building the decision was to grant Indian citizenship to all Hindus fleeing from Pakistan. 'Hindus' includes Sikh, Jains and Buddhist as defined in Hindu law. Muslim infiltrators were never even discussed to grant them Indian citizenship which is an absurd proposition now putting forward by some so called educated people.

Part II of the constitution containing seven articles, from 5 to 11 deals with citizenship. Article 5 and 6 specify persons who shall be citizens of India at the commencement of the constitution, the 26th day of November, 1949. They are persons who-

  1. Has domiciled in the territory of India; or
  2. Was born in the territory of India; or
  3. Either of whose parents was born in the territory of India; or
  4. Has been resident in the territory of India for not less than five years immediately preceding such commencement; or
  5. Migrated from Pakistan to India if he or his parent or grandparent was born in India; or
  6. Has been registered as citizen of India if migrated after 19th day of July 1948.
Art 7 provides for citizenship of certain persons who migrated from the territory now in Pakistan after first day of March 1947. If they return to India and intend to be citizens of India they must obtain permit for resettlement from the appropriate authority.

Art 8 and 9 deal with citizenship of person residing outside India and losing Indian citizenship upon obtaining citizenship of a foreign country.

Art 11 is very important as it confers plenary powers on the Indian parliament to make laws on citizenship. It provides:-

"11. Nothing in the foregoing provisions of this part shall derogate from the power of parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating thereto."

Apart from this special provision conferring powers on the parliament to make law, entry 17 of the Union list of the constitution also gives exclusive powers to the parliament to enact on 'citizenship, naturalisation and aliens.' No state legislature has been vested with this power and so the  central law is binding on all. Accordingly, parliament passed "The Citizenship Act, 1955" and several amendments to the Act thereafter. Section 2(i) (b) gives interpretation to the expression 'illegal migrant' which means a foreigner who has entered into India without valid passport or other travel document or with valid passport or travel document but continued to stay in India after expiry of the permitted period. Citizenship by birth (Sec3), Citizenship by descent (Sec4), Citizenship by registration (Sec5) and citizenship by naturalisation (Sec6) are the methods of getting citizenship recognised by law. For illegal migrant there is no provision to get citizenship either by registration (Sec5) or by naturalisation (Sec6). It has been clearly provided that “any person not being an illegal migrant" can apply for citizenship if he is not already a citizen by virtue of the constitution.

The seeds of the present turmoil fuelled by the opponent of CAA lies here. The anti-Indian and pro-Pakistani gang are worried that these illegal Muslim migrants will not get citizenship under any provision of the constitution or the Indian citizenship Act and consequently will not find place in the National Register of Citizens. To protect these illegal migrants the vote-bank politics of the opponents have misled the common people to walk in procession and indulge in violence.

Mamata Banerjee's new slogan "CAA CAA shame shame" crowing to befool ordinary people who knows nothing about CAA or NRC or their legality, necessity and implication is only to win over the Muslim votes including illegal Muslim migrants. To them she is a saviour. No CAA, no NRC is the only way to perpetuate their stay and continue inflow of more illegal Muslim migrants to strengthen, her vote bank which, if allowed to continue in West Bengal under her political patronage, will render the Hindu Bengali community a minority entity and an endangered species like the fast depleting crows whose raucous we are now hearing in the voice of power hungry politicians of West Bengal.

The upshot from the above are
  1. CAA is a constitutionally valid law to address a particular evil only;
  2. It fulfils a long forgotten promise of Indian leaders in 1948 to grant citizenship to all persecuted Hindu refugees only;
  3. There has been not a single instance of any Muslim leaving Pakistan or other two Muslim neighbouring countries due to religious persecution;
  4. Pakistan, Bangladesh or Afghanistan has no such problem of Muslim refugees leaving India for religious persecution;
  5. CAA will immensely benefit the Hindu refugees;
  6. Muslim illegal migrants cannot get Indian citizenship under the constitution or the Citizenship Act 1955.
  7. Foreigners from other countries including Pakistan, Bangladesh and Afghanistan can get citizenship by naturalisation under section 06 of the Indian Citizenship Act.
National Register of Citizens:-

In the constitution dealing with citizenship in Part II there is no provision for maintaining a Register of Indian citizens though citizenship by registration has been provided in Article 6 (b) (II) for persons who has migrated on or before nineteenth day of July 1948. Similarly, section 5 of the Citizenship Act provides for granting citizenship by registration if he is not already a citizen by virtue of the constitution or the Citizenship Act. Section 6 provides for granting citizenship by naturalisation and a certificate is issued to such person who becomes citizen by registration or naturalisation. But for those who are already citizens by virtue of the constitution or the citizenship Act there is no provision for granting such certificate. As a result whenever any question arises whether a person is an Indian citizen and if he does not hold any citizenship certificate he has to produce property or other documents to prove that he is an Indian citizen. To obviate this difficulty  the UPA govt amended Citizenship Act 1955 in 2004 by inserting section 14A with effect from 3.12.2004

The section is quoted below:-

"14 A. Issue of national identity cards:- (1) The central government may compulsorily register every citizen of India and issue national identity card to him.

2. The central government may maintain a National Register of Indian Citizens and for that purpose establish a National Registration Authority."

But the UPA government during its long 10 years rule did not implement this provision fearing that a large number of illegal migrants mostly Muslims who got their names entered into voter list shall turn hostile and may throw the country in turmoil and lawlessness. But when now BJP government proceeded to implement the provision in the interest of the nation all opposition political parties including Congress and Trinamool joined hands to resist the drive which is definitely not in the interest of the nation. The same Mamata Banerjee who is today resisting NRC and CAA tooth and nail, strongly demanded NRC in her state to identity infiltrators and prevent them from entering in to India. Why then the Congress and its allies introduced the provision for NRC in the citizenship Act remains unanswered. They are now rousing, leading and goading the illegal Muslim migrants and their supporters to indulge in violent activities and create turmoil and lawlessness in the country which situation the UPA govt did not have the courage to face. Politics in such a dirty game, power and  power is the only consideration, no matter what happens to the Nation-India and its civilisation we are so proud of which gradually being eclipsed my intruders, infiltrators of hostile faiths. The only hope is the strong leadership we do now have in the centre.

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