Justice Katju and Dhruti Kapadia-
The Citizens Amendment Bill (CAB) has been passed by both Houses of Parliament, and will soon get the assent of the President.
Since a lot of controversy has been raised over it, it needs a dispassionate analysis.
Assam has had an influx of a large number of Bangladeshi immigrants who came after the Partition of 1947. Some (Hindus, Buddhists, etc.) came due to religious persecution by the Muslim majority. But many poor Muslims also came for a better life.
Such ‘economic refugees’, i.e. those who migrate not due to religious persecution but to seek a better life, are not strictly speaking refugees as defined in the UN Refugee Convention, 1951. But the fact is that worldwide there are a large number of ‘economic refugees. For example, USA has about 11 million illegal immigrants from Mexico who migrated to have a better life. Many of them have been living there for decades, and now have little roots in Mexico. What is to be done to them? President Trump wants them deported to Mexico, but that is easier said than done.
In India under the Assam Accord, only those Bangladeshis who came into Assam before March 1971 would be granted citizenship under the Citizenship Act. But CAB will make people of 6 religions, viz Hindus, Sikhs, Christians, Parsis, Buddhists and Jains, who came from 3 countries, viz Pakistan, Afghanistan and Bangladesh Indian citizens, provided they have lived in India for 5 years.
CAB omits mention of Muslims, and this is where the controversy lies.
The BJP Govt justifies this discrimination by saying that Muslims did not come into India due to persecution, whereas people of other religions did. But this is only a pretext. The real reason is that BJP knows that Muslims will vote against them in elections, and so wishes to deny them citizenship (which carries voting rights).
Also, what is overlooked is that many Muslims in Pakistan e.g. Shias, Ahmadis etc are also persecuted there, and may come to India to avoid persecution. Whereas by a Constitutional Amendment Pakistan has declared Ahmadis non-Muslims, the Kerala High Court has declared them Muslims, and Ahmadis regard themselves Muslims. However, they are treated barbarically in Pakistan (see the article ‘Barbaric persecution of Ahmadis in Pakistan’ by Justice Katju online).
Many Assamese are protesting because they do not want any immigrants into Assam, whether Muslim or non-Muslim, and object to citizenship being given to any immigrant. Others are objecting to CAB for other reasons. The whole of Assam is in flames, and in many places the army has been called out.
The truth is that many Bangladeshi Muslims have been living in Assam for decades, though they may not have come here legally. Many were even born in Assam. They have no roots now in Bangladesh. Where are they to go if deported? Bangladesh has said it will not accept them. So should they be dumped into the Bay of Bengal? It is a humanitarian problem, not just a legal one.
One of us (Justice Katju) remembers once when he was sitting in a bench of the Supreme Court a case came regarding illegal squatters in jhuggi jhopdis in Mumbai. The senior judge on the bench shouted that these illegal squatters have no legal right to remain where they were living, and must be thrown out, to which Justice Katju coolly retorted “But Brother, where are they to go? Should they be dumped into the Arabian Sea ? It is not just a legal problem, it has also a humanitarian aspect “.
It may be noted that under the Indian Constitution whereas certain rights, like those mentioned in Article 19, are available only to citizens, others like the right to equality mentioned in Article 14, and the right to life and liberty mentioned in Article 21 ( which has been interpreted by the Supreme Court to mean the right to live with dignity ) are available to all persons. A non-citizen is certainly a person, and hence is also entitled to those rights.
In National Human Rights Commission vs State of Arunachal Pradesh, 1996 ( see online ) the question was about the Chakma refugees, who were illegal immigrants from Bangladesh. The Court observed that the fundamental right of life and liberty guaranteed by Article 21 of the Indian Constitution is also available to Chakmas, though they were not Indian citizens.
It is submitted that CAB is unconstitutional as it violates both Articles 14 and 21 of the Indian Constitution.
[Justice Markandey Katju is former Judge, Supreme Court of India, and former Chairman, Press Council of India. Dhruti Kapadia is an Advocate on Record, Supreme Court, and Solicitor, Bombay High Court. The views expressed are their own.]