By Justice Markandey Katju–
(Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman of Press Council of India. The views expressed are his own)
The Indian Government recently notified the rules under the Citizenship Amendment Act, 2019 (CAA). The CAA gives fast-track citizenship to non-Muslim refugees from Pakistan, Afghanistan, and Bangladesh who entered India on or before December 31, 2014. Critics of the CAA say that the exclusion of Muslims from those who will get its benefit is discriminatory, and hence violative of Article 14 of the Indian Constitution.
They contend that many Muslims also fled from those three countries because of persecution such as the Rohingya from Myanmar who want to enter India via Bangladesh. Many Muslims in Afghanistan are persecuted by the Taliban. In Pakistan, the Ahmadis are not even regarded as Muslims, but are so in India.
The real reason for excluding Muslims from the CAA is that the community do not vote for the BJP, and hence the party does not wish to give them citizenship, as that will make them voters. The problem, however, is that many Bengali Muslims migrated from Bangladesh (known as East Pakistan before 1971) to Assam many decades ago, some even before 1947, seeking a better life.
The Assam Accord of 1985 provided that those Bengali Muslims who entered Assam after 1971 will be deported to Bangladesh, but it was found impossible to implement this, particularly when Bangladesh said it will not accept these people.
The CAA and the National Register of Citizens (NRC) makes hundreds of thousands of Bengali Muslims living in Assam for decades with their families stateless. They had no doubt entered Assam without any papers, and without following any legal process, but that was 50-60 years ago, or even longer.
By sheer hard work, they have assimilated into the Indian nation, built a small house and a small business in Assam. They have children and grandchildren who were born in Assam, and have never been to Bangladesh, and know no one there.
Bangladesh has declared it will not accept them. So should they be thrown into the sea? One is reminded of the poor shanty dwellers in Indian and Pakistani cities who are often threatened with eviction. This is a humanitarian problem, not just a legal one. A similar problem has arisen in Pakistan with close to 2 million Afghans entering Pakistan as refugees after the Soviet invasion in 1979. They have been living in Pakistan for nearly 45 years. They are now being evicted on the pretext that they are terrorists.
These Afghans entered Pakistan without following the legal process, but when bombs are falling near one’s head one will flee for his or her life, and will hardly bother to follow the legal process. These Afghans, like the Bangladeshi Muslims in India, have worked hard to build a life for themselves in their adopted home. They have children and grandchildren, who may never have seen Afghanistan. What will they do there?
I submit that humanitarian considerations demand that such Bengali Muslims who had entered Assam decades ago, and Afghans who have been living in Pakistan for long, should be granted citizenship by India and Pakistan respectively. These countries should follow the example of the Immigration Reform and Control Act of 1986 passed by the US Congress which legalised Mexicans who entered the US without documentation before 1st January 1984.
