-Dr Aniruddha Babar
Contd from previous issue
However, on the other hand, a fact needs to be taken into consideration that, India is located in a rough neighbourhood surrounded by strategically hostile nations and fragile democracies from where influx of people due to persecution is always a possibility. Given our ethos, traditions, and practices it is surprising that India have not yet evolved a refugee policy. India do not have a national refugee law and is not a signatory to the 1951 UN Convention on the Status of Refugees and its related 1967 Protocol - which set the basic standards of treatment to be meted out to refugees of which the most fundamental is non-refoulment. However, our not signing the aforesaid Convention and Protocol does not absolve us from observing the basic humanitarian law relating to refugees including the principle of non-refoulment as we are signatories to the Universal Declaration of Human Rights (UDHR), 1948, the International Convention on Civil and Political Rights (ICCPR-1966) and the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Torture Convention-1984). Also, Article 14 of the UDHR, Article 13 of the ICCPR-1966, and Article 3 of the Torture Convention-1984, each expresses a commitment to protect refugees. Additionally, the right to refoulment is internationally recognized today as a part of customary international law. Article 51(c) of the Indian Constitution directs the State to respect international law and treaty obligations. Customary international law has been held by the Supreme Court to be part of international law.
Moreover, it needs to be reiterated that the intention and motivation regarding the Bill which the central government have been reflecting can best be resolved by India ratifying the UNHCR Refugee Convention. Surprisingly India is one of the only democracies in the world not to have signed the Convention. This has led to inconsistent approaches in dealing with refugees and economic migrants. The Refugee Convention provides clear guidance on all refugees, including repatriating them voluntarily to home countries once conditions for such repatriation become feasible.
The LokSabha passed the controversial Citizenship (Amendment) Bill on 9th December, 2019 which is the big blow to the Constitutional fabric of India as it is in straight and direct violation of Art. 14, Art.15, Art. 21 and also the Basic Structure of Constitution as given by the Supreme Court of India in KeshavanandaBharthiVs State of Kerala wherein Chief Justice SarvMittraSikri, writing for the majority, indicated that the basic structure consists of the supremacy of constitution, A republican and democratic form of government, The secular character of the Constitution, Maintenance of the separation of powers, The federal character of the Constitution.Moreover in S.R. BommaiVs Union of Indiahon’ble Supreme Court observed that…. “Notwithstanding the fact that the words ‘Socialist’ and ‘Secular’ were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy…..”. The observations that the Supreme Court of India made support us to reflect upon the true character of the constitution. Secularism is not simply a dead word, but rather it is a spirit that should form a part of every action that government takes in the name of ‘The People of India’.Secularism must be understood as a basic feature of our Constitution. The words and the clauses of Citizenship Amendment Bill, 2019 does not reflect the secular spirit that the Constitution of India had born with. Moreover, this Bill does not stand Constitutional with the defence of the doctrine of ‘Reasonable Classification’. At the outset, it should be made clear that the Article 14 of the Constitution of India does not forbid reasonable classification of the target population (for the purpose of legislation) which must not be “arbitrary,artificial or evasive” but must be based on some real and substantial bearing a just and reasonable relation to the object sought to be achieved by the legislation. In the light of CAB 2019 being violative of Art. 14 it may further be noted that the Article 14 applies where equals are treated differently without any reasonable basis. But where equals and unequals are treated differently, Article 14 does not apply.Which simply mean that ‘EQUALS CANNOT BE TREATED UNEQUALLY’ This position of law has been well settled in different cases like D.S. Nakara V. Union of India, MadhuLimye V. Supdt.Tihar Jail Delhi, SanaboinaSatyanarayana V. Govt of Andhra Pradesh, Tamiladu Electricity Board V. Veeraswamy.
It needs to be understood that Citizenship Law defines a country’s political and constitutional identity and character. Laying down rules that determines membership in our political community only on the basis of one’s religious beliefs completely violates this principle. The bill is not “religion and country neutral”. Linking religion with citizenship issue is against the spirit of our history, civilisation, culture and of our Constitution. A great nation like India that has welcomed everyone with open arms throughout its history of thousands of years can’t afford have a very narrow version of ‘Universal Brotherhood’. Citizenship can’t be linked with state, religion, caste, creed and be country specific. It should be universal.
A compact association of South Asian nations, with free movement of people, ideas, cultures and commodities can be founded only on the basis of respecting and protecting the diversity of the region. As people from Assam and other CAB affected regions believe, that while on the one hand the present Indian government seeks to divide refugees on the basis of religion, on the other hand, it has turned the clause 6 of Assam Accord (originally designed to protect the Assamese and other indigenous communities) into a complete non-operational mode.The Citizenship (Amendment) Bill, 2019 may have far reaching consequences in the entire Eastern India which seeks to erode the very basis of unity centering on language of different nations and nationalities and replace it by so called cultural unity based on religion.
In the present form, despite the fact that the Bill has been passed in the LokSabha it is not yet ready to become an Act. Many people from the affected areas including that of Assam believe that the Bill is rushed, ill-conceived, politically motivated, anti-constitutional and ambiguous and in its present form it would do more harm than good. Moreover, any Law or a Policy that threatens the identity of people needs to be widely debated on every possible public platform. The Constitution of India upholds the Principle of Equality. When the Constitution of India which has been drafted by Dr. B.R. Ambedkarthat exists on the pillars of the eternal principles of Justice, Equality, Liberty and Fraternity, does not permit any sort of discrimination among the citizens of India, then on what ground-legal or moral, can the discrimination be made by the government while granting citizenship?
(Author expresses his humble gratitude to Madam AselaRothrong for taking out time from her busy schedule to review this article)
The author is PhD, MA, LLM, DHRL, Former Advocate and Asst. Professor of Political Science, Tetso College, Dimapur and can be reached at
[email protected]