BJP and the story of a subterfuge

BJP’s sectarian agenda was evident back in 2014: “India shall remain a natural home for persecuted Hindus who shall be welcome to seek refuge here”.

People submitting memoranda to the JPC on the Citizenship (Amendment) Bill, 2016, at a meeting in Guwahati on May 7, 2018.

In its Lok Sabha election manifesto in 2019,the Bharatiya Janata Party (BJP) made 75 promises to coincide with India’s 75th Independence day in 2022. Among them were abrogation of Article 370, which guaranteed special status to Jammu and Kashmir, and the reading down of Article 35a, which provided special rights and privileges to the citizens of Jammu and Kashmir; the building of Ram temple in Ayodhya in a harmonious environment; enacting the Citizenship (Amendment) Bill with an assurance to protect the linguistic, cultural and social identity of the peoples of the north-eastern region; and improving the ease of doing business ranking of the country. The manifesto, titled “Sankalpa Bharat Sashakta Bharat”, listed several welfare measures such as ensuring 100 per cent electrification and building pucca homes for every household, setting up a National Traders’ Commission and reducing the percentage of people below the poverty line to single digit figures. 

Within three months of assuming office, the BJP-led National Democratic Alliance (NDA) government at the Centre did away with Article 370 and 35a, secured a favourable court order that paved the way for the building of a Ram temple at the site of the demolished Babri Masjid in Ayodhya, drafted labour codes for ease of doing business, and finally enacted the Citizenship (Amendment) Bill, 2019, or CAB. North-eastern India reacted violently to the CAB. 

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That the BJP would push its sectarian agenda was evident in the run-up to its 2014 campaign itself. The BJP manifesto for that election stated that “India shall remain a natural home for persecuted Hindus who shall be welcome to seek refuge here”. Narendra Modi as the party’s star campaigner often stated that “we have a responsibility towards Hindus who are harassed and suffer in other countries. India is the only place for them”. At that point, the persecution of other non-Muslim minorities was not high on the BJP’s agenda. It was quite possible that these groups were accommodated in the CAB as an afterthought in order to dispel the notion that the BJP had a majoritarian agenda in mind. Yet, the explicit exclusion of Muslims from the purview of the Bill has reaffirmed suspicions of a majoritarian mindset with the passage of the CAB in both Houses of Parliament.

The CAB was always a discriminatory piece of legislation in its understanding and scope. By amending the original Act of 1955, the 2019 Bill sought to grant citizenship status to illegal immigrants of six religious groups from the three neighbouring Muslim-dominated countries of Pakistan, Afghanistan and Bangladesh on the hypothetical assumption that they were in India after fleeing persecution or anticipated persecution on account of their religious identity. These groups were Hindus, Parsis, Jains, Buddhists, Christians and Sikhs. The classification did not include Muslims as, according to the BJP and Union Home Minister Amit Shah, who appears to have been behind the exercise (as he constantly referred to the Bill as his Bill ( mera Bill) during the Parliament debate), Muslims or even Muslim minorities such as Hazaras in Afghanistan and Ahmadiyas or Shias in Pakistan could be not be deemed as being persecuted groups as they were basically followers of Islam. The amendment was applicable to only six non-Muslim minority groups who entered India on or before December 31, 2014. This was the new cut-off date, arbitrarily decided and based again on an arbitrary classification of communities, which, incidentally, even the 1985 Assam Accord did not contain. According to the accord, the names of all foreigners who had entered India up to March 24, 1971, would be detected and deleted and they would be expelled. 

There were other persecuted communities, too, such as Sri Lankan Tamils and Rohingyas from Myanmar who had sought refuge in India but were not included on the list of persecuted minorities. These concerns were raised in a Joint Parliamentary Committee (JPC) that was set up to examine the Bill and address concerns from all stakeholders. 

But the committee ignored the concerns raised about the fissiparous nature of the amendments. The passage of the CAB was crucial for the BJP as that would pave the way for the regularisation of citizenship of those persons from the majority community whose names were not on the final list of the National Register of Citizens (NRC), which was released in August 2019.

Citizenship in India is guaranteed to all those born in the country’s territory regardless of their nationality and on the basis of the nationality of either of the parents. The Citizenship Act of 1955 came into existence on December 30, 1955. It has been amended nine times since its inception but never before has an amendment raised such a controversy. As per the 1955 Act, an illegal immigrant was one who entered India without a valid passport or documents and overstayed a visa.

The 2019 amendments, which are now part of the Act, in fact legalise this illegality that had earlier applied to all communities and classes of people. According to the web portal Livelaw, the conditions for birthright citizenship have been tightened over the years. In 2003, an amendment posited that those who were born after December 3, 2004, would be considered for citizenship only if one of the parents was an Indian citizen and the other not an illegal immigrant. The process of naturalisation under the Act was for those who had no links with India by blood, marriage or birth. The applicant, not being an illegal immigrant, was required to have been a resident of India continuously for 12 months before making an application. The person should also have resided in India for an aggregate of 11 years. The earlier provision for naturalisation did not make any “religion-specific” classification, which the present amendment does. Now the Act not only makes such a classification but also reduces the period of 11 years to five years for non-Muslim immigrants from Pakistan, Bangladesh and Afghanistan. To a question in Parliament as to why December 2014 was selected as the cut-off date, Amit Shah replied that it was done to reduce the waiting period. The waiting period for persons from the six non-Muslim communities, who had applied for naturalisation, was literally over with the halving of the residency period and the passage of the Act.

Therefore, under the present Act, all such persons who had entered India without valid documents before December 2014 would automatically be eligible for Indian citizenship by the end of 2019 as the waiting period has been reduced from 11 to five years. By classifying certain categories of immigrants who have been awaiting naturalisation, the present Act has effectively excluded Bengali-speaking Muslims, identified as illegal immigrants, from claiming that same right, especially those who had stayed in India for an aggregate of 11 years for economic or other reasons, including those fleeing their home country on grounds of persecution as in the case of Rohingya Muslims.

There are in all five Acts for the detection and deportation of illegal migrants. It is notable that even the 1985 Assam Accord, despite the conditions under which it emerged and the backdrop of violent clashes between communities, does not make any religion-based distinction in the classification of illegal immigrants, preferring to use the generic term “foreigners”. In 2005, the Supreme Court repealed the Illegal Migrants (Determination by Tribunals) Act of 1983. This Act provided protection to minorities affected by the Assam agitation and it also provided for procedures to detect illegal immigrants from Bangladesh and their expulsion from Assam. It was applicable only to Assam whereas in other States, the detection and deportation of foreigners was done under the Foreigners Act, 1946. Sarbananda Sonowal, the BJP Chief Minister of Assam, was the petitioner in that case. It was illegal immigration of Muslims from Bangladesh that was the prime concern in Sarbananda Sonowal vs Union of India and others (2005). 

New passport rules

The BJP was always in a hurry to get the amendment passed. In September 2015, the Ministry of Home Affairs issued and published two orders in the Gazette, which exempted non-Muslim illegal immigrants from the three specified countries from requiring a valid passport and a visa for their stay in India. The two orders, namely, the Passport (Entry into India) Amendment Rules, 2015, and the Foreigners (Amendment) Order, 2015, regularised the stay of these non-Muslim immigrants who had entered India on or before December 31, 2014. These foreign nationals of Indian origin, who would otherwise have required seven years of residency in India in the absence of proof of birth in Indian records of either them or their parents, could apply for citizenship under Section 6(1) of the Act, which stipulated a minimum of 12 years of residency.

The Bill, which was initially introduced in 2016, was referred to a JPC the same year. The committee had 14 sittings and three “study visits” to Jodhpur, Ahmedabad, Rajkot, Guwahati, Silchar and Shillong, spending not more than three days in each of the regions. The study in Guwahati, Silchar and Shillong was conducted in three days. The committee, which was chaired by a ruling party legislator, claimed to have received some 9,000 memoranda from stakeholders. It drew heavily on a speech by Hindu Mahasabha founder Dr Syama Prasad Mookerjee in 1950 wherein he referred to a homogeneous Islamic state as being Pakistan’s creed and the extermination of Hindus and Sikhs and expropriation of their properties as its (Pakistan’s) policy. The Hindus of East Bengal, he said, were also entitled to protection by India, not on humanitarian considerations alone but for laying the foundations of India’s political freedom and intellectual progress. The JPC report, submitted in January 2019, interestingly made a distinction between the “sufferings of these religious minority communities” and the rest of the minority communities in the world. 

Dissent note to JPC

Mohammad Salim of the Communist Party of India (Marxist), who was a member of the JPC, sent a strong dissent note on the Bill, which included some points relating to the functioning of the JPC itself. Salim, who released the contents of his dissent note to the media recently, said that the committee ought to have treated a vital issue such as citizenship “with both substantive rigour and procedural correctitude”. He said that for three years since its constitution, the committee “never took its task seriously despite the fact that it was constituted on such an important issue”. For months together it did not meet and when it did, “it was in quick succession and abruptly like the last ten days of the winter session”. He wrote in his note that the discussions and consultations with stakeholders were “reduced to a complete farce” and that the team did not visit West Bengal, Tripura, Jharkhand, Odisha and Andaman and Nicobar Islands. “The visits to these States were required and the absence therein is stark given the fact that this is where the Bengali-speaking immigrants live,” he wrote. About Assam, which is the epicentre of the present turmoil, “there was one almost wholly aborted trip”. A second trip was assured but never undertaken. About the thousands of memoranda that the committee said it had received, he said that “the manner in which pre-organised memoranda (copies and single-page photocopies) near identical mainly from Assam and some from Kolkata were collectively submitted by fly-by-night operators to make a show of the fact that people have been consulted further reduced the consultative nature of the committee to a complete farce.”

Salim said the amendments were bound to create more problems, divisiveness and suspicions among people. He wrote that there was a strong resistance to the Bill in Assam as it would pave the way for giving citizenship mostly to illegal Hindu immigrants from Bangladesh who came to Assam after 1971 in violation of the agreement of the Assam Accord. “The proposed amendments extending an open invitation to all Hindus from persecuted neighbouring countries” implied that Muslims can be sent off or reduced to pathetic conditions in detention camps. All the amendments relating to Assam and the National Register of Citizens proposed by the opposition were voted down, including those that suggested that all refugees and persecuted persons from neighbouring countries, including Sri Lanka and Myanmar, be included. The amendments were not for “economic migrants seeking a better deal”, Salim wrote in his dissent note. 

An amendment moved by the BJP legislator Meenakshi Lekhi and cleared by the committee suggested the removal of all legal proceedings against the six non-Muslim immigrants listed in the amendment. The amendment was “discriminatory and potentially disastrous” as it implied that Bangladeshi Hindus, who were in detention centres in Assam and faced deportation or were declared illegal foreigners, would get relief while their Muslim compatriots would face legal proceedings. The alteration of the (rules of) Indian citizenship, he wrote, was in line with the BJP and Rashtriya Swayamsewak Sangh’s unfinished business of Partition, Salim wrote. According to this, Indian citizenship laws should recognise a right of return for Hindus from Pakistan and Bangladesh to India similar to the right of return of Jews to Israel or ethnic Germans to Germany.

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In Parliament, the Congress MP from Assam, Ripun Bora, spoke about how the government was never able to give him accurate replies about the number of persecuted minorities and the total number of people seeking such citizenship. He wanted to know on what basis the government would give citizenship when the data were not available. 

The Director of the Intelligence Bureau, in his deposition before the JPC, had stated that the total number of applicants claiming long-term visa on the grounds of religious persecution was only 31,313. He also said that for others to apply for citizenship under this category, they would have to prove that they suffered religious persecution. If they had not declared so at the time of their arrival in India, it would be difficult for them to make such a claim now, he said. Any future claim would be inquired into, including investigation by the Research and Analysis Wing, he said. All such concerns had been negated with the passage of the CAB and the government was quite clueless now about how to deal with a possible influx of “persecuted minorities” from neighbouring countries, an influx which otherwise would be in violation of the Foreigners Act. It was also the opinion of some sections that rather than give selective and arbitrary citizenship, the government could very well take up the issue of protecting the rights of minorities with the countries concerned. 

The Bill has been passed and until such time it is challenged in court, it is to be law. For the BJP, it is yet another milestone achieved, irrespective of its long-term consequences for India’s secular democracy.