History neither errs nor erases!
Who ‘I' am? What is my identity? Who ‘We’ are? What is our identity?
Identity of a person is a state of mind as well as position in the society with so many myriad dimensions from the perspective of personal, ethnic, cultural, religious, social, economic and political affiliations. Identity begins with ‘Self’ of a person, which has a reciprocal relationship with society. Thus, self begets identity of a person through collective reflexive process by a perceptive view of the society and world, influenced by different types of experiences in society. So, identity is situational having three dimensions of personal, social and purposive nature.
A person has always been associated with a community in particular and a society at large. This relationship is primarily based on biological basis of a person as a child in a family, the fundamental unit of every society. Society has caused a new political form of state through a historical process. A state has essentially four elements: land, people, government and sovereignty/self-governing power. So, there has been a triangular relationship between a person, society and state. Nation is a state plus emotional dispositions of its citizens.
Now, the question is: how a person perceives a state or nation state? Here come the issue of citizenship. A citizen is a legally recognized person as a member of a sovereign state or a nation. As the present world is comprised of nations, every person is a member of a nation, having a national citizenship and a national identity. And, national identity is a person’s subjective sense of belonging to one state or to one nation. Here come the issue of stateless persons and persecuted persons of a state/nation. Here again come the issues of two factors – pull factors which are ‘opportunity-driven’ and push factors which are ‘necessity-driven’ to make a legal as well as humanitarian differences between infiltrators and refugees.
In modern era, citizenship can be acquired by a person by: descent (ancestry or ethnicity), birth in a country, marriage/registration and naturalisation. Different states use different combinations of the above four criteria with exceptions like few Arab countries grant citizenship only to persons of Islamic faith. So citizenship is so nation state-centric that every state has its own criteria and legacy to admit a non-citizen to grant citizenship in a unique manner within the paradigm of two contrasting views on citizenship: liberal-individualistic and civic-republican perspectives.
Citizenship and Indian nation state
With the fact of Partition of Bharatavarsha in 1947 on the religious line of Two-Nation theory, India has started her journey as a sovereign state with its Citizenship Act, 1955 for determining the criteria of citizenship with various amendments from time to time, the latest being the Citizenship Amendment Act, 2019 (CAA, 2019). Here the question arises: is the CAA unconstitutional, unethical and discriminatory with respect to religious faiths?
The Articles 5-11 of the Indian Constitution deal with the citizenship of any person in the State of India. As per the Article 11, the Parliament of India has been entrusted and empowered to make laws relating to citizenship of India. Apart from the Citizenship Act, 1955, the Foreigners Act, 1946 and the Passports Act, 1967, which has replaced the Passports Act, 1920, have also been related with the citizenship of non-citizens residing in India legally or illegally.
Though we have the Citizenship Laws, India doesn’t have a National Register of Citizens (NRC). We have Voters cards, Aadhaar cards, and other cards for specific purposes. But we have no National Citizenship Card. The Aadhaar card is for biological identification of a person, and the Voters card is a supplementary card, issued by the Election Commission of India, out of the Voters List as if the voters are the citizens of India. But the legal validity of Voters card is not sufficient for citizenship of India. Herein lies the fallacy of different types of identity of a citizen in the nation state of India that is Bharat. So the identity of an Indian citizen has been in a quagmire of uncertainty and controversy.
The moot point here is: what are the basis of Indian national identity and citizenship? Indian national polity is undoubtedly based on equality of law and equal protection of law to all persons in the national geographical territory of the Indian state. This spirit has come in the form of Article 14 in the Constitution of India following the letter and spirit of the Preamble to the Constitution and applies to the citizens of India. But the question is: does this spirit of equality apply to the non-citizens residing in India? Not only that this spirit of equality did not come in the way to treat few groups and communities to be provided ‘favour and special provisions’ unequally on the basis of historical differentiation and discriminations by the State of India as per different Articles of the Constitution. The spirit of equality as well as the mechanism of unequal treatment to few groups of citizens on the basis of ‘reasonable classification' have been the hallmarks of Indian nation state. Then come the pertinent question: whether the latest Citizenship Amendment Act, 2019 violates the principle of equality or follows the principle of ‘positive discrimination’ to non-citizen residents in the territory of India?
The way forward
What is the legacy of Indian nation state? It is the reality that our Bharatavarsha has been divided on religious faith into Bharat (India in English) and Pakistan, and we have been bearing that legacy in our national life. The sad reality is that the state polity of our erstwhile ‘parts’ is not secular but religious in letter and spirit and that religious system institutionalised as State religion is so ‘exclusionary’ that religious persecutions have been so stark in their body-politic.
If we go through the immediate historical legacy of freedom struggle during the British colonial period, we can’t deny the moral, ethical and historical responsibility of the minority populace of Pakistan, Afghanistan and Bangladesh, who have been persecuted only due to their ‘faiths’. These refugees can’t be treated on par with the infiltrators from those countries as per the definitions and clarifications given by the Vienna Convention – UN 1951 Refugees Convention and 1967 Protocol. Although India did not ratify the Vienna Convention and did not sign the 1967 Protocol, India has been bearing the burden of asylum seekers and refugees of all religious faiths on humanitarian ground.
From that perspective India has been giving the citizenship status to those persecuted non-citizen refugees who have come to the Land of Bharat considering their civilizational roots. Although India has no domestic law on refugees, India has been according the refugee status to those people without discriminating negatively to other non-citizen refugees as was given earlier to other refugees from time to time.
The prime question here is: whether the CAA, 2019 is constitutional or not? Is this law discriminatory in according refugee status to the non-citizen residents on the basis of religious faith? Whether this law violates the fundamental rights of persons as per the Article 14 of the Constitution of India or not? Here the simple answer is that our Constitution has provided the mechanism of judicial review to judge the constitutionality of any law by the Apex court of the nation state of India.
Of course, we the people have the right to protest against any law. But the protest must not violate the rights of others and must not be destructive of national assets and properties. Last but not the least that the burden of refugees must be borne by all the states as the citizenship of India is unitary and all citizens are citizens of the State of India, not the states of India.
@ Sujit Roy
22.12.2019
No comments:
Post a Comment