Street Protests against the CAA
The CAA violates the Secular nature of the Indian Constitution
Critics of the CAA claim that the CAA violates the secular spirit of the Indian Constitution. Before we get into the CAA, its constitutional validity and secular credentials, we need to explore a few issues that have remained unresolved about secularism in the history of modern day India. Understanding these issues will help us place the present situation in some perspective and find answers to what is right and who is right.
In India, Muslims follow Islam, Hindus follow…?
It was the year 2004. My dad was still representing a renowned US Daily's South Asia desk in New Delhi. On that mildly cold October afternoon, he was interviewing an editor of one of the leading media houses of India who was an eminent journalist himself. In the course of the conversation, there was something that gentleman remarked that has stuck with me since. He said - "In India, Muslims follow Islam, Christians follow Christianity, while Hindus have been trained to follow secularism. Pt. Jawaharlal Nehru spared no efforts to shame the Hindus into docility in order to make the remnant leftover Muslims (too poor or too reluctant to migrate to Pakistan) to feel at home. And all of this occurred in a land where Muslims had just voted overwhelmingly in favor of the Muslim League in the 1946 Indian provincial elections which would lead to the creation of Pakistan."
Nehru had confessed, in a conversation with the French writer André Malraux, that one of the greatest difficulties he faced was ‘creating a secular state in a religious country’.
Back to present day, 2020. As I saw in the news, the street protesters in India are demanding (of many things) a "Jinnah waali Azadi" (meaning, the type of independence that Jinnah obtained for his followers).
From what I see, most of the present day political parties in India spare no efforts to continue Nehru's brand of secularism. They bend over each other to appease the Indian Muslims whose population is now large enough to hold the country to ransom on issues that are projected by vested interests as undermining the "secular interests" of (sorry, not Indians but) Muslims.
So, do the secular interests of Muslims (or any other minority religion in India for that matter) differ from the secular interests of Hindus? If so, has secularism been defined differently for Muslims as compared to how secularism works for Hindus? If yes, then how did secularism develop such a perversion from its original meaning as defined in the West? Throughout its history, Europe had seen such carnage in the clash between the monarchy and the church that they decided to bring a formal separation between the church and the state through the introduction of the concept of secularism.
But, in India secularism was reinvented to carry a separate connotation depending upon - if the religion it was being applied to was in the minority or majority.
It all happened through this process I prefer to call the secularization of India.
The “Secularization” of India
The secularization of India started post-independence. During this phase, the very identity of the Hindu philosophy has been made to suffer near irreparable damage. As I wrote in my article on Kashmir, there were a set of values carved out of lofty ideals handed down the generations by sages and philosophers of the land, that formed the DNA of the ancient Indian civilization. Ideals such as "My guest is my God", ("Atithi devo bhava" in Sanskrit), or "The world is my family" ("Vasudhaiva Kutumbakam", in Sanskrit). These ideals ensured that the civilization would absorb and absolve all evil forced upon it through the ages, and yet survive through eternity. These lofty ideals became a way of life for the inhabitants of this land. This way of life came to be known as Hinduism. The welcoming open arms of this philosophy, this way of life ensured that every religion that came to this land was treated as just another legitimate path to worship and reach that Supreme Being, the invisible power that guides the cosmos. These beliefs then became the pillars upon which the foundation of Hinduism as a religion, got established. Unlike most other religions of the world, Hinduism grew organically guided by the scriptures and the wisdom of the sages down the ages. There was no prophet that started it all, nor was there a specific day to commemorate the commencement of this philosophy. Yet, in it's true form, it represents the inherent goodness of man, his capacity to coexist in a world mired with religious differences and the very best that can come from being human.
The universal appeal of Hinduism went beyond boundaries and nations
Islam and my own religion Christianity are two of the three Abrahamic religions. Both are major world religions today. However, both suffer from a chronic and incurable malaise wherein they perennially exist and survive in a zero-sum worldview of religious faith. It is an all-or-nothing paradigm where for Islam to survive, the kaffirs or non-believers (non-Muslims to be precise) have to be either converted to Islam or eliminated. Who is a kaffir? According to the Oxford English Dictionary (OED) kaffir is a "noun used by Muslims as a pejorative term for a person who does not follow Islam – a use that is both considered offensive and intended to offend". Somewhat in conjunction with the term kaffir is another term in Islam called "shirk". The concept of shirk has been defined in various flavors by different Islamic scholars and theologians but it essentially means that there is no other idol or god that has the same validity as Allah. Allah has no partners or rivals, so anyone worshiping an entity other than Allah is doomed to an afterlife in hell. So, according to Islam not only is not being a Muslim a sin but worshiping a being different from Allah an act that is equally blasphemous.
Christian missionaries who have been operating in India for long, labor under the conviction that for Christianity to thrive, the heathen have to be baptized into the Christian faith. The Hindu idol worshipers have to be sanitized of their "superstitions" and converted into the Lord's way of conducting faith and worship.
It is not surprising therefore, when Al Jazeera, the New York Times, BBC… the list is endless, self-righteously proclaim that the rise of Hindu nationalism in India poses a threat to the country's secular fabric. These media houses and their self-styled experts on Hinduism are programmed to believe that Hinduism subscribes to the same zero-sum religious worldview where for one religion to thrive, all others have to be subdued or vanquished or eradicated like a disease or some dysfunctional segment of humanity. Which leads these journalists and intellectuals to the apparently logical but utterly misleading, uneducated and farcical conclusion that for secularism to be firmly established in India, the Hindu majority has to be tamed into a state of perpetual docility and subservience to the other faiths that are in the minority.
Back to present day, 2020. I hear intellectuals in India complain that Hindus are demonstrating intolerance.
What is Western Style Secularism?
Secularism as a concept was born in Europe.
So, what is the Western definition of secularism? Let us visit the father of this concept in Europe - France. Laïcité (iterally "secularity") is a French concept of secularism. It discourages religious involvement in government affairs, especially religious influence in the determination of state policies; it also forbids government involvement in religious affairs, and especially prohibits government influence in the determination of religion.
In my own country, the First Amendment to the United States Constitution reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...". This is also alluded to as the Jeffersonian wall of separation as Thomas Jefferson, one of the founding fathers of the US had envisioned adapting the French version of secularism in the American context.
To sum it up, Western democracies define secularism as a complete separation of (or constructing a wall between) religion and the state. This definition is primarily built on four fundamental principles.
The state shall in no way recognize an official religion or proclaim a host of religions as being officially recognized by the state.
The state shall not favor one religion over the other.
The state shall neither permit nor encourage separate sets of laws for separate religions. A law promulgated by the state shall apply to all citizens independent of their individual faiths, which brings us to the fourth point.
Religion therefore, is a personal matter of choice for individual citizens, wherein they have the freedom to pursue their faith and its expression thereof. The state has no role to play in how religions administer themselves through their religious bodies and individual followers to the extent that the practice of such faith does not jeopardize public harmony or national security.
Excluding Western style Secularism from the Indian Constitution:
The one thing Nehru and Ambedkar agreed upon and the Constituent Assembly succeeded in instituting
The logical starting point for an analysis of Indian secularism is the Indian constitution. The Constituent Assembly convened in 1946 and concluded its main work in November 1949, 116 sitting days later. The document that emerged from these labors, was promulgated on Republic Day of 1950.
The word Secularism was consciously kept out of the first draft of the Indian Constitution, by the Constituent Assembly. Pt. Nehru and Dr. Ambedkar were opposed to the use of the word Secular, in the Preamble to the Constitution.
In Ambedkar's words - "This country is inhabited by . . . many communities. Each one has its special laws and merely because the State [has] desired to assume a secular character it should withdraw itself from regulating the lives of the various communities undoubtedly would result in nothing but chaos and anarchy. I certainly myself am not prepared to subscribe to that sort of proposition."
Nehru and Ambedkar may not have seen eye-to-eye on many fundamental issues, but this was one where Nehru agreed with his compatriot.
Nehru debating in the Constituent Assembly
What is Indian style Secularism?
Most members of the Indian Constituent Assembly were convinced that a Jeffersonian "wall of separation" between religion and the state was neither conducive nor practicable in a country like India. In their mind, they foresaw a need to balance the constitutional rights of the Hindu majority population with special privileges that they believed were needed for the Muslim, Christian, Sikh and other religious minorities so that all religions could coexist in harmony.
This understanding in itself mandated that the Indian state would from time to time exercise the right to formulate laws that would keep a balance in society between the majority and the minority religions.
Thus, the Preamble of the Constitution released on 26th January, 1950 did NOT carry the word "Secular". The Preamble declared India to be a "Sovereign, Democratic Republic", with no mention of being secular.
What went wrong with the Indian version of Secularism?
This model of Indian secularism, that strives to put all religions on equal footing through intervention by the government turned out to be a mixed blessing. This flavor of secularism no doubt succeeded to a large extent in promoting religious freedom and a sense of equality among followers of different faiths in Indian society, to begin with. But, as time progressed it also allowed opportunistic politicians in successive governments to enact laws and practices that could be used to grant favors to one religion over the other. This formula of mixing religion into politics in the name of required intervention from the state created a position of equilibrium where the Hindu majority came to be precariously balanced against political favors heaped on the minorities, thereby violating the very principles upon which such a flavor of secularism was designed in the first place.
But, it was precisely to avoid such a situation that India's founding fathers had hesitated to formally use the word Secular in the constitution's Preamble. The next generation of politicians began to look for a way to formalize this politically opportunistic formula (of appeasing minorities under the garb of secularism) so it could withstand constitutional validity. That opportunity was created in 1977 by the ruling Congress Party.
The Emergency of 1977 and Indian Secularism
1975 to 1978 saw an 18 month period, when the then Prime Minister of India, Mrs. Indira Gandhi imposed s state of Emergency in the country. Political leaders and intellectuals were arrested and incarcerated. Dissent was suppressed with force. Under such circumstances Mrs. Gandhi's government passed the 42nd Amendment to the Constitution wherein the words Socialist and Secular were forcibly inserted into the Preamble. As a result India became a Sovereign, Socialist, Secular, Democratic Republic.
This raises certain questions which remain unanswered to this day.
Can a Constitutional amendment be enacted under a state of National Emergency? Will such an Amendment be deemed lawful?
When Dr. B. R. Ambedkar and Nehru, both agreed on that one thing that India cannot be turned into a secular nation, then what compelled Nehru's daughter to force the word "Secular" into the Preamble of India's Constitution?
After becoming a secular nation, should religious minorities in India continue to receive special treatment under the provisions of the Constitution?
However, one thing was certain after the 42nd Amendment. Politicians could now use the alibi of secularism, to favor one religion over the other under the pretext of maintaining a balance of equality, and citing the secularism of the Indian constitution at the same time.
What is the Citizenship Amendment Act (CAA)?
The Citizenship (Amendment) Act, 2019 was passed by the Parliament of India on 11 December 2019. It amended the Citizenship Act of 1955 by providing an expedited path to Indian citizenship for members of Hindu, Sikh, Buddhist, Jain, Parsi and Christian religious minorities, who had fled persecution from Pakistan, Bangladesh and Afghanistan before December 2014. Members of these persecuted minorities will now have to live or work in India for 6 years instead of 11 years before becoming eligible to apply for Indian citizenship.
It amends India's 64-year-old citizenship law, which currently prohibits illegal migrants from becoming Indian citizens. The concept of "illegal immigrants" and restrictions imposed thereof were introduced through an Amendment introduced in 2003.
Illegal immigrants to India who are Muslims, are excluded from this accelerated path to citizenship.
And that exclusion has wreaked havoc in the minds of those who believe that the Indian model of secularism is under threat.
Does the CAA violate Article 14 of the Indian Constitution?
This is charge wherein critics contend that the CAA goes against the secular nature of the Indian constitution.
Article 14 of the Indian Constitution states that "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." This equality of protection is extended to Indian citizens as well as to foreigners. Therefore, the assumption is that the CAA law is discriminatory towards illegal Muslim immigrants to India, and therefore violates the equality guaranteed under Article 14.
The Concept of "Reasonable Classification" under Article 14
If you read deeper into Article 14 it becomes evident that Article 14 does not mean that all laws must be general in character or that the same laws should apply to all persons or that every law must have universal application. This is because all persons are not, by nature, attainment or circumstances in the same positions.
Thus, the state can treat different persons differently if circumstances justify such treatment. Further, the identical treatment in unequal circumstances would amount to inequality. So, Article 14 permits classification, so long as it is
"Reasonable" based upon intelligible differentia, and
The differential has a rational relation with the objective of the act.
The street protesters in present day India would not be interested in drilling down to the two bullet points above, as it could unravel some of the charges of discrimination levied on the CAA.
I am not an expert on the Indian constitution, but I hail from a democratic country which is very similar to India, from a constitutional aspect.
From what I see, the reasonable differentia specified under the CAA is that it serves to bring reprieve to 6 religious communities in 3 foreign countries, where these communities consistently face persecution for belonging to a religion other than the declared state religion. And if that were not enough, these communities have no recourse to justice, as a norm of life.
Now, does this differentia have a rational relation with the objective of the act? The objective of the Citizenship Amendment Act is to provide refuge, a safe haven in India to men, women and children identified by the reasonable differentia, so they can be promised a safe and promising life and future which was otherwise denied to them in their countries of origin - Afghanistan, Pakistan and Bangladesh.
The case of West Bengal versus Anwar Ali, 1952
There is also a powerful judicial precedent that strongly supports the case of positive discrimination, as provided for and approved by the Indian Constitution. In the case of the State of West Bengal versus Anwar Ali, the Supreme Court of India had ruled that positive discrimination is not prohibited by the Indian constitution, but negative discrimination is barred. The Court cited the example that one group of Indian citizens (backward classes) have extra privileges (reserved jobs) over those ordinarily available to all other citizens. But, no one can be denied ordinary rights (government jobs) if it is available to all citizens.
Thus the Citizenship Act of 1955 ensured that no illegal immigrant would be granted Indian citizenship. The CAA makes a case for positive discrimination to that Act by allowing 6 religions from 3 foreign countries to be granted an accelerated path to citizenship as there is universally available data on their persecution and discrimination in their countries of origin.
I have no premonition on which way the Supreme Court of India will place its judgement on the numerous petitions filed against the CAA. My gut feeling says, the Supreme Court will uphold the CAA on the grounds of reasonable differentia and its relation with the objective of the act. However, in my mind the CAA is a law that does not violate Article 14 of the Indian Constitution.
Excluding illegal Muslim immigrants from the benefits of the CAA violates Article 14?
Does it? Let's see.
Critics say that Shias, Hazaras and Ahmadiyyas in Pakistan are persecuted as well. Why should India not extend accelerated citizenship to them? And why not to illegal Muslim immigrants from Bangladesh?
The response to that is so obvious that many fail to see the dots and how they connect with each other. All Muslims that are in Afghanistan, or Pakistan or Bangladesh today, are there because of 2 reasons,
that is where they were born to families living in that land for generations, or
that is where their ancestors chose to migrate to when India was partitioned
Since all three of these countries profess Islam to be their state religion, the Muslims in those countries are deemed to have settled down in their home states any reported persecution to them cannot be classified as persecution on the grounds of religious differences and therefore fails to meet the criteria of reasonable differentia specified by the CAA under Article 14.
Let’s take a case from the Ahmadiyyas
On a side note, think of some famous Ahmadiyyas from Pakistan. Let's take the case of Chaudhry Muhammad Zafarullah Khan. Khan was one of the most vocal proponents of Pakistan and led the case for the separate nation for Muslims in the Radcliffe Commission which drew the countries of modern-day South Asia. He moved to Karachi in August 1947 and became a member of Pakistan's first cabinet serving as the country's debutant foreign minister under the Liaquat administration. From 1961 through 1964, he served as Pakistan's Permanent Representative in the UN. He was vociferous in his argument of the cessation of Kashmir from India and its accession to Pakistan during his tenure at the UN.
As a neutral reader, close your eyes and decide for yourself, which side of the border does the loyalty of Ahmadiyyas lie?
I do not have the time and space, to delve into the Hazaras and the Rohingyas of the world. I will reserve another article for that, if needed.
Lastly, on a Humanitarian Level
However, for the non-Muslim minorities living in these 3 countries, their ancestors could never have foreseen the calamity brought about by the Partition of the sub-continent. Lines were drawn on the basis of religion across a land that knew no religious boundaries. If religious differences then become the reason why non-Muslim teenage girls are abducted and forcibly converted to Islam before getting married off to Muslim men, then the only country they can look up to for safety and refuge would be India, where the Indian model of secularism grants them freedom and privileges that no other nation in the subcontinent does, to the same extent. If I were a Hindu or a Christian or a Sikh mother with teenage daughters in those circumstances, I would risk my life and everything I have, to get my daughters into an Indian refugee camp in Punjab. And then with folded hands in prayer, thank the Almighty that my daughters can have a safe and secure future under the Citizenship Amendment Act (CAA).
Edit 1:
Without the word "Secular" or "Secularism" how did the Constitution ensure Religious Equality?
A reader once asked an intelligent question - if the word secular is removed from the Constitution, won't it make the state more favorable towards one religion over other as per their convenience and party's ideologies?
Let me rephrase this question slightly differently. When the Constituent Assembly realized that secularism as a term cannot be incorporated in the (first draft of the) Constitution, how did they ensure that the state would not favor one religion over other based on political convenience?
Although long and perhaps overly weighted down with detail, the Indian Constitution is rightly seen as a progressive charter not least with regard to matters of faith. Article 25 (1) enables all Indian citizens, equally, one to another, the right 'to profess, practice and propagate religion'. Under Article 26 (a) citizens are at liberty 'to establish and maintain' religious institutions. Article 27 prohibits the state from raising taxes for specifically religious ends. Under Article 28 (1), state-run schools are barred from religious teaching; while Article 28 (3) forbids schools run by religious sects from compelling students to attend religious instruction classes. Discrimination on religious grounds is expressly prohibited in admission to educational institutions by Article 29 (2), in recruitment to the public services by Article 16 and in respect of all ‘places of public resort maintained wholly or partly out of State funds’ by Article 15. On the face of it, these three clauses offer extensive protection to religious liberty on the one hand and against religious compulsion on the other.
Article 25, note, makes no mention of 'worship' but speaks instead of 'practice', which theoretically extends the guarantee of the state to public rituals such as processions and festivals. What is more, it specifically gives people the right to 'profess' religion. India’s is virtually unique among the modern world’s constitutions in this respect. It is apparently with these provisions in mind that Chandra B. wrote in his book “India After Independence”: 'the spirit embodying the Constitution was secular'.