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Home > General > Equality, but with one exception | Aakar Patel

Equality, but with one exception | Aakar Patel

7 August 2015

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The Asian Age, Aug 06, 2015

How will any change in the law that accommodates Bangladeshi Christians, Hindus, Sikhs, Jews as being qualified to migrate under persecution exclude Bangladeshi Muslims?

I saw this story in the news on immigration which made me wonder if the Bharatiya Janata Party-led government had thought through what it was doing.

A news report in an English language daily said that “in a move that will have far-reaching implications in Assam and some parts of north-west India, the Union home ministry will amend the Citizenship Act, 1955, to grant citizenship to undocumented migrants who fled religious persecution in Pakistan and Bangladesh.”

The BJP’s manifesto for the general elections last year had said quite clearly: “India shall remain a natural home for persecuted Hindus and they shall be welcome to seek refuge here.” This has always been its view so there is no surprise there.

The story on amending the law added that the migrants would include “not just Hindus but also Buddhists, Christians, Zoroastrians, Sikhs and Jains.” To this end, the government is going to introduce legislation that would make it easy for the communities named above to migrate legally to India.

I think this is a good thing. If people are being persecuted for their religion or their race, it is incumbent on nations to take them in and give them shelter. The Western nations have for many decades even had quotas for taking in such refugees and many of African and Asian origin have been taken in.

But looking at that list in the report, my entirely well-meaning question, as may be obvious, is this: What about Muslims? They seem to have been specifically left out of this formulation.

This may appear to be of course for obvious reasons. The Partition of India was along religious lines and to some extent also democratic. It is the huge majorities that the Muslim League won in the 1945-46 elections (which were along separate electorates though with a very limited number of people voting) that empowered it to demand the final division of the country.

Since Muslims had asked for the Partition and got it, they should not be complaining if they do not now like it in their new countries. That is the logic that seems to go through both the BJP’s understanding of the issue (and this was clear in the election campaign last year) and in the changed now proposed in the law. The specific exclusion of Muslims seems to come out of this sentiment. On the face of it, as I said, this is unexceptionable and cannot be argued against beyond a point.

All governments in India will see Hindu and I suppose Sikh migrants from unpartitioned India with sympathy. The media will also support the rehabilitation of such people unconditionally.

My issue has to do with the changes in the law that are being proposed. The Citizenship Act and the Passport Act will need to be changed to allow for these people who are persecuted to enter and get themselves registered. And the changes will also allow for those already in India to become citizens easier. All of that is fine.

How will the government introduce language into the laws which exclude those of a specific religion? Articles 14 and 15 of the Indian Constitution read: “Equality before law: The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth: The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

That seems to me to be clear enough. How will any change in the law that accommodates, for instance, Bangladeshi Christians, Hindus, Sikhs, Jews, etc., as being qualified to migrate under persecution exclude Bangladeshi Muslims?

It cannot in my opinion, and if such a law is written it will be challenged and shot down quite easily if its basis is religious. It could be argued that these laws only apply to those already citizens and not to those who want to be citizens. But, I suspect, that the precedents here would be quite clear and it would not be possible to make the laws exclusionary.

I suppose the other obvious issue is: Why would Muslims want to flee Muslim nations? To that the answer is that many do. From Syria to Iraq to Libya, hundreds of thousands are fleeing already. Persecution can come down on the individual for many reasons.

In our parts, “Muslim” is only part of someone’s identity. They could be targeted for being Shia, Ahmadi, female, a communist, an apostate, homosexual, an atheist, a blasphemer and many other things. A devout Sunni man might still reject a theocratic state that is Islamic, and I know many, many such people in Pakistan. Will the new law exclude, for instance, a Pakistani Ahmadi, who says she is persecuted by law, as being unqualified for protection?

Of course it could be argued by some in those countries that India itself has a history of persecuting some of its minorities, for instance the Sikhs in Delhi in 1984, even if episodically. But let us leave that out of the argument for now. That is not the point.

The report said that the external affairs ministry “has cautioned the home ministry that the move could hurt India’s relations with its neighbours. Nevertheless, the political call has been taken.”

I hope only that this call has taken into account the points we have looked at. It would be unfortunate if the government’s well-meaning efforts were to flounder on its ignorance of the basic principles of our Constitution.

Aakar Patel is a writer and columnist


The above article from The Asian Age is reproduced here for educational and non commercial use