THE JUSTICE OF CITIZENSHIP AMENDMENT ACT, 2019
The Union Home Minister, Mr. Amit Shah recently expressed the commitment by BJP – led government in framing the rules under the controversial Citizenship Amendment Act (CAA). Introduced in the year 2019, the act then attracted a lot of chaos in the form of protests and criticisms causing distress to many. This article attempts to analyse the CAA through the lens of political philosophy theories developed by various school of thoughts.
India, since her independence in 1947 exist as a democratic state. Over the time, with changing demography and subsequent socio – economic conditions, the success and failure of the democratic arrangement relies heavily upon the sustenance of the country’s diversity. Though it is also important to highlight that the problem posed by the relationship between the state and its unparalleled diversities is not confined to the realms of political understanding. According to available literature, to tackle the challenge of establishing a sound relationship between identity and politics in India, it is paramount to switch between the perspectives of political judgment and political understanding (Khilnani, 2010). Dr. B.R. Ambedkar on 25th November 1949, in his concluding speech in the constituent assembly emphasised that the Social democracy forms the base of Political democracy. Here, Social democracy refers to a way of life which recognises equality, liberty and fraternity; therefore, these principles are bound to exist in a trinity. In the same context, the Supreme court, in one of its 1997 judgment re-iterated that “The constitution envisions to establish an egalitarian social order rendering to every citizen social, economic and political justice in a social and economic democracy of the Bharat Republic” (Laxmikanth, 2020: 41-42). Therefore, the constitution and the following legislations ought to provide for the apparatus of the state to execute a collective will of the community.
The changing world order, especially after the world war and then the reforms of the 1990s, influenced and reconfigured the nature of the nation – state. Under the dictum of the Complex Globalization Thesis, it is argued that the position of the state in the context of a polycentric economic – political system is being redefined wherein the national boundaries have become more permeable than in the past (Dicken, 2003). The exodus of people flowing in and out of the country and changing the population pattern of the state has resulted into transformation of the communities in terms of citizenship and sentiments. Individuals’ identity has become a reflexive organized endeavour which is discovered, constructed and actively sustained. (Gidden, 1991).
The article aims to put light on the recent citizenship amendment act from the lens of different political theories such as justice, libertarianism and communitarianism. The act passed in mid – December 2019 is considered as a citizenship crisis. It sparked nationwide protest. The main object of contention was the section 2 of the new act which seeks to provide citizenships to people from the Sikh, Hindu, Buddhist, Parsi, Jain or Christian religion; explicitly keeping the Muslims from the country of Afghanistan, Bangladesh and Pakistan out of the list. Scholars argued that this division and identification of the beneficiaries on the basis of religion is a grave violation of Article 14 as guaranteed by the Constitution of India, the supreme law of the land. The act is against the secular nature of the state as mentioned by our constitutional makers in the Preamble. Another loophole in the act is that it fails to cover other section of refugees like the Tamils from Sri Lanka and Hindu Rohingya of Myanmar. The unclarity of the provisions of the acts have further planted anxieties among the migrants. Otherwise, citizenship in India is granted under the Citizenship Act, 1955 through which Indian citizenship can be acquired in six ways viz. by birth, by descent, by registration, by naturalisation, by incorporation of territory and by special provision as to citizenship of persons covered by the Assam Accord.
The composition of Muslim population in India in comparison to other communities is 14.2% (Census, 2011). There have been attempts in the past to improve the socio – economic status of this marginalised communities like setting up of a high – level committee under the chairmanship of Rajindar Sachar in the year 2005. The recommendations laid down by the committee suggested that the socio – economic condition of the Muslims in the country is at par with the condition of the Scheduled Castes and the Scheduled Tribes. Therefore, if the state is proactive in sustaining the rights and liberties of the SCs/STs then it is incorrect for the authority to threaten the basic right of the individual on the basis of their country of origin and most importantly on the basis of the religion they practice. Such arbitrary move is not just and put personal liberty at risk. Whereas, it has also been noticed that this marginalisation has led to the ghettoization of the community that many of the urban spaces now experience. These places are the hotspots of communal rights and violence.
To establish an argument on how the CAA fails to provide justice, it is pivotal to first understand the concept. According to the definition given by the Socrates, justice is concerned with the well – being of all the people. Whereas according to J.S. Mill, Justice refers to something that can be claimed as a moral right by an individual. Also, the two principles as proposed by John Rawls in his work “A Theory of Justice” (1971) the institutions responsible for political, social and economic justice have far reaching effect on how an individual lives and therefore, it is important that these institutions are just in nature. Rawls in his theory of social justice makes an attempt to rectify the theory of distributive justice. He proposes two principles, i.e., the principle of liberty and the difference principle. According to the first principle, every individual has an equal right to the basic rights whereas the distributive justice talks about how a society should function to do away with the socio – economic inequalities (Drishti IAS, 2016).
Another school of thought that can be deployed to defend the Citizenship Amendment Act of 2019 is Michael Walzer’s “Spheres of Justice”. Under this, three arguments can be presented. Firstly, the national political system in the context of citizenship is assumed to be a close system. Therefore, citizenship in such an arrangement is exclusive and unavailable to foreigners. The decision of the state to not provide citizenship to such a section is an attempt to preserve its integrity. The state has an obligation to provide welfare to its citizen and therefore they get a moral basis of being discretionary in providing citizenship. It is indeed crucial to practice discretion to some extent as according to the “Liberal Theory of Citizenship”, civil rights form the base of citizenship. To be a citizen of a state, amounts to equal rights and duties, liberties along with power, responsibilities and constraints conferred upon every individual (Marshall, 1950). Thus, the state to avoid a situation of socio – economic disparity needs to be selective in their actions.
Second, with regards to the persecuted and oppressed refugees, the nation state is obligated to grant citizenship to only those refugees who are related to the state to India and its affairs directly and indirectly. Prakhar Raghuvanshi, in his article has quoted the Indian partition in this regard. The rationale behind this argument is that a state is responsible for the injury caused to them. This underlying principle of granting citizenship stands valid only in the case when the influx of the refugees is small. The state cannot act as asylum for an exodus of refugees and therefore, in the present context, India is not obligated to grant citizenship to the people from Afghanistan, Bangladesh or Pakistan. The only respite that can be offered is to selectively choose from the victims. Third, the theory of distributive justice, the inclusion and exclusion of people and communities is an absolute right of the state. The state has the final say as the move of admission and exclusion of refugees attach a meaning to self – determination. Therefore, in regards to CAA, the self – determination in this scenario cannot be entirely based on the egalitarian grounds.
From the aforementioned points of argument, CAA can be justified on the basis that it aims to secure the integrity of the state and also secure the citizens of its country their basic rights. The major point of contention is the categorisation of who will and who will not get the citizenship on the basis of religion. In order to achieve a just society, Pluralism is the key in the 21st century.
Drishti IAS. (2019, December 12). Citizenship (Amendment) Bill, 2019. https://rb.gy/rx97px.
Drishti IAS. (n.d.). Contributions of moral thinkers and philosophers from India and world. https://rb.gy/wixsua.
Gauba, O.P. (1981). Concept of Citizenship. Pg. 356 – 357.
Giddens, A. 1991. Modernity and Self – identity: Self and Society in Late Modern Age. Stanford: Stanford University Press.
Jha, S. (2019). John Rawls (1921 – 2002): A Liberal Egalitarian Theory of Justice. Pearson Publication.
Khilnani, S. (2010). Politics and National Identity. Oxford University Press.
Laxmikanth, M. 2020. Preamble of the Constitution. Pg. 41 – 42.
Marshall, T. (1950). Citizenship and Social Class. Cambridge University Press.
Patra, K. 2013. Contemporary Debates on the Nature of State. Pg. 94. Trinity Press.
Raghuvanshi, P. (2020, April 28). One true answer? A philosophical perspective of the Citizenship Amendment Act, 2019. https://jilsblognujs.wordpress.com/2020/04/28/one-true-answer-a-philosophical-perspective-of-the-citizenship-amendment-act-2019/
Wolff, J. (2016). The Distribution of Property. Pg. 134. Oxford University Press.
About the author: Ruchika Murmu (M.A. (PP); 2020 -22) is a spring semester student of Public Policy (JSGP). She is an avid reader and keeps profound interest in the domain of sustainable development, health, and education.
Cover Image: Reuters