Can the Indian Constitution stop the controversial citizenship law?

For the last 70 years, India has celebrated its coming of age as a republic with a slew of staid, official functions. But this year, on Sunday, January 26,  it was a Republic Day with a difference.

For the first time, the day was celebrated by people on the streets, by citizens who make up the republic. The much-admired Indian Constitution, reputed for its clear commitment to egalitarianism, secularism and liberalism was on full public display.  

The preamble starting with “We, the people..” was read out, recited and sung across India by citizens fearful that their much-cherished freedoms and equality were being trampled upon by last year's controversial amendment to the Citizenship Act of 1955.

The constitution has undoubtedly been the guardian of Indian democracy since its adoption in 1950, almost three years since it won independence from the British on August 15, 1947. It has been heavily quoted, argued over in courts, discussed in academic circles and proved to be an inspiration for other nations like South Africa, but never has it been brought out from its hallowed existence into the din and dust of the nation’s streets and held aloft as it has now.

For, the latest amendment has touched a raw nerve in the republic. The bill, for the first time, introduces a law that differentiates people based on their religion. According to the law, all those who illegally migrated to India (until December 31, 2014) from neighbouring Pakistan, Bangladesh and Afghanistan will be given citizenship unless they are Muslim. 

The amendment mentions explicitly members of the religions that will benefit: Hindus, Christians, Buddhists, Jains, Sikhs and Parsis.

This, according to a large section of people, violates Article 14 of the Constitution, which specifically prohibits discrimination on the grounds of religion. 

The Hindu nationalist BJP government under Prime Minister Narendra Modi, and his close associate Home Minister Amit Shah who piloted the amendment, say that citizenship will be given to those minorities who were religiously persecuted in neighbouring countries. But this clause does not find a place in the actual amendment.  

What makes Muslims — who make up 20 percent of India’s population with an estimated 200 million in number — apprehensive is that the amendment comes close on the eve of a proposed exercise to determine who are Indian citizens and who are not.  

Called the National Register of Citizens, or NRC, this massive exercise announced by the Modi government entails officials reaching out to every individual in the country seeking documents that prove they are citizens.

In a country like India, with millions below the poverty line and many more without any proper documentation, this could be disastrous. The latest amendment will ensure that most, except Muslims, are safe as they will get citizenship anyway. 

But in the case of Muslims, if appropriate documents are not produced, it will be next to impossible to prove their citizenship which can mean life in a detention centre. Even if that does not happen, the fear is real as a distinct possibility.

There are other questions too that have arisen out of the amendment. For instance, opponents ask about illegal migrants from other neighbouring countries, say Nepal, Sri Lanka and Myanmar? 

Why have they been left out? Also, India is home to thousands of Tamil refugees (of all religions, but mainly Hindus) who fled Sri Lanka due to the ethnic-separatist violence for several decades. Some refer to Jews and ask why they have also been left out, even if their numbers are minuscule compared to all other religions in the Subcontinent.

The government and its supporters in the ruling BJP (Indian Peoples’ Party) and its affiliates like the RSS (National Volunteers Association) have tried to assuage fears stating that the December 11 amendment will only give citizenship, not take it away from existing citizens including Muslims.

But, when seen in conjunction with the NRC, this argument does not hold and therefore has failed to convince the opposition. More importantly, the amendment, by singling out one religion, has diluted the secular character of the constitution.  

In the Indian context, secularism is inclusive, meaning that the state supports all religions, and the constitution allows individuals to practice any religion of their choosing, without state interference. 

The amendment therefore directly infringes on this clause as it excludes Muslims from the benefits that other religions will enjoy insofar as citizenship is concerned.

What has been remarkable about the protests is that they have been sustained and focused on their one-point demand, which is for the striking down of the amendment. These protests have been spontaneous and supported by ordinary people of all religions across social and economic lines. 

Among all the protests, the most iconic one was at Shaheen Bagh in Delhi led by women – ranging from those normally working behind the four walls of a house to professionals, students and activists. 

All major cities have seen some form of protest – in Kolkata, Bengaluru, Chennai, Mumbai, Patna, Lucknow and Trivandrum –  in fact right across the country. Incredibly, no part of the country has been spared from the protests. Political parties like the Congress, the Janata Dal and Left Front besides regional outfits like the Trinamool Congress too have been active, but none has been allowed to hijack the protests which have remained firmly rooted and controlled by the people on the street. 

The other unique feature of the protests is the participation of students from universities across the country triggering state-sponsored attacks by the police on some of them like the Jamia Millia University in Delhi and on the Aligarh Muslim University.

India has rarely seen these level of protests. The previous one in some ways comparable was the massive students' movement in the early 70s against the then Congress government of Indira Gandhi which led to the imposition of Emergency and suspension of all fundamental freedoms, lasting nearly two years from June 1975 to March 1977.

The protests against the anti-citizenship amendment show no sign of subsiding even as the state makes all attempts to break the movement. It has cajoled, appealed, threatened and even resorted to devious means to push back the opponents, in some cases calling the protesters anti-national and pro-Pakistan (with which India has a hostile relationship).  

But nothing has so far washed, and the opposition continues unabated – a tug of war that appears to be taking the Indian nation and its constitution into murky waters that some feel was uncalled for, especially at a time when the country is reeling from a severe economic downturn and needed to work itself out of it.