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Justice (Retd.) G D Sharma

Today, i.e. 5th of January 2020 is a gala day in my life when I found privileged on account of the gracious act of Dr. Jitendra Singh, State Minister Union of India who chose to visit my house along with other dignitaries of the BJP local organisation to share his views and receive my impressions regarding prevailing upheaval which has disturbed the law and order conditions having tendentious effect to disturb communal harmony and thus posing a threat to the security of Indian Union. Some prominent Citizens of the civil society including a veteran press representative who has acted at various levels in different states at a very high pedestal of making reports in the widely circulated English Newspapers. The assigned object of country wide mass campaign is the genesis of the today's contact meeting. The Public representatives assembled at my residence have put forward some suggestions to nip the prevalent mischief in the bud. A great concern has been shown by all regarding the recent utterances made by elected Chief Ministers of different States who without any demur are expressing in public as well as in press and electronic media that they would not implement the Amendments affected by the Central Government in the above stated Indian Citizenship Act. This has sent showers down to my spine and I make a written record of my views to make them public. The gathering stands enriched by the valuable views expressed by every participant and especially of very precious exposure spilled from the treasure of special knowledge gathered by the Hon'ble Minister because of his long association with highly disturbed State of Assam and North East States of the Country. The Citizenship Act was enacted in 1955 to provide for the acquisition and determination of Indian Citizens. Under Section 2 in sub-clause (b) "Illegal Migrant" has been defined under heads (i) and (ii). Head (i) reads, "a foreigner who has entered into India without a valid passport or other travel documents and such other document or authority as may be prescribed by any law in that behalf." Sub-clause (ii) says, "with a valid passport or other travel document or authority which may be prescribed or under any law in that behalf but remains therein beyond the permitted period of time." In terms of above stated Amended Act (No 47 of 2019) Section 2 of the Principal Act has been amended by adding a proviso which says, "provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan who entered into India on or before 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub section (2) of Section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any Rule or Order made thereunder, shall not be treated as illegal migrant for the purposes of this Act." Section 6 of the above said Principal Act deals with Citizenship by naturalisation. Section 6A was inserted by Act 65 of 1985 w.e.f. 07-12-1985. This Section has been divided in (8) sub sections. After Section 6A, Section 6B stands inserted vide above referred Citizenship Amendment Act No. 47 of 2019 and it is reproduced hereunder:- "6B. (1) The Central Government or an authority specified by it in this behalf may, subject to such conditions, restrictions and manner as may be prescribed, on an application made in this behalf, grant a certificate of registration or certificate of naturalisation to a person referred to in the proviso to clause (b) of sub-section (1) of section2. 1 (2) Subject to fulfilment of the conditions specified in section 5 or the qualifications for naturalisation under the provisions of the Third Schedule, a person granted the certificate of registration or certificate of naturalisation under sub-section (1) shall be deemed to be a citizen of India from the date of his entry into India. 2 (3) On and from the date of commencement of the Citizenship (Amendment) Act, 2019, any proceeding pending against a person under this section in respect of illegal migration or citizenship shall stand abated on conferment of citizenship to him: Provided that such person shall not be disqualified for making application for citizenship under this section on the ground that the proceeding is pending against him and the Central Government or authority specified by it in this behalf shall not reject his application on that ground if he is otherwise found qualified for grant of citizenship under this section: Provided further that the person who makes the application for citizenship under this section shall not be deprived of his rights and privileges to which he was entitled on the date of receipt of his application on the ground of making such application. 1 (4) Nothing in this section shall apply to tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under "The Inner Line" notified under the Bengal Eastern Frontier Regulation, 1873." Section 7D of the Principal Act was also amended along with amendment made in Section 18 of the Principal Act. They are not of much importance to the controversy generated by the different Political Parties and their cohorts as well as other intellectuals or groups except amendment made by this Amending Act in question to Third Schedule to the Principal Act wherein in clause (d), the following proviso has been inserted: - "Provided that for the person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community in Afghanistan, Bangladesh or Pakistan, the aggregate period of residence or service of Government in India as required under this clause shall be read as "not less than five years" in place of "not less than eleven years." Sixty petitions have been filed in the Hon'ble Supreme Court on behalf of different Political Parties as well as private individuals or associations. One petition has been signed by more than 1000 Indian Scientists and Scholars wherein it is pleaded that, "the use of Religion as a criterion for Citizenship Act in the proposed Bill was inconsistent with the basic structure of the Constitution. These petitions were listed before the Supreme Court on 18-12-19 and the court declined to stay the proceedings and has set 22nd of January 2020 as the next date of hearing. Not only that, in different other writ petitions it is pleaded that the Amendments affected by the NDA Government goes against the secular character of the Indian Constitution which is one of the mainstay of our Democracy. Not only that Articles 14, 15, 21 and 25 which are Fundamental Rights have been violated. It is advantageous to state in brief the mandates of those Articles. Article 14 deals with equality before law or equal protection of law. Article 15 says no Citizen of India shall be discriminated on the basis of Religion, Race, Caste, Sex or Place of Birth and have equal access to Public parks. Article 21 states no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 25 in brief states all persons are equally entitled to freedom of conscience and right to freely profess, practice and propagate religion subject to public order, morality and health. To buttress their contentions, they have further pleaded that Muslim community has been deprived of the Right of Settlement in India in case they are also persecuted in the above stated three countries. This argument has been rebutted by the NDA leadership on the count that above referred three countries have Constitutionally been declared by themselves as Muslim States and as such Muslims are not persecuted in the manner in which the other five categories of Citizens belonging to their respective five religions are treated, persecuted and their population has been considerably decreased. In order to save their honour, life and dignity they have come to India to seek the refuge which according to the culture of Indian State mandates that all the inhabitants irrespective of their caste or creed have to be protected in order to save their respective Dharmas. Instances are there that even some Muslims who are really persecuted in the true sense of the term have been granted refuge in accordance with the procedure prescribed and followed by them under the Principal Act i.e. Citizen Act of 1955. That a reasonable classification of not including the Muslim community has been made under Article 14 of the Constitution and as such there is no breach of this only relevant Article. It is to be stated at the outset that Constitutional validity of the above stated Amendments have to be adjudged by the Constitutional Courts i.e. either High Courts or the Supreme Court as the case may be and that no Political Leader or Media persons or Associations have any say in such matters. Even the Executive Head of the Country which is the Hon'ble Prime Minister has no right to adjudge the validity of any provisions of any Act. The State Legislatures and the Indian Parliament have their defined role and jurisdiction of enacting the laws in their spheres. Any other course by any wing of the State from four recognised pillars of democracy or private individuals or political parties or organisations amount to transgression of the relevant provisions of the Constitution. To advance the course of present discussion it can safely be said without any manner of doubt that amendments in question in no way have deprived any citizen of India irrespective of his or her religion, his vested right granted under Citizenship Principal Act of 1955. The controversy will be finally solved by the Supreme Court after hearing respective arguments from all the sides and by giving the final verdict. Be that as it may, the above category of petitioners are raising their different voices that the government is committing atrocities on the agitated segments of the society by using the oppressive police force and has resorted to even killing the innocent citizens. Such pleas are countered by the ruling party by saying that Muslim Jihadi elements and their supporters such as anti-national banned organisation by the name of ISI and its present "avatar" in the shape of Progressive Front of India and other similar fragments are working behind the scenes to disintegrate the Indian Union. Some affected State governments have succeeded to some extent by identifying such unruly Jihadi elements and legal proceedings have been set afoot by putting them behind the bars and simultaneously by attaching their properties to compensate the loss and damage caused to the public as well as to the private properties. Even ISI of Pakistan and some other hostile countries are found providing funds to these Jihadi elements to destabilise the Government of India. That National Registration of Citizens was initiated in the Assam State by the orders of the Supreme Court and the preparation of National Population Register are claimed by the opposition parties as a means of oppression. When such type of vote bank politics is played in the country no duly established government would succumb under pressure especially when the agitation becomes violent. In order to pacify the frayed nerves of the gullible and credulous young generation of student community as well as other innocent members in the society, Hon'ble Prime Minister Narender Modi on 22-12-2019 had to say, "There has been no discussion on National Registration of Citizens (NRC) anywhere- we only had to implement it in Assam to follow Supreme Court directives. The CPM leader Praksah Karat called it disinformation by government and clarified that the National Population Register (NPR) was the first step to the NRC process. Here, it is made clear that maintenance of the National Population Register has been paid no attention from the year it was incepted. Now, it is hoped that present dispensation at the Centre possessed of strong will power would bring tangible desired results. It is frankly stated that no country can survive without protecting its Sovereignty and this object becomes achievable by curbing and suppressing its internal and external enemies. Maintenance of NPR is a sine qua non towards the achievement of this goal. So far as the State of Jammu and Kashmir is concerned about 3.5 lakh Hindu population was made to flee from their homes and hearths from 1990 onwards and at that time no body raised any voice for religious persecution. Thousand numbers of Hindu shrines were defiled by way of burning or making encroachments on their properties. After coming into power on second time, Sheikh Mohammad Abdullah as Chief Minister of the State enacted Resettlement Act and under the garb of that Act a large number of members belonging to Majority Community hailing from the State of Jammu and Kashmir who had voluntarily gone to Pakistan after marrying in Pakistan Occupied area of the State or from the areas of the Pakistan State have managed to infiltrate in the territory of erstwhile State accompanied by their foreign wives and children begotten from them. Some of them are even trained militants also. No Political Leader so far has raised his/her voice who is now particular in beating his drum of secularism and equality before law. This has happened because of the existence of Article 370 and Article 35A which now have gone to the winds under the present assertive and effective regime. At the end, I would sum up my views to the affect that violence is no solution to any problem. It only breeds hatred and adds to the miseries of innocent common people. The unity and integrity of the Country must be preserved at all costs. It is above politics, above individual gain and above the interest of one group or another. It is fundamental to the prosperity of the Nation as a whole. Communalism is an extremely dangerous virus; India is a multi-religious Nation and communalism adds to the miseries of all. Much of our Nations energy and resources have to be diverted to the containment of communal violence. The Nation can illafford this. And lastly, let there be no doubt that India belongs to all of us, we are Citizens of this great Country. All of us to whatever Religion we may believe are equally the children of India with equal Rights, privileges

And Obligations. Let us all play our role to fulfil the basic objectives of our Constitution which include strengthening communal harmony and National Integration and only then we can become world power in the committee of Nations. (The author is former Judge J&K High Court Member Governing Council, National Foundation for Communal Harmony, Government of India.) (The above stated views are personal) feedbackexcelsior@gmail.com

 

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Courtesy: Daily Excelsior:  7th January, 2020