SECULARSIM - THE WORD WHOSE DEFINITION HAS BEEN CHANGED?


Introduction
The word “Secularism” was added to the preamble of the World’s largest democracy by the 42nd amendment in the year 1976. The world’s second-most populous country and the world’s largest democracy which is “India”, amended the preamble of the constitution and added “secularism” to widen the ambit of itself and not to let anyone feel unwelcomed in this large democracy. There has been a recent increase in search of this word “SECULARISM” which was instigated because of the recent controversies raised by the Citizenship Amendment Act, 2019. It is assumed that the said Act is nothing but a faster way to get citizenship in India for those who have illegally migrated to India because they have been facing “persecution” or “ill-treatment” in our neighboring countries i.e. Pakistan, Afghanistan, and Bangladesh. This research paper will focus mainly on few words like “secularism”, “persecution”, “religious persecution” and many other words, which should not merely remain words of our dictionary and the true meaning is needed to be acknowledged. The nationwide protest is being carried out and is ignited because according to many knowledgeable elites this Act is against the soul of our constitution and also violates various other constitutional rights present in our constitution. Whereas on the other hand, we have a large part of the country which supports the amendment and has given reasons which should support their argument. This paper will also throw some light on the above-mentioned issues and connect them with the issue of “Human rights of the Refugees” and will guide you with detailed analysis by using some facts and judicial pronouncements which will assist you to develop a conclusion by yourself and also help you to judge whether our conclusion is “reasonable” or not?

Seventh Second Most
“Second-seventh-most” are not just any random words but are words with great meaning. If anyone googles “INDIA” they will come to a Wikipedia page which in its introduction will say that India is the “seventh-largest country by area, the second-most populous country, and the most populous democracy in the world”. [1] Therefore these words brought together to make a huge difference. To make a humongous difference one needs to bring different worlds together because that is what makes the world’s largest democracy secular. The most populous country is also very diverse in nature and contains various religions mainly Hindu, Muslim, Sikh, Jain, Buddhism, Christian, Parsis and others. This diversity is one of the main reason which makes India globally recognized and an example in-front of various developed nations. India although having Hindu majority is not a Hindu-state or as nowadays claimed a “Hindu-Rashtra” because at the time of independence the constitution-makers were aware of the diverse nature of India and had a view of giving each and every person rights against their religion. In total there are 7 countries that share a border with India namely “Myanmar, Bhutan, Nepal, China, Bangladesh, Pakistan, and Afghanistan”. Due to 7 countries sharing its border with India it is observed and is a very well-known fact that people cross the border and come to India due to various reasons including the reasons for persecution, conflict, generalized violence or others. This is recently being tagged as “illegal migration”. “Migration” and “Refugees” are two terms which are being used interchangeably by common people but the United Nation for Refugees and Migrants beg to differ on this viewpoint. Although there is no formal legal definition of migrant their many experts say that “one who changes his or her country of usual residence, irrespective of the reason for migration or legal status.” [2] Whereas the definition of “refugees” according to Article 1 (A)(2) of the 1951 Refugee Convention states:
“As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” [3]
Therefore, if we place importance on the part which actually defines refugees apart from the dates then we can come and agree on the view that a refugee is a person who leaves his country because of a fear of being persecuted for the reason of race, religion, nationality, membership of a particular social group or political opinion and is unwilling to return to his country because of fear of not being able to protect himself or his family is the one who is a refugee.
Therefore, it can be clearly seen that it is the fear which drives one to change his country or to leave his habitual residence to get to a safer place and this fear should be met with the mentioned reasons. It can also be observed that the convention did not want to limit its scope as it was unaware of the future outcomes so as in to increase the scope of the word “refugees” it added the words “membership of a particular social group or political opinion” which widens the scope of the definition. The preceding words “race”, “religion” and “nationality” limit the scope as they cannot be interpreted in a wider sense but if the definition would have been limited to these three words then it would not have given equal treatment to the person who lives in a country of which he is a national and his religion & race are not the concern of him leaving his country. If a person who has left his country because he had a different political opinion, for example, it can be widely accepted that people who are part of a country where dictatorship is the mode of government and where life according to the will of government usually has the “different political ideology” as in a free state where democracy prevails, where voice of people matters and they can live according to their free will. Then if in such a scenario if a person anyhow after facing various difficulties leaves his country and asks other countries to protect his basic human rights and provide him with faith that his human rights are protected here, then it would not have been possible because of the limited scope of the definition.
The convention widened its scope but the Indian Government which presented the bill in the Lok Sabha and Rajya Sabha which later received the assent of Hon’ble President of India President Ram Nath Kovind and became an Act is alleged to have placed a limited and discriminatory scope. It is alleged by the masses through huge protests that the same is against the secular structure of the Indian Constitution. Senior Congress leader Shashi Tharoor said that “the bill is an assault on the foundational value of our constitution”. Thus conveying the message of the outraged public to the Parliament that the Act is not secular in nature.

The Citizenship Amendment Act, 2019: 6 vs 1 SituationThe Citizenship Amendment Act Section 2 [4] states:
In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), in clause (b), the following proviso shall be inserted, namely: —
"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 the 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;".
Thus clearly evident from the Act that it has taken a different route than what was taken by the “1951 Refugee Convention” which is of limiting its scope rather than widening it. It has limited the scope in various ways out of which the very first and the most debated being non-inclusion of Muslims.
The Act provides easier availability of citizenship to “illegal immigrants” which is the term being used for “refugees” and will provide them citizenship on the basis of “religion” thus prima-facie going against the very foundation of the convention. It is to be noticed that India is not a signatory to the said convention but is a country that supports the theory of “non-refoulment” which states that “it will not return the refugee to the country where they face serious threats to their life and freedom”. The “non-refoulment” is considered a rule of customary international law.
Therefore, India will and should not enter into practice through which they are asking the “refugees” or in the terms of our recently passed The Citizenship (Amendment) Act, 2019 the “illegal immigrants” to leave our country and return to the country where they face threats.
The statement made in the parliament by Hon’ble Home Minister of India which needs to be brought into light is: “that the opposition keeps on pointing out that the bill does not include Muslims and thus the bill will do no good but at the same time the opposition fails to observe that there are 6 religions who have been explicitly mentioned”. This statement in itself states that the government is inclined towards these 6 religions when it comes to illegal migration from the neighboring countries which includes Pakistan, Bangladesh, and Afghanistan. 
Article 14 [5] of the India 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.”
The very first importance should be placed upon the word “person”. The word person includes citizens as well as non-citizens. Therefore, Article 14 is not only limited to citizens of the countries and thus we can say is also available to the “illegal immigrants” in our country. These illegal immigrants are first being dealt with separately and then further classified into Muslims and Non-Muslims. Therefore, raising the question of “equality”.
“Right to Equality” under Article 14 is the very first fundamental right that is made available to the persons in India. Therefore, the constitution-makers were aware of the need for equality and the consequences of it not being included in the Indian Constitution. Article 14 even at the time after independence when “secularism” was not part of the preamble of the constitution indicated that they have considered the cultural and religious diversity in India and have considered the interest of each and every individual without being biased towards one particular religion. Thus, indicating that “secularism” is enshrined in the constitution.

Muslims: Inclusion Why In Question?
The reasons being put forth by the Government side is that the three countries which are included in the Citizenship (Amendment) Act, 2019 are all Islamic States and consider Islam to be their “main religion”. Atrocities have observed to be placed on religious minorities in these three countries.
As per the reports of US Embassy in Afghanistan in the report named “AFGHANISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT” [6] for the year 2018 it can be construed that there has been a decline in the population of Non-Muslim groups in these countries and currently the Non-Muslims make up to less than 0.3% of the whole population. In the report, it can also be seen that there have been several religious atrocities on these minorities and thus proving the point that the rights of the minorities in Afghanistan is in question. Thus if these people illegally migrate to India because they’ve been facing religious persecution then they will be welcomed in India and they will get citizenship in India easily. All credit goes to the recent amendment.
It was claimed that Muslims will not face religious persecution because in these three countries the Muslims constitute a vast majority over other Non-Muslim religions thus making Muslims safe from any religious persecution and in addition not giving them any reason to leave their country in any kind of fear in relation to their religion being subject.
Even if we accept this claim that Muslims will not face “religious persecution” because they are having a majority in these three countries but we cannot deny the fact that even Muslims can face persecution of other kinds which will create a fear of existence in their country.
Therefore, providing citizenship on the basis of religion is against the fundamental rights which are available to the public at large and exclusion of Muslims is against our very own Preamble and is a way to degrading the word “Secularism”.

Persecution: Limited Scope
The word “religious persecution” which was one of the very base pillars of the Citizenship Amendment Act, 2019 limits the scope of the word “persecution”. It is claimed that this limitation which is being introduced is for the welfare of the general public because the 6 religions which are religious minorities in these three countries and have faced religious persecution in these countries and thus can avail citizenship in an easier and faster way. Thus upholding the fundamental rights enshrined in the Indian Constitution by giving them a “life with dignity” in way of citizenship which will open doors to various other government planned opportunities for the citizens. This is one way of looking at it and the contradictory path to this interpretation is that the “Right to life” of Muslims who are entering India as illegal immigrants will not get any of these rights. We should not make laws that take away the fundamental rights of people belonging to one religion.
It can also be seen that the usage of both the words “religion” and “persecution” was there in the 1951 Refugee Convention but the intention was different. In the convention, the word persecution was used before religion and included various other bases to determine persecution. But in the Citizenship Amendment Act, 2019 it is used to narrow the scope. Therefore, raising the question as to what will happen to the people who are facing other kinds of persecution?
What about persecution on the basis of the sexual orientation of a person. If a person flees one country where he/she is facing persecution on the basis of his/her sexual orientation and somehow makes it to the Indian territory then he/she cannot claim citizenship through the way of the Citizenship Amendment Act, 2019 if he/she is a Muslim. As we all are aware that in Pakistan homosexuality is not widely accepted which was the same condition in India. In India, there were numerous atrocities which were showered upon people who belonged to the LGBT communities and thus we are aware of the “persecution one can face on the basis of different sexual orientation”.
“Another transgender woman killed in Pakistan” [7] is the article which is internationally known indicates that people who have different sexual orientation too face persecution on this basis. So what would have happened if this woman who would have tried to save her life by coming to India and becoming the part of Illegal Immigrant? She is also not accepted as a member of society and was being targeted for persecution but on the basis of her sexual orientation. But according to the Act if the persecution is not religious then you will not get citizenship that easily, therefore, one who belongs to a Muslim Community if facing any kind of persecution (which is not religious) wants to leave the country and take shelter in India and become a citizen of India should first go back to the same country where he/she is facing threat then convert himself/herself to any of the 6 religions mentioned in the Citizenship (Amendment) Act, 2019 and then face for a time being religious persecution. After facing religious persecution come back to India somehow and avail citizenship easily. This is the easiest way that the Government has left for Muslim refugees.
The Government presented a bill which is an Act now has failed to widen up the scope of the word persecution and clearly indicated that the whole citizenship will be available to illegal immigrants on the basis of “Religion” and the Muslims can avail citizenship in an orthodox way.

Judicial Pronouncements
In the Kesavananda Bharati judgment or His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. [8] Where the basic structure doctrine was evolved stated that the Parliament does not constitute the right to amend the “basic structure doctrine” of the Indian Constitution. One of the reasons behind this being if a party which has won the election by 2/3rd majority can guide the Indian constitution to a path from which returning could have been impossible. Therefore, the majority view obtained in the judgment was that the basic structure doctrine of the Indian constitution cannot be amended.
In the landmark cases of S. R. Bommai v. Union of India [9] and Minerva Mills Ltd. and Ors. v. Union Of India and Ors. [10], it is established that “secularism” which is part of “preamble” is part of the basic structure doctrine of the constitution and thus the Act which primarily differentiates between people on the basis of religion will be questioned in the Supreme Court of India for its legal validity and the judgment of the case is in favor of the Citizenship (Amendment) Act, 2019 will write a new constitution for this country. Maybe this is the same path from which the Majority of Judges of Kesavananda Bharati Case saved us from.

Conclusion
It can be concluded that the Citizenship (Amendment) Act, 2019 is arbitrary in nature and thus needs to be struck down. The Act violates various fundamental rights few of which have been discussed in this research paper. The Act also limits the scope of Citizenship in two major ways one being “Religion” and the other being “persecution”. The limited view of the word persecution indirectly takes away the Human rights and Fundamental Rights of those people belonging to the Muslim community and who have faced persecution but which is not religious in nature. 

References
[1] https://en.wikipedia.org/wiki/India
[2] https://refugeesmigrants.un.org/definitions
[3] https://www.unhcr.org/3b66c2aa10
[4] http://egazette.nic.in/WriteReadData/2019/214646.pdf
[5] https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf
[6] US Embassy Report, Available Here

[7] Human Rights Watch, Another Transgender Woman Killed in Pakistan, 8 May 2018, available at: https://www.refworld.org/docid/5b39f3214.html [accessed 20 December 2019]
[8] Kesavananda Bharati judgment or His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (1973) 4 SCC 225
[9] S. R. Bommai v. Union of India [1994] 2 SCR 644: AIR 1994 SC 1918 : (1994)3 SCC1
[10] Minerva Mills Ltd. and Ors. v. Union Of India and Ors. AIR 1980 SC 1789

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