• QUESTION: The Citizenship Amendment Act 2019 is a very controver-sial issue in India today. How do you look upon it? – Thomas John

ANSWER: Saji Mathew Kanayankal CST

The Citizenship Amendment Act, which was enacted in 2019 and was frozen for many reasons, was operationalized by 11 March 2024. As per the new act, the minorities from the neighbouring countries of Afghanistan, Bangladesh and Pakistan who arrived in India on or before 31 December 2014 can have access to Indian citizenship. While the Citizenship Act in 1955 prohibits all undocumented migrants from acquiring citizenship, the recent document provides legislative protection from deportation and imprisonment except for those living in the tribal areas of Assam, Meghalaya, Mizoram and Tripura and the areas under the ‘Inner line’ special permit zones. Religion was not a criterion of citizenship in the previous Citizenship Act. However, the present law allows only six religious minorities – Hindu, Sikh, Buddhist, Jain, Parsi and Christian – from the neighbouring countries to acquire citizenship. They will only have to live or work in India for six years to be eligible for citizenship by naturalisation, the process by which a non-citizen acquires the citizenship or nationality of the country. The government has not given a date for its implementation, but the announcement has come just a month before the general elections.
As per the version of the Indian government, the present amendment aims to protect individuals who have sought refugee in India due to religious persecution in the above-mentioned neighbouring countries. The new act offers them hope and makes easier the proceedings of migration. The previous rule offers citizenship to only those who born in India or who lived in the country at least 11 years. Now the duration of the stay in India is reduced to six years. The applicants must have entered India on or before December 31, 2014.

• Blow to Indian Constitution

This new rule of CIA is criticised in India as well as in international realms mainly because of its exclusionary and discriminatory provisions. As Mukul Kesavan points out, the law is “couched in the language of refugee and seemingly directed at foreigners, but its main purpose is the delegitimization of Muslims’ citizenship.” It violates the secular principles enshrined in the constitution of India that does not accept faith as a criterion for citizenship. Moreover, the Indian constitution prohibits religious discrimination against its citizens, and guarantees each person’s equality before the law and equal protection of the law. When the law divides the migrants into Muslims and non-Muslims, it “explicitly and blatantly seeks to enshrine religious discrimination into law, contrary to our long-standing, secular constitutional ethos,” says Gautam Bhatia, a Delhi-based lawyer.
According to Amnesty international, “the operationalization of the Citizenship Amendment Act 2019 is a blow to the Indian constitutional values of equality and religious non-discrimination and inconsistent and incompatible with India’s international human rights obligations.” In the words of Aakar Patel, chair of board at Amnesty International India, “The Citizenship Amendment Act is a bigoted law that legitimises discrimination on the basis of religion and should never have been enacted in the first place. Its operationalization is a poor reflection on the Indian authorities as they fail to listen to a multitude of voices critical of the CAA- from people across the country, civil society, international human rights organizations, and the United Nations.” The net result of the implementation of CAA will be the exclusion of two categories of people. First the Muslims, who will be known as illegal migrants, and all others who would have been deemed illegal migrants, but are now immunised by the Citizenship Amendment Bill if they can show that their country of origin is Afghanistan, Bangladesh or Pakistan. Many would like to see its implementation in relation with the National Register of Citizens (NRC), a unified register of all Indian citizens mandated by the CAA.
NRC, which as first prepared in 1951, was sanctioned by the Supreme Court in 2014 based on the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules of 2003. The NRC demands documentary evidence called “legacy data” to prove oneself as an Indian citizen. When the process began in Assam in 2019, the number of ‘illegal migrants’ were over 19 lakh and all of them were excluded from the citizenship register. Taken together, the NRC and CAA have the “potential of transforming India into a majoritarian polity with gradations of citizenship rights,” says Niraja Gopal Jaya, a former professor of JNU. It is evident from the 2019 manifesto of BJP, that highlighted the implementation of the NRC to curb “illegal immigration” and a way to protect cultural and linguistic identity in certain areas. They also said that it would implement the NRC in a phased manner in other parts of the country.

• Division and Polarisation

The criticism against CAA is based on two major facts; First, the present act excludes one religion, the Muslims from accepting Indian citizenship. On the other hand, tens of thousands of Bengali Hindu migrants who were not included in the NRC can still get citizenship to stay on in Assam state. Apparently as the ruling party claims, there is nothing in it that removes anyone’s citizenship. But once we closely observe the CAA, we can assume the important impacts of it. While some religious communities are eligible for citizenship, many will not be given citizenship, either due to their entering the country after the cut-off date, or because of their religion. They will be treated as illegal migrants. Once the National Register of Citizens (NRC) is implemented, the illegal migrants cannot stay in the country. Moreover, a Muslim migrant lose his/her citizenship due to the absence of adequate documentary proof, which naturally hinders his/her stay in this country. With the implementation of NRC, as Mr Amit Shah, the Home Minster, claimed, “each and every infiltrator is identified and expelled from India.” Once they are expelled from India, there is no guarantee about their re-entry into their home country.
The criterion for excluding Muslims in CAA assumes that Muslims will not be persecuted in those neighbouring countries. The supporters of CAA claims that these neighbouring countries are Muslim countries either as stated in their own constitutions, or because of the actions of militant Islamists. Therefore, in those countries Muslims cannot be considered as persecuted minorities. On the other hand, there are persecutions against minorities in the concerned countries. Therefore, the humanitarian reasons oblige us to open our doors to the suffering neighbours. However, the facts are contradictory. If the base of this amendment bill is the number of the population/minority, what would be the case of other neighbouring countries like Sri Lanka or Myanmar? As per the present rule, the persecuted Rohingya Muslims in Myanmar are limited to their religion and cannot get asylum in India. Similarly, Afghan (Muslim) refugees escaping the Taliban and staying in refugee camps cannot access expedited citizenship just due to their religion. But if it were a Hindu or any other religion other than Muslim, they will be accepted into the country.

• The Broader Frame of Refugees

The CAA foregrounds religious identity as a criterion to be given citizenship. This exclusion of Muslims from the purview of act introduces religious identity into the concept of citizenship, which is against the spirit of the Universal Declaration of Human Rights (UDHR). In the formation of UDHR, India was not a silent spectator or mere signatory rather it had an active role in its drafting. One of the cornerstones of the UDHR is the right to ‘freedom of thought, conscience and religion.’ Soon after India attained independence, special provisions were made to protect the minorities, not just in a religious sense but also in terms of marginalisation and disadvantageous positions.
The CAA will change the concept of citizenship, and when we make closer look, it is evident that the new rules have Hindutva ideology at their core. If the aim of the government were to protect refugees, the bill should have included all refugees without the barrier of religion or nationality. Generally, refugees were considered as people who are forced to leave their homes due to war or political persecution. The Convention Relating to the Status of Refugee 1951, defines refugees as the people who are persecuted on the grounds of race, nationality, religion, social group, or political opinion. However, considering the 1969 OAU Convention, in 1984 Cartegena Declaration extended the status of refugees to all who are compelled to leave their land due to external aggression and occupation. The UNHCR defines refugees in a very broader frame that includes all people who flee due to conflict or persecution.
The refugees must not be returned to situations where their life and freedom are at risk. Their protection includes many facts that include “safety from being returned to danger, access to fair and efficient asylum procedures, and measures to ensure that their basic human rights.” The tragic stories of millions of men and women daily confront the international community because of the outbreak of unacceptable humanitarian crises in different parts of the world. The insensitivity and silence of the global community at the face of the death of millions of people by suffocation, starvation, violence and shipwreck, and many other similar incidents, is a dreadful tragedy of the present generation. As Pope Francis rightly points out, no one willingly leaves his or her native land and the impossibility to lead a better life in the native land forces people to leave their home “with a suitcase full of tears and dreams” and to find a more suitable place in a foreign land, somewhere to live in peace. In short, “the impossibility of living a dignified and prosperous life in one’s native land” forces millions of persons to leave their home land and to make long perilous journey with a lot of hardships, sufferings and risks.
In his message on the 104th of the World Day of Migrants and Refugees Pope Francis requested the world governments to treat all migrants with equal dignity. The governments have moral obligation to offer “broader options to migrants and refugees to enter destination countries safely and legally” and he pleaded the countries to simplify the process of granting humanitarian visa to those vulnerable people and to provide citizenship if possible. “By practising the virtue of prudence, government leaders should take practical measures to welcome, promote, protect, integrate and, “within the limits allowed by a correct understanding of the common good, to permit [them] to become part of a new society.” According to him, the guiding principle of welcoming migrants should be the centrality of human person. “Migrants and refugees are not pawns on the chessboard of humanity. They are children, women and men who leave or who are forced to leave their homes for various reasons, who share a legitimate desire for knowing and having, but above all for being more.”
By the implementation of the new amendment in CAA, India as a progressive nation, moves away from the liberal idea of citizenship and secularism as envisioned by its constitutional fathers. It is a clear shift from the secular credentials of the long legacy of our country. The independent India has adopted a clear strategy to separate state and religion and special provisions were laid down to protect the interests and freedoms of religious minorities and marginalised populations. However, the present amendment in CAA changes this basic premise. We can smell some clear signs of theocracy envisaged by the ruling BJP in this move. This Muslim exclusion issue in the CAA needs to be seen in the broader context of the Hindu right’s ideological politics. The secular Indian state hangs in balance. It needs serious resuscitation. What is unfolding, slowly and steadily, is a comprehensive ideological project of a de-secularisation of India. It is the duty of the secular powers to be vigilant at this moment and to bring a well-crafted political response to it.