New Citizenship Act is illogical and poorly drafted

The Parliament of India has passed the Citizenship (Amendment) Act that seeks to simplify acquirement of citizenship by six identified minority communities —Hindus, Sikhs, Jains, Buddhists, Christians and Parsis from Afghanistan, Pakistan and Bangladesh who came to India before December 31, 2014 to the exclusion of Muslims and Tamil Eelams from Sri Lanka and other neighbouring countries. The individuals belonging to this group will not be treated as illegal immigrants and will be provided fast tracked citizenship.

We have increasingly embarked on policies that have reshaped India and its ideology. From increasing incidents of mob violence to the revoking the constitutional autonomy of Kashmir and imprisoning its leaders and the more recent settlement in the decades old Ayodhya issue between Hindus and Muslims. Citizenship (Amendment) Act (CAA) will be one of the biggest changes in the religious and social makeup of India.

The foundation of the Act can be traced back to a few years. In September 2015, the government, through an executive order, exempted non-Muslim illegal migrants from three countries from the operation of the Foreigners Act, 1946. On October 23, 2018, the Ministry of Home Affairs issued a directive that provided a separate and accelerated process for migrants of these three countries to get citizenship. This 2015 notification is pending challenge before the Supreme Court in a petition preferred by Nagarikatwa Aain Songsudhan Birodhi Mancha.

CAA also needs to be seen in context of the proposed All India National Register of Citizens (NRC).

The details of the Act as is being discussed in the media will work to both escalate and reduce fear among the people. In 2015, almost 33 million people who live in Assam were asked to provide documents proving their Indian citizenship dating back to before the 1971 War. Many were unable to, having lived lives of displacement and poverty. Almost 1.9 million people were left from the final list. The Assam NRC failed in its proposed aim of weeding out illegal immigrants and many genuine citizens, both Hindu and Muslim, have been left out and they will now have to apply to the foreign tribunals. As a result, the scheme that was earlier pom-pommed is now being swept under the carpet as it has failed to give the ‘expected’ result.

CAA is unconstitutional, illogical, poorly drafted and does not make clear how non-Muslims will prove that they immigrated from the three mentioned nations due to persecution. As per law, these immigrants need to prove these two points before a Tribunal created by an executive order, headed by a contractual member and with the burden of proof being on them.

If experience is anything to go by, proving such an assertion will be next to impossible. The only legitimate proof would be the refugee certificate/certificate of admission in relief camps that was granted to the refugees who migrated from Bangladesh and Pakistan. On the other hand, in an affidavit before the SC, then NRC coordinator expressed doubt over the authenticity of such documents saying that it is nearly impossible to do backend verification of these documents and that these documents can easily be forged.

Further, CAA along with the exercise of pan-India NRC seeks to first create non-citizens out of existing citizens and then grant citizenship to non-Muslims. It damages the basic structure of the Constitution. It is a clear violation of Article 14 of the Constitution that provides for equal protection of law.

As per the new Act, a child born in India after 2003 to Hindu “illegal migrants” would qualify as a citizen by birth however the same privilege will not extend to a child with even one Muslim parent as they’ll be termed as “illegal migrant”. This differential treatment does not meet the requirement of equality before law and equal protection of laws under Constitution.

The Act makes December 2014 as cutoff date for inclusion as citizen via proposed Section 6B. This date has no historical or logical basis. In the past, a different cut-off date of March 24, 1971 exclusively for Assam was by Section 6A of the Citizenship Act. This amendment in Citizenship Act was a result of the Assam Accord. Section 6A, unlike Section 6B, does not discriminate between religious identities. It provided citizenship to people of all religion who were escaping from bloodstained persecution at the hands of the army of West Pakistan.

Further, the introduction of the Bill in Lok Sabha was followed by an example of Section 6A to indicate that section 6B that is being introduced by the Bill is not in violation of Article 14. However, they failed to take into account that even Section 6A is pending challenge before the Constitution Bench of the Supreme Court and that it does not discriminate. It facilitates citizenship for every individual who entered Assam from East Pakistan to escape brutal violence.

The cut-off date of December 31, 2014 does not have any historical basis or objective. There has been no largescale migration of minorities from Pakistan, Afghanistan or Bangladesh after the 1971 war. The question of “cui bono” or who benefits therefore arises from the Act. There is no empirical data to support any of the claims being made.

India’s statement on a continuing genocide in Bangladesh is a departure from a friendly foreign policy towards Bangladesh and stands contrary to the commitments in Indira-Mujeeb pact. By making such a statement in Parliament, India has provided another reason to alienate yet another friendly nation. The Act also does not take into account the Madheshis from Nepal who are living in border areas of Nepal and does not provide them with citizenship. Similar discrimination is meted out to Tibetans living in India for decades and Gurkhas who have served the nation since centuries.

Also, by admitting that only religious minorities are persecuted in Pakistan, the government has lost the strategic advantage it had over treatment of Ahmadiyyas and Shias. A similar strategic advantage that could have been gained by granting a similar privilege to persecuted Hazaras of Afghanistan in the wake of the impending Taliban rule is also lost.

The logic of inclusion of only the countries mentioned is their having a state religion. In that case, Sri Lanka also has declared Buddhism as a state religion and close to one million Hindu Tamil Eelams are residing in India with little or no state support. The other reasoning of including only migrants from Pakistan, Bangladesh and Afghanistan is that they share border with India — this logic is also flawed as Myanmar where Arakans have been slaughtered in plenty and the world saw one of the biggest genocide of our time, has not been included among the countries.

Further, if India has to become a sanctuary for non-Muslims escaping purported violence from these Muslim majority nations, then India could have simply signed the refugee convention and granted them refugee status and eased them into citizenship. If burden on resources is an argument, then non-Muslims are as much a burden as Muslims.

As the Bill was being discussed in Parliament, anti-migration protesters marched against it in the northeastern states of Tripura and Assam, disagreeing that it could result in waves of Hindu immigration from Bangladesh. Their concerns could be a problem for proponents of the Act as they generally count on anti-migrant campaigners in the northeast as a support base. Both citizens and a small number of lawmakers have expressed concern that the Act goes against the foundational principles of India. Protests are being organised against the Act in all major cities.

Muslims of India compose the world’s largest minority, often seen as threat to the ideas of virulent nationalism they are seen as a threat that they have been given undue privileges by the country’s secular constitution.

“In Afghanistan, Pakistan and Bangladesh, Hindus, Sikhs, Buddhists, Christians, Parsis and Jains have been discriminated against. So this Bill will give these persecuted people citizenship. If from these three countries, any Muslim petitions for citizenship, we will consider with an open mind but they will not get the benefit of this Bill as the [Muslims] wouldn’t have been persecuted.”

Therein lies the popular idea that because India is officially a secular country, not a Hindu one, its Hindu majority hasn’t had the historical privileges afforded to dominant groups in other countries —giving Muslims unfair power. The Citizenship Amendment Act is an attempt to annul that alleged clout.

Creating stateless citizens is a violation of principles of customary international law. By doing this, India is fast losing the moral high ground that it had over neighbours as well as its ambition of becoming Vishwa Guru. The lack of any logical as well as factual basis behind the proposed amendment’s categorisation of migrants renders it manifestly arbitrary. The Act tends to alter the basis of citizenship in India. From place of birth being the basis of citizenship to now religion being a basis, this is the beginning of the end of secular India, a country that accepted secularism as a basic structure, with “Sarv Dharma Sambhav” being the cornerstone of secularism.

Anas Tanwir is an advocate and founder of Indian Civil Liberties Union (ICLU), while Sanobar Fatma is a social analyst and spokesperson, ICLU