There are six major flaws in India’s new Citizenship (Amendment) Act, which add up to a calculated violation of judicial precedent, constitutional norms and international law.
By Rajeev Dhavan
Published on The Wire, Dec 20, 2019
Perhaps, the most interesting comment on India’s Citizenship Amendment Act 2019 (CAA) was made by two Pakistani Hindus who protested that the CAA will worsen their lives instead of helping them. There are many minorities who prefer to live in Pakistan as their home and watan. My maternal grandparents stayed in Dera Ismail Khan, dying there in the 1960s. Even though the CAA’s cut-off date is December 31, 2014, the message to the BAP (Bangladesh, Afghanistan, Pakistan) Hindu minorities is: “You were and are discriminated against and miserable in your own countries. Live in a Hindu India where we discriminate against Muslims. Sadly, our cut off date is end of 2014, but even after that we will find a way to help all of you as long as you are not Muslim. There is always an absolute presumption of persecution in your favour”.
To this message is added a Post Script: “All illegal migrants who are given citizenship under the CAA are warned there is no guarantee that you will get jobs or livelihood in India. You may be discriminated against because you are ghar wapsi and were erstwhile traitors in BAP. Also, don’t go the North East where you might be attacked or even killed. But don’t worry you will not encounter Muslims who will either be kept in camps or repatriated to BAP”. To cover up the ‘Hindu’ preference added to the list of beneficiaries are Sikhs, Jains, Buddhists, Christians, Parsis (hereafter group of six).
Several non-BJP states have made a symbolic threat of non-cooperation because the CAA is (a) a constitutional travesty and (b) violates cooperative federalism. Such a stance was also taken when, on Arjun Singh’s initiative, Congress states refused to interact with Gujarat’s RSS officers. In Assam and the North East, there is a violent reaction. People there fear any massive influx of people thanks to the CAA will threaten their cultural identity. This has the frightening consequence that if these ‘to be protected group refugees’ are given citizenship, the populace in these states will make life miserable for this new class of citizens to defend their own identity. Of course, these new citizens have the constitutional right to move, reside and pursue their trade or jobs anywhere. It does not lie with the non-BJP ruled States to throw these new citizens out or discriminate against them.
The Refugee Convention and India
The CAA is the perhaps the modern world’s first “refugee legislation” to be subsumed by hate and discrimination. The internationally accepted definition of a refugee – taken from the UNHCR Convention of 1951 and the 1967 Protocol – is someone who has “a well founded fear of persecution by reasons of race, religion, nationality or political opinion” and who cannot return to his country or has become ‘stateless’.
India never joined the 1951 Convention because, as R.K. Nehru, who was foreign secretary at the time put it in 1953, it was seen as Euro-centric and directed against the communist states. Paradoxically, like Pakistan, India is on the UNHCR committee but not bound by the Convention. This does not mean that it can adopt any policy it likes because it is still bound by the human rights treaties to which it is a signatory.
In 1999-2000, an eminent persons group (EPG) of South Asians (excluding Pakistan) led by Justice Bhagwati came up with a Model Refugee law (that I subsequently re-drafted) which the Indian government did not adopt. Today, a non-discriminatory law is needed so that India’s policies are not subject to whims and fancies.
India’s mixed credentials
Paradoxically, India’s refugee credentials are both good and bad. It welcomed the Tibetans who continue to run an exile government in Dharamsala. The post-Partition migration, one of the biggest and bloodiest in world history, was handled with credit. In fact, under India’s constitution, those (including Muslims) who went to Pakistan and came back before July 19, 1948 were entitled to citizenship. In 1968-71, India became a clearing house for Kenyan and Uganda refugees of Indian origin who had British passports. It absorbed the Tamil refugees from Sri Lanka and the Bangladesh refugees post-1971 without discrimination. Its record on mass refugees crisis has been creditable. Nepalis and Bhutanese are allowed to enter India. As against this, it has admitted the persecuted from Somalia, Sudan, Afghanistan and elsewhere.
But then India’s refugee policies also took an opportunist turn. When Bhutan expelled all its Nepalis (20% of its population), they passed through Indian territory but India did a deal with Bhutan for foreign policy reasons. Instead of giving the much persecuted political Dorji of Bhutan refugee status, India added to their persecution with extradition proceedings. Afraid of China’s reaction, India denied succour to the Muslim Uighurs. Even its Tibet policies have softened in China’s favour. The Rohingya of Myanmar are Muslims who have majorly gone to Bangladesh, but the ones in India are treated badly and are in limbo. Bangladesh and Myanmar intend to make these refugees stateless. Pakistan persecutes the Ahmadiyyas, the Shias and the Balochis, women and political dissenters. India will not consider them refugees because they are not Hindus. Many Sri Lankan Tamils are Hindus but not included in CAA.
Parliament’s earlier view
Indian law regulates the entry of foreigners into India through the Passports Acts of 1920 and 1967 and the Foreigners Act, 1946. In 1998, an amendment proposal was sent to a Parliamentary Select Committee and then to the Law Commission which in its 175th report made a little progress for giving ‘illegal migrants’ the benefits of “status” determination while pushing the case for curbing the evil of migration. When the Bill went to the Rajya Sabha, on May 7, 2003, Fali Nariman and Eduardo Faleiro made the case for a wider refugee policy with due process and even to adopt the Model Bill. When the matter went to the Standing Committee on Home Affairs, its report of December 12, 2003 suggested “all humanitarian assistance” to those who had fled due to civil unrest or religious persecution, while also talking to the persecuting countries for safe return. Sadly, refugees were not mentioned, and the new amendment to Section 6 made it almost impossible for “illegal migrants” to acquire naturalized citizenship. An important opportunity was lost.
The influx of refugees from Bangladesh into Assam was met with protests. The Assam Accord of 1985 led to the introduction of a new Section 6A in the Citizenship Act. The first cut-off was January 1, 1966, whereby those ordinarily resident in Assam from that date got citizenship. Those who entered between January 1, 1966 to March 25, 1971 were entitled to citizenship after 10 years. The process was too slow. Justice R.C. Lahoti, known for pro-Hindu views, struck down the Illegal Migrants Tribunal Act 1983 in 2005, treating it as a major impediment to the expulsion of illegal migrants whose presence was an ‘act of aggression and created insurgency’. Such comments were unworthy in a judgment. The judiciary came to the aid of Assamese fears in its angular judgment which added to the frenzy on the issue. Following this, a special Foreigners Tribunal was created in 2005. The Supreme Court’s ire viewed this new Tribunal as transgressing its earlier order. The Supreme Court stood firm, adding to the Muslim xenophobia.
The North East perceived two threats from undocumented migrants: a threat to its culture and its electoral balance – which even the Supreme Court presented as a kind of invasion. A quickening of this process by creating a National Register of Citizens got the full support of Chief Justice Ranjan Gogoi, whose North East roots were more important to him than rendering complete justice. This had the desired political effect. Seeing the Congress as pro-Muslim, the North East turned politically towards a pro-Hindu BJP headed coalition who, they hoped, would throw the migrants out. But the BJP proved to be more zealous about being Hindu and anti-Muslim than addressing the migrant influx in Assam and the North East.
Thus, instead of assuaging local concerns, the CAA has angered the Assamese. There have been protests because the Assamese do not want any kind of influx – including of Hindus, Sikhs, Jains, Buddhists, Parsis or Christians, and not just of Muslims. They still has to recover from the shock over the premium the BJP attaches to its aggressive Hinduism over all else.
Six flaws in the CAA
The statement of objects and reasons (SOR) of the CAA specifically takes us back into the history of Partition. It clearly projects India’s duty to reverse the effect for:
“(m)illions of citizens of undivided India belonging to various faiths were staying in the said areas of Pakistan and Bangladesh when India was partitioned in 1947. The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific State religion belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries. Some of them also fears about such persecution in their day to day life where right to practice, profess, and propagate their religion has been obstructed and restricted”.
Let us call the beneficiaries of this legislation ‘special religious groups” (SRGs). The Act grants succour to those SRGs who came to India with or without papers before 2015.
The objects of the CAA emerge both clandestinely and obviously. First, this is clearly an element of ghar wapsi (return home to the ‘Hindu’ fold) from the neighbouring Muslim countries. For the sake of appearances, Christians, Parsis, Buddhists, Jains have been added to the SRGs list, clearly overlooking the fact that Christians have been persecuted in India and no information has been provided of how many are involved.
Second, the cut-off date is December 31, 2014. Is this because the BJP-led NDA came into power that year? Or is it because the BJP believes there has been no persecution of the SRGs since that date? The government has offered no explanation.
Third, if the fundamental reason for this policy is India’s desire to redress persecution, why does it draw a line at some faiths but exclude others? India’s concern cannot be just about Hindus (including Jains and Buddhists) and Sikhs and Christians but all religions protected in India, including Muslims. India is the third largest Muslim country in the world (after Indonesia and Pakistan). Should Muslim concerns about the persecution of Shias, Ahmadiyas and others be ignored? Or, indeed of ethnic groups like the Baluch?
Fourth, many Muslims from Bangladesh came because of the 1971 war. As a group, they are now being discriminated against because Bangladesh does not want them back. This is the most damning group discrimination of all. The Rohingyas of Myanmar have entered into Bangladesh and many are in India. They are the victims of genocide. Recently, Aung San Suu Kyi told the International Court of Justice that the Rohingyas were not persecuted but simply caught in the middle of a cross fire between the Buddhists and the military. Ground and eyewitness reports verify that this is simply not true. What we are witnessing is an unmitigated genocide in Myanmar. Many Rohingya live in abject conditions in India. Let us assume that India wishes to deport them. Where will they go? Myanmar will either not take them, or if they do, will not guarantee them protection from persecution. The biggest humanitarian problem that India faces is of a large number of Muslims becoming stateless through the CAA-NRC process. This is equally true if Bangladesh refuses to take back individuals branded by the Indian government as non-Indian and a ‘special regime’ is to be created.
Fifthly, if India is seriously interested in countering persecution, it needs a comprehensive policy to protect all refugees who have come to India because they have been persecuted in the countries from which they have come irrespective of religion, race, caste, sex, place of birth or any of them.
Meaningless concession to North East
Sixthly, there is supposedly a concession to the North Eastern states in the new Section 6B(4) which reads:
“Nothing in this section shall apply to the tribal areas as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, l873”.
Let us broadly call this the “Inner Line Tribal Areas” in the region. This needs to be analysed further. What this means is that the SRGs (including Hindus) in those areas will not get citizenship but will remain stateless refugees subject to deportation. This is going to be very complicated in its application.
Suppose a person asserts that he is not truly an ‘Inner Line’ person, will he be allowed to apply for citizenship? This would be a nightmare of fact and law for courts to decide. Does this not discriminate between those within the “Inner Line” areas and those outside it? Suppose the SRGs were to say that they will never cross the ‘Inner Line’ areas, would they be permitted to claim citizenship? The Act is dangerously ambiguous in this regard. It refers to an area, not a person. The broad protection is to SRGs, who could well claim that this discrimination between those in the Inner Line or outside this line is invidious because under the new Act they are presumed to be persecuted to the same extent as to those outside the line.
There is also another problem. After a person from the SRGs becomes a citizen under this Act, she will surely have the right under Article 19 (1) (d) to move freely throughout India and under Article 19(1)(e) to reside and settle in any part of India. Under Article 19(1)(g), they would also have the right to practice any profession, or to carry on any occupation, trade or business; and, indeed, freedom of speech (Article 19(1)(f)), create associations or unions (Article 19(1)(c)) and assemble peaceably without arms (Article 19(1)(b)).
The CAA cannot override constitutionally guaranteed fundamental rights. This is quite different from persons who can live but not acquire property in most Hill States and does not affect the right of movement and residence in that area with the full rights of citizens. There is nothing in the Sixth Schedule that alters this. That schedule grants autonomy to Councils in that area but even allows elections to the Councils on the basis of adult suffrage. Thus, this exception to assuage the peoples of the North-East States of Assam, Meghalaya, Mizoram or Tripura is totally illusory. It is no wonder that those states are in turmoil and this discriminating Act has invited protests everywhere.
India’s treaty obligations
There is no doubt that the original UN Convention Relating to the Status of Refugees, 1951,addressed a European problem following the Second World War and the onset of the Cold War between the Soviet bloc and the so-called ‘free world’. It also explicitly related to a geographic area. This is the reason why India took the view that joining the Convention meant taking sides in a Cold War conflict. But the 1967 Protocol relating to the Status of Refugees expanded the scope of this Convention to all countries.
The recent influx of migrants has led Europe to take firmer measures to prevent people of different races and religions from entering. To the extent that these influxes were the result of persecution was tolerably clear, obligating entry to the persecuted.
In addition, there are a number of other international treaties and conventions which must guide a country’s treatment of refugees. These include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights(ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention Relating to Status of Stateless Persons (1954), the Convention on the Reduction of Statelessness (1954), the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Rights of the Child.
India is a signatory to these conventions with some reservations to them. Indian law takes the view that where there are treaties (especially human rights treaties) which do not conflict with the constitution and national laws, they must be enforced and the courts can give directions to implement them as it did in the case of Vishaka (1992) to protect women. In respect of the Refugee Convention, though it sits on the executive committee, India has taken the position that it is not a party. But India cannot deny that it is bound by the other human rights treaties which it has signed. The governing principle concerning the treatment of persecuted refugees is the principle of non-refoulement, which says that no persecuted refugee must be returned to any country where they are liable to face persecution and torture. In the face of this principle, there is a duty to consider giving any such person asylum, and then granting asylum if the facts relating to their persecution are true. Persecution is not presumed but needs proof.
Indian courts and refugee rights
At the same time, India’s judiciary has taken a distinct stand that undocumented migrants who claim refugee status have certain important procedural and substantive rights which cannot be denied. These are: (a) the right to be considered as a persecuted refugee, (b) the right not to be deported while the case is being considered, (c ) the right to asylum if the case is proved, (d) the right to move to a haven country which offers to take the refugee, (e) the right to fair treatment throughout this process.
For example, various Indian courts have given refugees the right to have their refugee status determined by the UNHCR.
- Bogyi v. Union of India (Gauhati High Court, 1989) and Dr. Malvika Karlekar v Union of India, (Supreme Court, 1992), countenanced protection from deportation as in interim protection.
- In Ktaer Abbas v. Union of India, the Gujarat High Court in 1998 ordered basic amenities for destitute refugees, especially for women and children.
- In Digvijay Mote, the Karnataka High Court in 1994 injuncted forced deportations.
- Sri Lankan deportation cases have been injuncted by the Andhra high court in 1993 in P. Nedumaran v. Union of India,
- In 1996, the Supreme Court laid down fair treatment for Chakma refugees until their status has been determined, in NHRC v State of Arunachal Pradesh (1996) and that cases be withdrawn in respect of Burmese who are due for resettlement outside India (Union of India v. Maung Maung, 1994).
There is a difference between UNHCR mandate refugees from outside the South Asian region and others. But the courts have trusted the UNHCR with determinations and cooperated with it even though the UNHCR is in India on the aegis of the UNDP. What the courts have done must apply to all. But today, the Indian courts and the Indian government have divergent views on refugees, persecution, and deportation.
The foundation for the BJPs CAA plans were laid by adding CAA-like provisions based on religion in the Foreigners Order 1948 (Para 3A) and the Passports (Entry into India) Rules 1950 (Rule 4(ha)) on September 18, 2016. In that exercise, Afghanistan was not included in the exemptions; in 2017, that country was added as well. But these measures were not brought into effect because the government knew they would be invalidated. Such changes can only be made by “law”. It is only when the BJP got its muscular majority in 2018 that the CAA was enacted in 2019, which also will only come into force at some future date. The motive is to pander to electoral politics.
Populist measures are those calculated to win support on ideological grounds on any pretext. A truly popular measure emanates from people across diversity seeking the public good. Both have to be tested for constitutionality which checks all anti-majoritarian measures on the anvil of equality, freedom and due process. The CAA is unashamedly and perversely populist and against democratic constitutionalism founded on the rule of law. The popular reaction to the CAA is based on an emotional plea to defend the ideals of the constitution. It is not confined to Muslims but extends to all communities all over India, including Hindus, who do not stand for a sectarian view of the ideals of the constitution. The BJP’s policy of presumed policy support from its North East (especially Assam) allies has backfired. The North East wants to protect its cultural integrity and not be flooded by any ‘outsiders’. The CAA not only adds to the influx but gives those protected by CAA full citizenship rights to move any and everywhere.
Civil protests have flared into violence in some parts of the country, including New Friends Colony where I live. Burnt buses bear testimony to arson. This is wrong. But what compounds everything is the police force’s unmitigated violence to create mayhem on the campus of Jamia university – bursting into mosque and library, beating up students and destroying property. One MP half defended this as the right to “hot pursuit” (as if the persons were pirates on the high seas), without taking into account the fact that the police has no right to beat up anybody they want to. The action of the police was not just disproportionate but both criminal and evil. The police should not be allowed to lay siege to university campuses or threaten anyone with gratuitous violence. But then this is what the CAA is: gratuitous violence to the ideals of the constitution which bind this great multidiverse nation together.
Rajeev Dhavan in a senior advocate.