LexisNexis

The controversy behind India’s Citizenship Amendment Act

Abby SeiffFriday 7 February 2020

India’s Supreme Court gave the government until late February to respond to challenges on the constitutionality of a controversial new citizenship law, dashing hopes by advocates that it would place a stay on the controversial legislation. Passed by parliament in December, the Citizenship Amendment Act (CAA) paves the way for migrants from three neighbouring countries to become Indian citizens – but only if they are not Muslim.

The law has been seen by many as a blow to India’s secularism, which is enshrined in the constitution, and part of a rising tide of Hindu nationalism and anti-Muslim sentiment. Hundreds of thousands of people have rallied against the CAA, in demonstrations that have been met at times by violent police response. Scores have been injured and more than two dozen people have been killed since early December.

Much of Kashmir remains under a communications lockdown, with Internet and phone services blocked and a curfew in place, despite being deemed illegal by the Supreme Court

Justice Richard Goldstone, Honorary President of the International Bar Association’s Human Rights Institute, says the legislation appears to be constitutionally groundless and undermines one of the country’s most basic tenets. ‘The CAA causes deep concern for those who, for many years, have admired the implementation of the rule of law and the recognition of the equality of all the people of India. The Constitution of India provides for “a sovereign socialist secular democratic republic.” To discriminate against immigrants on the basis of their faith is inimical to both a secular and a democrat state. Its constitutionality must clearly be doubted,’ he says. ‘The CAA is a serious blemish on the hitherto proud record of democracy in India.’

The CAA amends the 1955 Citizenship Act by offering a pathway to citizenship for undocumented immigrants who arrived in India before December 2014 from Afghanistan, Bangladesh and Pakistan, if they are Hindu, Sikh, Buddhists, Jains, Parsis or Christian. Millions could be granted citizenship under the amendments, and the government has repeatedly defended the law, calling it a humanitarian effort to protect persecuted minorities. ‘It is India’s responsibility to give refuge to those people who have been oppressed due to their faith. These people have faced historical injustice,’ Prime Minister Narendra Modi said at the end of January.

Those claim rings hollow to many legal experts and rights advocates, however, who point out that the government has shown scant concern for those persecuted for their Muslim faith. Most noticeable, Indian officials have redoubled efforts to round up and deport the tens of thousands of Rohingya — a persecuted Muslim minority from Myanmar — who have sought asylum in India.

‘The problem with the citizenship amendments is that it privileges some communities and in effect therefore excludes Muslims,’ explained Meenakshi Ganguly, South Asia director for Human Rights Watch. ‘The law also distinguishes on religious grounds, recognising the rights of minority groups in the three neighbouring countries, but not of Muslims. A truly humanitarian response would be to protect the rights of all persecuted groups, including for instance, the estimated 40,000 Rohingya Muslims from Myanmar who are refugees in India.’

In fact, the CAA has already been invoked as justification for planned deportations of the Rohingya. In early January, Minister of State in the Prime Minister’s office, Jitendra Singh, said the ‘next move’ following the passage of the CAA would be deportations of the Muslim minority — as they were not members of the six protected religions or from the three neighbouring countries.

The CAA comes against the backdrop of rising anti-Muslim sentiment in India. The Bharatiya Janata Party swept to victory in May 2019, with Modi reelected on a platform that relied heavily on Hindu nationalist ideology. While Islam is the second-biggest religion in India, the community has been targeted by hardliners and the government alike in recent years.

In August, the government removed the constitutionally guaranteed special status of Jammu and Kashmir — in the process dissolving the statehood of the only Muslim-majority state. Since August, much of Kashmir remains under a communications lockdown, with internet and phone services blocked and a curfew in place, despite being deemed illegal by the Supreme Court.

Speaking at the House of Lords in London in January, Pakistan’s Parliamentary Secretary for Law and Justice, Maleeka Ali Bokhari, pointed out that widespread torture and a crackdown on freedom of religion in Kashmir, in clear violation of UN principles, is being conducted behind a media blackout and complete internet shutdown, an issue highlighted by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye. Bokhari described Kashmir as ‘the largest open air prison on the planet,’ calling for the UK Government to take a principled stand on the issue.

The Indian Government has also come under scrutiny for a National Register of Citizens in the eastern state of Assam, which borders Bangladesh. Some two million people — most of them Muslims — were left off the registry, unable to meet the onerous burden of proving their families arrived before 1971, when Bangladesh was liberated from Pakistan. Appeals can be heard at ‘foreigners tribunals’, roundly denounced as biased. An investigation by Type Investigations found ‘nearly nine out of 10 cases were against Muslims. Almost 90 per cent of those Muslims were declared illegal immigrants — as compared with 40 per cent of Hindus tried.’ Critics fear a planned nationwide registry could see Muslims targeted at a national level.

Image: adnan irfan mukri / Shutterstock.com