Wednesday, 18 December 2019

Citizenship Amendment Act 2019

We have witnessed a sea change in the approach of National Democratic Alliance government since the 2019 election towards addressing issues that have been long in the election manifesto of BJP, compared to the previous five years. Many people were expecting that 2019 general elections will produce a much reduced mandate in the backdrop of the state assembly results in Madhya Pradesh, Chattisgarh and Rajasthan which were held just before the general elections. But the mandate received by the NDA was much bigger than last term. We have seen that not just in Lok Sabha but also in Rajya Sabha NDA has been able to muster a majority with the help of parties which are not in formal alliance with BJP, like Biju Janata Dal and AIADMK.

With this stronger mandate from the people of the country, BJP has found itself in a position to implement the long held promises in its manifesto. We have seen the long awaited scrapping of Article 370 which was seen as unexpected in terms of the swiftness with which it was executed. While the dust had not yet settled on Article 370, NDA went ahead and addressed another difficult problem of what to do about the crores of refugees from neighbouring states who have been living stateless in India for decades. Since partition of India in 1947 and the further splitting of Pakistan in 1971 after a mass genocide of East Pakistan population by Pakistani Army and its supporting militias, an overwhelming majority of whom were Hindus, there have been several waves of immigration of religious minorities from Pakistan into India.

There is almost daily news on the persecution that religious minorities face in the self declared Islamic countries of Pakistan, Bangladesh and Afghanistan. There are hardly any Sikh and Hindu citizens left in Afghanistan since the advent of Taliban. The Population of religious minorities has seen a steady decline in Pakistan and Bangladesh. Even in the population which was left after the initial population exchange at the time of partition, there has been reduction of more than 50% among the Hindus in these countries. It is no body's case that religious minorities enjoy any semblance of religious freedom in these three Islamic countries. Abduction of Hindu, Sikh and Christian minor girls and forced conversion after marriage is a common occurrence in Pakistan's Sindh province where majority of Hindu population of Pakistan lives. In Bangladesh also restrictions on Durga Puja, destruction of temples and forced occupation of property of Hindus is very common. All these of these countries are constitutionally Islamic states which discriminates against religious minorities by Law.

Religious minorities from these three countries in the subcontinent are estimated to be close to 2 crores and are living in India stateless for decades. India has given citizenship to such refugees in past via executive orders. Some of these instances have been cited during the parliamentary debate over the citizenship amendment bill. While the refugees from Pakistan have been absorbed as citizens in batches, the most contentious issue has been about the twin problem of refugees and illegal economic immigration from Bangladesh. It is no body's case that the majority Muslims from these countries can claim state oppression based on religion. The qualitative difference has to be understood that while some citizens who happen to be Muslims may face oppression because of political activism or other reason but the religious minorities face discrimination by state and by the community in large simply for "existing".

Government of India has an obligation towards its citizens to secure its borders and keep a check on illegal immigration. However it is well known fact that over the years GOI has been terribly lax in this effort. Out borders are porous and movement of people and smuggling of goods takes place with impunity. This is a result of a weak state with lopsided priorities. The primary function of the state is internal and external security, but India's spending on this is woefully low. While the socialist welfare state spends its resources and energy in running inefficient loss making public sector companies in areas where the state should simple not operate like running airlines. As a result of this lack of attention wilful or otherwise the borders have been left unsecured and a huge population of illegal migration primarily from Bangladesh has resulting in change of demographics primarily in the norther eastern states, but also in several other parts of the country.

This gordian knot which is as complex as or perhaps even more complex than article 370 had to be cut and it has been cut by the twin actions of Citizenship Amendment Act(CAA) and the Nation wide register of citizens. This nation wide NRC is already part of the Citizenship Act which was added to the act in 2003 in article 14A of the act but it has not been implemented yet. The CAA 2019 essentially provides a one time amnesty to the illegal migrants who have been persecuted in these three Islamic countries in the subcontinent on the bases of their religion and form a minority population their. As has already been mentioned before there isn't much data required to be presented to prove this the religious census in these countries clearly establishes the dwindling populations of religious minorities there, in contrast with flourishing population of religious minorities in India. In fact the population of Hindus is in steady declined in India under the twin pressures of relatively slower birth rate and mostly unethical targeted religious conversion which is directed primarily towards the Hindu population. In Bangladesh in particular there has been large scale targeted persecution of Hindus. It has been established by other sources which I cite here 80% of the 10 million refugees who came to India in 1971 and 80% of estimated 3 million killed in the genocide perpetrated by Pakistan army in then East Pakistan were Hindus.

Under this backdrop of 71 genocide and the partition of the country on religious lines which left a number of religious minority populations in these Islamic states it was and continues to the be responsibility of Indian state to provide refuge to these people who were stuck on the wrong side of the border for no fault of theirs. While it is not in the interest of the Indic civilization that Indic population goes extinct in these states which were once flourishing centers of the civilization. But at the same time India cannot turn its back on these populations who have sought refuge in India and are living here as stateless and send them back to their source countries. There has been recent news of how 500 Hindus who were deported from Rajasthan to Pakistan were en-masse converted to Islam.

In treatment by the Indian state in grant of citizenship or otherwise they should not be considered at par with the illegal economic migrants. While both have entered India illegally one group has entered under threat of persecution based on religious lines and the other for economic benefit. It has been reported in 2014 that as much as 6% of the GDP of Bangladesh is the amount of remittance that the Bangladeshi workers send back home from India. They prefer India because of ease of entry and low cost of migration since they don't need to procure "Passport" etc to come to India. This number is four times of the remittance they receive from Saudi Arabia. This clearly points to the enormity of the problem of illegal immigration from Bangladesh and loss of employment opportunity to own  population in the low end labour market of India.

CAA makes this clear distinction by giving these refugees twin guarantee that they would not be deported if they belong to 6 religious minority population of Afghanistan, Pakistan and Bangladesh as defined in the Act and by reducing the wait time for their naturalization from 12 years to 6 years of aggregate period of stay in India. This is all that the act does it gives a fast track process for application of citizenship of India by registration or naturalization by these refugees and protection against deportation. It does not take away any right from any one else whether Indian Citizen or a foreign national applying for the citizenship of India or seeking asylum on any grounds. It has to be understood that the refugees need to apply for citizenship. So it is possible that their application may be rejected and they may be denied citizenship. But my interpretation of the CAA 2019 is that they will still enjoy protection from deportation if they belong to religious minorities from these 3 countries as defined in CAA 2019.

Many arguments have been made that this act is against secular principles. Claims are being made that it is unconstitutional. The fundamental logic that such arguments don't answer is that if Indian state can give special rights to religious minorities in India,w can it not give special rights to the religious minorities of these countries in the process of seeking citizenship of India. How can one act be secular but other cannot be secular. The definition of word secular it self is not very well defined. Indian state regularly interfears in the matter of religious activities of Hindus who happen to be national majority but not necessarily regional majority in every state of India. So I do not quite understand how this act fails the secularism test. The individual Muslims from Af-Pak and Bangladesh can still apply for Indian citizenship via the normal process. That right has not been denied to them, only a certain section of population from these countries has been given easier process as against the usually more complex process of acquiring Indian citizenship. Various aspects of the legality of this act have been mentioned by lawyers like Harish Salve.

Some people have argued that a combination of CAA and nation wide NRC is discriminatory towards Muslim Indian citizens since compared to say a Hindu who is rejected in NRC and a Muslim who is rejected in NRC the Hindu will not be expelled but a Muslim would. This is far from the truth and stems from incorrect understanding of Citizenship act and the process of naturalization after CAA and the process of national ID both of which are part of the Citizenship act. As has been explained by home minister several time the NRC process will not look at religion of a person at all. CAA will look at religion only for foreign nationals who apply for naturalization under the new process because of religious persecution in these 3 countries. It would be a weird argument to make that a Hindu who gets excluded in NRC will not be expelled if found to be a foreigner. Only a foreigner from these three countries will logically apply for naturalization under CAA. Why would a Hindu Indian citizen whose several generations have lived in the territory of India claim to be Pakistani and then claim persecution for claiming naturalization? Why would he risk his application being rejected and ending up being truly stateless? This logic is beyond belief. But this is the main argument made by the people who oppose CAA and protest on streets.

People are rioting, op-eds are being written, placard wielding students including law student are protesting over this supposedly unequal treatment that Muslims will get since they cannot claim this illegal way of getting citizenship by naturalization and a hypothetical hair brained Hindu can. Any such attempt will only make the case weaker for such a person and the process more complicated since it will trigger more scrutiny by Intelligence Bureau and may result in a rejection of claim when a perfectly legal way of resolving this issue of lack of documents could be found if not via the executive branch of the government then by approaching judiciary.  IB director had told the JPC on Citizenship Amendment Bill that the immediate beneficiary of this act will be around 31,000 refugees who have already applied for citizenship based on religious persecution. But any future claim while not disallowed will require enhanced enquiry by both Internal and External Intelligence agencies of India.

Now that some groups have challenged the act in court we await the judgement of the Supreme court of India to see whether the Act stays as is, parts of it are struck down or all of it is struck down. But the series of violent riots that have taken place across the country and the student protest in certain colleges where they have blocked normal functioning of the colleges shows that these people are not in line with the principles of constitutional democracy and the duty of a citizen to remain peaceful during public demonstrations etc. These actions also amount to putting pressure on the courts which are hearing this matter currently. Such activities should be avoided and court should be allowed to make a judgement on all aspects of this law.


  1. How will this law stop an illegal immigrant with required documents from becoming citizen of India? Lets not discuss how they got them.

    1. Any illegal immigrant if acquires citizenship of India by fradulent means risk action under the law when such act is discovered. Nothing much to debate here.