Migration is a phenomenon of human civilisation. However, in India, the narratives and counter-narratives of citizenship in an atmosphere riven with ethno-nationalism , drawing exclusively on communal identities, have led to the systematic ‘othering’ of communities. India must embrace refugee management over refugee politics by adopting the core principles of international refugee law while shunning the politicisation of the issue. The internal refugee management mechanism of India is fraught with serious crises, principally because the Convention Relating to the Status of Stateless Persons, 1954 and Convention on Reduction of Statelessness, 1961 have not been used as reference points for a methodical detection, reduction and prevention of statelessness. The imposition of positive obligations on the State through the accession to the two aforementioned Conventions is essential to upholding India’s commitment to international law, as spelled out by Article 51(c) of the Constitution of India.
This article will explain that the recent Citizenship Amendment Act (CAA), which was followed by a proposed pan-Indian implementation of the National Register of Citizens (NRC), threatens the secular credentials of India embedded in Articles 25, 26 and 27, guaranteeing the freedom of religion, in addition to the spirit of inclusiveness spelled out in Articles 29 and 30 of its Constitution. The solution lies in the sincere implementation of the Conventions on international refugee law and the recognition of the established principles of jus cogens that dictate the laws of citizenship.
The Citizenship Amendment Act – The Citizen in Crisis
The Citizenship Amendment Bill (CAB) was passed by the Indian Parliament on the 11th of December 2019 and enacted on the 12th of December, after receiving the Presidential assent, as the CAA. The CAA amends Section 2 (b) of the Citizenship Act of 1955 – which defines ‘illegal immigrants’ – by excluding persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians belonging to Afghanistan, Bangladesh and Pakistan, from the ambit of ‘illegal immigrants’. Furthermore, the amendment adds a new section, 6B, which reduces the period of naturalisation for such group of persons from 6 years to 5 years, while maintaining the period of naturalisation for Muslim immigrants at an unchanged 12 years. The CAB seeks to facilitate the grant of Indian citizenship to non-Muslim immigrants fleeing religious persecution while wholly neglecting the Muslim immigrants seeking refuge.
Substantively, the CAA displays manifest arbitrariness, as is argued below; and procedurally, it is fraught with implementational hazards. An implicit recognition of this flaw is evident in the international fallout that has followed in response to its enactment. The Office of the United Nations High Commissioner for Human Rights (OHCHR) has termed the CAA as “fundamentally discriminatory in nature”. The United States Commission on International Religious Freedom (USCIRF), in a strongly worded statement, deeply critical of the CAB, said that, “The CAB is a dangerous turn in the wrong direction.” The USCIRF went so far as to state, “If the CAB passes in both houses of parliament, the United States government should consider sanctions against the Home Minister and other principal leadership.” In the same vein, the House Foreign Affairs of the United States of America, issued a statement, reminding India of the shared core foundational values of the two countries that include religious pluralism as an inalienable component.
The Bill is wholly violative of Article 14 of the Constitution since it discriminates on the basis of religion. It is well established in law that the intelligible differentia leading to classification must be reasonable. For instance, the Supreme Court of India in Chiranjit Lal Chowdhury v. Union of India, held that the legislature is free to classify by recognising the degrees of harm. However, the CAB disregards this principle when it excludes the Rohingyas of Myanmar, fleeing religious persecution. According to a 2013 UN report, the Rohingyas are ‘the most persecuted minority in the world’. The selectivity of logic that pervades the Act is further adduced by the denial of citizenship to Muslim persecuted minorities such as, the Ahmadiyas, Baloch, Shias from Pakistan, Bangladesh and Afghanistan, in addition to the exclusion of other persecuted groups like the Madhesis from Nepal and Uighurs from China. The Act is oblivious to the plight of the Tamil Elam from Sri Lanka, the largest refugee group in India. The Statement of Objects and Reasons clause of the CAB states that the objective of the Act is to protect minorities from persecution. Ironically, the Act appears to be inimical to the interests of India’s largest minority, the Muslims. Echoing a similar concern, Amnesty International stated that, “The Bill, while inclusionary in its stated objective, is exclusionary in its structure and intent.”
India’s ‘Commitment Deficit’ to International Law
The exacerbation of the citizenship crisis in India is the result of a severe deficit in India’s commitment to international law and its established principles. India has neither ratified the Refugee Convention, 1951 nor is it party to the Protocol relating to the Status of Refugees, 1967. These two UN documents form the bedrock of refugee protection and citizenship rights. India’s non-adherence to them comes at an unaffordable cost – the communalisation of citizenship. The United Nations High Commissioner for Human Rights has called for the adoption and implementation of a ‘robust national asylum system’ in India to address the refugee crisis at hand and to put an end to a new breed of communally motivated humanitarianism.
Article 14 of the Universal Declaration on Human Rights (UDHR) espouses the right to seek and to enjoy in other countries asylum from persecution. India is a member of the Executive Committee of the High Commissioner’s Programme (Excom). Excom supervises the material assistance programme of United Nations High Commissioner for Refugees (UNHCR). Membership of the Excom is indicative of striving for greater commitments to refugee jurisprudence. India had voted affirmatively to adopt the UN Declaration on Territorial Asylum in 1967 and upholds the principle of non-refoulment as envisaged in the Bangkok Principles on the Status and Treatment of Refugees, 1966 by acknowledging the principle of non-refoulment as jus cogens. The UNHCR is of the view that the principle of non-refoulment constitutes a part of customary international law and therefore is binding on all States, irrespective of their accession to the 1951 Convention or its 1967 Protocol. Article 38(1) (b) of the Statute of the International Court of Justice (ICJ), illustrates that, international custom is general practice accepted as law and must be regarded as one of the sources of international law by the ICJ. The ICJ in the landmark Northern Sea Continental Shelf Cases, held that, the provisions of a treaty along with the opinion juris, result in the creation of a binding custom governing all states, not limited to parties to the original treaty.
India is a signatory to the International Covenant on Civil and Political Rights (ICCPR), which creates obligations not to extradite, deport, expel or remove a person from their territory, when there exists a risk of irreparable harm, such as that contemplated by Article 6 (right to life) and Article 7 (right to be free from torture and other cruel, inhuman or degrading treatment or punishment) of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. India is a party to, but has not ratified, the Convention Against Torture (CAT), 1984. Denying the right of asylum to Muslim immigrants, facing religious persecution, solely on the basis of their faith is in clear contravention of Article 3 of the CAT, which prohibits the parties from returning or refouling any person to a state where there are substantial grounds for believing that it would in danger of being tortured. Being a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and, most significantly, CAT, India is under an obligation to provide asylum to persons who have any fear of persecution irrespective of the religious beliefs of such persons.
The operative word, ‘persecution’, has not been defined in any manner in the Act. So far as no benchmarks exist from which such a definition could be derived, the Indian State cannot be allowed to throw caution to the winds, for it does so at the peril of those hundreds of thousands of humans affected by the Act. Amid cancelled state visits and growing dissent among its people, India must act swiftly and with purpose to acknowledge with humane respect, its 2,89,394 ‘stateless’ persons. India is a beacon of justice and democracy in South Asia and thus the events that transpire have a transgenerational and transnational impact in the region. A mere ceremonial acceptance of the international Conventions shall not suffice. Unless India adopts not only the letter but also the spirit of international law, defined by egalitarianism and fairness, millions of genuine citizens and fragile refugees will continue to be identified, disenfranchised and dispelled.