The onset of the novel coronavirus has exposed the vulnerabilities of nations across the globe, thus, creating a state of turmoil. However, it has been a blessing in disguise for the ruling dispensation in India, for it has put to silence the nationwide protests against the controversial Citizenship Amendment Act (CAA) that was enacted by the Indian legislature. While much literature is available as to the challenges that this act faces under India’s constitutional law, the author intends to shed some light on its inconsistencies with international law. To contextualize the discussion, it is imperative to have a cursory understanding of what this new citizenship law is. On the face of it, the act intends to grant citizenship to persecuted religious minorities from neighbouring countries of Pakistan, Bangladesh and Afghanistan. This bona fide intent is, however, jeopardized upon a closer scrutiny under international covenants and another equally contentious ‘reform’, the National Register of Citizens. Refugee Convention and the new law: Where lies the inconsistency? As per the 1951 Refugee Convention, there are two principles that bear great weight against the CAA. Firstly, the convention accords a principle of non-discrimination against refugees. While ‘non-discrimination’ is a term of wide import that can only be defined on a case-to-case basis, the judicial precedents are settled to the extent that the principle of non-discrimination is violated wherever discretion is exercised arbitrarily. The author does not contest that it is absolutely within the discretion of a state to design policies for according citizenship. However, it is safe to contend that the discretion has been used arbitrarily in this law. Firstly, it is inexplicable as to why the law has a geographic limitation to three countries, even though it intends to protect religious minorities from neighbouring countries. Given that the persecution of minorities in the neighbouring countries of Sri Lanka and Myanmar has been immense in the past, one wonders as to why they have been excluded from the ambit of this law. Secondly, the new law cherry-picks a few religious communities while defining its applicability and arbitrarily excludes the Muslims from claiming citizenship benefits. Given the onslaught of Hindu-centric politics in India after the right-wing Bhartiya Janta Party sweeped the elections in
2014 (and again, in 2019), the new citizenship law looks nothing more than another blot on India’s secular character by acting to the disadvantage of persecuted Muslims. There is a third, and graver violation of the refugee convention that the new law perpetrates. Barring certain religious communities, it labels other entrants into India as ‘illegal immigrants’. In effect, it means a denial of two intertwined principles: non-refoulment and the right to seek asylum. The first denial is fairly simple, for that a blanket declaration of a Muslim immigrant as ‘illegal immigrant’ would mean that (s)he is given no protection from the imminent threat that (s)he has fled from. With the large-scale persecution of Rohingya Muslims in Myanmar and Ahmadis, a sect of Islam, in Pakistan, the possibility of them seeking asylum in India and its consequent denial by India is not far-fetched. As far the right to seek asylum is concerned, it is inarguably established as a fundamental human right under the declaration of human rights and its in-effect denial is, therefore, nothing short of violation of human rights. National Register of Citizens: Last nail in the coffin? The controversial citizenship law is accompanied by a nationwide drive to create a register of citizens which has already been implemented in a few states of India. The register, relying on certain documents that would stand as a proof of citizenship, aims to prepare a list of citizens and shall exclude those who fail to provide such documents. Much like the CAA, it appears to be a bona fide move for controlling illegal infiltration. But, there is an inordinate lack of clarity around the documents that would establish citizenship which has created a state of panic amongst the minorities, courtesy the overall scheme of things. Interestingly, there are larger concerns with the national register that need to be addressed in relation to international law. The 1951 convention provides that everyone has a right to nationality and that statelessness is an evil that the global fraternity must endeavour to eradicate. Owing to the national register of citizens, billions can be declared as ‘illegal immigrants’ for lack of proper documentation despite having lived in the country for many decades. In such a scenario, their acceptance by any other nation is also unlikely, leading to the declaration of their status as stateless. The blot is furthered by the fact that out of such ‘stateless’ individuals, all except Muslims could apply for citizenship under the new law. In consequence, it means the selective exclusion of Muslims from India’s citizenship. Things get more complicated because India does not follow a jus soli principle of citizenship and one of the parents of an individual has to be an Indian citizen for the conferment of citizenship on
a child. Therefore, claims to citizenship for those children who were born in India to such parents who are declared as ‘illegal immigrants’ under the register are automatically nullified. Supporters of these reforms may argue that India is not a signatory to the refugee convention and, therefore, is not bound by any of its covenants. However, a plethora of judicial precedents indicate that all these principles, namely, the right to seek asylum, the principle of non-refoulment and the principle of non-discrimination are a part of customary international law. India being a signatory to the convention, thus, becomes irrelevant and it is invariably bound by these principles. In recent times, India has witnessed many forms of persecution and social bullying that Muslims have been subjected to; which includes, but is not limited to mob lynching, selective police brutality, hate speech by leaders of the ruling party and even blaming the outbreak of the coronavirus on a Muslim congregation. With the unrest amongst the Muslim clocking an all-time high, the citizenship law furthers the communal divide and is poised to threaten the harmony of an already fractured Indian society. Though one can surely hope a reversal to the not-so-long-ago stage of social acceptance (if not harmony), the author is sceptic of the same; for he considers optimism and altruism as contemporaries of Gospel, good but too good to be true.
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