On last Monday( March 02), UN Commissioner for Human Rights (UNHRC) Michelle Bachelet informed India that her Geneva office has filed an intervention application in respect to the 2019 Citizenship Amendment Act (CAA) soliciting the Indian Supreme Court to make the UN body a third party in the petition filed by a former civil servant against the law. Sadly, New Delhi holds a sweeping defense vis-a-vis the controversial CAA (facing a global backlash) by arguing that it is India’s internal matter. In its true spirit, the international law repudiates the said act which denies the political and civic rights endorsed by the UN’s Conventions.
The CAA selectively makes it softer for religious minorities– from three neighbouring Muslim-majority countries (Bangladesh, Afghanistan, and Pakistan) — who came to India before 2015 to get Indian citizenship – but absolutely not if they are Muslim. Now coupled with the ongoing National Population Register (NPR) and a proposed National Register of Citizens (NRC), India’s Muslims (who form nearly 15 per cent of the country’s 1.3 billion population) fear the measures are aimed at marginalising them. Not less than 140 petitions have been filed by Muslim groups, opposition parties and activists, who say the law violates India’s secular constitution. The legal stance solicited by the UN Geneva office has come amid ongoing protests over the CAA which was enacted in December last year.
It needs to be remembered that in December 2018, India had joined the international community in endorsing the Global Compact for Safe, Regular and Orderly Migration, which binds countries to ensure that all measures governing migration are based in human rights. Under international law, “All migrants, regardless of their migration status, are entitled to respect, protection and fulfilment of their human rights”. The U.N. human rights office says it deplores the government’s brutal crackdown on those protesting the enactment of the law, which it calls fundamentally discriminatory since the said law does not extend the same protection to Muslims.
“The amended law would appear to undermine the commitment to equality before the law enshrined in India’s constitution and India’s obligations under the International Covenant on Civil and Political Rights and the Convention for the elimination of Racial Discrimination, to which India is a state party,” said the human rights spokesman Jeremy Laurence. “Although India’s broader naturalization laws remain in place, these amendments will have a discriminatory effect on people’s access to a nationality”, Laurence argued. Arguably, unlike the CAA, international law does not frame the question of persecution solely on religious terms. Notably, the UN Convention on Refugees, 1951 incorporates a comprehensive set of grounds, including race, religion, and nationality, membership of a particular social group or political opinion, for a person to be recognised as a refugee.
Although the CAA presumes that any person belonging to a religious minority in three specified countries is persecuted on the basis of religion, international standards point to a more complex understanding of how ‘persecution’ operates. It would be incorrect to argue that these standards are not binding on India. Succinctly put, principles such as non-discrimination and non-arbitrary deprivation of citizenship are part and parcel of customary international law, and the international community must conduct themselves in accordance with these standards. In addition, Citizenship is not just a territorial idea. It involves members of a political community that has come into being with certain non-negotiable values.
The Indian spokesman’s response to the UNHCR move holds that the CAA is an ‘internal’ matter and no foreign party has any locus standi on issues pertaining to India’s sovereignty. Expediently put, in the prevailing scenario, it may serve the interests of the rule of law if the Chief Court of India were to appoint the UNHCR as amicus curiae in the CAA case. Given an academic inquiry, it bluntly seems that today in India, citizenship and Its discontents documented a subtle shift from the more inclusive principle of legal citizenship articulated in the Constitution to an exclusive feature-from a jus soli or birth-based principle to a sanguinity- based or descent-based principle (jus sanguinis).
Though India used to adopt the jus soli principle, covertly the tension between these two principles remained under an interplay since the founding of the Indian republic, yet the extremist trend under the Modi regime shows how the laws, rules and the jurisprudence on citizenship seem to have been fundamentally inflected by territorial bias and religious hatred.
Yet not surprisingly, the Indan courts may subjectively uphold the CAA by merely examining its constitutionality from the narrower andpolarised legalistic yardstick but they must be cognizant of the fact: any conferment of benefit or exclusion only on the basis of religion is not only contrary of citizenship debates but also incompatible with the Indian Constitution which in no way, incorporates an apartheid regime. Yeta closer look at the provisions indicates a partisan selection of beneficiaries on religious grounds.Most significantly, the CAA itself does not use the words “religious persecution” or refers to any procedure by which such a determination must be made. Instead, it provides a path to citizenship to the specified religious minorities who were previously exempted under the Passports Act and Foreigners Act.
While there is no major wave to reinvent the doctrine of state citizenship newer statuses globally, the Indian CAA continues to contest the concept of homogenous notion, a liberal basis for leveraging cultural diversity vis-à-vis the citizenship law. Clearly vindicated by the Modi government’s adopted citizenship criteria thatit is nothing but a reflection on state-sponsored polarization methodology which seems to unwisely attract the Indian premier at a time when the economy is sinking into a particularly serious crisis. Several states, such as Kerala, Punjab, Rajasthan and West Bengal, have announced that they will not implement the CAA. At a time when the international community is already cautioned with the non-secular agendas showing several political and military disturbances that centre on ethnic and religious identity in different parts of the globe, non-discrimination obligations under international law gain prime importance. However, there are reasons sufficient enough to strongly warrant the fact that Modi’s introduced CAA has no conformity with the UN law or the customary international law.
By all reasonable accounts, India’s reconstituted status of divisive citizenshipreflected in the CAA needs to overcome the rigid dichotomy between citizens and non-citizens by replacing a latitudinarianapproach.Against this backdrop, there is no pragmatic alternative than to revisit this biased Indian law-eviscerating the basic rights of Indian Muslims thereby intrinsically undermining the values of a secular Indian state once fervently fostered and ardently advocated by India’s famous jurist Dr B.R. Ambedkar while framing the fundamentals of the Indian Constitution.
