A Debate Drifting Off-Course? Analysing The Narratives Against The Citizenship Amendment Act, 2019

Bharath Pottekkat

26 Dec 2019 5:35 PM GMT

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    The Citizenship Amendment Act, 2019 (CAA) amended the Citizenship Act, 1955 to provide fast-tracked citizenship to Hindus, Christians, Jains, Sikhs, Parsis and Buddhists fleeing religious persecution from Pakistan, Afghanistan and Bangladesh. The list of religions is conspicuous for the exclusion of Muslims from the list. As this law draws a distinction between persons based on religion, it has evoked passionate protests and debates across the nation. While many of the arguments based on constitutional values and fundamental rights posed against the CAA hold great merit, it becomes our duty to distance ourselves from narratives that are not grounded in fact so as to avoid delegitimization of the entire cause.

    To this end, I would like to address a popular narrative that has been flooding social media. It states that a combined application of the CAA and the NRC process will mean that only Muslims without proper paperwork will be declared illegal immigrants and all non-Muslims without proper paperwork can avail of the CAA to become citizens automatically. However, this statement is technically fallacious. The CAA provides citizenship for only those Hindus, Christians, Jains, Sikhs, Parsis and Buddhists who are fleeing religious persecution from Afghanistan, Pakistan or Bangladesh.

    While the requirement to prove the country of origin is explicitly mentioned in the text of the CAA, the requirement to prove that one is fleeing from religious persecution becomes apparent only if one explores the "Statement of Objects and Reasons" (SOR) of the Citizenship Amendment Bill (CAB), the other legislations mentioned specifically in the CAA, and the Joint Parliamentary Committee (JPC) Report on the CAB.

    The SOR of the CAB states:

    "The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries. Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents."

    While tools such as the SOR have limited application in interpretation of statutory text, the Supreme Court of India has repeatedly maintained its utility in understanding the conditions prevalent at the time of passing of the Bill which prompted the legislature to do so. The SOR of the CAA shows that it was introduced to protect the persons from the aforementioned communities who are seeking a haven from religious persecution and not everyone merely because of their religious identity. Thus, it logically and legally follows that for one to avail of the provisions of the CAA, one must prove that they are fleeing from religious persecution.

    Further, the CAA states that for a person to be eligible for fast-tracked citizenship, they must fall under the class of persons exempted by the Central Government under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 (Passport Act) or from the application of the provisions of the Foreigners Act, 1946. Section 3 of the Passport Act gives the Central Government the authority to exempt any class of persons from the rules of the Act. To this end, the Passport (Entry into India) Amendment Rules, 2015 provide that all Hindus, Christians, Jains, Sikhs, Parsis and Buddhists fleeing religious persecution from Pakistan or Bangladesh are exempted from the provisions of the Passport Act. A similar exemption was created in the Foreigners Act, 1946 through the Foreigners (Amendment) Order, 2015. Thus, it is apparent that to satisfy the conditions laid down in the CAA, one must satisfy the conditions of the Rules mentioned above and to do that, one must prove that they are fleeing from religious persecution. Again, the centrality of the requirement of proof of religious persecution is clear.

    Besides these legislative documents, the JPC Report on the CAB also serves a clarificatory purpose. Paragraph 1.12 of the Report states:

    "The Citizenship Act, 1955 is now proposed to be further amended so as to provide that persons belonging to six minority communities….in Afghanistan, Bangladesh and Pakistan, who were compelled to seek shelter in India due to religious persecution or fear of religious persecution there, would no longer be regarded as "illegal migrants"...."

    Thus, the JPC Report further provides us with an insight into the legislative reasons for enacting this law and it is apparent that religious persecution was the primary concern that the legislation aimed to address. Significantly, when the JPC questioned about the requirement of proof of religious persecution and the procedure to prove the same, the Investigation Bureau replied in the following manner:

    "As per the Standard Operating Procedure….for an applicant who applies with an affidavit mentioning that he/she was compelled to migrate to India due to religious persecution or fear of religious persecution, alongwith other supporting documents, a detailed enquiry will be conducted by Foreigners Regional Registration Office (FRRO)/Foreigners Registration Office (FRO) concerned to verify his/her claim. If the affidavit is not supported by documents, the case will be referred to Foreigners Tribunals to be constituted for this purpose under the Foreigners (Tribunals) Order, 1964 for verification of the claim regarding religious persecution." (Paragraph 2.14 of the Report)

    Hence, it becomes clear that for an individual to avail of the provisions of the CAA, they must prove that they were the victims of religious persecution and were fleeing the same. And the proposed procedure to do the same seems to be rigorous.

    Let us consider a hypothetical scenario where the NRC has been implemented in Karnataka and a Hindu and a Muslim who have been living there since their births have been left out of the register. In order to be eligible for fast-tracked citizenship under the CAA, the Hindu must prove that he is originally from Afghanistan, Pakistan or Bangladesh and that he is fleeing religious persecution from said countries. If he cannot prove either of these conditions, he will be considered an illegal migrant and will face no different treatment than the Muslim who has been excluded from the NRC. Thus, currently, this narrative is baseless and will only serve to delegitimize the opposition to the CAA. Having said that, if the Rules that will be soon formulated under the CAA dilute these requirements and thresholds, it will be a matter of grave concern thereafter.

    At this point, it is important to refocus attention on the narratives that are grounded in facts and logic. Why is 'religion' established as the ground for fast-tracked citizenship under the CAA? As we have seen in the SOR, if the Central Government's answer to this question is that religious persecution and not religion is the ground for distinction, then, why have the Ahmadi Muslims in Pakistan and Shia Muslims in all three of these countries been excluded? Why have persecuted religious minorities from other countries we share a border with (Rohingya Muslims in Myanmar, Uyghur Muslims in China and so on) not been included? Thus, the argument that the CAA does not violate Article 14 of the Constitution because it creates an "intelligible differentia" on the grounds of religious persecution fails because of the non-inclusion of similarly situated groups facing religious persecution. The logic extended by the BJP leadership is that there are other Islamic countries in the region where these Muslim minorities can seek shelter. However, divides among Muslims sects are well known and it is unlikely that the aforementioned sects can find shelter elsewhere. This specific exclusion of Muslims has created in the minds of Indian Muslims a belief that they will soon be regarded as second-class citizens in their own country.

    Thus, the CAA is an inherently discriminatory law that clearly violates Article 14 of the Constitution. The debate and discourse against this must, however, be led with facts and reason and not unfounded rumours. Social media has made this quest a near impossibility, but it is our duty to verify the information presented on such platforms before forwarding them. Let us protest any attacks on our Constitution, however, let us ensure that the causes we rise in protest for are well-founded.

    Views Are Personal Only.

    (Bharath is a first-year law student at Jindal Global Law School.)

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