Deciphering the Essence of the Citizenship (Amendment) Act, 2019

On the 11th of December 2019, the most controversial bill in recent times was passed and on the 12th of December, almost immediately, it received the assent of the president, thereby making the bill an act. The Citizenship Amendment Act,2019 (CAA) was passed in the Parliament of India, to insert a proviso to expedite the citizenship process for persecuted religious minorities belonging to Afghanistan, Bangladesh, and Pakistan.

Much to the government’s dismay, this act received backlash for its selectiveness. The retaliation to the move made by the government took an abhorrent turn when violence erupted among the protestors who took to the streets to show their dissatisfaction with the current government. Many protestors viewed this amendment as a form of prejudice against a particular community. With the death of over 40 people, and several more injured, it makes a bystander contemplate whether the very nexus of the protests were necessary to take such an ugly turn of events. With the series of events that took place, the act even received criticism from some representatives from the US congress.

The author believes that any law made based on religion, will without doubt lead to several complications and should not be encouraged. The main aim of this article is not to support or condemn any political party but rather have ourselves the question of whether the passing of this act required such outrageous aversion from the common public? And most importantly what we must comprehend is whether this amendment was truly discriminatory? Under article 19(b)[1] of the Indian constitution, every citizen has a right to protest peacefully. However, taking the events of the CAA-NRC protests which initially was peaceful, eventually resulted in a loss of lives and livelihoods of innocent people.

The National Register of Citizens (NRC), first carried out in Assam, was in talks to be implemented throughout the country. However, the draft of this NRC for the country has not yet been framed[2], therefore we will be focusing on the main issue which is the CAA. It is futile to justify or criticize the NRC since there is a lack of clarity on what it is at this stage. Whether there is a need for the NRC is a whole other debate altogether.

What is the CAA?

In the Citizenship Act, 1955[3], in section 2, in sub-section (1), in clause (b), the following proviso has been inserted, which states that “Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920[4] or from the application of the provisions of the Foreigners Act, 1946[5] or any rule or order made thereunder, shall not be treated as an illegal migrant for this Act;”.[6]

Further the third schedule of the Citizenship Act,1955, in clause (d), it is stated that ‘the aggregate period of residence or service of Government in India as required under this clause shall be read as “not less than five years” in place of “not less than eleven years”.’

It is indisputable that the minorities in the countries mentioned in the amendment have faced a severe form of persecution only because of their religion. We have certainly not been a stranger to the news of several people of the aforementioned minorities being abducted, raped, killed, or forcefully converted[7]. Furthermore, such ghastly incidents still occur, earlier this year Bharti Bai, a Hindu woman was abducted, forcibly converted and married[8]. Similarly, in mid- September of 2019, Jagjit Kaur a Sikh woman had faced a similar plight when she too was abducted, forcibly converted, and married[9].

In the countries mentioned, another hindrance to these minorities is the stringent blasphemy laws practised by the countries. This brings to light the infamous case of Asia Bibi, who was sentenced to death under the blasphemy laws in Pakistan[10]. She was charged with blasphemy after an argument with a group of women in 2009. Taking these unruly practises into consideration, it seems fair to not force these escapees back to the country that they escaped persecution from.

Considering the situation in the north-east particularly states such as Assam and Tripura, there were massive protests against this amendment. The reason can be dated back to when that these regions faced an immense geographic alteration when the states witnessed an inundation of Bengali speaking people from Bangladesh, which was earlier East Pakistan. A part of the immigrants who fled were fleeing religious persecution, but a major part of the immigrants was attracted by other considerations.

Due to this, in Assam, the Assamese speakers became a minority, a similar situation occurred in Tripura due to which its social composition transformed[11]. Therefore, their hostility towards the act was comprehended, thus making this amendment inapplicable to states of “Assam, Meghalaya, Mizoram or Tripura and the areas covered under “The Inner Line” as specified under the Bengal Eastern Frontier Regulation, 1873[12].”

The Potential Groups that were Excluded

Rohingyas of Bangladesh

The aforementioned act has laid down a cut-off date, 31st December 2014. This date was chosen based on the asylum policy of 2015[13]. This was much earlier than the crisis in the Rakhine state of Myanmar which occurred in 2017. Another point to be noted is that to obtain citizenship, there is a requirement of previous period residency. Under the amendments to the act, there should exist a five-year residency in the country. However, since even this requirement has not been fulfilled by the group, as this group only fled their country after 2017, hence their exclusion is certainly not arbitrary.

Tamils of Sri Lanka

The situation of Sri Lankan Tamils has been quite different from the other groups, mainly because they have faced persecution on an ethnolinguistic basis rather than religious persecution. The most important aspect to be noted on why they have not been included in the list is because a large majority of this group has repatriated back to heir homeland. Moreover, India and Sri Lanka still have ongoing negotiations on repatriation[14]. To provide citizenship for this community would hinder the diplomatic relations these two countries have and more than 70% want to return to their homeland[15], therefore this justifies their exclusion.

Ahmadis of Pakistan

The Ahmadis of Pakistan by far have the most legitimate objection when it comes to this amendment. Like the minorities mentioned in the act, this group has been subjected to severe persecution. people from this community have been victims to blasphemy, Ahmadi mosques have been attacked. Moreover, they have been subjected to disenfranchisement, the community must declare themselves as non-Muslims to vote and for other civil procedures such as obtaining passports, etc[16].

A report by the Human Rights Watch states that the Pakistani government has legalized the persecution of the Ahmadis[17]. A 1974 amendment to the constitution of Pakistan, refuses to consider the Ahmadis as Muslims[18], albeit the Ahmadis strongly believe that they are Muslims. There are 1.5 lakhs of Ahmadis living in India, all of whom are considered to be Muslims, thereby demonstrating that under the Indian context they face sectarian persecution rather than a religious one.

An empirical reason for their exclusion is based on the fact that many do not have the necessary documents. As stated earlier that they need to renounce their Muslim-hood to obtain several documents, hence many forgo this process[19], those who do have their documents, their actual religion is not stated but they are merely referred to as “non-Muslims”[20]. Since the process to obtain any form of citizenship requires an enumeration of certain documents, the given plight of the Ahmadis poses an extreme difficulty to the officials to grant them citizenship. Another reason why the Ahmadis were excluded, would have been the Nehru-Liaquat Agreement of 1950[21]. This agreement was signed by the governments of India and Pakistan to protect the fundamental rights of minorities in their respective countries.

When this agreement took place, Ahmadis were still considered to be Muslims. Since only from 1974, the Ahmadis were declared as non-Muslims, they do not fall under the category of a minority under the Nehru-Liaquat pact. Another point to be noted is that ever since this exclusion of the community in 1974, there has been steady migration to the west rather than India, by the community to escape persecution[22].

The reasons stated above do not by any means absolve the government from refusing to protect the Ahmadis that have migrated here before the cut-off date or refuse to ensure that they are not deported back to the area where they fled persecution. the reasons only provide a reasonable basis on why they were not included in the list.

Is the CAA discriminatory?

No person should be maltreated just because they follow a particular religion or follow a different religion from the majority. Religious freedom must be upheld across the world. Every person should be entitled to practice and profess any religion of their choice, without having to fear persecution. several countries, across the world, have different migration policies, even based on religion, which have been enacted even before when the CAA was. The most prominent example would be the Lautenberg Amendment[23] in the United States. The Lautenberg Amendment, named after US Senator Frank Lautenberg, was designated to provide refugee status and eventually citizenship to religious persecuted minorities such as the Jews and evangelical Christians from the erstwhile Soviet Union in 1990. In 2004, this amendment was extended to include the Baha’ community from Iran through the Specter Amendment[24]

The main objective of the CAA, as I view it, is not an exclusion of a particular group but rather to identify the groups of migrants who have been persecuted only based on their religion, so much so that they cannot return to their country of origin. What CAA does is to provide a faster means for these groups to acquire citizenship in India.

It does not provide citizenship to just anybody who migrates but rather those who have already migrated. It only lessens the number of years required to acquire citizenship from 11 to 5 years for these groups. Another point to be noted here is that the insertion of this amendment does not mean that any particular community cannot seek to acquire citizenship, but rather wait for 11 years, and if they are not disqualified by any other ground, they can become an Indian Citizen. This means that even if persecuted minorities mentioned in the proviso, have entered or entered after December 31st, 2014; they will have to acquire citizenship only after 11 years[25].

Rather than being discriminatory, this amendment can be viewed as a form of “positive discrimination” since it only favours those who have been subjected to merciless blasphemy laws and have been discriminated only because of their religion.

Conclusion

To conclude, it can be said that the protests which turned violent, which led to the loss of innocent lives was undoubtedly excessive. It can be acknowledged that the amendment in its essence is not truly discriminatory. Instead of viewing it as a form of exclusion, it can be viewed as a form of inclusion of the persecuted sections who escaped the torment of religious intolerance. The Ahmadis who indisputably have been subjected to the same plight as that of the communities mentioned in the list and several protestors against the said amendment have brought out their grievances.

The solution to this is not to repeal the act but rather propose an amendment. Any law based on religion will certainly create issues among sections of the society, and I am against laws made on religion, but in this case, since it benefits at least some people and provides them relief from unsubstantiated grounds of persecution in their home country, this amendment is vindicated in its position. This was further confirmed by the Supreme Court which stated that there has been no violation on fundamental rights[26]. To reiterate my stance, the main purpose of this article, is not to support or oppose the current regime but rather to clarify what exactly this amendment suggests, and most importantly to highlight that the violence that it led to was palpably excessive and could have been avoided.


[1] INDIA CONST. art. 19, cl. 1(b).

[2] Bharti Jain, Nationwide NRC is not going to happen immediately, says Centre: India News – Times of India The Times of India (2019), https://timesofindia.indiatimes.com/india/nationwide-nrc-not-going-to-happen-immediately-govt/articleshow/72894204.cms

[3] The Citizenship Act, 1955, No. 57(India)

[4] The Passport (Entry into India) Act, 1920, No. 34 (India)

[5] The Foreigners Act,1946, No. 31 (India)

[6] The Citizenship (Amendment) Act, 2019, No 47(India)

[7] Why Pakistani Hindus leave their homes for India, BBC News (2015), https://www.bbc.com/news/world-asia-india-34645370 (last visited Jun 4, 2020).

[8]Pakistani Hindu girl abducted, married off, The Hindu (2020), https://www.thehindu.com/news/international/pakistani-hindu-girl-abducted-married-off/article30677529.ece (last visited Jun 4, 2020).

[9]Hamza Ameer, Pakistan: Sikh girl, kidnapped and married to Muslim, yet to return home India Today (2019), https://www.indiatoday.in/world/story/pakistan-sikh-girl-kidnapped-and-married-to-muslim-yet-to-return-home-1603605-2019-09-26 (last visited Jun 4, 2020).

[10] Asia Bibi: I always believed I would be freed, BBC News (2020), https://www.bbc.com/news/world-asia-51658141 (last visited Jun 4, 2020).

[11] Swapan Dasgupta, Citizenship act has corrected a historic blunder Times of India Blog (2019), https://timesofindia.indiatimes.com/blogs/right-and-wrong/citizenship-act-has-corrected-a-historic-blunder/ (last visited Jun 4, 2020).

[12] Bengal Eastern Frontier Regulation, 1873

[13] Sagnik Chowdhury, India’s ‘asylum policy’: What it is, who it applies to The Indian Express (2016), https://indianexpress.com/article/explained/balochistan-leader-brahamdagh-bugti-political-asylum-in-india-3041252/ (last visited Jun 4, 2020).

[14] Sri Lanka working with India for repatriation of Tamil refugees: Envoy, Business Standard (2019), https://www.business-standard.com/article/international/sri-lanka-working-with-india-for-repatriation-of-tamil-refugees-envoy-119011900173_1.html (last visited Jun 4, 2020).

[15] Supra 13

[16] Peter Gottschalk, Who are Pakistan’s Ahmadis and why haven’t they voted in 30 years The Conversation (2019), https://theconversation.com/who-are-pakistans-ahmadis-and-why-havent-they-voted-in-30-years-100797 (last visited Jun 4, 2020).

[17] United Nations High Commissioner for Refugees, https://www.refworld.org/pdfid/49b920582.pdf

[18]Raza Habib Raja, Ahmadiyya Muslims in Pakistan: The Legally Declared Non-Muslims HuffPost (2016), https://www.huffpost.com/entry/ahmadiyya-muslims_b_8099324 (last visited Jun 4, 2020).

[19]Parth Parihar, Why India’s Citizenship Amendment Act is Not Selective Medium (2020), https://medium.com/@parihar.parth/why-indias-citizenship-amendment-act-is-not-selective-b8c925fb9d99 (last visited Jun 4, 2020).

[20]United Nations, Pakistan: Information on whether “Ahmadi” or “non-Muslim” is written in a passport issued to an Ahmadi in the section for “religion”; and on whether “non-Muslim” is used specifically for Ahmadis or if it is also used in the passports of Christians, Sikhs and other religious minorities Refworld, https://www.refworld.org/docid/3ae6ac563.html (last visited Jun 4, 2020).

[21]Agreement between the Governments of India and Pakistan Regarding Security and Rights of Minorities, (Nehru-Liaquat Agreement), Ministry of External Affairs, https://mea.gov.in/Portal/LegalTreatiesDoc/PA50B1228.pdf.

[22] Prerna Katiyar, In their prophet’s shadow: Ahmadis and their plight as a community The Economic Times (2020), https://economictimes.indiatimes.com/news/politics-and-nation/in-their-prophets-shadow-ahmadis-and-their-plight-as-a-community/articleshow/73100973.cms#:~:text=There are an estimated 10 million Ahmadis around the world,the UK, Germany and Canada. (last visited Jun 4, 2020).

[23] Refugee Admissions and Resettlement Policy , Federation of American Scientists (2018), https://fas.org/sgp/crs/misc/RL31269.pdf.

[24] Dipanjan Roy Chaudhury, CAA has corollary in US’ Lautenberg Amendment The Economic Times (2020), https://economictimes.indiatimes.com/news/politics-and-nation/caa-has-corollary-in-us-lautenberg-amendment/articleshow/73347361.cms?from=mdr (last visited Jun 4, 2020).

[25] Supra 3

[26] Pune Mirror, CAA in Supreme Court: Act does not violate fundamental rights: says Centre Pune Mirror (2020), https://punemirror.indiatimes.com/news/india/caa-in-supreme-court-act-does-not-violate-fundamental-rights-says-centre/articleshow/74672925.cms#:~:text=New Delhi: The Centre on, not violate any fundamental right. Text=The Supreme Court in December, refused to stay its operation (last visited Jun 4, 2020)

Aditi Nemakal from Tamil Nadu National Law University

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