CAA- Inclusion vs Exclusion

The recently amended citizenship law dictates who is eligible to be a citizen. In the absence of a domestic refugee law, how does India deal with its asylum seekers?

Background

Acquisition and determination of Indian citizenship are governed by the Indian Constitution and the Citizenship Act, 1955, which provide for citizenship by birth, descent, registration, and naturalization. The current controversy revolves around the recent amendment to this base Act.

India lacks a specific Act or law to deal with persons who enter India as refugees. During political upheavals in erstwhile East Pakistan in the 1970s, now Bangladesh, at least 10 million refugees had crossed over to the eastern states such as West Bengal, Tripura, Meghalaya, and Assam. While the majority of them went back, a large number remained whose presence has been the cause of serious disharmony and unrest in the North-Eastern states, especially Assam. These include a large number from the Hindu minority community.

The original Act defined an "illegal migrant" (Section 2(1)(b) of Citizenship Act, 1955) as a foreigner who has entered into India―(i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or (ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time.'

The Citizenship Amendment Act (CAA passed in the Indian Parliament on 11th December 2019 and subsequently notified on 10th January 2020 has an amendment which reads "'In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), in clause (b), the following proviso shall be inserted, namely:— "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…'

The CAA thus amends the definition of "illegal migrant" to exempt Hindu, Sikh, Parsi, Buddhist and Christian immigrants from Pakistan, Afghanistan, and Pakistan, who have lived in India without documentation and fast track their citizenship within 6 years.

Analysis

The CAA 2019 excludes Muslims from its ambit on the premise that since the countries mentioned in it have a prescribed religion, therefore it is assumed that members of their respective state religion will be protected within their own borders and need not be covered by the amendment. Members of that religion, if they wish to seek asylum in India and thereafter citizenship, will have to follow the existing channels as hitherto fore. 

Internationally, the status of refugees is bound by the 1951 Convention and its 1967 Protocol. 43 member countries of the UN have neither signed or ratified either of them, which includes India, Pakistan, Afghanistan, and Bangladesh.

This does not mean that India can act in an arbitrary manner towards those seeking refuge because it is still very much bound by the Human rights treaties that it has signed. Historically, India has followed the UNHCR mandate by respecting the principle of non-refoulment of persons holding UNHCR documentation.

In the recent past, however, with the concerns of security and resource allocation, the space for asylum in the country has become difficult. In light of not having a clearly defined refugee law, there seems to be some uncertainty as to how India will deal with refugees here on.

Not that India has a poor record in accommodating prosecuted people from our neighboring countries. It has welcomed Tibetans who run a government in exile at Dharamshala. Between 1959 to 1960 about 80,000 Tibetans were allowed to seek asylum in India along with the Dalai Lama. As the exodus continued, this number went up to 100,000. India has also absorbed Tamil Refugees from Sri Lanka. Also, approximately 40000 Rohingya Muslims have sought shelter in India.

The critics of CAA maintain that in a secular democracy like India, the CAA narrows down the scope of a stateless person by making religion as its primary criterion. It is also alleged that if CAA is linked with what is happening in Assam under the NRC, then CAA provides a window to grant Indian citizenship to those detected as non-citizens of Assam. They are members of the prescribed six religious communities, and if they can prove they are originally from the three prescribed countries, then they can be granted Indian citizenship through the fast track process prescribed in CAA.

There is widespread anger against CAA in the North-Eastern states of India as it is feared that it would change the delicate tribal demography of these states if under this act migrant of different religions and cultures are granted citizenship and allowed to settle in any part of the country.   

Assessment

  • Since India does not have a domestic refugee law, there will be varying standards in its treatment of each person. Instead of amending the existing citizenship act to redefine as to who may qualify to be a citizen of India, based upon their religion, there may be an option to create a new, plausible, well-defined domestic act on the treatment of refugees in general without any religious undertones. 
  • Prior to this amendment to the CAA, all those who have entered India before 2014 were termed as illegal migrants. The CAA has only legitimized the presence of some of these persons in India on the basis of their religion. The reason for picking December 2014 as the cut-off date for this law has not been explained.
  • Atheists or persons with no religion, whose right has been guaranteed in India under Article 25 of the Indian constitution to both citizens and non-citizens, find no place in the Act who, a minority, too face persecution in their home countries. 

 

Image Courtesy: ThePrint

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