India’s New Discriminatory Citizenship Law
By Maya Garner
Protests have broken out across India over a controversial new citizenship law condemned by critics as discriminatory for excluding Muslims. The Citizenship Amendment Act (C.A.A.) offers a “citizenship pathway” for religious minorities facing “persecution or fear of persecution” in Afghanistan, Pakistan, and Bangladesh, and reduces residence requirements for citizenship by naturalization from 11 to 5 years. The religious minorities cited include Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, from the three countries specified, but Muslims are omitted. Their exclusion has led to protests across the country. Thousands of people have taken to the streets and 21 have died in clashes with the police.
Denying the accusations of religious bias, India’s Prime Minister Narendra Modi gave assurances at a counter-protest rally by his Hindu nationalist party Bharatiya Janata Party (B.J.P.), that the law “does not impact 1.3 billion Indians”, nor would it “change anything” for India’s Muslim citizens. , He accused the opposition of misconstruing the facts in order to spark the protests and politicize the issue. Modi’s B.J.P. party plans to hold some 200 more rallies.
Modi and the B.J.P. party came to power in 2014, since when his government has focused on policies aimed to centralize government, shifting the power base away from the autonomy of the Indian states. In addition to limiting fiscal powers, the Modi administration has revoked Article 370 f the constitution, which gave autonomous powers to the Hindu-majority area of Jammu and the Muslim-majority Kashmir valley, dissolving Jammu and Kashmir as a state. Under Modi’s leadership, the government has begun construction of detention facilities designated for people who are unable to prove their citizenship as required by the new registry.
The UN Human Rights Office released a statement labelling India’s Citizenship Amendment Act of 2019 as “fundamentally discriminatory in nature.” The statement highlights the Act’s specification of religious minorities by name, which excludes any mention of Muslims and minority sects. According to the UNOHCHR this was deemed 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 Indian is a State party, which prohibit discrimination based on racial, ethnic or religious grounds.” The statement pointed out that although India’s other naturalization laws remain unaffected on paper, the amendment would be discriminatory in practice. UNOHCHR also drew attention to India’s signing of the Global Compact for Safe, Regular and Orderly Migration and its obligations toward a human-rights based approach to handling migration. Noting that the Act is designed to protect groups facing persecutions, the OHCHR called for “a robust national asylum system that is premised on the principle of equality and non-discrimination,” adding that it should make “no distinction as to race, religion, national origin or other prohibited grounds.”
The anomaly in the new Act is its alleged need to distinguish between religious groups. Rather than focusing on the nature of the persecution suffered, the emphasis is on the applicant’s religious affiliation — a secondary detail that should have no relevance for assessing an applicant seeking citizenship on grounds of persecution. How can it be equitable and fair to name only certain religions yet specifically exclude others? If India genuinely believes a Muslim is less likely to face religious persecution in the three countries mentioned, that assumption in no way negates the needs of a persecuted individual to asylum and citizenship. The nature of the persecution is what determines an applicant’s asylum and citizenship status. Designating certain religions by name while excluding others amounts to an arbitrary distinction which only serves to pave the way for discriminatory practices.
India’s Supreme Court has not halted implementation of the Act. T The protests continue, with many deaths to date. The citizenship status of many Muslims is now subject to political cynicism and doubt. The authorities continue to crackdown on the unrest, shutting down internet and mobile messaging services in Delhi, closing metro stations and refusing permits for large demonstrations.
India should adhere to its obligations both as a UN Member State and as a recent signatory of the Global Compact for Safe, Regular and Orderly Migration. This flawed law should be amended. Those responsible for it should redraft and adopt inclusive language in which no religion is given precedence over another and in which the rights of the persecuted are maintained regardless of religious belief or affiliation, paving the way for a more equitable society and legal system.