By Ayesha KhanOn the 11th of December, the Bhartiya Janta Party (BJP)-led Indian government struck a deep blow at the ideals of secularism and egalitarianism that the country was founded on. The Indian Parliament voted in favour of the Citizenship Amendment Bill 2019 (CAB), a legislation that seeks to strip millions of Muslim migrants in India of a fundamental right: equal access to citizenship. The proposed legislation, however, allows Hindus, Sikhs, Jains, Parsis, Buddhists, and Christian migrants from Pakistan, Bangladesh, or Afghanistan to fast track their way to Indian citizenship. This is one in a line of many actions to marginalize India’s Muslims taken by the BJP government since it has come to power in 2014. India’s Muslims make up around 15% of its total population.
In his speech introducing the bill, India’s Home Minister Amit Shah said that it aims to protect non-Muslim migrants from the religious persecution they face in India’s neighboring countries. If religious persecution is the rationale, then why not also protect victims of persecution in India’s non-Muslim neighboring states? It would only be fair to ask why this bill doesn’t seek to protect Rohingya Muslims in Myanmar, or Tamil Hindus in Sri Lanka, who are also victims of religious persecution.
Under Indian law, an illegal migrant is defined as a foreigner who has entered 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”.
If religious persecution is the rationale, then why not also protect victims of persecution in India’s non-Muslim neighboring states?
The new law essentially implies that only Muslims can be deemed “illegal migrants,” as migrants who belong to any other religion can be accepted as citizens. Illegal migrants, as the law currently stands, are prohibited from acquiring Indian citizenship. Through this exercise, the Home Minister has pledged to identify and weed out “all illegal infiltrators from India.”
Following the passing of this bill, the entire country has been in a state of protest. The BJP government has imposed a curfew and internet lockdown on the eastern states of Tripura and Assam, which border Bangladesh. Military presence has also been increased in these states.
In an objective analysis, it is abundantly clear that the CAB seeks to specifically exclude Muslim refugees from seeking amnesty and citizenship for no reason other than their religion. Indian historian, Mukul Kesavan, hit the nail on the head when he said the bill is “couched in the language of refuge and seemingly directed at foreigners, but its main purpose is the de-legitimisation of Muslims citizenship.”
What’s the Endgame?
Given that the BJP wants to make India a Hindu state, they see the CAB as a vital strategy to (i) demonstrate their active marginalization of the country’s more than 200 million Muslim population and incite religious divisions, thus boosting their chances of winning the next election on an agenda of religious hatred and (ii) disenfranchise Muslims from voting by stripping them of their citizenship, thus reducing the number of people who would not vote for the BJP in the next general elections.
They have already demonstrated this in Kashmir, India’s only Muslim-majority state which remains under lockdown since August 5 2019, when the BJP government abrogated its special constitutional status and brought it under the rule of the Central Government. This has been accompanied by arbitrary detentions, military violence, and an internet shutdown which still remains in effect. According to the Kashmir Chamber of Commerce and Industries (KCCI), the region’s main trade body, the lockdown has resulted in economic losses worth at least $1.5 billion.
It is also important to remember that in 2002, when more than a thousand Muslims were massacred in the Western state of Gujarat, PM Modi was its Chief Minister. With him and his party leading the entire country now, the foundations of India’s secular democracy are crumbling.
The BJP government has also seen an increased number of incidents of mob violence against, and lynchings of, Muslims. A number of these instances have been mentioned in the 2018 Report on International Religious Freedom prepared by the US government. It is also important to remember that in 2002, when more than a thousand Muslims were massacred in the Western state of Gujarat, PM Modi was its Chief Minister. With him and his party leading the entire country now, the foundations of India’s secular democracy are crumbling.
The CAB is also enabling legislation for a National Register of Citizens (NRC), a database proposed by the government to identify Indian citizens amongst all the present residents of the country to help them identify illegal migrants. While the move is ostensibly targeted at Muslim migrants, ironically, the first draft of this list of “citizens” — published in the northeastern state of Assam earlier this year — revealed more “illegal” migrants from the Hindu community than any other faith. Anticipating that this would be the case in the nationwide NRC as well, the BJP is now rushing to change the country’s citizenship laws so that only Muslims are singled out as illegals. Consequently, the people most affected by this bill are going to be poor migrant Muslims living in India’s vast rural districts, the majority of whom are mostly rightful citizens who simply don’t have the documents to prove their status, thanks to rampant government corruption and bureaucracy.
What Comes Next?
This begets an important question. Once identified, where will these Muslim “illegals” go? Bangladesh has absolutely refused to take any of them, citing reasonable concerns around having to deal with a massive influx of Rohingyas. Pakistan and Afghanistan have not yet been approached but it is highly unlikely that they would want to accept more immigrants given the economic situation in those countries. One wonders then, whether these “illegals” will be detained in the new detention centres the Indian government is building. You can read more about them here and here.
How long will they be detained for? Which corporations are involved in the construction and maintenance of these detention centers? There are no clear answers and one would not be remiss in drawing parallels with a time not so long ago in Europe, where another religious minority was bullied, excluded, and persecuted in a similar manner, simply in the name of God. There are fears that India is following the current Chinese model, where about a million people — mostly from the Muslim Uighur community — have been detained without trial in similar detention camps.
Consequently, the people most affected by this bill are going to be poor migrant Muslims living in India’s vast rural districts, the majority of whom are mostly rightful citizens who simply don’t have the documents to prove their status, thanks to rampant government corruption and bureaucracy.
The CAB has been severely criticized, both in India and abroad. Critics say this legislation is unconstitutional because it tears at the heart of the fundamental right to equality enshrined in the Indian constitution. Article 14 of the constitution proclaims that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Notice that it uses the term “person,” which implies that the right to equality extends to those who are not citizens as well. Moreover, since India does not provide citizenship on the basis of religion, religion cannot be used to deny a person from seeking citizenship. As a country founded on the ideals of secularism, plurality, and egalitarianism, India does not have a national religion. The BJP government’s action of trying to introduce a law that discriminates on the basis of religion not only violates the basic structure of India’s constitution, but also violates the vision of a secular India that Gandhi, Ambedkar, Nehru, and the rest of India’s founding fathers had. It violates the vision they sacrificed their lives for.
By discriminating amongst persecuted migrants on the basis of religion, the bill also violates principles of customary international law — namely the principle of non-refoulement (which forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on race, religion, nationality, membership of a particular social group or political opinion) and religious equality. Both of these are enshrined in the International Covenant on Civil and Political Rights, which India has ratified.
Indian historian, Mukul Kesavan, hit the nail on the head when he said the bill is “couched in the language of refuge and seemingly directed at foreigners, but its main purpose is the de-legitimisation of Muslims citizenship”.
As a country that is a member of the United Nations, a signatory to the Universal Declaration Human Rights and a signatory to the Convention Against Torture, by bringing this law into effect, India would be violating its responsibilities under these legal instruments and destroying the very edifice of democracy that the modern system of statehood and sovereignty rests upon. By passing a law that insubordinates its own constitution, the Indian parliament would be demonstrating to the international community that it is not a reliable nation state, that it cannot promise accountability to its own constitutional duties and thus can barely be expected to be accountable to any bilateral or multilateral agreements that it enters into with foreign countries. India would lose respect globally as a democratic player. In that case, there would be very little that would differentiate it from a country like North Korea.
In what seems to be a weak silver lining, the US Commission on International Religious Freedom has taken cognizance of this development and has issued a statement. In essence, they’ve said that it “fears that the Indian government is creating a religious test for Indian citizenship that would strip citizenship from millions of Muslims,” and proposes that “the United States government should consider sanctions against the Home Minister and other principal leadership” if the bill is passed into law. Sam Brownback, the US ambassador-at-large for International Religious Freedom, also noted India as one of the countries facing difficulties with religious freedoms at the “Global Call to Protect Religious Freedoms” event organized by the US government at the UN General Assembly in September this year. At the same event, President Trump called on countries to end religious persecution, repeal laws that restrict freedom of religion and belief, and increase prosecution for crimes against religious communities, among other measures. Similar criticism from other countries remains pending.
So Where Do We Go From Here?
It remains to be seen where India goes from here. While opposition parties and civil rights groups are saying they will fight this battle in India’s courts, given its recent pro-Hindutva judgements, the highest court of India has hardly distinguished itself as a champion of the oppressed. If the actions of the Indian government do amount to a serious and continued persecution of its Muslim community, action can be taken at the international level. This has been seen recently in the case of The Gambia v Myanmar, where the Republic of Gambia, with the backing of the 57 members of the Organisation of Islamic Cooperation, has filed a case before the International Court of Justice (ICJ). They have alleged that Myanmar’s atrocities against the Rohingya violate various provisions of the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), which India ratified in 1959. The Gambia, which ratified the convention in 1978, brought the case under Article 9 of the convention, which allows for disputes between parties “relating to the responsibility of a State for genocide” and related acts to be submitted to the ICJ by any party.
Mahatma Gandhi said that there is no religion higher than truth and righteousness. History has taught us that there are no winners in a fight in the name of God — everyone loses. The greatest loss of our times will be humanity itself.
Ayesha Khan is a lawyer from India, currently based in the United States. Keep up with her on Twitter!
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