On 12th December, 2019, in the Seventieth Year of the Republic of India, “The Citizenship (Amendment) Act, 2019” has been adopted as an amendment to the prior “Citizenship Act, 1955”. Soon after that, a widespread and unseemly controversy has broken out in India over the CAA, that fast tracks Indian citizenship for the persecuted minorities in Pakistan, Afghanistan and Bangladesh belonging to the Hindu, Sikh, Christian, Buddhist, Jain and Parsi faiths.
Before analyzing the Act, let us see what are the controversies it made which triggered the recent unrest in the country. Firstly, India became independent in 1947, its founders sought to create a secular nation where all religions were welcomes – in contrast with Pakistan, which was conceived as a home for the subcontinent’s Muslims. By giving preference to certain religions in the law, the government is moving away from the ethos. Secondly, the new law might make it easier for migrants to become citizen, hastening demographic and linguistic change in the northeast part of India – a collection of seven States bordering Bangladesh, China and Myanmar, where [still] there are long standing tensions over migrants entering the region. Thirdly, Muslims are fearing that their citizenship will be terminated and CAA 2019 will make a demographic change to the Muslim populated regions of India. It is to note, today Muslims account for about 15 percent of India’s population. In fact, the country’s Muslim population is the second-largest in the world.
If we stretch a closer look on the messy legacy of the Partition of India in 1947 when the new, expressly Muslim, state of Pakistan was carved out of India. There were widespread bloodshed and killings in both India and Pakistan as millions of Hindus and Sikhs migrated from Punjab, Sindh and Northwest Frontier Province of West Pakistan (now Pakistan) to India, and Muslims, mostly from Punjab, Delhi and Uttar Pradesh in India migrated to West Pakistan. Many Hindus and Sikhs living in Afghanistan also migrated to India since there was an open, undefined border and free movement of people between Afghanistan and undivided India. However, the exchange of populations was not comprehensive. Some choose not to migrate; others just couldn’t manage to do so. During the Liberation War of Bangladesh, 1971, one seventh of the population (approx. 10 million people) fled to India to escape massive violence, systematically conducted by West Pakistan (now Pakistan) along with their collaborators and auxiliary forces.
[Religious] minorities have suffered enormously in Pakistan, and to a lesser extent in Bangladesh and Afghanistan. Pakistan and Afghanistan are officially Islamic States, however Bangladesh as per the Constitution pays lip service to secularism but functionally an Islamic State (see art. 2A and art. 41 of the Constitution of Bangladesh), where minorities continue to be discriminated, humiliated and persecuted. Many have been forcibly converted to Islam. Women belonging to the minority communities have been raped, kidnapped, and forced into marriage with person from the majority population. Hundreds of Hindu and Sikh temples have been destroyed or allowed to fall into ruin. As a result, the share of minorities in these three countries has come down drastically. Thousands of people belonging to these persecuted minorities have sought refuge in India, and have been given, on an ad hoc basis, Indian citizenship. The new law merely formalizes this process so that the refugees languishing here can be given Indian citizenship that would enable them to secure admissions in educational institutions, get jobs, buy property, enjoy state welfare benefits and thereby have a more secure and dignified life. This could be referred as India’s moral obligation, one that has been publicly articulated by leaders of all political parties over the decades, including former Prime Minister Manmohan Singh, himself a Sikh refugee from Pakistan.
It is very important to note that in 2015, India granted citizenship to nearly 15,000 Bangladeshis, mostly Muslims as a part of the Land Boundary Agreement. So question may come that why this amendment necessary for the minorities of the three Muslim majority republics of the subcontinent? It is because those minority groups face extinction-level persecution. It is the same principle on which refugee was given to Jews during the Nazi era or Yezidis during Islamic State rule in Syria. Countries that offered this refuge were not perfect in their treatment of minorities. The United states gave refuge to may Yezidis, but their treatment of African-Americans is a work in progress. Also, these countries did not establish “fairness” by offering a similar accelerated path to citizenship to everyone from beleaguered Syria. All the minority rights are built on a very fundamental right – the “Right to Life”. If minorities are wiped out, through mass murder, forced conversions, expulsions, all other rights become redundant. the studies show that after the partition, 1947, in East Pakistan, Hindu population was 22% (Census Data of 1951). After independence of Bangladesh, the Hindu population become 13.5% according to the Census Data of 1974. In 1981, it was 12.1%. in 1991, it was 10.5%, in 2001, it was 9.2% and finally in 2011, it became 8.3%. Regarding the Buddhist population, after the liberation war of Bangladesh, it was 0.6% (Census data of 1974) and even presently it remained the same (Census data of 2011). Regarding Christian population, during 1974, it was 0.2% and it increased in 2011 to 0.4% (as per the Census date of 2011).
Now the question could be raised that why such a confusing situation happening in India regarding the CAA 2019? One reason could be that many Indian opposition parties, frustrated at being out of power, have deliberately distorted this issue and stoked a controversy, spreading imaginary fears among the population, specially Muslims in India that they would be deprived of their citizenship, even though the new law has no impact on or relevance to those who are already Indian citizens, irrespective of their religion. One of the fears which arisen up is India would no longer remain a pluralistic society, which are unwarranted. There is strong and widespread public support for an India where people belonging to all religions and communities feel secure and are not discriminated at least on the basis of their religion. India has special legal and constitutional provisions to protect all minorities including Muslims (whose share in India’s total population has steadily risen). It needs to be plainly and unequivocally stated – Indian Muslims are an integral part of India’s society and India is their home. India is proud that some of the biggest Bollywood stars and sports icons are Muslim, as are many successful and prosperous business and industry leaders. India also have proud and patriotic Muslim soldiers and generals, wise and fair Muslim judges, efficient and committed Muslim officials and policemen, brilliant and respected Muslim scientists and engineers. In India, all sects can practice their religious practices peacefully in India. Minorities, including Muslims, manage their own places of worship and institutions, and can have their own educational institutions where their children are taught about their religions.
While analyzing the controversies, firstly it could be said that it is India which decided to be secular practically and functionally after the partition of 1947. The present amendment attempts to protect six besieged minorities from the extinction. Moreover, the said Act does not even prevent individual refugees from Muslim communities of Pakistan, Bangladesh and Afghanistan from continuing to come to India through the normal process, which many afghan Muslims have already done. Most importantly, it is not even affecting any Indian citizen including Muslim. Thus, this Act could be termed as an Act of Sympathy towards the minority communities which took shelter [refuge] in India before December 31, 2014. However, it is also true that CAA 2019 didn’t include the Muslim minority communities of the neighboring countries such as Ahmedia Muslims or Shia Muslims. Regarding this issue, the opposition party leaders could have argued in the parliament to include them or the people protesting outside could pressurize the government for their inclusion. But, without understanding the essence of the Act, they have started protesting against it and destroyed public properties, which is not expected, nor even desirable. Secondly, the said Act won’t apply to areas under the sixth schedule of the Constitution – which deals with autonomous tribal-dominated regions in Assam, Meghalaya, Tripura and Mizoram. The Act will also not apply to States that have the inner-line permit regime – Arunachal Pradesh, Nagaland and Mizoram [art. 6B (4) of the CAA 2019]. But, it seems that without even reading the Act, the most intense protest in going on in Assam! Here the Government is also liable because before enacting such sensitive Act, they should have promoted the ideas among the public, which they didn’t do and as consequence they are now facing the [unnecessary] protests. Also it could be said that the refugees specially the Hindu Bangladeshis dissolve themselves in to the Indian culture by adopting their ethos and values, thus none can distinguish an Indian or a refugee in the west Bengal part of India. Thus the fear of losing the cultural and linguistic identities is not feasible enough. Thirdly, it is the fear among the Indian Muslims that they are going to lose their citizenship which is indeed a worst lie being spread to the Muslim communities, thus it will not touch any individual who are already a citizen of India. Attached to that, people are fearing that the illegal Muslim immigrants will be deported to their home country soon after the operation of CAA 2019. But the deportation of illegal immigrants is a subject matter of the Foreigners Act, not the Citizenship Act, which seeks to amend – which means the process of deporting anyone entering and living illegally in India is an ongoing process and CAA doesn’t have any relation to that fear.
To conclude, it could be said that India remains a robust democracy and the Constitution is supreme, where there is ample of opportunities for debate and disagreement, and a well-established legal and judicial process for redressal of grievances. According to the Constitution, the peaceful protest is acceptable and desirable, not the violence. To get rid of the age old technique of protests, the responsible people should be held accountable if they destroy public property and attack police personnel and institutions. Everyone must show respect to the institution and authority of Parliament. According to Rajiv Sikri, a diplomat, “Street mobs and political rhetoric cannot undo laws that have been duly legislated by Parliament after an open debate. Nor can state governments and legislatures defy laws that, under the Indian Constitution, are the remit of Parliament. One hopes that all political parties will act responsibly and channelize public opinion in a constructive direction”.
*Upal Aditya Oikya is a Ph.D. Fellow (International Humanitarian Law) at University of Pecs, Hungary. He pursued his LL.M. (Maritime Law) from BSMR Maritime University and LL.B. (Hons.) from BRAC University. He is also associated with South Asian Journal of Law & Policy (ISSN: 2616-8197) as Management & Policy Chief. Email: [email protected].
- The Citizenship (Amendment) Act 2019
- The Citizenship Act 1955
- Rajiv Sikri, Understanding India’s Citizenship Amendment Act. Yangon, January 09, 2020. Retrieved from <http://www.mizzima.com/article/understanding-indias-citizenship-amendment-act?__cf_chl_jschl_tk__=37bcc163f37c0b71d13ede5efee641cde072d772-1580312569-0-AblvNfUg25eaX3UvbAnCZEuU6ljYHJb-d3-TE-gZyMwCbJS_fBWz3eTyh6LYJflQB-XyOtz7a1QY8kED9GkaUKMW1ajN4HUqq5Q7N1fUH1Y8rnsUgKD-k6iVzEGTzitYk16HRB8lnp4lnZzx4yAod9z_DXj92Y03hdsjzYNQ00L-BrFOmJrF86oanP3dGBAAeiNtA_OeFRw6gUoPnvFl1376hFRhxUr31Be_W_kUdEIG7TdDkT_g8b5irCgNCoEpGMPa9bjtLiLhm-QowGMUXjk9NRXt0vMZ6MrK_fXI_rV8WtjIvlxRTY928pt4ax5_whIK7cjDQdB_Rwrq5G_bXtY>
- Joanna Slater, Why protests are erupting over India’s new citizenship law. New Delhi, December 19, 2019. Retrieved from <https://www.washingtonpost.com/world/asia_pacific/why-indias-citizenship-law-is-so-contentious/2019/12/17/35d75996-2042-11ea-b034-de7dc2b5199b_story.html>
- Sam Gringlas, India Passes Controversial Citizenship Bill that would Exclude Muslims. December 11, 2019. Retrieved from < https://www.npr.org/2019/12/11/787220640/india-passes-controversial-citizenship-bill-that-would-exclude-muslims>
- Helen Rean, India Passes Controversial Citizenship Bill that Excludes Muslims. December 17, 2019. Retrieved from < https://edition.cnn.com/2019/12/11/asia/india-citizenship-amendment-bill-intl-hnk/index.html >
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- Abhishek Banerjee, Here is why the challenges to Citizenship Amendment Act will likely get laughed out of the Supreme Court. December 19, 2019. Retrieved from <https://www.opindia.com/2019/12/all-you-need-to-know-why-challenges-to-caa-will-be-thrown-out-of-supreme-court/>
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