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Asia Human Rights Pakistan Policy Politics & Government Social Issues

The Citizenship Amendment Act: A Constitutional Crisis

On December 11, 2019, the Indian parliament passed the Citizenship Amendment Act (CAA), which fast tracks citizenship for immigrants from three neighboring nations: Pakistan, Bangladesh, and Afghanistan. It is the first bill in India that explicitly lists religion as a criteria for citizenship

On December 11, 2019, the Indian parliament passed the Citizenship Amendment Act (CAA), which fast tracks citizenship for immigrants from three neighboring nations: Pakistan, Bangladesh, and Afghanistan. It is the first bill in India that explicitly lists religion as a criteria for citizenship and makes the following changes:

  • Began to offer amnesty and citizenship to non-Muslim illegal immigrants from Pakistan, Bangladesh, and Afghanistan.
  • Amends the 11 year residential/work requirement to 6 years for Hindu, Sikh, Buddhist, Jain, Parsi and Christian immigrants
  • Changes apply to those “forced or compelled to seek shelter in India due to persecution on the ground of religion” 

Quickly the CAA garnered international and domestic backlash, as it explicitly excludes Muslim immigrants from gaining citizenship. Coupled with the upcoming implementation of the National Register of Citizens, the CAA may be used in the future to deport millions of Muslims from the nation. To many Indians, this step against religious inclusion is simply the next in a long line of anti-Muslim actions by the Bharatiya Janata Party (BJP), a nationalist Hindu party. It has long been a party that stands against India’s basic principles in order to push its conservative agenda. In 2016, Narendra Modi, the current head of the party and India’s Prime Minister, vowed to disenfranchise roughly 2 million Muslim voters in the state of Assam as debate over eligibility based on nationality and religion intensified. 

Assam has continuously been a target of the BJP for disenfranchisement, as it has the second highest population of Muslim residents at 34 percent. More recently, the nationalist party coined the term “CoronaTerrorism” in response to a spike in COVID-19 cases among the Muslim population, likely caused by a mass religious congregation. In reaction, media outlets began to spread the term “CoronaJihad”, which eventually went viral on social media, further pushing the BJP’s concerning rhetoric. Some authorities even called for the boycotting of Muslim-owned businesses, going so far as to accuse them of spreading the virus purposefully. The CAA is a clear violation of India’s secular foundation, but it has been in the making for some time. 

Following the bill’s passing, protests, largely led by Muslims, took place throughout India, particularly in the Eastern Delhi region. Police have arrested a concerning number of organizers under the Unlawful Activities (Prevention) Act for “allegedly hatching a conspiracy to incite communal violence,” despite having organized peaceful protests. Two key student activists of the anti-CAA marches, Meeran Haider and Safoora Zargar, alongside fellow activist Umar Khalid, were unfairly arrested under  the Unlawful Activities Act. Authorities are claiming the protests caused the violence in February that left 53 dead in the aftermath of religious conflict. Organizers argue that the demonstrations consisted of peaceful sit-ins until BJP supporters attacked protestors. Not only has the level of force used against protestors been unjust, the government has failed to provide legal aid to those charged. Since the start of the protests, over 800 have been arrested, with many unable to seek legal help during the pandemic. 

Domestic lawmakers have also pointed out that the bill may be unconstitutional, as dictated by Article 14 of the Indian constitution: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

Currently, there are roughly 150 petitions against the bill, a number of which argue the bill violates Article 14 and the fundamental principle of secularism. However, the Indian Supreme Court originally refused to stay the law, or temporarily postpone the law’s implementation, in order to allow the federal government to respond to these arguments. As of May 2020, the court agreed to hear a new batch of petitions, but continues its refusal to stay the law. Supporters of the law argue that the bill cannot be considered unconstitutional on the basis of equity, as Hindu, Sikh, Buddhist, Jain, Parsi and Christian immigrants could be granted amnesty due to religious persecution. However, this fails to account for Muslim minority groups, such as the Ahmadis in Pakistan or the Rohingya in Bangladesh that may be facing the same level of persecution, a concern echoed by the United Nations. In doing so, the government is attempting to justify inequality and religious discrimination under the guise of equity. On December 13, 2019, a spokesperson for the Office of the United Nations High Commissioner for Human Rights stated, “Although India’s broader naturalization laws remain in place, these amendments will have a discriminatory effect on people’s access to nationality.” In a press statement, the OHCHR stated that the bill is fundamentally discriminatory, fails to account for Muslim minorities, and violates the Indian constitution: 

“The amended law would appear 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.  Although India’s broader naturalization laws remain in place, these amendments will have a discriminatory effect on people’s access to nationality”

-Jeremy Laurence, spokesperson for the OHCHR

The OCHR has since put in a request to be a third party member in a petition hearing filed by a civil servant against the Citizenship Amendment Act. The passage of the CAA highlights the concerning rise of nationalism and anti-Muslim sentiment within India. Student activists have been unrightfully detained and the bill explicitly violates the basic principles of secularism and Article 14 of the constitution. With the coupling of the CAA and the NRC, the residential status of 195,000,000 Muslims are at risk, making it imperative that the United Nations, along with India’s allies, hold the BJP accountable to India’s foundational principles. With the NRC already risking deportation for millions of Indians, the CAA will have disastrous effects on the nation. 

By Zoya Ansari

Zoya Ansari is a fourth year Political Science major at UCLA with a concentration in American Politics and a minor in Public Affairs. She is interested in immigration law reform and plans on attending law school in the future.

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