The “Religion of Citizenship”: the Indian Citizenship Amendment Act 2019

Francesca Raimondo

Université Catholique de Louvain

On 12 December 2019 the Indian President gave assent to the Citizenship Amendment Bill, that assumed the status of Act (Citizenship Amendment Act, 2019, hereinafter the CAA), after the approval of the two branches of the Indian Parliament, the Lok Sabha (House of the People) and the Rajya Sabha (Council of the States).

The CAA amends the Citizenship Act 1955 – which regulates citizenship in India, in accordance with the power conferred in Article 11 of the Constitution – establishing a fast-track citizenship for some religious minorities through two main changes. The CAA makes eligible to apply for citizenship, by registration or naturalization, illegal immigrants only if they fulfill the following criteria: a) being from Afghanistan, Bangladesh or Pakistan; b) belonging to specific religious communities, namely, Hindu, Sikh, Buddhist, Jain Parsi, Christian; c) and arrival in India on or before 31 December 2014. The CAA explicitly excludes by operation of the law those in the tribal areas of Assam, Meghalaya, Mizoram or Tripura. Thus, the amendment introduces a derogation to the rule which prohibits illegal immigrants – foreigners who enter India without the required documents or those overstaying their visit – from obtaining Indian citizenship by registration or naturalization. Additionally, the minimum residence period for naturalization has been reduced from 11 to 5 years (plus the twelve-month period of residence prior to the date of the application).

In the Statement of Objects and Reasons, the document appended to the Bill that provides the reasons and the context behind the passing of the bill, is written: “[T]he Constitution of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries. Some of them also have fears about such persecution in their day-to-day life where right to practice, profess and propagate their religion has been obstructed and restricted. Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.”

Facially, the amendment looks like a benevolent pathway to Indian citizenship for religious minorities that fled persecution. The Indian People Party led-government has even claimed that the law will give a sanctuary to religious minorities persecuted. However, it has been widely perceived as an overtly anti-Muslim law. The implication of this new law is that Muslim from these countries would continue to be treated as illegal immigrants and therefore would be not eligible for citizenship. The Act has given rise to criticism also at international level. The UN High Commissioner for Human Right defined the CAA «fundamentally discriminatory in nature» and has filed an application at the Supreme Court of India. The European Parliament has drafted a joint resolution on the Act describing it as «dangerously divisive».

The Act has prompted widespread protests broking both across the country and abroad who oppose the Act for being discriminatory and in violation of the secular principle, enshrined in the Preamble of the Indian Constitution. Protests against the Act have also spread in north-east states, on the border with Bangladesh. These protests are caused by the fear that this part of the country will be overrun by immigrants from across the border, undermining the ethnic communities living there.

The Citizenship Amendment Act gave a layer of complexity to an already volatile issue in India, namely, trans-border migration between India, Pakistan and Bangladesh after the Partition – i.e. disintegration of British India and the creation of the two sovereign States of India and Pakistan in 1947 – and the creation of Bangladesh in 1971. Additionally, other pressing concerns are implicated: the treatment of minorities specifically Muslim, the fact that India does not have a policy for the protection of refugees (it is not a signatory of the UN Refugee Conventions), neither is part of the two international Conventions on statelessness.

Moreover, the Citizenship Amendment Act is the tip of the iceberg. India has demonstrated a slow but steady shift from a civic-national to an ethnic-national citizenship that in legal terms has been concretely implemented with two passages. On the one hand, Indian citizenship regulations have moved from a predominantly ius soli regime to a regime heavily influenced by ius sanguinis (mainly after the Citizenship (Amendment) Act of 1986 and 2003), thus privileging the individual descent. The Constituent Assembly opted for ius soli that was considered “enlightened, modern, civilized and democratic” as opposed to the ius sanguinis that implied an idea of a “racial citizenship”. On the other hand, India has witnessed a progressive change from a secular citizenship law to a law that is based on religious identity which overtly disadvantages Muslims. With regard to the 2003 Amendment, it established that a person born on the Indian soil is not eligible for Indian citizenship at birth if one of the parents is an illegal migrant at the time of birth. Since the relevant illegal immigrants are the (Muslims) Bangladeshis, the 2003 Amendment has been considered as the “precursor to the 2019 Citizenship Amendment Act” due to its covertly religious-based exception.

The CAA has been preceded in 2015 by two amendments to the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920. The amendments established that illegal immigrants, members of same religious minorities mentioned in the CAA, coming from Bangladesh and Pakistan (Afghanistan was included with a successive notification), “who were compelled to seek shelter in India due to religious persecution or fear of religious persecution”, and entered in India on or before 31 December 2014, were exempted from deportation due to their illegal entrance or overstaying. The following year the central Government issued two orders that made the same groups eligible of long-term visa.

The Citizenship Amendment Act is also linked to the National Register of Citizens (hereinafter NRC) that is the official record of the Indian citizens. Even though the register has been prepared after the Census of 1951, it has been updated only recently with regard to the state of Assam, but there is the Governmental intention to extend it nationwide. The aim of the NRC is to detect and then deport illegal immigrants who come to Assam at the time of the creation of Bangladesh. Therefore, only those that can prove of being Indian and of having being in India (themselves or their ancestors) up to the midnight of 24 March 1971, just before the independence of Bangladesh, will be part of the Register. Since the vast majority of illegal immigrants that came to Assam were Muslim Bangladeshis, the NRC represents another covertly religious-based tool that aims at excluding Muslims from citizenship. Last August the final National Register of Citizens have been released and 1.9 million applicants have been excluded, in other words, the NRC would lead to “the biggest mass-disenfranchisement of the 21st Century”. Therefore, in her opening statement at the 42nd session of the Human Right Council, the UN High Commissioner for Human Rights made an appeal to the Indian Government to ensure due process during the appeal, to prevent deportation or detention and to ensure that people are protected from statelessness. The common thread between CAA and NRC is that they represents the two instruments that are prompting a radical metamorphosis of the Indian idea of citizenship. Niraja Gopal Jayal, one of the most prominent scholars on Indian citizenship, stated that the NRC carves out path to statelessness for disfavored groups, while the CAA creates paths on citizenship, but only for preferred groups.

More than 140 petitions have been made to the Supreme Court to decide on the constitutionality of the CAA, and the ruling of the Court would represent a crucial test for its legitimacy.

The reform appears to be in contrast with the freedom of religion, enshrined in Article 25 of the Constitution, and with the principle of equality, established Article 14, which guarantees to all persons equality before the law and the equal protection of the laws within the territory of India. The differentiated treatments reserved to some religious groups are not based on justifiable and reasonable grounds and do not correspond to the proclaimed purpose, given that many other (not only) religious groups are left out. More specifically the Act unreasonably exclude some categories: 1) Muslims or members of other religious communities, who may have faced persecution in Afghanistan, Bangladesh and Pakistan, such as the Muslim sects of the Ahmadis in Pakistan (who are defined in Article 260(3)(b) of the Constitution as non-Muslim), the Hazaras in Afghanistan and the Bihari in Bangladesh; 2) groups persecuted for their religion in other neighboring countries, most notably Rohingyas in Myanmar or Tibetan Buddhist in China, but also refugees from Sri Lanka, Nepal, Bhutan or countries that are not India’s neighbors; 3) groups persecuted on grounds that are not related to their religious affiliation, such as persecution for ethnic, linguistic, political reasons (the Tibetan in China or the Sri Lankan Tamils, who are predominantly Hindu and form the largest refugee group in India); 4) people who have illegally entered in India after the 31 December 2014, the cut-off date established in the CAA. The exclusion of the many (persecuted) communities in the scope of the CAA without a reasonable and justified reason casts a doubt on the humanitarian aim of the Act that is to accommodate minority groups that face religious persecution. As underlined by Mohsin Alam Bhat, the eligibility to a fast-track citizenship “is not based on an assessment of actual persecution” given that “the amendments seeks to respond by generalizations that do not correspond with the proclaimed purpose”. Indeed, the Act does not specify what evidence, if any, would be required in order to claim of having been victims of religious persecution. 

It is the first time in India’s democratic history that citizenship is explicitly intertwined with religion, even though the marker of religion has shaped citizenship law in India since the colonial period when, in the words of Ratna Kapur, “the “divide and rule” policy of the colonial power produced and perpetuated religious divides”. Furthermore, religion has been a relevant factor in delegated legislation on immigration, such as in the above mentioned 2015 reforms. Until now, Indian citizenship has always been compellingly secular, while this Act undermines the secular foundations of the Indian Constitution enshrined in its Preamble since the 1976 Forty-second Amendment, that added in the Preamble the word “secular”, together with “socialist” and with the reference to the “integrity of the Nation”.

As highlighted by Chandrachud “[T]he CAA is the latest law which forms part of the ambitious legislative reform agenda of the ruling regime in India”. The Hindu Right, a right-wing religious and nationalist movement, which comprises also the Indian People Party that led the government since 2014, embraces the ideology of “Hindutva” that means the establishment of India as a Hindu State. The Hindu right has always pursued a narrow conception of citizenship, privileging cultural and religious identity. Therefore, the CAA is the tip of the iceberg of what could be defined a “culturalization of citizenship” since religion becomes overtly connected with citizenship and performs not only a symbolic role, but a clear selective function, both in the process towards the acquisition of citizenship and also with regard to the disenfranchisement.

Francesca Raimondo is a Postdoctoral Research Fellow at Université Catholique de Louvain.

Suggested citation: Francesca Raimondo, “The ‘religion of citizenship’: the Indian Citizenship Amendment Act 2019” IACL-AIDC Blog (2 July 2020) https://blog-iacl-aidc.org/2020-posts/2020/7/2/the-religion-of-citizenship-the-indian-citizenship-amendment-act-2019