India Needs Refugee Protection Law, Not False Binaries

By: Sanam Roohi

April 21, 2020

Responding to: Religion and Citizenship in India

India Needs Refugee Protection Law, Not False Binaries

In October 2019 when I was briefly visiting my family in Kolkata, India, a neighbour asked if I had all my kagzaat or legal documents in order to prove my citizenship. As an Indian, I found her question trivial yet alarming. Annoyed, I asked my family what the fuss was about and learned that following the registration of citizens under the National Register for Citizens (NRC) in Assam, there was panic in West Bengal.

The NRC exercise had left 1.9 million people out of the citizenship register. In Kolkata, Muslim communities had organized camps to educate people on different types of documents they needed to prove their citizenship. Yet, nobody knew what exact documents were required. Because of a combination of factors—including home births, not having a bank account or a vehicle, being propertyless, or never having travelled abroad—quite a few people do not have basic identification documents. Innumerable others including married women, transpersons, or believers in astrology have changed their names but do not have documents to match it. Aadhaar, a unique identification card, was introduced precisely to prevent such confusions by providing every living person in India with a digital identification number. But Aadhaar is not a proof of citizenship. I returned to Germany with an uneasy feeling—if NRC was rolled out, would I have enough documents to prove my citizenship? Being robbed of my handbag (with my voter ID card in it), having moved cities, and not living in India currently raised doubts in my mind. 

Two months later, on December 12, 2019, the Indian Parliament passed the Citizenship Amendment Act (CAA) 2019, three days after it was introduced. The CAA amends the existing Citizenship Act of 1955 to explicitly provide fast-track citizenship to “illegal” immigrants from Pakistan, Afghanistan, and Bangladesh belonging to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian communities who came to India prior to 2014. 

Muslims are glaring in their absence from this new provision. It is for the first time in its history that India has made religion the basis of providing citizenship, making the amended act highly discriminatory and in gross violation of secular ideals in the Indian constitution. Moreover, if the CAA is taken together with NRC, it reeks of right-wing anti-Muslim political propaganda. India’s Home Minister Amit Shah has reiterated time and again that the Citizenship Amendment will be followed by the nationwide implementation of NRC by 2024 to throw out ghuspaiths or infiltrators. 

The term ghuspaith is more ominous than mere illegal immigrant. It specifically denotes Muslims who have entered India illegally from Pakistan and Bangladesh but with the intent of harm or waging overt or covert war. In a global environment of Islamophobia, a comparison with the recent anti-immigrant sentiment may seem obvious, but the NRC under the current government, led by the right-wing Bharatiya Janata Party (BJP), can also be read as a political remnant of the 1935 Reichsbürgergesetz laws passed by the Nazi regime which discriminated against Jews and took away their German citizenship. In its intention, the NRC and the CAA aim to achieve the same with ghuspaiths, making it evident that the burden to prove whether one is a citizen or an infiltrator lies with Muslims. 

The BJP and its supporters have emphasised the persecution of religious minorities in its Muslim-majority neighboring countries as the primary reason to amend the citizenship law, couching it in the language of humanitarianism and good neighborliness. While the term “persecution” is missing from the amended act itself, it is used in the FAQs provided thereafter. The underlying assumption is that Muslims in these neighboring countries are persecutors and not the persecuted—a point that does not stand to any scrutiny because it homogenizes the Muslim community and overlooks the persecutions of ethnic minorities and sects within Islam like Hazaras in Afghanistan or Balochis and Shias in Pakistan, to name a few. 

BJP leaders have reasoned that Muslims are excluded from CAA because they have 150 countries to go to whereas Hindus have only one, reiterating India’s commitment to protect Hindus. When humanitarianism is circumscribed by religion, it is imperative to historically and critically parse the discourse that provides justification to such measures. The idea behind CAA emanates from an anti-Muslim Hindutva ideology, which the ruling party espouses. A cursory glance through social media accounts of Hindutva and BJP supporters make it clear that they see India as a Hindu rashtra (nation), a “natural homeland” of the Hindus, persecuted or otherwise. CAA has shrewdly named other religious minorities to defray criticism of Hindu bias. 

The recent act needs to be situated within a longer history of amendments to the Citizenship Act in the past to make its linkages with the Hindutva ideology evident. Indian citizenship has steadily eroded the idea of citizenship by birth in its amendments to the 1955 act with subsequent amendments in 1986 and 2003. While in 1986 it was mandated that one parent must be born in India, by 2003 this was further tied to the idea of blood relationship. The 2003 act restricted citizenship by birth to a person born in India only where “both of his parents are citizens of India; or one of his parents is a citizen of India and the other is not an illegal immigrant at the time of his birth.” 

Unsurprisingly, the CAA leaves out of its purview persecuted Muslims from the three Muslim neighboring countries, but also existing refugee groups like 40,000 Rohingyas from Myanmar, 100,000 Tamils from Sri Lanka, and Muslim refugees including 2,344 Afghans, 739 Somalis, 113 Iraqis, and 60 Palestinians. As someone working on migration, time and again I have encountered Indian scholars noting that India receives many refugees while itself produces very few. Such adages do more harm than serve the cause of the vulnerable migrant population who seek shelter or livelihood in India. Undocumented Indians can be found everywhere, from Bangladesh to the United States. More importantly, in a country of 1.3 billion people, only 200,000 people have refugee status. While all those who entered India without valid documents are termed as illegal migrants, not all have refugee status. The politics of nomenclature need some unpacking here. A refugee is someone who has escaped social, racial, religious, or political persecution and is unlikely to return. Their refugee status is determined by either the UNHCR or the receiving governments. 

One reason the CAA does not mention the term refugee in the amendment is because India is not a signatory to the 1951 United Nations Refugee Convention or its 1967 Protocol and wants to avoid any obligations that come with it. In the absence of refugee laws, Indian government has treated refugee groups differently based on social and political calculations. The most noteworthy example is that of Tibetans living in exile in India. India has provided support to more than 100,000 Tibetans who have been residing in India for a few generations now, and some have also been given the right to vote and own Indian passports. Yet, these provisions are arbitrary at best and lack any cohesive policy towards providing a safe haven to political refugees and asylum seekers. The CAA does not rectify this glaring omission but by avoiding the usage of the term refugee, it conflates illegal immigrants and refugees, creating a more fragmented approach to providing a safe haven to persecuted populations.

As the country grapples with unprecedented protests, or what Ranabir Samaddar has termed as "insurgent constitutionalism," the idea is not to go back to the status quo that existed prior to the CAA. Rather, India should review its own (lack of) refugee protection policies and formulate a humane and non-discriminatory refugee protection law, or at the very least, a general refugee protection framework that projects its commitment to basic human rights of most vulnerable groups, irrespective of their religion.

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