In an unprecedented initiative, ministers in the Modi government are going house to house and claiming that the Citizenship (Amendment) Act does not harm already-existing citizens, that it merely seeks to provide citizenship to the refugees belonging to religious minorities from Bangladesh, Pakistan and Afghanistan. If this is so, the NRC should have preceded the CAA. The BJP is making a distinction between ‘illegal migrant’ and ‘refugees’, with the former being ‘termite’ to be deported and the latter being welcomed.
The language of “persecution” and “refugees” is borrowed from international legal frameworks for refugees. While the language used in the CAA’s defence is borrowed from international law, there is little else that is borrowed from legal principles. Unlike the CAA, international law does not frame the question of persecution solely on religious terms. The UN Convention on Refugees, 1951 incorporates a comprehensive set of grounds, including race, religion, nationality, membership of a particular social group or political opinion, for a person to be recognised as a refugee.
Secondly, while the CAA presumes that any person belonging to a religious minority in these three countries is persecuted on the basis of religion, international standards point to a more complex understanding of how ‘persecution’ operates. It would be incorrect to argue that these standards are not binding on India. Principles such as non-discrimination and non-arbitrary deprivation of citizenship are part of customary international law, and the international community must conduct themselves in accordance with these standards.
Besides the guarantee of equal protection of laws under Article 14, the Constitution requires that procedures adopted by governments do not result in arbitrary treatment between people. Furthermore, Article 15 prohibits discrimination on specific grounds, including race and religion. Although restricted to citizens, it may be important to understand the import of a law that incorporates religion as the basis of gaining citizenship itself violates the fundamental principles of our republic. Citizenship is not just a territorial idea. It involves membership of a political community that has come into being with certain non-negotiable values.
The courts may uphold the CAA by examining its constitutionality from the narrower and legalistic prism of classification but any conferment of benefit or exclusion only on the basis of religion is not only contrary of citizenship debates but also incompatible with our Constitution. Most importantly, the CAA itself does not use the words “religious persecution” or refers to any procedure by which such a determination must be made. Instead, it provides a path to citizenship to the specified religious minorities who were previously exempted under the Passports Act and Foreigners Act.
It is in these similarly-worded exemption notifications that we see the borrowed language of religious persecution. For example, on September 7 2015, the MHA exempted Bangladeshis and Pakistanis belonging to the said religions, “…who were compelled to seek shelter in India due to religious persecution or fear of religious persecution…” The UN Convention on Refugees defines a refugee as someone who “…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality…”
Except for the similarity in the keywords, there is little else borrowed from international safeguards. The UN Convention lists religious persecution as one of the grounds on the basis of which one may be considered as a refugee. Remember, a person may face persecution for more than one reason. The understanding of “persecution” is complex than categories of “minority” and “majority”. For example, the UNHCR Handbook for refugee status determination says: “it will be necessary to take into account the personal and family background of the applicant, his membership of a particular racial, religious, national, social or political group […] in other words, everything that may serve to indicate that the predominant motive for his application is fear”. In contrast, the CAA places no additional burden on the government to investigate properly and determine if there is a well-founded fear of persecution.
It makes another departure from international standards. While internationally the determination of persecution is more complex, the CAA merely equates the purported religious identity of a person to assume persecution. In contrast, the UNHCR Handbook is clear that mere “membership of a particular religious community will normally not be enough to substantiate a claim to refugee status”.
Therefore, even a factual determination on religious persecution requires one to demonstrate something more than just the fact that they belonged to a religious minority in a Muslim-majority country. Instead, religious persecution should necessarily include individuals who may have converted to another religion or because of their non-adherence to certain religious practices or their embrace of another sect. Moreover, the UNHCR recognises that identity is multifaceted. Frequently, religion and ethnic/racial identities of persecuted communities are blurred. For such instances, the UNHCR states that one may not even enquire into the bone fides of an applicant’s adherence or belief in a particular religion. The mere fact that an identity is attributed to a person may be sufficient.
What does the UNHCR guidance tell us? Firstly, that determination of persecution and compulsion is a question of fact, not of law. The fact whether one faces persecution depends on subjective and objective elements, a determination as to one’s persecution cannot be based solely on the fact that they were minorities. The CAA framework does not require any of these determinations to be made by the government. In fact, it prevents authorities from distinguishing between genuine refugees who have faced persecution and those overstaying due to conducive rules.
The opposition to the CAA framework is not opposition to India hosting refugees. It is opposition to treating asylum-seekers unfairly and discriminatorily. It is incorrect to say that the CAA only excludes Muslims. It excludes Tamil Hindus, Bhutanese Christians, Rohingyas Muslims who fled from countries because they faced persecution on grounds other than religion. They, too, deserve a fair and objective determination as to their refugee status and a path to citizenship.
Faizan Mustafa, constitutional law expert. Aymen Mohammed, the second author, is Research Scholar, Nalsar University of Law, Hyderabad.