CAA: An Overt ‘Othering’ Artifice in Theological Secularism?

Introduction

Citizenship is associated with defining the socio-cultural identity of a person with the state, along with the rights and duties he/she owes towards the nation[1] and can be acquired by naturalization[2], birth[3], registration[4] or descent[5]. The Citizenship (Amendment) Act, 2019 was passed on December 11, 2019 which altered the definition of ‘illegal migrants’ under Section 2(1)(b) of the Citizenship Act, 1955, to state that Hindus, Sikhs, Buddhists, Parsis, Jains or Christian Community from Pakistan, Afghanistan and Bangladesh who must have entered on or before the cut-off date of December 31, 2014 will no more be considered as an illegal migrant.[6]Citizenship laws have always been religiously neutral.However, through CAA, Muslims have completely been excluded from entailing the benefits of this Act, such discrimination based solely on grounds of religion violates Article 14 of the Constitution, another aspect is that there exist other countries which have persecuted its subjects like Sri Lanka, even Muslims have faced persecution in these countries, sects like- Ahmadis and Hazaras and also Rohingya Muslims from Bangladesh have faced persecution, hence the rationale of persecuting countries being Muslim States does not hold good.[7]The 2003 Citizenship Amendment Act had introduced the definition of ‘illegal migrants’, since then the approach transcending from Jus Soli to Jus Sanguinis had slowly started gaining pace.[8]Even the International Customary laws and Treaty obligations set forth in ICCPR, 1966 play a profound role in fixing India’s responsibility in leaving behind Muslims from granting citizenshipor even deporting them back.

CAA: Striving Towards Theocratic Secularism

Secularism, being the Basic Structure of our Constitution, has been swept from a country which chose to be an independent state during the Partition, however the CAA, 2019 has in lucid terms started eroding away this Secularization, paving the way for theocratization and acceding to Mohd. Ali Jinnah’s dream of a two-nation theory.[9] In explicit terms, the CAA has created an aberration from our vision of religious neutrality, excluding Muslims in proviso to the definition of illegal migrants, the defence conformists of CAA have put up is that persecuting countries as Afghanistan, Pakistan and Bangladesh are Muslim states and hence, no Muslim can ever face persecution in these countries, well then sects like Ahmadis, Hazaras have faced persecution in these countries and what intelligible differentia is the State trying to create by including just these 3 countries in the Proviso to the definition of illegal migrants, have they failed to take note of Sri Lanka, China or Tibet. In response to about 144 petitions challenging the CAA on grounds of Article 14, 15 and 21, the Chief Justice is not ready to hear the matter till further response from Central Government is received, playing with fates of millions categorising citizens as ‘doubtful ones’.[10]The conformists of CAA arguably state that Pakistan, Bangladesh and Afghanistan are religion based States and hence CAA has been restricted to include only these, one must not forget that Sri Lanka (implicitly recognising Buddhism as its official religion) and Nepal (was a Hindu State) were also religion based States.[11] Even Ahmadis and Hazara sects of Muslims have faced persecution, just because Muslims have safe haven in other States and Hindus only in India does raise serious concerns over increasing theocratization of India. On grounds as these, CAA fails to intelligibly differentiate between classes, making it ipso facto unreasonable and manifestly arbitrary with irrational nexus to the objects of the Act. Widespread protests by Women in Shaheen Bagh just to initiate dialogues with the Government[12] clearly demonstrate the views citizens have towards these theocratic reforms of the Government. Even some protesters in Punjab have displayed their discontent over the Act by telling the officials demanding papers that they are Muslims and they should deport them straight away as being potent threat to nation’s security.[13]

CAA India’s Apathetic Stance on Non- Refoulment

India is not a signatory to UN Refugee Convention, 1951 nor to its Additional Protocol of 1967, hence the CAA from this standpoint does not remain in violation to the Principle of non- refoulment enshrined under Article 33(1) of the Convention. However, under International law, even if a country does not sign and ratify conventions or treaties, can still be bound by International Customary Law[14], for a principle to become customary law, twin conditions of state practice and opinion juris need to be satisfied as well as, evidence with respect to the position that India does not qualify as ‘persistent objector’, has to be adduced.[15] Principle of non-refoulment states that no person who has fled to another country due to persecution on grounds of race, religion, political opinions or fear thereof, should be deported back to the country persecuting them on such grounds. For making India liable for violation of this principle, sufficient evidence stating that such principle is a customary law needs to be adduced. According to UN High Commissioner of Refugees, the Principle has attained the status of customary International Law.[16] When faced with a similar instance when 40,000 Rohingyas were deported back to their home country, Government’s Affidavit stated that India is not bound by the Refugee Convention, India is only part of ICCPR, the scope of which does not extend to non-refoulment. However, it is worth noting that India is not a persistent objector, it has always supported this principle as can be depicted through India’s discomfort from the EU-Turkey deal, India’s accession to the principle can be seen when India suggested Australia to extend the protection to refugees in its domestic laws, even Mr.Ajit Kumar, India’s permanent representative of the UN in Geneva states that India has an abiding commitment to principles of protection and non-refoulment. Also, the Indian judiciary in cases like- Bogyi v. Union of India[17], Dr.MalvikaKarlekar v. Union of India[18] and NHRC v. State of Arunachal Pradesh[19] have stated that these refugees have substantive and procedural rights like- right to be considered as  a prosecuted refugee, not to be deported lis pendens, right to asylum and right to fair treatment.[20] Though, non-conformists to the opinion that non- refoulement remains a sovereign right of every state, others have generally accepted the norm as customary international law as it can be seen within the parameters of jus cogens principle.[21] No State has ever in debates of UN General Assembly nor in UNHCR’s interventions, have contested this principle, hence this principle attains a binding force.[22]

Even if we follow the counterapproach that non-refoulment is neither jus cogens nor customary law, India still is obligated under the ICCPR, Article 7 to not violate principle of non-refoulment as per General Comment no. 31 of ICCPR and Human Rights Commissions’ General Comment No. 20, which explicitly states that state parties should not inflict torture by way of refoulement.[23] Hence, India’s non-adherence to principle of non-refoulement, will definitely raise International undercurrents.

Conclusion and Suggestions

Mass protests against CAA have demonstrated how well we have acceded to the theocratic ideologies of the present Government, no reply on repeated filing of petitions, does indicate the Government’s apprehensiveness in proving the intelligible differentia and rational nexus requirements within the realms of Article 14. With no direct international law obligations as India’s has not signed any treaty on Refugee laws, it becomes difficult to impose accountability, however the ICCPR along with International Customary Law can have serious repercussions if the Principle of non-refoulement is violated.

For a State which has thrived for independence and has maintained an image of Secular nation, it is of wide import that throughout the world, questions are being raised upon its theocratic approach to Secularism, it is important that India signs for the UN Refugee Convention to regulate its international stance on refugee laws. 2003 Citizenship Amendment had conferred discretion in Citizenship by naturalisation and registration, however the conception of illegal migrants should not be continued, the language which per se discriminated as in CAA could be repealed. Hence the Government could amend 2003 Citizenship Amendment Act and repeal definition of ‘illegal migrant’digging roots of theocracy in Secular India.

REFERENCES

[1]Ritu Sharma, The Citizenship Amendment Bill and the ‘Theocratization’ of India, The Diplomat (Dec. 18, 2019), https://thediplomat.com/2019/12/the-citizenship-amendment-bill-and-the-theocratization-of-india/.

[2] The Citizenship Act, 1955 No. 57, Acts of Parliament, 1955 (India), § 6.

[3] The Citizenship Act, 1955 No. 57, Acts of Parliament, 1955(India), § 3.

[4] The Citizenship Act, 1955 No. 57, Acts of Parliament, 1955(India), § 5.

[5] The Citizenship Act, 1955 No. 57, Acts of Parliament, 1955(India), § 2.

[6]Shylashri Shankar, How Democratic Processes Damage Citizenship Rights: The Implications of CAA-NRC, Centre For Policy Research (Dec. 16, 2019), https://www.cprindia.org/news/8339.

[7]Mihir Desai, CAA-NRC-NPR and its Discontents, Economic and Political weekly (Feb. 14, 2020), epw.in/journal/2020/7/perspectives/caa–nrc–npr-and-its-discontents.html.

[8]Niraja Gopal Jayal, The CAA and NRC Together will Reopen Wounds of  Partition and Turn India into a Majoritarian State, Scroll (Dec. 29, 2019, 6: 30 AM), https://scroll.in/article/947458/the-caa-and-nrc-together-will-reopen-wounds-of-partition-and-turn-india-into-a-majoritarian-state.

[9]Supra note 1.

[10]KrishnadasRajgopal, Supreme CourtRefuses to Stay Citizenship Amendment Act Without HearingGovernment, The Hindu (Jan. 22, 2020, 11: 40 AM), thehindu.com/news/national/caa-petitions-sc-says-no-stay-without-hearing-centre-may-refer-pleas-to-larger-constitution-bench/article30622277.ece.

[11] Naveed Mehmood Ahmad, The CAA Question will Test the ‘Reasonable Classification Test’ , Counter Currents (Jan. 2, 2020), https://countercurrents.org/2020/01/the-caa-question-will-test-the-reasonable-classification-test.

[12] Bilal Kuchay, India’s Anti-CAA Protesters Launch Postcards to PM Modi Campaign, Aljazeera (Jan. 19, 2020), https://www.aljazeera.com/news/2020/01/india-anti-caa-protesters-launch-postcards-pm-modi-campaign-200118172928622.html; See Press Trust of India, Shaheen Bagh Protesters Say They will Hold Dialogue with Centre About Anti-CAA Stand through SC-Appointed Interlocutors,Firstpost (Feb. 18, 2020, 12: 42 AM), https://www.firstpost.com/india/shaheen-bagh-protesters-say-they-will-hold-dialogue-with-centre-about-anti-caa-stand-through-sc-appointed-interlocutors-8052671.html.

[13]Rasia Hashmi, Muslims, Sikhs,  Hindus join Massive Anti-CAA Rally at Malerkotla, The Siasat Daily (Feb. 19, 2020, 8:55 AM), https://www.siasat.com/muslims-sikhs-hindus-join-massive-anti-caa-rally-malerkotla-1829579/.

[14]Prabhash Ranjan, CAA Violates International Customary Law. Review It., Hindustan Times (Dec. 18, 2019, 12: 44 PM), https://www.hindustantimes.com/analysis/caa-violates-international-customary-law-review-it/story-hbo1pEgphben4PgzfrzlJK.html.

[15]Yarshna Sharma, Another One Bites the Dust? CAA and International Law, Monk Prayogshala (Feb. 10, 2020), https://www.monkprayogshala.in/blog/2020/2/10/another-one-bites-the-dust-caa-and-international-law.

[16]Supra note 17.

[17]Civil Rule No. 1847/89 (1989).

[18]Criminal Writ petition No. 583 of 1992.

[19]1996 SCC(1) 742.

[20]Rajeev Dhawan, India Needs a Proper Refugee Law, Not a CAA Suffused with Discriminatory Intent, The Wire (Dec. 20, 2019), https://thewire.in/law/india-needs-a-proper-refugee-law-not-a-caa-suffused-with-discriminatory-intent.

[21] Allain J., The Jus Cogens Nature of Non-Refoulement, 13 IJRL 538, 533-558 (2002), See alsoPlender R.,International Migration Law 427 (2^nd Ed., MartinusNIjhoff Publishers 1988) (1988).

[22]Sylvia Da Lomba, The Right to Seek Refugee Status in the European Union 7 (Intersentia 2004).

[23]Aftab Alam, Deporting Rohingya will Violate the Principle of Non-Refoulment, Counter Currents (Oct. 31, 2018), https://countercurrents.org/2018/10/deporting-rohingya-will-violate-the-principle-of-non-refoulement.

ABOUT THE AUTHOR

Akanksha Badika is a 4th year BBA, LLB student from NMIMS School of Law, Mumbai. Since the first year of her college, she has been a research enthusiast and in furtherance of which she has published about 8 Articles in National and International Journals. She has been an active participant in workshops and has won the JCCL National Level Moot Court Competition in March 2019. She has also presented a paper on Data Privacy at Indian Law Conclave and interned in law firms as Cyril Amarchand Mangaldas and IC Universal Legal.

In content picture credits: theweek