Diluting the secular state: India’s Citizenship Amendment Act

by Ryan Mitra

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Protests against the Citizenship Amendment Act, December 2019, New Delhi. DiplomatTesterMan via Wikimedia Commons

On 11 December the Citizenship Amendment Act was passed in both houses of the Indian parliament and received the president’s assent. The act allows the naturalisation of all illegal immigrants in India who arrived from the neighbouring countries of Afghanistan, Pakistan and Bangladesh before 31 December 2014. The controversial aspect of this naturalisation is that it only applies to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, clearly excluding Muslim immigrants. With this and the impending nation-wide National Register of Citizens that the government intends to conduct, an overwhelming environment of paranoia, anger and uncertainty has engulfed the country.

As an independent state, India has prided itself on being the world’s largest democracy, which is inclusive and secular. Secularism as a term was added to the preamble to the Indian Constitution by the 42nd Amendment in 1976. Contrary to the beliefs of the current Home Minister, Amit Shah, India was not partitioned from its neighbour Pakistan on the grounds of being a Hindu state, but because the Muslim League wanted a separate Islamic state. India was a secular nation long before its independence and has been a secular state since 1947. The passage of this new law is, therefore, a critical blow to one of its fundamental attributes.

A state that has thrived on its diverse populace and heterogeneity is now threatened with the dilution of this key characteristic by a marginalising law that directly counters the spirit of the country’s constitution and the ethos upon which it was founded. Furthermore, the implications of India transgressing international law and customs are profound, with hard-won goodwill being seriously compromised. Lastly, given the outburst of reactions on social media, both against and in favour of the act, the vociferous protests, destruction of public property, cases of police brutality and absolute pandemonium across the country, it is important to note how we as a people are faltering under the current divisive government.

This act has paved a very dark path for Muslim refugees and asylum seekers.

In his statements defending the bill on 9 December, Amit Shah used the term ‘persecuted’ multiple times when referring to migrants fleeing to India. This raises a twofold question: first, why was the word used only in his statements to defend the bill but not overtly mentioned in its text? Second, why were persecuted persons swept under broad religious headings without any consideration of sectarian divisions within religions? By virtue of Article 14 of the Constitution, a law cannot exclusively be on the grounds of religion or ethnicity. Contrary to popular rhetoric circulating on social media, the right to equality espoused by Article 14 is not applicable solely to Indian citizens but, as per the order of the Supreme Court in the case of Indra Sawhney v. Union of India, it is for all people, including non-citizens, present within the sovereign borders of the republic. Thus, the rationale behind the government allowing only non-Muslim minorities from the three neighbouring Islamic states refuge and citizenship if they have faced persecution regrettably falls short. The lack of consideration of sectarian realities and the chronic persecution that these produce, shows the linear, zero-sum attitude of New Delhi’s lawmakers towards statesmanship. For example, the Ahmadiyyas of  Pakistan, Rohingya from Myanmar or Hazaras of Afghanistan all identify as Muslims. Their countries have not only denounced them as citizens but have stripped them of their religious identity and have persecuted them repeatedly. The Ahmadiyyas like the Hazaras came to India before 31 December 2014, hoping to practise their religion freely and enjoy a life of dignity, but now face an uncertain future.

With regard to the issue of national security, as the Research and Analysis Wing has also argued in opposition to the bill, there is a strong possibility of malicious persons simply posing as persecuted Hindus or Christians in order to enter India. However, courts in India on multiple occasions in the past have noted that national security matters take precedence over the lives and protection of aliens within Indian sovereign borders and have sanctioned refoulment in certain cases. It is important for the government and courts to correctly and justly weigh the state’s interests against individual rights, and only exercise the right to refoulement when a specific individual’s presence in the state poses a direct and verified threat to its security. But for now, with no structured refugee law or ratification of the 1951 Refugee Convention, this act in itself has paved a very dark path for Muslim refugees and asylum seekers and has deeply hurt India’s international image.

Misinformation and fake news have accentuated the fear and anger that Indians as a divided population are experiencing.

Internationally, India finds itself being criticised by multiple authorities for its discriminatory law, which is in violation of international law and India’s international duties. The United Nations High Commissioner for Human Rights has noted this law to be fundamentally discriminatory in nature and has called upon the Supreme Court to analyse its compatibility with the country’s international obligations. The UN Office of the Secretary-General has also been analysing the consequences of this law, which has raised concerns among several UN rapporteurs. Furthermore, the US Commission on International Religious Freedom is seeking American sanctions against Amit Shah for the passage of this bill and believes this is a ‘dangerous turn in the wrong direction’. The rhetoric around the bill has again caused Bangladesh to be apprehensive about being clubbed together with Afghanistan and Pakistan. Given that Bangladesh is currently one of India’s stronger allies in the region, a diplomatically sensitive approach should have been adopted to ensure that another neighbour in the region would not be distanced. Largely, the global media has found this move to have significantly dented India’s secular image and fed into the Hindutva narrative of the currently ruling Bhartiya Janata Party (BJP). As in the case of the abrogation of Article 370 regarding Kashmir’s autonomy, an international reaction from Islamic countries is expected, which will only further compromise India’s goodwill and diplomatic outreach. Given Malaysia’s opposition to removal of Article 370, this bill may further antagonise the South East Asian country along with other Islamic states. India’s outreach in Central Asian countries along with its Look East policy is bound to take a backward step in light of this law, and some political capital may be lost.

The public outcry against this bill domestically and internationally has been tremendous. Social media campaigns and nation-wide protests are indicators of how certain sections of the Indian population feel that the current government has crossed a red line and is interfering with the fundamental rights promised to them by the Constitution. But it is important to note that the act also has vehement support from the people who elected this government and believe in the causes highlighted in its 2019 election manifesto. A six-day-long observation of Facebook, Twitter and Instagram has revealed that even though an individual’s personal feed may reflect and mirror their own views, in the underbelly of these social media sites there is just as strong a counter-narrative being established without being questioned, debated or even noticed. Misinformation and fake news have spread their malicious tentacles across both sides of the coin and have accentuated the fear and anger that Indians as a divided population are experiencing.

Nevertheless, the law’s inherent inconsiderate attitude towards Muslims and the indigenous people of the Northeast India (who have not been mentioned in this article but continue to fight to preserve their identity) cannot be justified based on the rhetoric the government has established. The rapid restructuring of India’s political skeleton during Narendra Modi’s second term sharply contrasts to his government’s first term, during which it promised greater economic development and affluence for all its citizens. This series of controversial decisions to change fundamental aspects not only of India’s Constitution but also its identity is concerning. Principal promises that have been part of the BJP’s campaign since the previous century, such as the removal of Article 370 and the building of the Ram Mandir, have now been fulfilled. And it has now fulfilled another electoral promise in the form of this act that will essentially displace Muslim populations to detention camps. All of this was achieved within seven months of the second term, and with over four years remaining in this government’s term, further critical changes to the country’s political fabric can be expected.

About the author

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Ryan Mitra is studying International Relations at Pandit Deendayal Petroleum University, India. His primary areas of interest are Indian foreign policy, maritime affairs, Asian geopolitics and International Law.

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