Critical Analysis of “Citizen Amendment Act (CAA)” of India - A Case of Planted Communication Gap

Critical Analysis of “Citizen Amendment Act (CAA)” of India - A Case of Planted Communication Gap

By:

Vijay Sardana

Advocate, Delhi High Court

Critical Analysis of “Citizen Amendment Act” of India and the Future of Indian Politics

Please note the operative word here in this amendment is "Religious Discrimination", let us focus the debate on this term only to understand the CAA. 

Disclaimer: This is not a religious debate. For me, this is purely a legal issue and should be addressed within the provisions of the law based on historical facts. This article is to create a serious debate based on facts on this vital subject, in place of emotional outbursts. This debate is vital for the future of India. I also understand the street protests are happening due to various other reasons, not just CAA. Let us keep this discussion to CAA only. Feel free to react and share your comments only with supporting evidence and facts to have a meaningful discussion.

You are also free to disagree with my views and approach. As a citizen of a democratic country, I will respect your views as well.

All concerned citizens, anti-CAA and Pro-CAA groups must answer the following - request is stick to the hard facts on the ground & before adding political & religious dimensions to it. 

The debate is on the term "Religious Discrimination". Let us see this term in a wider legal and political context and why this term is so sensitive in Indian political space. 

If we really want a serious debate on the subject, we must understand the following issues and open debate on these issues as well. 

I know many will not like these questions, but facts and history should not be ignored for a better future.

• Why we are debating, who is a citizen of India? What was the basis and logic of citizenship when the constitution was framed?

• What was the logic or reason for the creation of Pakistan? Is that logic still exist or no more relevant? We all suffered a lot because of that political decision and we should learn from history for a better future.

• When people opted for particular citizenship, why there is a controversy now?

• Why people want to move from one country to another for citizenship? Why they are not happy in their country of choice which was created in 1947?

• Issues are raised for a particular community why they are not allowed under CAA?

• Anti-Shia violence includes Kohistan Shia Massacre, Mansehra Shia Massacre and the deadly Quetta bombings. The Ahmadiyya community in Pakistan suffered attacks on Ahmadi mosques in Lahore. Are these cases of religious persecutions or problems of law and order? Any view on this?

• If these are the cases of religious persecutions, if so which community or religion is persecuting them? Should they flee to India or to other countries where they have the majority of their own community or religion?

• Are Ahmadiyya & Hazara Muslims? If yes, why they are not safe in these countries and why they want to migrate from Pakistan? Why do they want to come back to India?

• Why they are choosing India to flee? Is India safe for them?

• Why Muslims are prosecuted in Muslim Countries? Why there is no debate on this? What is the best way to address the concerns of Muslim minorities? Is there any answer in the Quran how to address such problems?

• Are religious minorities in Pakistan, Bangladesh and Afghanistan feeling safe? If yes, why there are protests in India?

Many will say why I am raising this issue, because if there is peace all over, why people should migrate and demand citizenship in another country. 

Let us discuss these fundamental issues to find the solutions to the problem before making an issue out of Citizenship (Amendment) Act, 2019.

What is the Citizenship (Amendment) Act, 2019?

The Citizenship (Amendment) Act, 2019 was passed by the Parliament of India on 11 December 2019. It amended the Citizenship Act of 1955 by providing a path to Indian citizenship for Hindu, Sikh, Buddhist, Jain, Parsi, and Christian religious minorities fleeing persecution from Pakistan, Bangladesh and Afghanistan. The act was the first time religion had been overtly used as a criterion for citizenship under Indian law.

The Background: 

The Indian Constitution has implemented in 1950 guaranteed citizenship to all of the country's residents at the commencement of the constitution and made no distinction based on religion. The Indian government passed the Citizenship Act in 1955. The Act provided two means for foreigners to acquire Indian citizenship. People from "undivided India" were given a means of registration after seven years of residency in India. Those from other countries were given a means of naturalisation after eleven years of residency in India.

A 2003 amendment to this act, legislated by the National Democratic Alliance government, prohibited illegal migrants from obtaining Indian citizenship. The act defined illegal immigrants as citizens of other countries who entered India without valid travel documents, or who remained in the country beyond the period permitted by their travel documents. The law provided provisions to deport or jail illegal immigrants.

India is not a signatory to either the 1951 UN Refugee Convention or the 1967 Protocol. It does not have a national policy on refugees. All refugees are classed as "illegal migrants". While India has been willing to host refugees, its traditional position formulated by Jawaharlal Nehru is that such refugees must return to their home countries after the situation returns to normal.

The year before the 2016 elections, the government legalised refugees belonging to religious minorities from Pakistan and Bangladesh, granting them long-term visas. Bangladeshi and Pakistani nationals belonging to "minority communities" were exempted from the requirements of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946. Specifically mentioned were "Hindus, Sikhs, Christians, Jains, Parsis and Buddhists," who had been "compelled to seek shelter in India due to religious persecution or fear of religious persecution". Eligibility for the exemption was made contingent on a migrant having arrived in India by 31 December 2014.

What is Religious Discrimination?

Religious discrimination is treating a person or group differently because of the particular beliefs which they hold about a religion. This includes instances when adherents of different religions, denominations of non-religions are treated unequally due to their particular beliefs, either before the law or in institutional settings, such as employment or housing.

Religious discrimination is related to religious persecution, the most extreme forms of which would include instances in which people have been executed for beliefs perceived to be heretical. Laws which only carry light punishments are described as mild forms of religious persecution.

Even in societies where freedom of religion is a constitutional right, adherents of religious minorities sometimes voice concerns about religious discrimination against them. Insofar as legal policies are concerned, cases that are perceived as religious discrimination might be the result of an interference of the religious sphere with other spheres of the public policies that is regulated by law and not aimed specifically against a religious minority.

Religious discrimination of minorities in Muslim majority Country - Ideological issue or law & order problem:

Religious discrimination in Pakistan is a serious issue. Several incidents of discrimination have been recorded with some finding support from the state itself. In a case of constitutionally sanctioned religious discrimination, non-Muslims in Pakistan cannot become Prime Minister or President, even if they are Pakistani citizens. Why this?

Pakistan's Blasphemy Law, according to critics, "is overwhelmingly being used to persecute religious minorities and settle personal vendettas".

Ahmadiyya Muslims have been subject to significant persecution and are sometimes declared 'non-Muslims'. Is there any such provision in the Quran? Why international bodies and intellectuals are keeping quiet on this? If one sect of the religion debars another sect of the same religion from the religion by force, is this tolerance?  Muslim scholars should also debate this.

Why protests of Exclusion of Muslims from the Muslim majority, countries lack merit?

Please keep in mind the logic of partition in 1947. If the logic of partition was right than the Citizenship Amendment Act 2019, is the natural outcome of the same.

Muslims from Pakistan, Bangladesh and Afghanistan are not offered citizenship under the new Act. Critics have questioned the exclusion.

The Amendment limits itself to the Muslim-majority neighbours of India and, secondly, takes no cognizance of the persecuted Muslims of those countries.

According to The Economist, if the Indian government was concerned about religious persecution, it should have included Ahmadiyyas – a Muslim sect who have been "viciously hounded in Pakistan as heretics", and the Hazaras – another Muslim sect who have been murdered by the Taliban in Afghanistan. Many are saying they should be treated as minorities. Why? If they are Muslims, living in a Muslim country and there is an abuse of their rights, then why Muslim scholars are not raising this issue of intolerance against these Muslim sects on international forums. Why these intellectuals are quite on their Human rights violation within Muslim countries? This silence by protesting intellectuals indicates that they have do not view things holistically. They either lack understanding of the facts or there is something else and predecided agenda. Whether our intellectuals have become tools in the hands of politicians?

Why Muslims are prosecuted in Muslim Countries? Why there is no debate on this? Why there is no protest to highlight these issues?

The Indian government has stated that Pakistan, Afghanistan, and Bangladesh are Muslim-majority countries. They have modified their Constitutions in recent decades to declare Islam as their official state religion, and therefore Muslims in these Islamic countries are "unlikely to face religious persecution". It is a sad fact that Ahmadiyyas – a Muslim sect who have been "viciously hounded in Pakistan as heretics", and the Hazaras – another Muslim sect who have been murdered by the Taliban in Afghanistan, are not getting due protection in Muslim countries. Let Muslim scholars answer this first. Are they not Muslims? The silence on these serious issues by Muslim scholars around the world is not unacceptable.

Are Ahmadiyya & Hazara Muslims or not? Why do they want to migrate from Pakistan to India? Why do they want to come back to India but not to any other Muslim Country?

The attacks on Ahmadiyya Muslims in Pakistan are "sectarian, not religious". Whether Ahmadiyya are Muslims or not? If yes, Muslim leaders must address this issue and must inform the world why there is so much intolerance within Muslim sects and why these Muslim sects cannot live in peace within Muslim countries. This exposes the fault line in the religious understanding in these countries where these sects are feeling unsafe.

As far as I know the Quran has not created these fault lines and hate against minorities, then who has created these fault lines within sects of Muslim religion and with what motive? What Muslim leaders and countries are doing to address this fault line should be known to the world?

Please keep in mind that before 1947 Ahmaddiyas voted “en bloc” to go with Pakistan. Now, why they want to come back? Are we saying Pakistan and other neighbouring countries are not safe for Muslims? Why this issue is raised by Muslim scholars in international forums?

The government states that Muslims cannot be "treated as persecuted minorities" in these Muslim-majority countries. It is true, states BBC, that Pakistan and Afghanistan's state religion is Islam and that Bangladesh's top court ruled in 2016 that "Islam should remain its state religion", but, all these countries also "have constitutional provisions stating that non-Muslims have rights and are free to practise their faith".

Why there is the exclusion of other persecuted communities?

Before making any comparisons between the refugees from other countries, we should keep in mind the 1947 partition. Only those countries which were part of united India are considered in this amendment. India is not a signatory to either the 1951 UN Refugee Convention or the 1967 Protocol. It does not have a national policy on refugees. All refugees are classed as "illegal migrants".

The Act does not include migrants from non-Muslim countries fleeing persecution to India, particularly Rohingya Muslim refugees from Myanmar, Hindu refugees from Sri Lanka, and Buddhist refugees from Tibet, China.  Tibet was not created based on religion.

The Act is silent about the Hindu refugees from Sri Lanka. Was Sri Lanka created in 1947 based on religion? Still, the Sri Lankan Tamils were allowed to settle as refugees in Tamil Nadu in the 1980s and 1990s due to systemic violence from the Sinhalese of Sri Lanka. They include 29,500 "hill country Tamils" (Malaiha). Now things are normal and minorities are safe in Sri Lanka. Can we say the same for Pakistan?

The Act does not provide relief to Tibetan Buddhist refugees. They came to India in the 1950s and 1960s. Their status has been of refugees over the decades. According to a 1992 UNHCR report, the then Indian government stated that they remain refugees and do not have the right to acquire Indian nationality.

The Act does not address Rohingya Muslim refugees from Myanmar. The Indian government has already been deporting Rohingya refugees back to Myanmar, despite the risk to their lives. Please keep in mind, India is not a signatory of the UN Refugee Convention and India has legitimate rights to send the citizens of other countries back to their homeland and Myanmar was not created in 1947 based on religion like Pakistan.

Future of India should be based on facts on the ground:
Question is to stop migration and to stop hardships, can we think of Germany like unification? Let us start a debate of pre-1947 India if that solves the problem forever. How many will support this? 

Please note, I am clear that the Supreme Court of India will do what is right under the constitution of India. 

As of today even after the passage of the Citizenship Amendment Act, there is no discrimination against any citizens of India based on religious belief. The proposed act is only to include people who are from the Muslim majority countries created in 1947 based on religion and now feeling unsafe due to both state policies and inaction on the part of local governments.


One question which everyone is asking me is what was the need to have religious criteria?

Let me explain, if a neighbouring country, by design pushes their poor population into India by force and what will happen to Indian border areas? What will happen to India? 

At least well-settled minorities will not migrate, only a small percentage of people who are facing problem on religious grounds will come to India and this can be managed. These issues can be raised at international forums as well.

Will Muslim counties allow non-Muslims to come as migrants and settle in their territory. If yes, why the refugees from Syria and other middle east countries were moving towards Europe but not to other countries with the Muslim population. This should be studied and discussed in public.

CAA should not and cannot be treated as a universal policy to provide shelter to all in the country because no country in the world can have universal responsibility for all refugees. The subject needs proper debate based on the merits. The political leaders and intellectuals must address the issues raised on merit and with facts. 

Let us remain objective in the discussion, keep discussions facts based when national interest is at stake.

Unless Opposition to CAA must address this issue with facts at the earliest, otherwise this will become a bigger issue than Ram temple and may create more awareness about the need for citizenship laws, cultural identity & population control to ensure demographic balance. This will make opposition to CAA without any agenda.