There are widespread protests against Citizenship Amendment Act and NRC after Parliament had passed the Citizenship Amendment Bill, 2019. There is another side support for CAA from some sections of society. It is not clear whether the protests outweigh the support for CAA but what is important for civil society is to not be misled by ignorance and demagoguery of some opportunist political leaders who may wish to draw political mileage out of this situation. At a time when there is uncertainty and perilous volatility, violence and hugely divided opinion the need of hour is restraint and thoughtfulness rather than rush of blood.

The situation on the ground appears to be that many people are making some noises and nobody perfectly understands what it is that they are talking about. This includes politicians, film stars, intellectuals and even educated students. This article makes an attempt on throwing light on several legal and political aspects relating to this issue so as to bring clarity. People have a right to protest (in a peaceful manner) but before exercising that right they have an obligation to ensure that they are properly led by rational thinking process rather than misled by demagoguery or irrational and unfounded fears, suspicion and beliefs. In simple words, it urges people to act having understood the issue objectively, dispassionately and thoroughly instead of being acting in haste misled by subjectivity and passions.

What is CAA, what does it aim at?

CAA is an amendment made to Citizenship Act with an intention to legitimize illegal entry of immigrants from Pakistan, Bangladesh and Afghanistan, who entered India on or before 31stDecember, 2014 belonging to persecuted minorities in those countries. These persecuted minorities according to CAA are Hindus, Sikhs, Christians, Parsis, Jains and Budhdhists.It excludes Muslims of Pakistan, Bangladesh and Afghanistan because they are majority in those three countries.

What are the contentions of Muslims and Secular parties opposing it?

The main contention is that Muslims from Pakistan, Afghanistan and Bangladesh who illegally immigrated into India are not included in it. Opposition parties are not behaving responsibly because they are not giving an insight to the Muslims of India that the CAA discriminates against Foreign Muslims not against Indian Muslims. They are evasively referring to expression called discrimination against Muslims. Who are these Muslims that are allegedly discriminated, they are not clearly indicating to Indian Muslims causing them to believe that this Act has got something to do with Indian Muslims.

This irresponsible and reproachable conduct of opposition parties is causing apprehensions in the minds of Indian Muslims that CAA has some ingredients in it which are discriminatory against them. These opposition parties are not allowing average Indian Muslim to realize that the CAA discriminates against Foreign Muslims, i.e., Muslims from Pakistan, Afghanistan and Bangladesh. Adding to this confusion is their reference to Article 14 of Indian Constitution.

Article 14 of Constitution and CAA: Whether the expression non-citizens cover illegal immigrants?

Article 14 of the Constitution says, the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Undoubtedly the word person in this article is in reference to both Citizens and Non-citizens. Hence Non-citizens are also given equal protection of the laws and equality before law at par with citizens. But the question is who are non-citizens that Article 14 refers to? The non-citizens that Article 14 refers to are those who entered India legally. Not those who entered India illegally.

Any non-citizen who is a legal immigrant but whose Citizenship is not yet finalized by the host nation gets protection under Article 14 of the Constitution. Article 14 does not give protection to the illegal immigrants.Any legal immigrant from those three countries viz., Pakistan, Bangladesh and Afghanistan who is yet to be declared as Citizen of India is non-citizen under Article 14 of Constitution. But who are the Muslims that CAA excluded? They are Illegal Muslim immigrants from Pakistan, Bangladesh and Afghanistan. Hence Article 14 does not give any protection to them.

But Intelligentsia, Film Stars and Opposition parties are misleading people to believe that CAA violates Article 14 of the constitution and hence it is unconstitutional. It gives an impression to people that some discrimination is happening against Indian Muslims, not against Foreign Muslims. That is irresponsible conduct.

The law of CAA is equal for Muslims and Non-Muslims from those three countries from 1stJanuary 2015

This is conveniently evaded by the protestors of CAA and those misleading them. The CAA gives citizenship to persecuted minorities of Pakistan, Bangladesh and Afghanistan who illegally entered India before 31stDecember 2014. Which means the difference between or so-called discrimination against Muslims and Minorities of these three countries is only for those who entered India on or before 31stDecember 2014. From 1stJanuary 2015 the law is equal for all, whether they are Muslims or Minorities from those three countries.

In simple words CAA does not show any difference between Illegal Muslim Immigrants and Illegal Non-Muslim Immigrants of those three countries from 1stJanuary 2015. But the impression created is such that any non-Muslim from those countries can illegally and freely enter India today, tomorrow or any time in future and CAA gives Citizenship to all those who enter India in future also.

Which means that even ignorantly assuming that Article 14 of Constitution extends to discrimination between foreigners, there is no such discrimination shown by CAA between Foreign Muslims and Foreign Non-muslims of those three countries from 1stJanuary 2015 onwards.

Can a State (Nation) selectively give Citizenship to refugees?

Article 1 of the Refugee Convention, 1951 defines the word refugee as a person who is outside his/her country of nationality or habitual residence; has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution. Voluntary repatriation of refugees to their country of origin is UNHCR’s ‘preferred’ solution, but only when conditions in that state permit their safe return. The expression agent of persecution refers to a person or organization, governments, rebels or other groups – which force people to flee their homes. The origin of persecution, however, should not be decisive in determining whether a person is eligible for refugee status. What is important is whether a person deserves international protection because it is not available in the country of origin. The following is Article 33 of Refugee Convention, 1951:

Article 33. Prohibition of Expulsion or Return ( Refoulement)

1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

Hence unless the refugee had involved in some offence or regarded as a danger to the security of the host country, he shall not be expelled from the host country to the territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

India is not a party to this Convention

India is not a party to Refugee Convention, 1951 however, the principle ofnon-refoulement– the forcible return of people to countries where they face persecution – is part of customary international law and is binding on all states irrespective of whether they are parties to this convention or not. Therefore no government should expel a person in those circumstances.

Coming to the question whether the State can selectively give citizenship to refugees, the answer depends on whether the person being given citizenship is a refugee or not. According to Article 1 of the convention, a refugee is not necessarily someone who faced persecution but someone who has a well founded fear of persecution because of his race, religion, nationality, membership in a particular social group or political opinion and is unwilling or unable to avail himself/herself of the protection of their country of nationality or habitual residence for fear of persecution. Now the question is whether the Non-muslims mentioned in CAA come under the definition of Refugees. The answer is yes, there is fear of persecution in those three countries for these non-muslims. Hence protection given to them by way of granting Citizenship by CAA is based on well founded International legal principle of non-refoulement.

Now coming to Illegal Muslim immigrants of these three countries, the question is – are they refugees?.

The answer is that in these Illegal Muslim immigrants there are two classes. One who entered India during Partition of India and during 1971 War between India and Pakistan which liberated East Pakistan to form a new country called Bangladesh. Another are those who entered India for economic reasons. As there is no more war situation in those countries, though the former class mentioned above entered India as refugees, they are no more having that status of refugees. Secondly there is no fear of persecution for them in those three countries because they are Islamic countries. And coming to later class, those who entered India for economic reasons, they are not considered as refugees at all for the following reasons.

The difference between an economic migrant and refugee is that an economic migrant normally leaves a country voluntarily to seek a better life. Should he or she elect to return home they would continue to receive the protection of their government. Refugees on the other hand are those who flee their homes seeking asylum in other countries because of the threat of persecution and cannot for fear of persecution feel safe to return to their countries.

For these reasons, the Illegal Muslim Immigrants from Pakistan, Bangladesh and Afghanistan do not have the status of refugees and therefore CAA does not include them. It is the duty of government and opposition parties to convey this to people and later if they still want to agitate, protest it is open to them to do so.

However even with regard to these Illegal Muslim immigrants from those three countries, even if the government cannot have a policy of giving Citizenship because at one point of time or the other government can ensure their safe return to their countries of origin, it is open to the government, foreigners’ tribunals, High Courts and Supreme Court to consider the grievances if anyone of them claims fear of persecution. It is open to governments and Foreigner Tribunals, and other courts to examine such claims and allow such people on case to case basis to enjoy asylum in India if not Citizenship, on humanitarian grounds following the spirit of International law of non-refoulement and Article 51 of Indian Constitution.

What is NRC and its alleged illicit relationship with CAA?

The National Register of Citizens (NRC) was first prepared in Assam in 1951. The 1951 NRC is said to have covered each and every person enumerated during the Census of 1951 in Assam. The reason was influx of Bangla speaking people into Assam and people of Assam did not like entry of foreigners into their state, more particularly the Bengali speaking people. The apprehension is that it will have a huge impact on their demographics and land ownership as well as on their peculiar local culture. NRC intends to identify illegal immigrants into state of Assam and repatriate them back to their countries of origin, nationality or habitual residence.

In the year 1950, Immigrants (Expulsion from Assam) Act came into force following influx of refugees from East Pakistan (now Bangladesh) to Assam after partition of India into India and Pakistan. In 1951 first Census of independent India was conducted and based on Census first NRC was compiled. Again there was influx of refugees from East Pakistan in 1964-65 due to disturbances in that country. In 1971 due to war between India and Pakistan that resulted in liberation of East Pakistan to form a new country called Bangladesh, there was fresh influx.

Between 1979 to 1985 there was a Six year long Assam agitation by All Assam Students Union (AASU) and All Assam Gana Sangram Parishad (AAGSP) for detection and deportation of foreigners from Assam. As a result Assam Accord signed by the Central Government, State Government, AASU and AAGSP in the presence of the then Prime Minister Rajiv Gandhi. It stated, among other clauses, that foreigners who came to Assam on or after 25thMarch, 1971 shall be expelled.

In the year 2005 the tripartite meeting between Centre, State and AASU decides to update NRC but no major development takes place. In the year 2013 Supreme Court taking up a petition from Assam Public Works, an NGO, directed Centre, State to begin the process of updating NRC. NRC state coordinator’s office set up. As a result a final list of NRC was released by Centre in August 2019, which excluded around 19 lakh out of 3.29 crore applicants in Assam, which in other words means these are undocumented or illegal immigrants.

It is not known what is the composition of these 19 lakh illegal immigrants to anyone agitating on streets clearly but it is unfortunate that passing of CAB and release of final NRC coincided and the agitation in Assam is that CAA allows Bengali Speaking Foreigners belonging to Pakistan, Bangladesh and Afghanistan to acquire Citizenship if they belong to Non-Muslim religion.

NRC as of now is limited to Assam

Many people agitating against CAA do not properly understand the relationship between CAA and NRC. The issue outside Assam is different from issue inside Assam. Outside Assam the issue is that there is a threat to Secularism. Inside Assam, the issue is not secularism, people of Assam wants no foreigner to stay in Assam including Muslims. In effect this means that both inside Assam and outside Assam there is opposition to CAA but it is for different reasons.

Inside Assam illegal Muslim immigrants have been opposing CAA because it has not included them and people of Assam are opposing it because it includes Non-muslim illegal immigrants.

Outside Assam, a fear is spread by Intelligentsia, Opposition parties and Film Stars that CAA and NRC put together are fatal to Indian Muslims. Calculating this fear, the fundamentalist forces in ruling party are taking pleasure in their predatory instincts by declaring that NRC will be implemented throughout the country.As a result there is widespread apprehension in Indian Muslim Community that they have to prove citizenship by showing documents to government as it happened in the case of illegal immigrants of Assam. Another canard that is spread is that the NRC exercise in Assam is done at the behest of ruling BJP government to specifically target Muslims. While the truth is that it is happening as a consequence of direction from the Supreme Court of India.

It is not simply this CAA-NRC issue, a series of events in a run up to this issue have contributed to the fear in Indian Muslims, such as, Ban on Triple Talaq, Supreme Court ruling in Ram Mandir issue in favour of Hindus, Abolition of Article 370. All these events are being perceived by common man in Indian Muslim community as attempt by a fundamentalist ruling party to target Muslim community of India.

Though all these other issues having nothing to do with CAA-NRC and may be independently assessed based on their merits, average Indian Muslim got the message that there is a pattern to it and Muslim community is being targeted because a fundamentalist party is ruling at the Centre.

Now it is for the Prime Minister to remove these apprehensions in Muslim community created by fundamentalist forces in his party by holding a dialogue with some prominent leaders of Muslim community or directly addressing nation as he normally does with his Mann ki Baat on Radio because the need of the hour is that we all should stand united as a FEARLESS & UNITED INDIAN SOCIETY not as several communities suspecting each other carrying divergent opinions, resenting each other.

The government must postpone this nationwide NRC exercise for one or two years from now and give time to citizens to breathe fresh air and relax from agitations. The better course would be to invite citizens to voluntarily apply for Citizenship Card by submitting documents. NRC should be aimed at providing Citizenship Cards to citizens rather than to catch illegal immigrants. In other words it should be for positive reasons not for negative reasons.

Onus of proof of Citizenship is not on people

It would be draconian to expect people who have been living in the country for generations together and believing this country to be theirs to prove their citizenship by submitting documents. Illegal immigrants do exist in the country due to Security lapses. It is not possible for anyone to say, whether anyone is undocumented immigrant or citizen of this country not having any document to prove his citizenship as India is not advanced country like United States of America. Therefore the identification process relating to illegal immigrants should be carefully drafted and crafted. It should be sensible and humane. To fish out a few illegal immigrants it is not correct to require entire population of country to stand in queues to prove their citizenship showing documents. It should not be that a thief has allegedly entered village and hid some stolen property and all houses in village are ordered to be searched to locate person cooperating with that thief and to find out stolen property. It should be rational exercise respecting the dignity of Citizens. It is no argument to say that though irrational everyone is expected to abide by same process. At no cost, dignity of citizens should be put at stake.

If the government has an allegation to make that a certain person is illegal immigrant, the onus of proof is on government to prove that he is illegal immigrant because he entered country because of security lapse. In these circumstances, the presumption to be drawn by courts is that unless proved otherwise, everyone is Citizen of this Country.

Written By: Asst. Professor at Aurora Legal Sciences Academy, Bandlaguda, Hyderabad.