Prime Minister Narendra Modi with Home Minister Amit Shah.
Snapshot
  • Several myths, half-truths and lies have been floated around the Citizenship Amendment Bill, and it is useful to address them to avoid their perpetuation.

On Thursday (5 December), the Narendra Modi government approved the Citizenship Amendment Bill (CAB) for Parliament of India to take it up for discussion. If approved by both houses, it shall become a law.

Since its introduction in 2016, CAB has generated tremendous controversy particularly in regard to omission of Muslims from three neighbouring countries — Pakistan, Bangladesh and Afghanistan — in the list of beneficiaries eligible to obtain Indian citizenship having met certain conditions. Several myths, half-truths and lies have been floated around the CAB, and it is useful to address them to avoid their perpetuation.

Myth 1: Only Muslims will not be allowed into India, but people of other religions are welcome

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This myth completely misreads the very basics of the CAB. What CAB does is amend the Citizenship Act, 1955 to grant benefits to certain religious minorities fleeing religious persecution, which include Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from three specific neighbouring countries — Pakistan, Bangladesh and Afghanistan, who are already inside India on or before 31 December 2014.

Corresponding amendments to Passport (Entry into India) Act, 1920 and Foreigners Act, 1946 made in September 2015 support the basic purpose of the CAB and highlight the cut-off date.

The draft approved by the Cabinet is not yet public. However, the version passed by Lok Sabha in 2019 can be accessed here and may be used as a reference given that most basic provisions in it seem to be carried on in Thursday’s draft as per media reports.

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The benefits include not being treated as illegal migrants and being made eligible to apply for Indian citizenship under Section 6 of the Citizenship Act, 1955.

It is important to note here that they shall not be granted automatic citizenship. They would need to fulfill conditions specified in the Third Schedule to the Citizenship Act, 1955, namely, the good character requirement as well as physical residence in India for six years in addition to the 12-month period immediately preceding the date he/she applies for citizenship.

Therefore, there is no question of the CAB “allowing” only certain religious minorities into India and disallowing others. Everyone holding a valid visa is allowed to enter India.

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Moreover, any refugee who managed to enter India 2015 onwards — whether among the six minority community or otherwise, his/her claim to refugee status shall continue to be examined by the government of India under its current refugee policy.

Myth 2: This Bill ensures that Muslim refugees or refugees from other countries will be deported

This myth has perhaps taken birth from the fact that the Modi government deported certain Rohingya refugees who fled from Myanmar. The case of Rohingya refugees is unique and shall be examined in Myth 3.

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As stated earlier, refugees not covered under the CAB shall continue to have all rights as refugees fleeing persecution under the government of India’s refugee policy. This bill does not mention anywhere that those refugees other than the ones entitled to apply for Indian citizenship shall be automatically deported.

Therefore, if a Shia Muslim is facing persecution and is in India seeking shelter, his case to continue to reside in India as a refugee shall be considered on its merits and circumstances. Indeed, several refugees such as Sri Lankan Tamils and Tibetans fleeing persecution continue to reside in India.

Critically, the CAB does not exclude Muslims from Pakistan, Bangladesh and Afghanistan to apply for Indian citizenship. They can continue to do so in the same way singer Adnan Sami, for example, applied for citizenship.

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Myth 3: Excluding Rohingyas and Balochis, who face persecution too, from CAB violates equality

The basic touchstone of any refugee policy is to grant shelter to those fleeing persecution on a well-founded fear on a temporary basis until conditions in the country they fled from improve. It is a temporary benefit.

What the CAB recognises is that conditions in the three neighbouring countries shall likely never improve for the specific religious communities enlisted in the CAB. This is from the experience of the past several decades.

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Therefore, India being a significantly safer shelter than those three countries, the Modi government is desirous of not simply permitting them temporary residence as refugees, but rendering them eligible for Indian citizenship which regularises their status on a permanent basis. This is a bold move aimed at according the sacred right of citizenship to these persecuted minorities.

Indeed, Parliament shall (hopefully) seriously debate on the rationale of selecting specific communities for the benefit of Indian citizenship with data and logic rather than using this bill to further sectarian divide.

Having said that, in regard to Balochi refugees, nowhere does the CAB state that a Baloch fleeing persecution and managing to enter India will be deported. His case too shall be examined on the merits and circumstances unless there is a serious threat to national security or there are foreign policy implications.

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Humanitarian aspects relating to refugees in India have, long before the Modi government took office, overlapped with national security concerns as well as foreign policy matters.

Balochistan has long struggled to be independent of Pakistan and including Balochis in the CAB could be perceived as interference in Pakistan’s internal affairs. The Modi government is currently deploying a different foreign policy in regard to Balochistan by naming and shaming Pakistan as a perpetrator of terror to the Balochis.

In regard to the Rohingya refugees, there are serious national security implications given use of extreme violence by some Rohingya groups against the Myanmar government in their fight for self-determination. The Prime Minister of Bangladesh, which received the most number of Rohingya refugees, called them as a “threat to national and regional security”.

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Furthermore, Rohingyas have fled from Myanmar which isn’t one of the three countries referenced in the CAB. Lastly, but most importantly, the SC is hearing a petition filed by Rohingya Muslims challenging their deportation. Their fate as refugees entitled to temporary shelter in India under India’s refugee policy is a matter before the SC.

Myth 4: The Constitution of India prohibits discrimination on grounds of religion

This is evidently false. Several government programmes conferring benefits to members of specific religions have passed the constitutional tests. Minority scholarships are a case in point.

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Indeed, at the outset, it is important to note that, as several Supreme Court rulings have clarified, Article 14 of the Constitution of India does apply even to foreigners in India. Do remember that CAB pertains to giving benefits to people inside India and are, therefore, entitled to equal protection under law.

However, Supreme Court jurisprudence also recognises that a reasonable classification of beneficiaries may be done for separate application of laws if such classification is based on some real and substantial distinction. Also, if such a classification bears a reasonable relation to the object sought to be achieved by such separate application of laws.

A legal challenge to the CAB is highly likely and, therefore, this case shall be tested by the courts under the constitutional parameters. The argument that India is the birthplace of religions such as Hinduism, Buddhism, Sikhism and Jainism shall likely be defeated on the grounds that Christian minorities are included in CAB even if India isn’t the birthplace of Christianity.

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The Modi government will, therefore, need to furnish sufficient data on the relative persecution done to these specific religious minorities as opposed to others such as Ahmadis, who are officially recognised as religious minorities in Pakistan.

That is, indeed, a separate subject matter. Suffice it is to state that a challenge to the CAB, if passed, shall likely knock the doors of our constitutional courts and an evaluation under Article 14 would necessarily decide its fate.

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