I write this post without claiming any political affiliation to any party in India. As a lawyer with exposure to the workings of international law, I wish to put in writing my thoughts on the contentious topic of CAA. Fundamentally, no human being wants to be displaced from his or her home, land and nation, unless he or she wishes to improve one's own economic status or when fleeing persecution.
The Citizen Amendment Act, 2019 amends the definition of “illegal migrant” to include a category of persons from and within particular religions by adding a proviso to that portion of the Section under The Citizenship Act, 1955. This innocuous inclusion of a provision under the parent act, excludes Muslims from obtaining citizenship of India. There are no reasons stated either for the choice of persons following certain religions who can be awarded citizenship or the exclusion of a religion. The act neither provides any holistic relief to economic migrants from countries nearby nor offers citizenship to people from a particular community who have been living as refugees within the borders of India for decades. This exclusionary tactic by the Government of India confers substantive rights to members of certain communities, while denying a section of persons belonging to the same category the procedural rights available to them through implementation of NRC across the nation. States do not have power to pass resolution against the central Act but can always deny extending its infrastructure and Human Resources for implementation of the amended provisions and incidental processes like NPR and NRC in the interest of muslim minorities living within its jurisdiction.
Challenging the constitutionality of a federal law by the state is permitted under the US Constitution and therefore States can challenge the Amended Act on grounds of unconstitutionality deeming the amendment as discriminatory.
Essentially, the definition of ‘illegal migrants’ under the parent Act has been retained and the amendment act merely confers citizenship on a large chunk of Hindus et al., on a pick and choose mode. Under the tenets of Humanitarian law, a distinction that chooses to grant rights to a sect of people while singling out another sect that is otherwise similarly placed, is illegal and violative of principles of international law. Such a distinction based on personal religion cannot be upheld either under the tenets of international law or under the provisions of Indian Constitution, which does not discriminate any individual based on his or her religion. The Amendment is discriminatory and violative of fundamental principles of India’s Constitution. The new law may have found support from academics and activists if India has been a signatory to the Refugee Convention and its 1967 Protocol. But it is this abstention by the Government of India to recognize the humanitarian value of the refugee convention aided in the refoulement of Rohingya refugees. The Supreme Court has also acted without compassion in forcefully deporting a family of Rohingyas despite intervention by the UNHCR and extensive coverage by international media on the genocide and plight of Rohingyas on the ground of national security. The recent riots in Delhi demolishes the argument that India faces security threats from refugees of other religions and establishes the bitter truth that we are capable of killing our own in the name of religion.
It is evident that the underpinning notion to accept Hindus and other chosen religions is religious persecution. It is a well known fact that there are minorities who face religious persecution in countries like Pakistan and to deny them the benefit of such a benevolent statute does not bode well for a country like India that has always been held in high esteem among the countries of international community and institutions that govern them.
Any action by the Government that passes a law to benefit one class of persons and treats certain illegal migrants, refugees or asylum seekers in a manner that is against international humanitarian law or norms of customary international law is indeed coloured with political connotation that is eventually self-serving. On a superficiality, CAA appears to be sympathetic to certain communities but on the ground mis-treats members of a particular community. No act of a government is legitimate when it blatantly violates norms under international law in a very aggressive manner.
Strength does not lie in passing laws that isolate the poor and destitute of a particular community. It lies in exhibiting compassion towards those who do not stand isolated and excluded from the benevolence conferred upon certain class of persons merely because they belong to a particular religion. Several articles have been written on this issue and Indians living across the globe unable to justify the skewed amendment to Citizenship Act are now facing the ignominy of bitter criticism from governments and the international media. India needs to grow in stature in the eyes of other governments and its leaders. This is exactly what happened when the German Chancellor Angela Merkel welcomed Syrian Refugees into her nation. That is the kind of compassion that appeals to the world. EU has issued some guidelines to be followed when passing laws that touch upon religion that is worth emulating. It is still unclear as to why no rules have been formulated under the amended Act.
THEREFORE, CAA UNDERMINES BASIC PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW AND NEEDS TO BE REPEALED.