CAA is unconstitutional and unsecular; divides India

Lobsang Wangyal

Lobsang Wangyal

By Lobsang Wangyal

McLEOD GANJ, India, 21 December 2019

With India’s Supreme Court turning down a plea to stop the implementation of a new religion-based citizenship law, hope faded for millions of people who were born in, as well as living in, India for years. The law has been passed by both Houses of Indian Parliament, and signed into law by the president.

Nearly 60 petitions had been filed in the court broadly challenging the law on the ground that it discriminates against people on the basis of religion, whereas India is a secular country, which has no state religion, and that faith cannot be linked with citizenship. The court had set 22 January as the next date of hearing, but a reversal of the Act is unlikely considering the influence of the ruling party.

The Citizenship Amendment Act (CAA) 2019 added a new clause to the Citizenship Act of 1955, granting citizenship to Christians, Buddhists, Hindus, Jains, Sikhs, and Zoroastrians who may have faced persecution in neighbouring Afghanistan, Bangladesh and Pakistan and who entered India before 2015 — but not to Muslims.

The Government justifies the Amendment as protecting the non-Muslims in these three countries, stating that Muslims cannot be “treated as persecuted minorities” in these Muslim-majority countries, and arguing that Muslims in these Islamic countries are “unlikely to face religious persecution.”

But, seen as blatant discrimination for basing citizenship on religion, protests against the law have been taking place across India. Violent police crackdowns against the protestors, particularly on students, have caused the deaths of at least 15 people and injured many.

CAA violates the Constitution

The new law is seen as violating two articles of the Indian Constitution: Article 14, which concerns the fundamental right to equality, and Article 15, which prohibits discrimination along religious lines. The law also violates the secular fabric of India.

Indian Prime Minister Narendra Modi and his Bharatiya Janata Party (BJP) which promotes Hindu supremacy had promised in their election manifesto to enact a citizenship law “for the protection of individuals of religious minority communities from neighbouring countries escaping persecution.” The citizenship law came on the heels of a Supreme Court judgment clearing the way for the construction of a Hindu temple on the site of the razed Babri Masjid mosque, and government revocation of Article 370 giving special status for the Muslim-majority Kashmir region.

Modi’s associate Amit Shah, the Home Minister of India, said that the Citizenship Amendment Act has the endorsement of the majority of Indians, implying support for the ruling BJP by the right-wing Hindu nationalists. Shah, trying to convince the Indian Muslims, said they will not be affected, and they do not have to fear the new law. But if the law wasn’t targeting Muslims, it wouldn’t allow, for example, the Muslims among the 1.9 million immigrants in Assam who have been living their for decades, to face the risk of becoming stateless.

However, the issue is not only about affecting citizenship of Muslims in India, or that Muslims don’t have to be afraid of the new law, it’s about what the Constitution says. Even if Modi’s government and its supporters are the majority, the Constitution cannot be undermined.

Apart from limiting its scope to the Muslim-majority neighbouring countries of India, the law excludes persecuted minorities such as Tamil Hindus from Sri Lanka and Tibetan Buddhists from China, as well as failed to take cognisance of persecuted Muslims such as Shiite, Ahmadiyyas, and Hazaras in Pakistan and Afghanistan, Rohingya Muslims from Myanmar, and Uyghur Muslims from China.

Under present law, only those born in India are considered Indian citizens. Citizenship may be acquired through naturalisation, if the person has resided legally in the country for a minimum of 11 years. The CAA relaxed that requirement from 11 years to 5 years, only for the non-Muslims covered under the CAA.

Tibetans left out of the CAA

Tibetans who have been living in India, with a third generation now growing up in the country, have been left out of the terms of the CAA.

In 2016 the Delhi High Court, considering Article 3(a), ordered the government of India to grant citizenship to Tibetans. Since then, many Tibetans have obtained citizenship.

Article 3(a) of the Citizenship Act of 1955 provides that anybody born in India between 26 January 1950 and 1 July 1987 and their children are citizens of India by birth. Additionally, any person can be an Indian citizen if one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth.

Many Tibetans who were born in India after 1987, but whose parents were born in Tibet, are left out of the CAA. The citizenship option for them would be through naturalisation, which can be a lengthy process, with no clear rules, and they have to have resided in the country for the maximum 11 years instead of the five-year limit specified in the CAA. Also, like all applicants for naturalisation not covered by the CAA, their application is subject to approval by the Home Ministry.

Like many immigrants, Tibetans have been forced to leave their country due to the Chinese occupation of Tibet. The first wave of Tibetan exiles arrived in 1959-60, a second wave in the 1980s and 1990s, with a trickling number over the last few years.

Repeal CAA or make it inclusive

India was a signatory to the United Nations Convention against Torture which obligates it to provide shelter to people who face torture and persecution in another country. The United Nations human rights office expressed concern over the CAA, and wants India to review the law, saying that it is “fundamentally discriminatory in nature” by its exclusion of Muslims.

No doubt, the religious persecution of minorities such as Hindus, Sikhs, and Christians in Pakistan has been a serious concern, but what is more worrisome is the Modi-led BJP advancing a Hindu-first agenda and India’s Muslims being at risk of discrimination.

Those who oppose the Act are concerned that the law would divide India by weakening India’s secular foundations, and that it violates the principles of the Constitution. If the CAA is made inclusive of all who face persecution and need help, then everybody would welcome it.

There’s every reason that the Supreme Court could strike down the CAA, or ask for review, without hesitation, as its terms are capricious and violate the Constitution.

About the author

Lobsang Wangyal lives in McLeod Ganj, India, and edits the Tibet Sun website.

More articles by Lobsang Wangyal on Tibet Sun.

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