12 October 2020, NIICE Commentary 6278
Dr. Anita Yadav & Shambhavi Srivastava
The Indian legislature passed the Citizenship Amendment Act (CAA) in December 2019, amending the provisions of the Citizenship Act of 1955. The 1955 Act has been amended five times in the past to accommodate the evolving nature of citizenship in India. With the enactment of the much controversial CAA, 2019 (referred to as ‘the Act’ hereinafter) the dynamics of citizenship are further accelerated. The article focuses on Section 2 of the Amendment Act which provides the conditions for naturalisation or the process by which one may come to acquire Indian citizenship, its critique in international law and what it implies for the relations of India with its three South Asian neighbours mentioned in the Act.
Objective of the Amendment Act
Upon a preliminary reading of the Statement of Objects and Reasons of the Citizenship Amendment Bill of 2016 and the Act, it can be noted that the government has best intentions in mind for the group that would be benefitting from the enactment. Furthermore, various reports of fact-finding missions conducted by UN organizations like United Nations Human Rights Council and international non-governmental organizations like Human Rights Watch, in Pakistan, Bangladesh and Afghanistan highlight the deplorable state of minorities in these countries. A major positive aspect of this enactment is that it legalises the existence of asylum seekers in India. While, it is clear that the intentions of the law-makers lay in the right place, it should be imperative that we be impartial in this generosity as well.
Citizenship Amendment Act and International Law
Distinction between ‘Migrants’ and ‘Refugees’.
It is useful to emphasize here that there exists a discernible distinction between ‘migrants’ and ‘refugees’ in the international legal literature. While the former are characterized predominantly by the voluntary nature of their movement across borders, the latter are compelled to leave their country of origin to avoid persecution.
The Statement of Objects and Reasons of the Amendment Bill (2016) mentioned amelioration of the condition of persons who had faced “religious persecution” to be the object of the legislation. Read in the context of international legal provisions, any person who flees their country due to the fear of persecution is protected as a refugee. The real object of the legislation, therefore, appears to provide a selected class of refugees the opportunity of local integration via expedited naturalization. However, if this is so, the enactment becomes iniquitous from the point of view of international law as it accords importance to a few religions and three nationalities over others. This runs in opposition to the non-discrimination norm of the non-refoulement principle which is a part of customary international law and violates the international refugee law that proscribes religion and nationality based discrimination between and among refugees.
Non-Discrimination Norm under International Law
Even though India is not a party to the Convention Relating to the Status of Refugees, 1951, it still has an obligation to respect the non-discrimination norm under the Bangkok Principles on Status and Treatment of Refugees. Additionally, principle of non-discrimination has attained the status of customary international law and arguably of jus cogens principle because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws.
The idea of non-discrimination has also been adopted by various international human rights instruments to which India is a party or at least a signatory. These include the UDHR, ICCPR, and ICESCR to name some. Of particular relevance is Article 26 of the ICCPR that is framed in a manner almost identical to Article 14 of the Indian Constitution.
A State’s right to determine its jurisdiction and who its nationals are (for instance, India’s right to enact CAA), is a recognized principle in public international law, the freedom to regulate nationality is not without limitations. In addition to considerations of diplomatic protection, international responsibility, personal sovereignty, and rights of other states, restrictions based on human rights also limit a State’s sovereign powers to regulate nationality. It may still be argued that the applicability of Article 26 to nationality issues is questionable because treaties that usually deal with nationality concerns have specific provisions regarding the same. However, the travaux preparatoires of the ICCPR gives no indication that Article 26 should not deal with nationality concerns. Furthermore, the Human Rights Committee has noted the applicability of the article to issues of nationality and naturalisation, albeit in the context of sex-based discrimination. This reinforces that Article 26 would cover discrimination in the context of naturalisation and nationality. Religion, being specifically included within the convention, therefore, indicates that it is clearly one of the grounds that ought not to be the basis of discrimination even while granting nationality. Therefore, in granting citizenship by naturalisation, a State Party cannot discriminate on grounds such as religion.
Rather, Article 26 is autonomous in nature, extending to rights beyond the convention. The application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant. Any legislation that a State party adopts, thus has to be in compliance with Article 26. CAA being discriminatory in nature, is not consonant with international law norms.
India’s Relationship with South Asian Neighbours Post CAA
While it has been attempted to be justified on the idea of protection of human rights, the CAA does not make diplomatic or strategic sense. The legislation very overtly indicates that the situation of minorities in the three mentioned countries is dismal and their respective authorities in power are not able to rectify the same.
India’s relationship with Pakistan has been jittery for the most part and enacting the CAA does not steer this relationship in the direction of cooperation, rather it underscores the zero-sum mentalities that both the countries have adopted which is harmful in both the short-run and long-run.
However, the actual casualties of the enactment are the India-Afghanistan and India-Bangladesh bilateral connections. Historically, the Afghans, in opposition to Pakistan’s repetitive interference, have naturally gravitated towards India. The CAA substantially harms the goodwill that India enjoyed in the minds of Afghan population and it is well-recognized in the study of diplomatic relations that the soft power (including its ability to win the hearts and minds of the people of another country) has a major role in the bilateral relationship between two States.
A more perilous mistake is giving rise to friction between India and Bangladesh which have historically been good partners. This does not mean that the minorities are not discriminated against but an action towards their cause would have been better accepted through the diplomatic channels rather than passing of a legislation in a different country altogether.
India should recognize that while the intentions of the enactment are positive, the modalities of the same are not only acceptable in international law for being discriminatory but also impair the country’s relationship with its neighbours which would be harmful to India’s long-term geopolitical interests.
