BJP Chairman JP Nadda was joined by Union Cabinet Minister Hardeep Singh Puri in praising the Citizenship (Amendment) Act of 2019. The occasion was the evacuation of ‘Indians stranded in Afghanistan amid the Taliban’s rise to power in Kabul. With the help of US forces stationed at Kabul airport, the Indian government was able to successfully evacuate many of its nationals. No less important has been the evacuation of some Afghan nationals from the Hindu and Sikh minority communities in that country. Sadly, we see motivated propaganda claiming that their evacuation attests to the CAA’s rationale. There is no way that these people get Indian citizenship under the CAA. After all, the provisions of the law are intended for those who have been in India since before December 2014. CAA was never intended to help asylum seekers and protect persecuted people. In addition, the government has not been able to develop rules for the implementation of the much vaunted CAA despite the passage of 20 months. Also, there is absolute silence on the constitutionality of the CAA on the part of our judiciary.
In the absence of specific refugee legislation, the reception, admission and treatment of refugees in India are conditioned by ad hoc policies adopted by the government to deal with specific circumstances. Thus, among several communities, we have welcomed Tibetans, Tamil refugees from Sri Lanka, persecuted Chin and Afghan refugees and the Chakmas minority from the Chittagong Hill Tracts (CHT). India had received worldwide admiration for its singular support for the large number of people fleeing violence and persecution in East Pakistan in 1970-71. The decision to amend the Citizenship Act, 1955, was initially viewed by unsuspecting people as benevolent. It was supposed to be the right step, in accordance with great Indian traditions and practices, to defend persecuted people. However, the government made it clear that it was not proposing any changes consistent with the understanding and interpretation of the term “persecution.” On the contrary, a narrow and discriminatory interpretation of persecution has found its place in statutory law, in direct violation of the equality provisions of the Indian Constitution.
The government has tried to deflect criticism of discriminatory AAC by arguing that it is inclusion. Persecuted minority communities – Hindus, Buddhists, Christians, Sikhs, Jains and Parsis – in Bangladesh, Pakistan and Afghanistan would benefit from the necessary protection. The government felt that since the three named countries are dominated by Muslims, it would not be necessary to view Muslims as being persecuted in those countries. This interpretation of persecution has no equivalent in the civilized world. The term persecution is in perfect harmony with the understanding of non-discrimination. The definition of a refugee in Article 1A (2) of the United Nations Convention relating to the Status of Refugees, 1951, concerns persons who cannot avail themselves of the protection of the State of which they are a national and are forced to flee from their country. borders because of a “well-founded fear of persecution” based on their “race, religion, nationality, membership of a particular social group or political opinion”. In fact, the global principle of refugee protection is based on non-discrimination and, therefore, any rudimentary understanding of international law militates against a law that prioritizes discrimination between people based on religious belief in its definition of persecution “.
The government also claimed that the CAA was aimed at conferring citizenship. He does not intend to withdraw citizenship from Indian nationals. However, it would be difficult to find a precedent for national legislation attempting to retrospectively grant refuge and protection to one class of persons. A policy for persecuted people from foreign countries is invariably for the intended beneficiaries who are in need of protection. Under the CAA, no one can have protection unless they are already here in the country. For example, a group of Hindus from Bangladesh or Christians from Pakistan or Sikhs from Afghanistan would not get any protection from the CAA if they reached India and asked for its protection. The question of the refuge and protection of persecuted minorities, such as the Rohingyas of Myanmar or the Hazaras of Afghanistan, or asylum seekers from various other countries on the grounds of “well-founded fear of persecution” does not arise at all. In short, the protection of persecuted minorities even from one of the three countries named in the CAA is not allowed. As a result, the CAA does not offer protection to refugees but, rather, it is a legal instrument to deny asylum and protection even to its intended beneficiaries – the six named minority communities from three named countries if they were to pass. in India today or tomorrow.
This does not mean that the absence of a legislative framework deprives asylum seekers of protection. They may well be the beneficiaries of such protection. They may be granted asylum and, subject to certain conditions being met, be granted nationality in due course by the government. The government has all the powers in this regard in its capacity as the executive authority of a sovereign state. This power with the government, however, did not arise from the CAA but has been its prerogative since the establishment of constitutional democracy in India. This is exactly what the government can do and a step in that direction would be to grant visas to Afghan nationals for an extended stay in the country – for all those who have lived in the country for many years as well as for the few. hundreds of newly arrived Hindu and Sikh minorities.
This column first appeared in the printed edition on September 20, 2021 under the title “Un act hollow”.
The writer is professor of international relations at the University of Jadavpur; and spokesperson for TMC