The Citizenship Act, 1955, states that one could be determined as an Indian citizen by birth, descent, instances of incorporation of a territory into the Indian geography, registration, and through naturalisation (legally gaining citizenship of a country upon fulfillment of certain provisions). However, the previous versions of the Act lacked provisions for illegal migrants gaining citizenship in India. According to the same act, an illegal immigrant is defined as “foreigner who either enters India illegally, i.e., without valid travel documents, like a visa and passport, or enters India legally, but stays beyond the time period permitted in their travel documents.”
The 2019 amendment to the bill (introduced by the central government in the Lok Sabha in 2016) aims to exempt Hindus, Sikhs, Buddhists, Jains, Parsis or Christians, coming from three specific countries (Afghanistan, Bangladesh, Pakistan), from deportation or imprisonment - the security measures that, have been observed, since 1955, as blanket measures for all illegal migrants. Furthermore, illegal migrants belonging to these groups have access to naturalization, provided they fulfill certain criteria. One of the main objectives of the 2019 CAA amendment (according to the Statement of Objects and Reasons), is provision of security to the aforementioned groups from religious persecution.
In this context, it becomes important to point out that a universal understanding of a refugee is provided by the 1951 Refugee Convention. According to this document, a refugee is a member of a social group fleeing racial/religious/national persecution, is unable to avail the citizen security provisions otherwise established by their home States, and due to this fear is unable/unwilling to return to the said nation state.
One of the core principles of internationally established refugee human rights is that of non-refoulement. According to Article 33 of the same Convention, non-refoulement is defined as expulsion or return of “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” An example of refoulement is when the Rohingyan refugees fleeing religious persecution and torture from Myanmar, were sent back by the Indian authorities. Rajnath Singh argued that since India is not a signatory to the 1951 Refugee Convention, it is not obligated to ensure their safety within the Indian borders. Even if one were to entertain the violation of this customary international law, it is important to retain that India is in fact a signatory` to, since the 1984 UN Convention against Torture which contains the principle of non-refoulement as an integral provision.
The United Nations High Commissioner on Refugees identified the principle of non-refoulement as a Customary International Law (CIL). A CIL is one which is binding on all nation states, regardless of the absence/presence of its formal expression (legislature, treaties, etc.). Thus, Human Rights stipulated by instruments such asthe United Nations Charter, and the UN Bill of Rights (made up of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic and Social Rights), and UN Convention against Torture are identified as CILs. For a law to gain customary status, two primary criteria need to be fulfilled - state practice and opinio juris. The former means that such a practice should be uniformly followed in all the relevant nation states; the latter means that a nation state should follow that practice out of a legal obligation.
In this broad context, one may agree with the official narrative that the 2019 amendment “has provision to not snatch but grant citizenship. You can protest all you want but migrants will get citizenship.” However, if one were to pay closer attention, it is easy to identify a fundamental fallacy in the new bill - it is ideologically convenient. Provision of security and accessibility to citizenship (and by extension, the benefits incurred to an Indian citizen) based purely on the basis of religion sufficiently violates not only the aforementioned CILs but also domestic laws.
What’s further interesting is that such exclusionary (covert or overt) policies of an entire people are not occurring in isolation in India. Several reports from countries like Germany, Sweden, Australia, and the United Kingdom suggest that an environment of anti-immigration furthered by right-wing populism is gaining widespread support. In such a scenario, it becomes incredibly important to assess the possible implications of these happenings on the nature of customary international law vis-a-vis refugee human rights. If nativism is to be the new consistent state practice (in an otherwise economically globalised world) thereby doing away with the previously established legal obligation, are we entering a passively hostile global environment?
Yarshna Sharma
