By Samarth Trigunayat
A recent statement issued by the US Commission for International Religious Freedom (USCIRF) seeks sanctions against India’s Home Minister Amit Shah for his move to introduce the Citizenship Amendment Bill in the lower house of Indian parliament. The bill has sparked significant controversy in the Indian political scenario, where most of the opposition parties have continuously opposed it on the basis of Article 14 of the Constitution of India which enshrines the principle of equality before law. Amidst ongoing political crisis, the statement from USCIRF has given international attention to the bill which if passed by the upper house might render the Muslims of the country to the status of second-class citizens.
What is Citizenship Amendment Bill, 2019?
The Citizenship Amendment Bill 2019 (herein after, the Bill) proposes to apply to those who are forced or compelled to seek shelter in India due to persecution on the ground of religion. It aims to protect such people from proceedings of illegal migration. It seeks to give Indian nationality to non-Muslim refugees from Pakistan, Bangladesh and Afghanistan and amends the definition of illegal immigrant for Hindu, Sikh, Parsi, Buddhist and Christian immigrants from these neighbouring countries, who have lived in India without documentation. Under the present law, citizenship in India is given either to those born in India or if they have resided in the country for a minimum of 11 years.
The Bill has excluded Muslims from its application. The reasons given by the government are primarily two-fold. First, all the neighbouring nations to which this bill is applied are Muslim majority nations and hence there are no instances of persecution of Muslims in these countries. Secondly, they are of the view that most of the persecutions in these countries are directed at religious minorities comprising of Buddhists, Jains, Christians, Parsis, Sikhs and Hindus which have already been included in the bill. The Bill as per the government hence does not discriminate and merely reasonably classify people into categories. Such reasonable classification is permitted under Article 14 of the Constitution of India.
Grounds on which the Bill violates international law
In the international arena, the treaty primarily dealing with the status of refugees is the Geneva Convention relating to the Status of Refugees of 1951 (hereinafter, the Geneva Convention). The convention has 145 state parties with none being from the South Asian region. India has continuously rejected becoming party to the convention. The argument of India is that borders in South Asia are extremely porous and any conflict can result in a mass movement of people. As a result, becoming a party to the treaty will be problematic as such influx of people will lead to serious pressure on India’s domestic infrastructure and might end up changing the demography of the region. As Indian democracy is highly based on populist agendas and vote bank politics, the major political parties have refrained from showing any willingness to join the international convention.
However, despite not being a party to the Geneva Convention, India has hosted the largest number of refugee population in the South Asian region. India started accepting refugees as soon as it became independent in 1947. The independence struggle of India resulted in formation of Pakistan which led to huge influx of Hindus and Sikhs primarily from Pakistan. This was followed by the influx of Tibetian refugees from China in late 1950s, Chakma Refugees from Bangladesh in early 1960s, Ugandan refugees in 1972 and Tamil refugees in late 1990s and early 2000s. What came as a shock recently was when India denied refugee status to Rohingya refugees from Myanmar in which started in 2015.
Violation of Customary International Law
Although India has not been a party to the refugee convention, yet it has shown constant practice of accepting refugees till recently. While most of the provisions of Geneva Convention might not find place in Indian legal jurisprudence yet what cannot be denied is the value of customary international law as a source of law. As per Article 38 of International Court of Justice Statute, Customs are treated as source of law. To prove the existence of a custom, it is required to prove two basic parameters, first being the presence of continuous state practice and the second being the presumption of legal obligation which is often referred to as opinion juris. In a response published in 1994 by the UN High Commissioner of Refugees (UNHCR), the principle of non-refoulement which means the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution, it has been stated that due to constant state practice and systematic reaffirmations in conclusions of the UNHCR Executive Committee Reports and in resolutions adopted by the United Nations General Assembly, the principle has achieved the status of customary international law.
After achieving a status of customary international law, derogation from such provision is only allowed in the exceptional cases where the particular state which claims the derogation to be valid, has to prove that it has persistently objected to such rule. If such parameters in this particular case is applied, there is no possible way in which India can prove its persistent objection to the rule. Going by the abovementioned examples of instances when India readily accepted refugees from the neighbouring countries, the state practice of India can be easily proved. On the second parameter, which relates to psychological state, various sources such as statements of policy, diplomatic correspondences, resolutions and declarations by UN, etc are considered as evidence. Even on this parameter India will fail to prove non-existence of legal obligation as it has consistently participated and voted in favour of various resolutions even in the recent past when it pertained to the status of refugees. Some significant examples are the resolutions pertaining to Afghanistan, Palestine, Africa, etc. Going by the abovementioned reason, India will be unable to prove its objection to the customary international legal principle of non-refoulement.
Violation of various Human Rights Treaties to which India is a State Party
There is no doubt that a strong nexus exists between Refugee protection and Human Rights. In fact, the existence of refugee situation in itself is a result of violation of human rights. UNHCR in its various reports has cited the existence of this nexus. An important part of training of UNHCR officials constitutes training in Human Rights law. India will be violating most of the human rights treaties, to which it is a party, if the Bill is passed. Article 14 of the Universal Declaration of Human Rights (UDHR) declares that everyone, irrespective of religion, race, creed, class, ethnicity, etc. has the right to seek asylum. By specifically not covering Muslims in the Bill, India will be violating this very basic provision of UDHR which is often hailed as international magna carta. Similarly, Article 3 of UDHR and Article 6 of the International Covenant on Civil and Political Rights (ICCPR), states that everyone has right to life without any discrimination. The UN Convention against Torture, 1985 (hereinafter Torture Convention) also under Article 3 has clearly stated that the countries are bound by principle of non-refoulment where there are substantial grounds for believing that they would be in danger of being subjected to torture upon return. India has signed the Torture Convention but has not ratified it yet. However, as per the International Law Commission Report in is sixty sixth session, what must not be forgotten is that in recent cases, ICJ has been more willing to characterise certain norms as jus cogens and to engage more with the intricacies of jus cogens. The ICJ, in case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), 2012, stated that “the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens)”. A jus cogens or pre-emptory norm is the rule from which no derogation is possible. Even the defence of persistent objector rule which applies to customary international law is not available in case of jus cogens norm.
The abovementioned list of rules of customary international law to which India has not persistently objected, provisions of various international convention to which India is a party and the existence of jus cogens norm against torture, categorically prove that the Bill is in violation of all these principles enshrined under international law.
Why Classification by Indian Government is not Reasonable?
Lastly, it is important to inquire into the fact that whether the classification made by the Indian government is reasonable and justifiable? The constant rhetoric of Indian Government has been that in the three neighbouring states, Muslims are not being persecuted. However, the real examples from recent past show altogether a different picture. In a recent reportpublished by the BBC, the size of Shia Muslims in Pakistan is continuously decreasing. Similarly a report in the Wire, has warned of the rising threats against Shia Muslims in Pakistan. It stated, “Over the years, the Shias of Pakistan have been specifically targeted and killed by machine guns and suicide bombers. They have been killed inside mosques and shopping markets, while on pilgrimage to Iran and even at funerals…In 2011, extremist organisations in Quetta sent an open letter to the Shia Hazara people stating: “All Shias are worthy of killing and the intention is to make Pakistan their graveyard.”
It is not only the Shia community in Pakistan which has been historically being persecuted. Various reports have suggested the same treatment of Sufis and Ahmadis both belonging to the Muslim community. Even in Afghanistan, the Hazaras are being continuously persecuted and marginalized since its formation. Reports suggest that despite significant development made in reintegrating the Hazara community in mainstream Afghanistan’s politics and economy, a strange fear of persecution looms over them in light of Taliban deal.
Even in Bangladesh there has been continuous persecution of Ahmadiyas. Apart from these Muslim sects, Bangladesh is also known for persecuting atheists. Individual experiences of atheists in the country have suggested that the fundamentalists have been continuously using threats of rape and murder against irreligious people in Bangladesh.
The bill has also excluded the refugees from Myanmar, which currently hosts the largest refugee crisis in the world and Tamils in Sri Lanka as the Bill proposes to grant citizenship only to non-Muslims from Afghanistan, Pakistan and Bangladesh.
Going by the statements of India’s Home Minister in the Indian Parliament, it can be concluded that he has been very selective in categorizing the persecuted groups in the region. By leaving huge number of refugees from Muslim community, atheists and Tamils, the classification done by the Indian government seems to be far from reasonable.
India, unlike its neighbours was not created on the lines of religion. Secularism is one of the basic features of Indian democracy and by introducing such a bill, Indian government is not merely violating the Constitutional principles but also various international obligations that it has committed to by becoming a member of international community. The Bill is one of the serious drawbacks to international rule of law. It will not be wrong to term the Bill as detrimental and draconian in the current context. While it may not directly reduce Muslim citizens of the nation to second class, yet it surely is a step in the same direction. The two terms of the right-wing populist government have been characterized by various targeted attacks against Muslim minority be it over the choice of food, mob lynching, forced conversions and targeted legislations like criminalization of Triple Talaq. A Bill to exclude Muslims in such a situation is a very serious attack against the very tenets on which the liberal Indian democracy was created.
Samarth Trigunayat is currently working as Young Professional (Law) at Ministry of Commerce and Industry, Government of India. He is LLM graduate from South Asian University, New Delhi. South Asian University was established by SAARC member nations to enhance cooperation between the member states through the tool of education. He has previously worked as Assistant Professor at Faculty of Law, Shree Guru Gobind Singh Tricentenary University, Gurugram, India. His area of interest includes International Trade Law, International Investment Law, Feminist Jurisprudence and Constitutional Law.