Legalized Discrimination: India’s NRC and CAA

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

The Universal Declaration of Human Rights
Article 2: Ban on Discrimination

Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

The Universal Declaration of Human Rights
Article 15: Right to Nationality

After decades of relative peace in the diverse country of India, a recent outburst of protests have threatened the political authority of the Bharatiya Janata Party (BJP). These protests have stemmed from the proposal of a National Register of Citizens (NRC) in December 2019 and the implementation of the Citizenship Amendment Act (CAA) in January 2020. This set of legislation essentially gives minority religious groups easier access to Indian citizenship, but openly excludes Muslims and has immense consequences. Tens of thousands of protesters have flooded streets of India for months, speaking out against what they believe to be a breach of religious equality and fundamental constitutional rights. Yet the BJP has ignored their demands and maintains that the legislation is completely fair and valid.

I argue that the CAA and the NRC should not stand due to the existence of a secular constitution and democratic regime in India. Under a secular constitution, rights cannot be assigned based on religious identity. And under democratic ideology, equality of political participation, representation, and consideration are imperative. But the Hindu-nationalist agenda that pervades the BJP’s platform is extremely evident in the CAA and the NRC, which alienate Muslims solely because of their religious affiliation. This is certainly unconstitutional, and it’s a clear violation of the human rights of Indian Muslims.

A Synopsis of Indian Citizenship

Tensions between Hindus and Muslims can be traced back to colonial times. At the same time that India was gaining independence from Britain, it was also experiencing extreme religious antagonism. These religious tensions led to The Partition of India into two states in 1947. Pakistan was created as a Muslim state, and India was founded as a democratic, secular nation. Up to 2 million people died during the process of The Partition, 15 million people were displaced, and both sides suffered immensely.

As the conflict settled down, questions about how to safeguard national unity against religious and ethnic division in such a diverse nation began to dominate Indian politics, and discourses around citizenship grew extremely complicated. How can we define citizenship in a nation that’s riddled with diversity and competing interests?

Three different conceptions of how to define Indian citizenship arose — liberal, republican, and ethno-nationalist — and have contended for domination of citizenship policy ever since. The liberal conception of citizenship is the most inclusive and places an emphasis on the protection of rights and liberties. Under the republican notion, rights are granted to citizens in accordance with their contribution to the common good. While these are both inclusive conceptions that do not discriminate on the basis of ethnicity or religion, the ethno-nationalist discourse awards citizenship on the basis of descent and can be highly exclusive.

Previously, the wide range of political discourse regarding citizenship issues in Indian politics allowed for flexibility in policy-making and lobbying of interest groups. Although they are among the most alienated groups in India, Muslims have never explicitly contested the state as they have been doing today. This has been attributed to the fact that a single ideology has failed to win a monopoly over policy. Even when ethno-nationalist ideas were present, so were the liberal and republican conceptions which contained no regulations on the basis of ethnicity or religion. Indian Muslims were able to draw upon inclusive ideologies to find meaningful participation in the state even when ethno-nationalist or other conservative ideas attempted to exclude them.

Many Muslims stayed in India after the Partition because they believed that it would in fact remain secular. By the time of the enactment of the Indian Constitution in 1950, liberal notions of citizenship were widely accepted. Under this pre-independence ideology, religious and cultural rights of minorities are protected, and citizenship requirements were straightforward: anyone who is born in India, whose father was born or naturalized in India, and who is not a citizen in any other country has an equal claim to Indian citizenship.

However, tensions rose as an ethno-nationalist narrative emerged in the wake of the Partition and the Constitution. The idea that Pakistan was the new Muslim homeland, and any Muslims who chose to stay in India were expected to “demonstrate sincerity in their choice” spread, particularly in the upper classes. The construction of Muslims as a minority began.

Today, the same ethno-nationalist discourse, often calling for India to maintain its ethnic ties and advocating for the creation of a Hindu state, prevails once again under the The Bharatiya Janata Party.

The BJP was established in 1980 as a pro-Hindu nationalist party, but didn’t achieve much electoral success until 1989, when anti-Muslim sentiment pervaded the higher castes of Northern India. Today, the party is one of just two major parties in India, and holds the most representation in government institutions. The party runs on a social conservative platform which expresses a commitment to Hindutva (Hindu-ness), or what the BJP calls “Cultural Nationalism.” Hindutva seeks to define Indian culture in terms of Hindu values, but the BJP claims that “Hindutva is a nationalist, and not a religious or theocratic, concept.” However, the NRC and the CAA reflect how the BJP’s Hindu-nationalist platform can blur the lines of secularity and constitutionality in policy-making. While the BJP may claim that their platform is not religious, their recent actions suggest otherwise.

Defining the NRC and CAA

The Indian government, led by the Bharatiya Janata Party (BJP), announced plans in November 2019 to implement a National Register of Citizens (NRC), which will identify undocumented immigrants in India in an effort to maintain India’s current ethnic demography. This information is then reported back to the National Population Register (NPR), which is a list of all “usual residents” of India, including non-citizens. The data for the NPR is redone every 10 years, similar to the United States census.

The NRC requires that any individual seeking citizenship provides an abundance of legal documents that are inaccessible or extremely hard to access; existing documents like voter ID or passports won’t suffice. This obstacle has adverse effects; residents and citizens of India who are unable to locate the appropriate forms will be deported as well. If a nationwide NRC comes in as proposed, not only will immigrants find the citizenship acquisition process impossible, but Indian citizens will be wrongfully stripped of their membership in the state. And if they can’t find a way to prove their citizenship, they will be dehumanized in detainment centers and reduced to statelessness.

The NRC has only been implemented in Assam so far. In this state, over two million people have been denied citizenship under the NRC. As the BJP grasped the dangers of millions of stateless individuals living in India, it realized the need for a subsequent piece of legislation that would protect religiously persecuted immigrants.

In response to this realization, the BJP drew up the Citizenship Amendment Act to buttress the NRC. The CAA was passed in December and officially went into effect on January 10, 2020. It aims to softens the blow of the NRC by allowing refugees fleeing from religious persecution in Afghanistan, Bangladesh, and Pakistan to bypass the NRC. But here’s the catch: individuals only receive protection if they are Hindu, Sikh, Buddhist, Jain, Parsi or Christian. Muslims are the not only group excluded from the protection of the CAA.

The passage of the CAA so shortly after the proposal of the nation-wide implementation of the NRC sent the country spiraling into full-blown political turmoil and protest.

Today, the BJP is in a standoff with tens of thousands of protesters. Protests have been “fuelled by scenes of police beating protesters from a Muslim-majority university who were demonstrating against the law. Footage of young people, including many women in religious garments, being attacked by officers or stuck in a library that was being teargassed have shocked Indians and crystallised the concerns of opponents of the prime minister, Narendra Modi, that this government is eroding civil liberties.” Muslims, especially students and women, have brought their cause to the forefront of the Indian political scene. The BJP probably did not foresee such a strong reaction from the public, but they largely stand by their decisions and have continued to move forward with their plans.

What’s the Problem?

The BJP is writing into law that non-Muslims from Afghanistan, Bangladesh and Pakistan have a better claim to Indian citizenship than any other religiously persecuted refugees. It is perfectly normal for a government to try to identify illegal immigrants in their country, as the NRC attempts to do. But the problem arises when the supposedly-secular nation uses religion as the criteria for who is legal and who isn’t, as the CAA does. Under India’s secular constitution and democratic regime, religious criteria for citizenship is not permissible. 

BJP officials argue that Muslims should not be protected in India because they are not persecuted in Pakistan, Afghanistan and Bangladesh. However, there certainly have been instances of Muslim discrimination in these countries, the BJP is just choosing to ignore it because it undermines their justifications of the CAA. Muslims in Pakistan, specifically the Ahmadiyya sect, have been subject to religious discrimination and persecution since 1889. In their 2018 Pulitzer Project, Pakistan: The Multifaceted Persecution of the Ahmadiyya Community, Northwestern University in Qatar fellows Al-Baker, Chaudhary, and Lopez explain how:

Over 250 members of the [Ahmadiyya] community have been killed in Pakistan by anti-Ahmadi terrorist groups, while others relocate to an Ahmadi-majority town called Rabwah, where the community was originally headquartered. The community shifted its official headquarters in 1984 after Pakistan’s enforcement of Ordinance XX, a law which prohibits Ahmadis from practicing Islam or ‘posing as Muslims.’”

Evidently, Muslims are one of the persecuted minorities in Pakistan, and therefore meet the criteria for protection under the CAA. Yet they remain excluded. This is nonsensical and unjustified.

Some advocates make the argument that the CAA only excludes Muslims who enter illegally, and that legal Muslims have nothing to worry about. This argument fails to recognize the effects of the CAA when it is combined with the force of the NRC. In Assam, over 4 million individuals who were unable to provide extremely specific series of documents were flagged, put on trial in Foreigners Tribunals and detained (sometimes for years) until a verdict is reached and they are released or deported. Indian journalist Rohini Mohan conducted an investigation into Assam’s Foreigners Tribunals and found that they “illustrate a biased process barely resembling India’s traditional legal system.” The evidence of bias against Muslims is undeniable; Mohan discovered that “nearly nine out of 10 cases in the Tribunals were against Muslims. Almost 90 percent of those Muslims were declared illegal immigrants — as compared with 40 percent of Hindus tried.” Evidently, the NRC doesn’t just affect illegal immigrants. It can be used to deprive millions of Indian residents of citizenship simply because they could not provide the correct documents. Mohan explains how panic spread throughout Assam, as, “people broke down in despair, spent their life’s savings to gather more documents and file appeals, and went underground. Some committed suicide.” If a nation-wide NRC passes, the effects on Indian Muslims would be catastrophic relative to other groups because Muslims won’t have the safety net of CAA protections to save them from potential denaturalization. When combined, these pieces of legislation have the power to arbitrarily uproot, imprison and ruin lives based on religious discrimination will have frightening implications for Muslims inside and outside of India, and they have the power to destroy lives.

The Indian government has repeatedly committed to human rights law and emphasized the democratic ideals of equality, but the BJP threatens to override this precedent. Besides having a democratic constitution and being a signatory to the The Universal Declaration of Human Rights, India recently endorsed the Global Compact for Safe, Regular and Orderly Migration, which “commits States to respond to the needs of migrants in situations of vulnerability, avoiding arbitrary detention and collective expulsions, and ensuring that all migration governance measures are human rights-based.” Together, the CAA and the NRC would violate each of these commitments: they neglect to respond to the needs of Muslim migrants, rely heavily on arbitrary detention and collective expulsions and fail to consider human rights in migration governance measures. In their effort to defend the proposed legislation, the BJP has displayed the ease at which they are able to break precedents and create groundless policies in the interests of a political agenda.

The Power of Citizenship Law: ‘Legalized Discrimination’

Creating citizenship law is inherently complex and will undoubtedly upset certain people, because ultimately, every individual can’t be included in every state’s membership. Guidelines for who deserves membership in a given state must be made somehow.

Issues will inevitably emerge when making these decisions of inclusion and exclusion, especially when decisions are based on ideas of fixed demography and national identity. The BJP’s decision-making is based on inflexible ideas of what it means to be “Indian;” to them, it’s Hindutva. Institutionalizing this idea restricts the identity of a nation that has historically prided itself on its extreme diversity, and it neglects the fact that demographics and national identities are fluid and ever-changing. Therefore, the concept of writing citizenship law based on aspects of identity that can religion, will usually have vast consequences.

In cases such as this one, where states feel the need to protect persecuted groups, policy-making “should be done through a robust national asylum system that is premised on the principle of equality and non-discrimination, and which applies to all people in need of protection from persecution and other human rights violations, with no distinction as to race, religion, national origin or other prohibited grounds.” Most modern states, including India, award citizenship based on birthright or bloodline, which is widely accepted in the political science arena and is arguably the least problematic approach to writing citizenship law. But it is important to note that even these conceptions of citizenship can’t account for the dynamic demographics of a nation and can still be used to justify the subordination of minorities.

The bottom line is that citizenship law is powerful and must be constructed carefully. It gives governments the power to carry out ‘legalized discrimination,’ justified by the need for political community. It has the capacity to deprive people of their rights on arbitrary terms, to entrench deep political and social cleavages in society, and to render individuals stateless – which is catastrophic.

The BJP is risking a great deal by tenaciously espousing citizenship legislation that is so explicitly discriminatory and has garnered so much worldwide attention. The spokesperson for the UN High Commissioner for Human Rights, Jeremy Larence, affirmed in a December Press Briefing “that India’s new Citizenship Amendment Act 2019 is fundamentally discriminatory in nature.” By passing the NRC and the CAA, the government would openly subordinate one of the largest communities of Muslims in the world, violate its own Constitution, defy the United Nations concerns, ignore the pleas of thousands of protesters and institutionalize decades of religious tensions and discrimination against Muslims in India; they have shown no regret or apprehension.

The BJP’s Response: Blatantly Perpetuating Divisions Within Democracy

On Twitter, the BJP’s Hindu-nationalist agenda is apparent, propaganda is common and the tone is bitter. Its lack of effort in ameliorating the relations between opposing sides is astounding; in fact, it seems as though they enjoy perpetuating the divisions. Tweets from various states’ official BJP accounts display this. On February 18, 2020, the official BJP twitter of Karanataka posted, “Now, please call off your protests. People are fed up with this endless soap opera.

In a democracy, there is a difference between political competition and outright alienation of opposition. It is unprofessional, insensitive and unnecessary to make such directed, condescending and derisive comments in general, let alone on the official social media account of a governing political party. Countless real people would be affected by this legislation, and yet the BJP responds by publicly diminishing the passion, fear, anger, anxiety and political empowerment of protesters to the drama of actors in show.

A second tweet from this account reads:

Anti-CAA Activist Amulya Leona shouts PAKISTAN ZINDABAD in the presence of AIMIM Chief @asadowaisi at Bengaluru. Truth is that protests against #CAA are a joint venture between Pakistan & Anti-National Forces led by @INCIndia. Those who support Pakistan should go there forever.”

While this tweet was in response to an incident with an extremist Anti-CAA activist, it is clear that the BJP is attempting to use social media as a form of propaganda. It is using an rare instance of extremism to represent all protesters as evil or unpatriotic. It also condemns the democratic ideals of freedom of speech and expression by suggesting that criticism is unacceptable and unwarrante and that critics should give up or leave.

Though they are just a few sentences long, statements like these are salient in people’s perceptions of the opposition and significantly affect the tone of the debate (especially because they are on such a highly-accessible platform.) These BJP Karnataka tweets give off the idea that political competition has to be insensitive and aggressive. They show no regard for the anxiety that the proposed legislation has inflicted on tens of thousands of Indians, purposefully invalidate peoples’ hardship and perpetuate socio-political divisions.

If the government wants the protests to stop, perhaps the negative aura of the Indian political arena needs to be cleansed by opening up to healthy political debate and compromise. While I don’t believe that the people should have to compromise their basic human rights, I do believe that this issue would not have caused so much violence and political strife if the BJP had been more receptive to the people’s demands. For now, compromise seems unlikely, as both sides refuse to budge.

An Uncertain Future

Despite months of protest, explicit disapproval from the UN and worldwide criticism, the BJP continues to advocate for the implementation of the NRC. Interestingly enough though, Prime Minister Modi has attempted to evade mounting pressures of protesters by asserting that the NRC and the CAA are not linked, and that “rumors and incorrect information are being spread.” In December, Modi went as far as to maintain “‘that ever since my government came to power in 2014… There has been no discussion on NRC anywhere.’” Clearly, Modi’s assertion that the NRC has never been discussed in the BJP is a blatant lie, as it directly contradicts everything that Parliament and President Amit Shah have promulgated for the past two years. Modi cannot deny that he is the principal signatory on the 2019 BJP Manifesto, which explicitly promises to “expeditiously complete the National Register of Citizens process in [certain] areas on priority. In the future we will implement the NRC in a phased manner in other parts of the country.” Shah has reiterated that “the NRC is about to come,” and set a deadline of 2024.

The CAA went into effect on January 10, 2020 and was scheduled to be reviewed by the Supreme Court on January 22, 2020. In the preceding months, this hearing gave many CAA critics and protesters hope that the CAA could still be blocked. The Supreme Court’s job is to evaluate the constitutionality of legislation, and the unconstitutionality of CAA is indisputable.

The routine hearing was inconclusive, and the top court gave PM Modi an extra month to reply to a series of 143 pleas that challenge the validity and constitutionality of the law. The BJP has prevailed and  the CAA is safe, at least for now. The court should reconvene in four weeks to make an official decision, and Chief Justice SA Bobde mentioned setting up a Constitutional Bench to hear the matter. While no official decision was made, many critics of the CAA are outraged, claiming that “justice delayed is justice denied.” They are frustrated that there wasn’t even a stay or postponement of the of the law, despite the pervasive uncertainty regarding its validity.

After months of peaceful protests and attempts to block the implementation of a nationwide NRC and CAA, there is still widespread uncertainty about what will happen next.

If the nation-wide NRC is implemented and the CAA endures next month’s Supreme Court hearing, there is no doubt that conflict will persist, political polarization will strengthen and complex questions about the collective identity of India will remain unanswered. Just as we saw in Assam, millions of people will be uprooted and rendered stateless, except this time, Muslims are the only ones that can’t be saved. And when persecuted Muslims seek refuge in India, their reasons to flee home will not be considered valid.

If this legislation is not blocked, the BJP would get away with violating human rights by giving certain groups easier access to citizenship based solely on their religious affiliation. It is singling Muslims out as the one minority religious group in India that is not protected by the CAA. The government’s flimsy arguments cannot conceal the Hindu-nationalist motive behind these policies, and they certainly won’t stand against the Indian Constitution. Under a secular constitution, rights can’t be assigned based on religious identity, and under democratic ideology, political equality regardless of faith is crucial. But the BJP refuses to admit that it is blatantly transgressing the secular nature of the democratic Constitution of India, and the Supreme Court has direly failed to do its job thus far. This legislation is unconstitutional, violates the basic human rights of Indian Muslims, and must be obstructed. 

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