The widespread protests across the country against the Citizenship (Amendment) Act led Prime Minister Narendra Modi to view the CAA through the prism of the ‘persecution of minorities’ in countries like Pakistan.
Prominent lawyers, including senior advocates, have emphasised that the CAA is an inclusive law meant to shelter minorities fleeing religious persecution in their home countries.
When asked (at 11:43) why the law does not expressly state its concern for religious persecution, senior advocate Harish Salve has stated that “the bill doesn’t need to… the people who say that the law is violative of Article 14 will have to prove that there is no persecution of minorities in these countries”. The long and short of this narrative is that the CAA is a refugee protection law. But is it?
India’s Stance Towards Refugees
The influx of refugees to India is not new. India has offered shelter in informal and ad hoc ways to several asylum seekers outside of a refugee law framework. For instance, India has hosted Tibetans seeking refuge from the Chinese invasion since the 1950s, recognising them through Registration Certificates and Special Entry Permits, without extending citizenship to them. A grant-in-aid of Rs 40 crore for a period of five years from 2015-16 to 2019-20 was made to the Central Tibetan Relief Committee and in 2014, the Tibetan Rehabilitation Policy recommended to states to consider extending social sector schemes to Tibetan refugees.
As recently as February 2019, the Ministry of Home Affairs said in Parliament that India has no national refugee law, clarifying that “asylum/refuge seekers are governed by the … Foreigners Act, 1946 and The Passport (Entry into India), Act, 1920” during zero hour of the Lok Sabha. These immigration laws govern foreigners who choose to reside in India and not those who are compelled to seek refuge in India from persecution in the countries where they live. In short, these laws do not lay down processes for “refugee status determination” by which a person’s claim to refugee status can be heard and decided.
The Home Ministry has maintained “a Standard Operating Procedure is in place w.e.f. 29-12-2011 to deal with foreign nationals who claim to be refugees”. By this procedure, all asylum seekers were to establish their fear of persecution before a foreigners’ registration authority to obtain a renewable, year-long visa in India. The government maintains that it is under this regime that Tamils from Sri Lanka, for instance, may claim refugee status. Whether they do receive such visas is unclear, even though welfare schemes for education, dry ration, bus passes etc have been made available to them.
The only class of asylum seekers exempt from this regime were those identifying as Hindu, Christian, Buddhist, Sikh, Jain or Parsi, from Pakistan, Afghanistan or Bangladesh and resident in India since 31 December, 2014 or earlier.
If they could produce documents showing their religious identity and nationality, along with a notarized affidavit “specifically mentioning that he/she was compelled to enter India due to religious persecution or fear of religious persecution”, they were entitled to a renewable two-year “long term visa”.
Under the CAA, it is this group that will now have a path to apply for Indian citizenship.
The CAA’s Concern For Refugees
Since India is not party to the Convention Relating to the Status of Refugees 1951 and its 1967 Protocol, our refugee protection obligations are limited. Under customary international law—which arises from the general practice followed by states out of a belief that they are legally so bound to act—asylum seekers fleeing their home countries with a well-founded fear of persecution on account of their race, religion, nationality, membership of a social group or political opinion, may not be sent back to their home countries (rule of non-refoulement). In compliance with this rule, every nation must offer asylum-seekers a “refugee status determination” process. It is by this process that asylum-seekers who can establish that fear of persecution drove them out of their home countries are granted asylum through identification papers, visas or other documents that recognise their status as “refugees”.
The “assimilation and naturalization of refugees” into citizens is an onerous obligation expected only of nations that ratified the Refugee Convention. With the CAA, India has gone above and beyond this obligation but only for only a class of people who are assumed to be persecuted based on their religious identity and nationality. Even assuming for a moment that India may choose to naturalize only a class of refugees into citizens, the first step would have to be “refugee status determination”, for the CAA to truly be a refugee protection law.
Moreover, if India is committed to the protection of refugees, asylum seekers outside the group chosen for assimilation as citizens must also be allowed “refugee status determination”. It is only with such a determination, that India can grant asylum in line with international protocol. In other words, a true commitment to refugees means that we can deport only those asylum seekers who fail to establish a well-founded fear of any type of persecution in their home countries.
What follows is this: India can claim to be committed to the protection of refugees only if it takes a consistent position vis-à-vis the Tibetans, the Tamils, the Rohingyas as well as those fleeing religious persecution in Pakistan, Afghanistan and Bangladesh.
On 4 February, the Ministry of Home Affairs was asked in the Lok Sabha “whether Muslim Refugees would be granted Indian Citizenship now onwards.” The reply: all legal migrants, even if Muslim, can apply for citizenship. But, the Ministry has remained silent on the question of whether there is a path to citizenship open to Muslim refugees fleeing their countries out of a fear of persecution. Will such refugees inevitably be “illegal migrants”? Then, can we conclude that a concern for persecuted refugees is not the beacon that guided Parliament into enacting the CAA?
(Malavika Prasad is a lawyer and doctoral fellow at the Nalsar University of Law, Hyderabad. She assisted in drafting one of the petitions challenging the CAA, currently pending before the Supreme Court)