Content uploaded by Narender Nagarwal
Author content
All content in this area was uploaded by Narender Nagarwal on Jan 18, 2020
Content may be subject to copyright.
Global Implications of India’s Citizenship Amendment Act 2019
1
Dr Narender Nagarwal
2
Introduction
No doubt that nationwide protest against the contentious Citizenship Amendment Act 2019
(CAA)
3
in India has underlined the deep division within the country and in the international
community. The world press frequently publishing what damage has been done to the India’s
settled foreign policy and its global position in the aftermath of CAA. The significant issue is
that India steadily moving towards isolation in the global stage and its trusted allies have also
questioned India’s constitutional commitment towards minorities rights. Many countries have
expressed candidly their concern over the certain developments in the recent past in India and
doubted whether the country would maintain its secular and heterogenous character or
adamant to link itself with some notorious “majoritarian states” of the world?
4
The UN
criticised the explicit discriminatory provisions of Citizenship Amendment Act 2019 in an
unusual rough language but present dispensation appears that it is not inconvenient about
unreceptive international climate against India.
5
Another crucial question is that whether
India is prepared well to distancing of its relations with United Nation, Middle East and EU
6
?
The western media has put the country into the category of some notorious “majoritarian
state” of the world where no respect of human rights of minorities, massive restrictions on
religious and cultural freedoms and rampant of ethnic violence is a routine phenomenon.
7
The
main aim of the present article is making an assessment of India’s foreign relation and
diplomatic challenges under the current scenario. This article also investigates the
implications of changing dynamics for international approaches to India in the aftermath of
enactment of contentious Citizenship Amendment Act 2019.
1
Also published in Russia International Affairs Council (RIAC) a Moscow based Russian Think Tank working on
certain issues like Security, Trade, Regional Conflicts, South Asia and Middle East. This research paper
available at http://www.russiancouncil.ru/en
2
Dr. Narender Nagarwal, Assistant Professor, Campus Law Centre, Faculty of Law, University of Delhi, New
Delhi, author can be contacted at : narender.nagarwal@gmail.com
3
Citizenship Amendment Bill 2019 was introduced by BJP led Modi Government in 17th Lok Sabha by the Sh
Amit Shah, Union Home Minister 09.12.2019 and was passed on 10.12.2019, with the majority of MP endorsed
the CAB against the 80 MPs. The Bill was passed by the Rajya Sabha on 11.12.2019 with 125 votes in favour
and 105 votes against it
4
Rana Ayyub, India’s protests could be tipping point of authoritarianism, The Washington Post, Dt 18.12.2019
5
UN Press Release Dt 13.12.2019, also see, Explained- The Indian Express, New Delhi Dt 17.12.2019
6
Azad Essa, Middle East Eye, Dt 18.12.2019 http://www.middleeateye.net
7
Angana P. Chatterjee, Thomas Hansen and Christophe Jeffrelot, The Majoritarian State-How Hindu
Nationalism Changing India, Harper-Collins, 2019
The Controversial Citizenship Law and its Raison D’etre
Primarily the raison d’etre for the contentious Citizenship Amendment Act 2019 has its two
main grounds-alleged religious persecution in three Muslims dominated countries and
rectifying the partition misdeeds. Looking at the reasons, it appears quite convincing but
factually both the reasons are misconceived and historically defective. The ruling
dispensation buoyed on emotional plank of “ensuring the justice to the victims of religious
persecution” as these non-Muslims have no other place to go except India, but again this
argument too simply a rhetoric to gain little support not to provide any remedy against
injustice. Even a cursory look at CAA exposes the lacunae in the government’s argument that
the legislation seeks to remedy the errors of Partition. Those errors were quite adequately
taken care of when the Constitution brought about Article 6, recognising and restoring the
rights of persons who migrated to India from Pakistan in those unhappy times.
8
The CAA has its own peculiar contradictions and can’t stand under the intense legal scrutiny.
For eg. CAA classification not reasonable as mandated to qualify Article 14, 21 and 25 of the
Constitution of India. The government has no answer why religious minorities in Muslim
sects such as Shias, Baloch and Ahmediya, whose members had been facing utmost religious
persecution in Pakistan, Bangladesh and Afghanistan had been excluded. Further, the
government has no answer why persecuted groups from other neighbouring countries like
Rohingyas from Mynamar, Madhesis from Nepal, Tamil Elam from Sri Lanka and Muslims
from China conspicuously ignored from idea of “secularity, progressiveness and inclusivity”
from the current Citizenship Amendment Act 2019. This makes the intent to deny protection
to Muslims patently clear, even though it is a universally acknowledged fact that Muslims are
no more safe from religious persecution than other communities. Instances of such
persecution abound, as in the case of the Ahmadi and Shia sects in Pakistan, Taslima Nasrin
in Bangladesh, and indeed Salman Rushdie in practically every Islamic country. The CAA
fails to recognise the powerful truth that religious persecution is not necessarily premised on
the religion of the victim.
9
One must also worry about the eventual legal effects of the amendment. Under the earlier
citizenship regime, “an illegal migrant” was denied access to citizenship even through the
8
M P Jain, The Constitutional Law of India, LexisNexis Pub. New Delhi 2018
9
Faizan Mustafa, Religious bases of citizenship would be negation of secularism, Indian Express Dt 11.12.2019
process of naturalisation under Section 6 read with Third Schedule of the Citizenship, 1954.
An illegal migrant was defined under Section 2(b) as one who was without the necessary
passport or travel documents as specified therein. Hence, whether or not a person was an
illegal migrant was simply an outcome of the existence of requisite travel documents or the
lack thereof. Shockingly, the CAA has reduced the established definition by introducing the
parameter of religion. Parliament has effectively decreed that a Muslim will remain an illegal
migrant, whereas any non-Muslim will not, irrespective of lack of travel documents.
10
The list of non-Muslim communities excluded from the definition of illegal migrants does not
even require that they be of Indian origin. This again makes a mockery of the “persons of
Indian origin protection” set out in the objects of the CAA. All they have to be is “from
Afghanistan, Bangladesh or Pakistan”. What does signify from the word “from”? A citizen?
A resident? A passenger in transit? An undocumented traveller? A spy or an alien? Given no
requirement of being of Indian origin or having to prove any such origins means that an alien
could simply apply on the terms of the CAA, prove entry on/before December 2014, and be
eligible for citizenship. On the other hand, a Muslim of possibly Indian origin would be
denied such a benefit. This may lead to many an undesirable element slipping through the
cracks, causing even national security to be sacrificed at the altar of religious jingoism. The
major national security concern arising out of CAA is that Pakistan’s ISI may exploits the
legal framework provided under the CAA to push their “own people” into India. This biggest
national security threat arising out of CAA can’t be ignored as RAW has already placed its
concern before the Joint Committee of Parliament which scrutinized the lapsed Citizenship
Amendment Bill 2016. The concern of India’s premier intelligence agency are quite
legitimate and valid, there is a great probability that India’s neighboring countries may push
their spies in the name of “persecuted minorities” to India aiming to wider the intelligence
tent of ISI network in Indian sub-continent.
If the government does not seek to execute a political programme, and wants merely to
protect the rights of those who are victims of religious persecution, then why doesn’t India
have an effective policy/legislation for victims of religious persecution seeking asylum? Such
a policy/legislation would suffice to serve the purpose, as is the case in most countries. The
routine law of citizenship through naturalisation could then take over in due course. What
10
Atul Nanda, Bad in law, poor in history, Indian Express, New Delhi Dt 27.12.2019
then is the legal imperative, much less the rationale, to elevate a refugee to a citizen merely
because he is a non-Muslim while denying the same right to a Muslim? The idea of
citizenship is contained in Part II of the Constitution under Articles 5 to 11. The fact that
these Articles were drafted, debated, redrafted and re-debated over a period of two years,
culminating in their final form only on August 12, 1949, shows what a vexed question it was
then too. Unfortunately, the incumbent Union government has, through its brute majority in
Parliament, managed to sneak into the constitutional charter what the founding fathers
rejected more than 70 years ago. The introduction of religion-specific parameters for granting
of citizenship was attempted by some members of the Constituent Assembly and completely
rejected by the majority.
Genesis of the anti CAA protests
At domestic level, the spiralling protests against the CAA coupled with proposed NRC in
throughout the nation simply refuse to bow down due to various reasons. Anti-CAA protests
that was begin with students’ protests have now truly acquired a mass dimension with cross-
class participation, gigantic mobilisations and most remarkably, a certain degree of
spontaneity. The CAA is not significant for its discriminatory clause but because it announces
a visualization of India blatantly different from the core philosophy of the Constitution of
India. Furthermore, the anguish of protestors not confined to why Muslims have been singled
out but ill-effects of the draconian legislation would also make an adverse impact on social,
economic and cultural rights of Dalits and Tribals community. It is notable that the protestors
are not solely from minorities but Dalits and Tribals communities too thronged to the streets
against this discriminatory legislation because it attacks very idea of India, which we
cherished since time immemorial. The Indian history is the history of caste, religion and
gender-based atrocities and discrimination and the Constitution of India drafted by Dr B R
Ambedkar based on sole philosophy i.e. equality and liberty to all but this contentious
legislation forbids the basic and most sacred principle of Constitution of India.
11
Shockingly, BJP led government is not keen to admit the fact that religious animosity and
murderous riots of the past several centuries, have demonstrated the dangers of extreme
nationalism and there is no place of such ultra-nationalism in a highly diversified country like
India. India’s major minority community i.e. Muslims have frequently suffered in countless
11
Dr Ambedkar and Democracy-An Anthology, Christophe Jaffrelot, Narender Kumar, Eds. OUP New Delhi,
2008
communal and ethnic conflicts alongside Dalits and Tribals communities.
12
It is perhaps
undeniable that we can, ultimately, live a life of civility only when we live in a secular and
tolerant society. To reiterate what has been suggested above, past history tells us how to lead
a good social life, and political theory tells us that a good life can only be led in a good
society and within a state that reins in and inhibits the ugliness of religious animosity,
communalism and vulgar human ambitions and fosters solidarity. The Indian state under the
present dispensation must understand that to inhabit a state that ensures dignity and respect to
each and every person in order to pursue our ambitious plan and projects. For these, and other
reasons, we need to reiterate our commitment to building a good society, unless we wish to
be dismissed by history as just another social order that does not value minorities rights,
social harmony, equality and liberty. In any case, in modern India, we simply do not have the
luxury of living apart. Indian have to relearn how to live together in civility and such laws
definitely jeopardize the very idea of India.
13
This is not only fundamental to civic harmony
but also essential to international peace, security and prosperity. The Indian Constitution
draw its inspiration from Magnacarta, Bill of Rights, Nehru Committee Report 1928, UDHR
1948 and other international covenant that makes it best Constitution of the world. Indian
Constitution acknowledge the imperatives of modern egalitarian and enlightened society and
the society must be free from all sort of biases, discrimination, deprivation.
14
Since Indian
history is a history of struggle against all sort of apartheid, racism and ethnic violence and
many provisions have been incorporated in the Constitution to provide constitutional
protection to certain vulnerable, deprived and minorities groups of establishing a society free
from all sort of discrimination.
15
The latest Citizenship Amendment Act 2019 basically
contrary to India’s established position and the same is the bone of contention in whole
dispute. The international media routinely publishing the police highhandedness against the
protestors, excessive use of force against the students and muzzling the dissenting voices of
intellectuals, artists, students and oppositions parties. All these developments are frequently
coming in international media that highlighted the ruthless face of Indian state and questioned
the India’s claim of being secular and a heterogenous society in international community.
16
12
Zoya Hasan, Politics of Inclusion-Castes, Minorities and Affirmative Action, OUP, New Delhi, 2009
13
Neera Chandhoke, Rethinking Pluralism, Secularism and Tolerance, Sage Pub. New Delhi, 2019
14
M P Jain, Constitutional Law of India, Lexis Nexis Pub, New Delhi
15
Dr B R Ambedkar, State and Minorities -What are their rights and how to secure them in the Constitution of
free India, Siddharth Books, New Delhi, 2008
16
We are witnessing a rediscovery of India’s republic, The New York Times, Dt 27.12.2019
Melting India’s global image-The ill effect of CAA
The core issue of present discussion here is that are we waning our magnificent position from
global stage due to this contentious legislation? This answer is in affirmative note, why,
because since the enactment of contentious Citizenship Amendment Act 2019 by the Indian
Parliament, we have been losing our trusted allies from the global politics. Senior diplomat
and former national security advisor Shiv Shankar Menon has termed the present crisis in
following words, the CAA and the revocation of Article 370 from Jammu and Kashmir, these
two incident had led to India being isolated from the international community, even our
traditional allies questioning our action.
17
India's international humiliation continues since the
revocation of Article 370 from the state of Jammu and Kashmir in August 2019 and
unanticipated reaction received from the international community especially from United
Nations, United States, European Union and China. In September 2019, at UN General
Assembly annual meet Malaysia and Turkey come down heavily against India over the issue
of revocation of special status from Jammu and Kashmir, prolonged locked-down and
violation of human rights. President Recep Erdogan of Turkey raised human rights issue of
people of Kashmir and asked solution of the problem through justice and equality instead of
conflicts, denial of basic rights and state sponsored violence, while addressing the UN
General Assembly on September 24, 2019. After the flak from Turkey, Malaysian PM
Mahathir Mohammed acknowledged that his remarks at the annual United Nations
conference in New York made a bad impact on bilateral ties between India and Malaysia, he
described the current tense situation between the two nations a kind of economic war. The
economic rift with Malaysia at such juncture when Indian economy already in dwindled side
a manifestation of sheer diplomatic fiasco.
18
India’s magnificent global prestige further melted down when Indian parliament passed the
contentious Citizenship Law from parliament. Since the Lok Sabha endorsed the Bill, United
States has staunchly opposed this discriminatory, divisionary and anti-Muslim Act. The
American federal panel on international religious freedom has termed the contentious
citizenship law as fundamentally anti-Muslims and its dangerous turn in wrong direction as it
a directly against the India’s rich tradition of multi-culturalism and secularism.
19
Recently,
17
Shiv Shankar Menon warned India of International Isolation, http://scroll.in (visited on 03.01.2020)
18
Malaysia PM stand by criticism of India on Kashmir issue, The Hindustan Times, New Delhi Ed. Dt 24.10.2019
19
United States Commission on International Religious Freedom, Press Release Dt 09.12.2019 also available on
http://www.uscif.gov/news-room
Japanese Prime Minister Shinzo Abe's has cancelled his visit to India which was scheduled to
be held in Guwahati. After Japan, Bangladesh Foreign Minister AK Abdul Momen and the
country's Home Minister called off their visits to India in the midst of the agitations in the
northeast. Bangladesh Home Minister Asaduzzaman Khan, who cancelled his visit, was
scheduled to visit Meghalaya for an event. After US, now United Nations has condemned this
draconian Citizenship Amendment Act 2019 and asked for its review immediately. The
United Nations Human Rights (UNHR) office has termed the India’s Citizenship Amendment
Act 2019 as “fundamentally discriminatory in nature” for leaving out Muslims and called for
an immediate review. “We are concerned that India’s new Citizenship (Amendment) Act
2019 is fundamentally discriminatory in nature,” UNHR spokesperson Jeremy Laurence said
in Geneva. The Office of the UNHCR hopes that new law will be reviewed by the Supreme
Court of India and hope it will consider carefully the compatibility of the law with India’s
international human rights obligations.
Intellectuals and writers across the globe have termed the CAA, with all its discriminatory
provisions, in comparison with the dishonourable Nuremberg Laws of Nazi Germany. In
September 1935 Germany introduced two draconian laws commonly known as the
Nuremberg Laws: The Reich Citizenship Law and the Law for the Protection of German
Blood and German Honor.
20
These laws embodied many of the racial theories underpinning
Nazi ideology. These laws basically would provide the legal and judicial justification for the
well-designed and well-planned persecution of Jews community in Germany who were the
largest religious minority community during the Nazi era under the headship of Hitler. The
Indian citizenship legislation i.e. CAA closely associated with the infamous Nuremberg Laws
but mainly differ in details but not in spirit, if we examine meticulously.
21
Losing allies in global politics
If we believe on certain media reports appeared in leading newspaper of the world, Indian
government has inflicted a self-goal in the diplomatic context and gradually losing trusted
allies and global partners in international community. India must recognise this mistake
urgently and need to correct domestic political challenges. Recently, the two US panels –
Commission on International Religious Freedom and the House Foreign Affairs Committee –
20
What were the Nuremberg Laws? http://www.myjewishlearning.com
21
Tanwer Fazal, Good protestors and bad protestors-the uneven police response to anti-CAA demonstration,
The Caravan, New Delhi Dt 08.01.2020
have criticised CAA for undermining the basic tenets of democracy. This is bad for India’s
foreign policy objectives and image abroad. There has been no meaningful global support for
this series of actions by Indian government, apart from a few committed members of the
Indian diaspora and a ragtag bunch of some EU MPs from the far right ideology. In SAARC
region, we have already experiencing the strained relation with Bangladesh, Nepal and Sri
Lanka. Hostility and vulnerability in Indo-Pak relation at all time low due to various reasons
including revocation of Article 370 from Jammu and Kashmir and now the citizenship law.
Many world leaders have spoken about the India’s series of decisions that put the country
altogether in different category, the leaders who were pretty critical about India’s foreign
policy and adoption of certain decisions are French President Emmanuel Macron, German
Chancellor Angela Merkel, the United Nations High Commissioner for Refugees and even
King Harald V of Norway have criticised India’s actions.
One of the things for which the Modi government rightly deserves credit is strengthening
India’s foreign policy heft and outreach. Over the last six years, India has been recognised as
a rising power and has cemented its place on important international platforms. In fact, the
US and other Western powers had come to see India as an important democratic partner in
hedging against China’s aggressive power projection in Asia and especially in Trade and
developing proximity with Nepal, Sri Lanka and Maldvives and Indian ocean, the most
important factor constrain that can restrain China was India’s rise. But all of that risks coming
undone with New Delhi’s recent moves such as revocation of Article 370 from Jammu and
Kashmir, CAA and impending nationwide NRC or overly tough restrictions in North East
region and brutal crackdown against students protestors in capital universities.
22
Due to all
these nasty developments, it will be a real tragedy if foreign governments as well as foreign
investors think twice before pegging India as a stable and functional democracy and instead
re-hyphenate it with Pakistan. Against this backdrop, government needs to ask itself if
pushing CAA is worth it. Internally, if the Modi government wants to bring about a strong
and united India, CAA is defeating the very purpose. It should be rolled back. There is no
harm in admitting a mistake. Or if that proves too difficult, perhaps a ten-year moratorium
can be declared, while more consensus is generated around it.
Economic setback after CAA
22
The Economic Times, New Delhi Edn. Dt 16.12.2019
After the enactment of contentious citizenship legislation, many observations can be drawn
from this set of understandings. The most basic is the division between those who see the
international community have reacted sharply on denial of justice and minorities rights.
Alongside, some thinkers looking the developments as major setback for India on economic
front. Trade war with Malaysia and suspension of defence exports to Turkey have deeply
upset India’s economic interest. Some major political decisions of the present dispensation
have jeopardized the India’s interest heavily and economy is under the extreme threat. India
has been facing a “Great Slowdown" with its economy headed for intensive care unit due to
some directionless decisions i.e. demonetisation, abruptly introducing the GST and after
revocation of Article 370 form state of Jammu and Kashmir, the country has been facing
economic turbulence from many fronts.
23
Senior economist of international repute and former
IMF India office chief Josh Felman, has said that India is facing a multi-corner challenges-
comprising banks, infrastructure, plus NBFCs and real estate companies - and is trapped in an
adverse interest growth dynamic. Certainly, this is not an ordinary slowdown. To attract the
foreign investment the stability of nation, peace and harmony is prerequisite condition. The
good governance needs credibility, transparency and accountability and these attributes are
becoming hard to find in the current ruling dispensation. The international media regularly
reporting about prolonged locked down in many parts of the country in the aftermath of
CAA, internet accesses has been denied to citizens, many reports of deep antipathy against
minorities, growing curfew culture are not a healthy sign of making any sincere efforts to
revive the economy.
Concluding Remarks
Unfazed by the UN criticism and countless unsavoury world press coverage about ongoing
unrest due to CAA and impending NRC, India has demonstrated a parochial approach
towards the international pressure. Turning down the UN observation alongside concerns of
US, EU, Middle East and many countries on CAA may well have been the most
consequential foreign policy decision of Modi government. Its repercussions will be felt for
months, and even years to come—but what exactly they will be depends on what the Modi
government does next when a majority nation of international community have agreed to
isolate India from diplomatic and global stage. Under the current scenario, considering the
India’s rigid approach about the contentious legislation CAA and issue of minority’s rights, it
23
Arvind Subramanian, The Mint, New Delhi, Dt. 18.12.2019
can be safely stated that impending diplomatic isolation is clearly visible for India. Author
personally believe that the lessons of our past have delineated the necessity of respect for the
rights of persons belonging to ethnic and religious minorities. Four principles must not be
missed in national politics that too determine that foreign relations and global image of a
nation are; Pluralism, Tolerance, Co-existence and Secularism and all these are fundamental
to international peace, security and prosperity. The international liberal media has taken the
large-scale anti-CAA protests across India seriously and regularly publishing the
discontentment across communities. The growing communal divide that too state sponsored
coupled with hostile relations with neighbouring countries are enough to renew the faultlines
and possibilities of confrontation with Pakistan and China in coming days. The South Asia
can’t afford any military or armed conflict and to avoid any regional conflict the major
responsibility lies on India. Some of the steps taken by the India in recent past have potential
to destabilize the peace of South Asia. India must drop the idea of CAA and NRC that have
been enacted with an ill-will against India’s largest minority i.e. Muslims. History has
witnessed that whoever ignored minorities rights, human rights and rights to equality and
liberty of its citizens had paid very heavy price in the past.
*******