There are widespread protests against Citizenship Amendment Act and NRC after
Parliament had passed the Citizenship Amendment Bill, 2019. There is another
side support for CAA from some sections of society. It is not clear whether the
protests outweigh the support for CAA but what is important for civil society is
to not be misled by ignorance and demagoguery of some opportunist political
leaders who may wish to draw political mileage out of this situation. At a time
when there is uncertainty and perilous volatility, violence and hugely divided
opinion the need of hour is restraint and thoughtfulness rather than rush of
The situation on the ground appears to be that many people are making some
noises and nobody perfectly understands what it is that they are talking about.
This includes politicians, film stars, intellectuals and even educated
students. This article makes an attempt on throwing light on several legal and
political aspects relating to this issue so as to bring clarity. People have a
right to protest (in a peaceful manner) but before exercising that right they
have an obligation to ensure that they are properly led by rational thinking
process rather than misled by demagoguery or irrational and unfounded fears,
suspicion and beliefs. In simple words, it urges people to act having
understood the issue objectively, dispassionately and thoroughly instead of
being acting in haste misled by subjectivity and passions.
What is CAA, what does it aim at?
CAA is an amendment made to Citizenship Act with an intention to legitimize
illegal entry of immigrants from Pakistan, Bangladesh and Afghanistan, who
entered India on or before 31stDecember, 2014 belonging to persecuted
minorities in those countries. These persecuted minorities according to CAA are
Hindus, Sikhs, Christians, Parsis, Jains and Budhdhists.It excludes Muslims of
Pakistan, Bangladesh and Afghanistan because they are majority in those three
What are the contentions of Muslims and Secular parties opposing it?
The main contention is that Muslims from Pakistan, Afghanistan and Bangladesh
who illegally immigrated into India are not included in it. Opposition parties
are not behaving responsibly because they are not giving an insight to the
Muslims of India that the CAA discriminates against Foreign Muslims not against
Indian Muslims. They are evasively referring to expression called
discrimination against Muslims. Who are these Muslims that are allegedly
discriminated, they are not clearly indicating to Indian Muslims causing them to
believe that this Act has got something to do with Indian Muslims.
irresponsible and reproachable conduct of opposition parties is causing
apprehensions in the minds of Indian Muslims that CAA has some ingredients in it
which are discriminatory against them. These opposition parties are not
allowing average Indian Muslim to realize that the CAA discriminates against
Foreign Muslims, i.e., Muslims from Pakistan, Afghanistan and Bangladesh.
Adding to this confusion is their reference to Article 14 of Indian
Article 14 of Constitution and CAA: Whether the expression non-citizens cover
Article 14 of the Constitution says, the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory
Undoubtedly the word person in this article is in reference to
both Citizens and Non-citizens. Hence Non-citizens are also given equal
protection of the laws and equality before law at par with citizens. But the
question is who are non-citizens that Article 14 refers to? The non-citizens
that Article 14 refers to are those who entered India legally. Not those who
entered India illegally.
Any non-citizen who is a legal immigrant but whose
Citizenship is not yet finalized by the host nation gets protection under
Article 14 of the Constitution. Article 14 does not give protection to the
illegal immigrants.Any legal immigrant from those three countries viz.,
Pakistan, Bangladesh and Afghanistan who is yet to be declared as Citizen of
India is non-citizen under Article 14 of Constitution. But who are the Muslims
that CAA excluded? They are Illegal Muslim immigrants from Pakistan, Bangladesh
and Afghanistan. Hence Article 14 does not give any protection to them.
But Intelligentsia, Film Stars and Opposition parties are misleading people to
believe that CAA violates Article 14 of the constitution and hence it is
unconstitutional. It gives an impression to people that some discrimination is
happening against Indian Muslims, not against Foreign Muslims. That is
The law of CAA is equal for Muslims and Non-Muslims from those three countries
from 1stJanuary 2015
This is conveniently evaded by the protestors of CAA and those misleading them.
The CAA gives citizenship to persecuted minorities of Pakistan, Bangladesh and
Afghanistan who illegally entered India before 31stDecember 2014. Which means
the difference between or so-called discrimination against Muslims and
Minorities of these three countries is only for those who entered India on or
before 31stDecember 2014. From 1stJanuary 2015 the law is equal for all,
whether they are Muslims or Minorities from those three countries.
In simple words CAA does not show any difference between Illegal Muslim
Immigrants and Illegal Non-Muslim Immigrants of those three countries from
1stJanuary 2015. But the impression created is such that any non-Muslim from
those countries can illegally and freely enter India today, tomorrow or any time
in future and CAA gives Citizenship to all those who enter India in future
Which means that even ignorantly assuming that Article 14 of Constitution
extends to discrimination between foreigners, there is no such discrimination
shown by CAA between Foreign Muslims and Foreign Non-muslims of those three
countries from 1stJanuary 2015 onwards.
Can a State (Nation) selectively give Citizenship to refugees?
Article 1 of the Refugee Convention, 1951 defines the word refugee as a person
who is outside his/her country of nationality or habitual residence; has a
well-founded fear of persecution because of his/her race, religion, nationality,
membership in a particular social group or political opinion; and is unable or
unwilling to avail himself/herself of the protection of that country, or to
return there, for fear of persecution. Voluntary repatriation of refugees to
their country of origin is UNHCR’s ‘preferred’ solution, but only when
conditions in that state permit their safe return. The expression agent of
persecution refers to a person or organization, governments, rebels or other
groups – which force people to flee their homes. The origin of persecution,
however, should not be decisive in determining whether a person is eligible for
refugee status. What is important is whether a person deserves international
protection because it is not available in the country of origin. The following
is Article 33 of Refugee Convention, 1951:
Article 33. Prohibition of Expulsion or Return ( Refoulement)
- No Contracting State shall expel or return (refouler) 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.
- The benefit of the present provision may not, however, be claimed by a
refugee whom there are reasonable grounds for regarding as a danger to the
security of the country in which he is, or who, having been convicted by a
final judgment of a particularly serious crime, constitutes a danger to the
community of that country.
Hence unless the refugee had involved in some offence or regarded as a danger to
the security of the host country, he shall not be expelled from the host country
to the territories where his life or freedom would be threatened on account of
his race, religion, nationality, membership of a particular social group or
India is not a party to this Convention
India is not a party to Refugee Convention, 1951 however, the principle ofnon-refoulement–
the forcible return of people to countries where they face persecution – is part
of customary international law and is binding on all states irrespective of
whether they are parties to this convention or not. Therefore no government
should expel a person in those circumstances.
Coming to the question whether the State can selectively give citizenship to
refugees, the answer depends on whether the person being given citizenship is a
refugee or not. According to Article 1 of the convention, a refugee is not
necessarily someone who faced persecution but someone who has a well founded
fear of persecution because of his race, religion, nationality, membership in a
particular social group or political opinion and is unwilling or unable to avail
himself/herself of the protection of their country of nationality or habitual
residence for fear of persecution. Now the question is whether the Non-muslims
mentioned in CAA come under the definition of Refugees. The answer is yes, there
is fear of persecution in those three countries for these non-muslims. Hence
protection given to them by way of granting Citizenship by CAA is based on well
founded International legal principle of non-refoulement.
Now coming to Illegal Muslim immigrants of these three countries, the question
is – are they refugees?.
The answer is that in these Illegal Muslim immigrants there are two classes.
One who entered India during Partition of India and during 1971 War between
India and Pakistan which liberated East Pakistan to form a new country called
Bangladesh. Another are those who entered India for economic reasons. As there
is no more war situation in those countries, though the former class mentioned
above entered India as refugees, they are no more having that status of
refugees. Secondly there is no fear of persecution for them in those three
countries because they are Islamic countries. And coming to later class, those
who entered India for economic reasons, they are not considered as refugees at
all for the following reasons.
The difference between an economic migrant and refugee is that an economic
migrant normally leaves a country voluntarily to seek a better life. Should he
or she elect to return home they would continue to receive the protection of
their government. Refugees on the other hand are those who flee their homes
seeking asylum in other countries because of the threat of persecution and
cannot for fear of persecution feel safe to return to their countries.
For these reasons, the Illegal Muslim Immigrants from Pakistan, Bangladesh and
Afghanistan do not have the status of refugees and therefore CAA does not
include them. It is the duty of government and opposition parties to convey
this to people and later if they still want to agitate, protest it is open to
them to do so.
However even with regard to these Illegal Muslim immigrants from those three
countries, even if the government cannot have a policy of giving Citizenship
because at one point of time or the other government can ensure their safe
return to their countries of origin, it is open to the government, foreigners’
tribunals, High Courts and Supreme Court to consider the grievances if anyone of
them claims fear of persecution. It is open to governments and Foreigner
Tribunals, and other courts to examine such claims and allow such people on case
to case basis to enjoy asylum in India if not Citizenship, on humanitarian
grounds following the spirit of International law of non-refoulement and Article
51 of Indian Constitution.
What is NRC and its alleged illicit relationship with CAA?
The National Register of Citizens (NRC) was first prepared in Assam in 1951.
The 1951 NRC is said to have covered each and every person enumerated during the
Census of 1951 in Assam. The reason was influx of Bangla speaking people into
Assam and people of Assam did not like entry of foreigners into their state,
more particularly the Bengali speaking people. The apprehension is that it will
have a huge impact on their demographics and land ownership as well as on their
peculiar local culture. NRC intends to identify illegal immigrants into state
of Assam and repatriate them back to their countries of origin, nationality or
In the year 1950, Immigrants (Expulsion from Assam) Act came into force
following influx of refugees from East Pakistan (now Bangladesh) to Assam after
partition of India into India and Pakistan. In 1951 first Census of independent
India was conducted and based on Census first NRC was compiled. Again there was
influx of refugees from East Pakistan in 1964-65 due to disturbances in that
country. In 1971 due to war between India and Pakistan that resulted in
liberation of East Pakistan to form a new country called Bangladesh, there was
Between 1979 to 1985 there was a Six year long Assam agitation by All Assam
Students Union (AASU) and All Assam Gana Sangram Parishad (AAGSP) for detection
and deportation of foreigners from Assam. As a result Assam Accord signed by
the Central Government, State Government, AASU and AAGSP in the presence of the
then Prime Minister Rajiv Gandhi. It stated, among other clauses, that
foreigners who came to Assam on or after 25thMarch, 1971 shall be expelled.
In the year 2005 the tripartite meeting between Centre, State and AASU decides
to update NRC but no major development takes place. In the year 2013 Supreme
Court taking up a petition from Assam Public Works, an NGO, directed Centre,
State to begin the process of updating NRC. NRC state coordinator’s office set
up. As a result a final list of NRC was released by Centre in August 2019,
which excluded around 19 lakh out of 3.29 crore applicants in Assam, which in
other words means these are undocumented or illegal immigrants.
It is not known what is the composition of these 19 lakh illegal immigrants to
anyone agitating on streets clearly but it is unfortunate that passing of CAB
and release of final NRC coincided and the agitation in Assam is that CAA allows
Bengali Speaking Foreigners belonging to Pakistan, Bangladesh and Afghanistan to
acquire Citizenship if they belong to Non-Muslim religion.
NRC as of now is limited to Assam
Many people agitating against CAA do not properly understand the relationship
between CAA and NRC. The issue outside Assam is different from issue inside
Assam. Outside Assam the issue is that there is a threat to Secularism. Inside
Assam, the issue is not secularism, people of Assam wants no foreigner to stay
in Assam including Muslims. In effect this means that both inside Assam and
outside Assam there is opposition to CAA but it is for different reasons.
Inside Assam illegal Muslim immigrants have been opposing CAA because it has not
included them and people of Assam are opposing it because it includes Non-muslim
Outside Assam, a fear is spread by Intelligentsia, Opposition parties and Film
Stars that CAA and NRC put together are fatal to Indian Muslims. Calculating
this fear, the fundamentalist forces in ruling party are taking pleasure in
their predatory instincts by declaring that NRC will be implemented throughout
the country.As a result there is widespread apprehension in Indian Muslim
Community that they have to prove citizenship by showing documents to government
as it happened in the case of illegal immigrants of Assam. Another canard that
is spread is that the NRC exercise in Assam is done at the behest of ruling BJP
government to specifically target Muslims. While the truth is that it is
happening as a consequence of direction from the Supreme Court of India.
It is not simply this CAA-NRC issue, a series of events in a run up to this
issue have contributed to the fear in Indian Muslims, such as, Ban on Triple
Talaq, Supreme Court ruling in Ram Mandir issue in favour of Hindus, Abolition
of Article 370. All these events are being perceived by common man in Indian
Muslim community as attempt by a fundamentalist ruling party to target Muslim
community of India.
Though all these other issues having nothing to do with CAA-NRC and may be
independently assessed based on their merits, average Indian Muslim got the
message that there is a pattern to it and Muslim community is being targeted
because a fundamentalist party is ruling at the Centre.
Now it is for the Prime Minister to remove these apprehensions in Muslim
community created by fundamentalist forces in his party by holding a dialogue
with some prominent leaders of Muslim community or directly addressing nation as
he normally does with his Mann ki Baat on Radio because the need of the hour is
that we all should stand united as a FEARLESS & UNITED INDIAN SOCIETY not as
several communities suspecting each other carrying divergent opinions, resenting
The government must postpone this nationwide NRC exercise for one or two years
from now and give time to citizens to breathe fresh air and relax from
agitations. The better course would be to invite citizens to voluntarily apply
for Citizenship Card by submitting documents. NRC should be aimed at providing
Citizenship Cards to citizens rather than to catch illegal immigrants. In other
words it should be for positive reasons not for negative reasons.
Onus of proof of Citizenship is not on people
It would be draconian to expect people who have been living in the country for
generations together and believing this country to be theirs to prove their
citizenship by submitting documents. Illegal immigrants do exist in the country
due to Security lapses. It is not possible for anyone to say, whether anyone is
undocumented immigrant or citizen of this country not having any document to
prove his citizenship as India is not advanced country like United States of
America. Therefore the identification process relating to illegal immigrants
should be carefully drafted and crafted. It should be sensible and humane. To
fish out a few illegal immigrants it is not correct to require entire population
of country to stand in queues to prove their citizenship showing documents. It
should not be that a thief has allegedly entered village and hid some stolen
property and all houses in village are ordered to be searched to locate person
cooperating with that thief and to find out stolen property. It should be
rational exercise respecting the dignity of Citizens. It is no argument to say
that though irrational everyone is expected to abide by same process. At no
cost, dignity of citizens should be put at stake.
If the government has an allegation to make that a certain person is illegal
immigrant, the onus of proof is on government to prove that he is illegal
immigrant because he entered country because of security lapse. In these
circumstances, the presumption to be drawn by courts is that unless proved
otherwise, everyone is Citizen of this Country.
Asst. Professor at Aurora Legal Sciences Academy, Bandlaguda,