India has long granted citizenship to refugees; CAA is just a step towards a Hindu Rashtra

The Citizenship (Amendment) Act of 2019 triggered a nationwide debate about illegal migrants and the claim to an Indian identity, but for over fifteen years before it was passed, the citizenship regime witnessed numerous developments that set the stage for the controversial law. In 2003, with LK Advani as the home minister, the Bharatiya Janata Party government under Atal Bihari Vajpayee proposed amending the Citizenship Act, 1955 to introduce a category of “illegal migrants” into the law, who would be prevented them from getting Indian citizenship. At the time, the law did not specify any exceptions for refugees fleeing persecution, treating them all as illegal migrants alike. With the CAA, the Narendra Modi government brought religious differences into the legal framework, protecting only six non-Muslim minority refugees from three neighbouring countries from being considered illegal migrants.

Yet, data that the home ministry has presented time and again before the parliament indicates that there was no real necessity for these changes to the law. Despite not being a signatory to the United Nations legal regime awarding protection to refugees, India had maintained policies that granted—at least formally—security to individuals fleeing persecution. In fact, the Indian governments had also introduced a system of granting long-term visas to certain migrants, which helped them obtain Indian citizenship as well, and thousands had already done so before the enactment of the CAA. Given this context, it is unclear why the BJP government chose to bring an amendment to the Citizenship Act and why it refuses to revoke it even after nearly two months of continuous protests against the move.

The original Citizenship Act of 1955 provides for acquisition of citizenship through four ways—by birth, descent, naturalisation and registration. In 2003, the Vajpayee government introduced the amendment that inserted “illegal migrants” to the legal framework, defined as those who either entered the country without valid documents or who entered with valid document but remained in the country beyond permitted time. The amendment bill also stated that illegal migrants would not get citizenship though naturalisation or registration, which was the only available route for migrants to gain citizenship. It further stated that a person born in India after commencement of the 2003 act, either of whose parents was an illegal migrant, would not be an Indian citizen.

In May 2003, the bill was sent to the parliamentary standing committee on home affairs, where several concerns were raised on the proposed exclusion of illegal migrants. Over six sittings, between June and December that year, the committee heard representations from various stakeholders on a variety of issues, including, as the report noted, the “constant influx of refugees from neighbouring countries due to civil commotion and religious persecution.” Different organisations expressed concerns that these refugees would be detected and deported following the proposed amendment. In response, the home ministry clarified that refugees who entered India fearing persecution in their home countries would not be forcibly sent back.

The committee submitted its report, adopted by all members without any noted dissent, on 10 December 2003, upholding the proposal to exclude illegal migrants. It recommended that “all humanitarian assistance” must be extended to individuals fleeing persecution, and that the Indian government should put diplomatic pressure on the neighbouring countries “to create conducive atmosphere … for early return of the refugees.”

The committee acknowledged the commitment by leaders of the freedom struggle to facilitate the entry of Hindus from Pakistan into India, but added that that it could not be considered an “open-ended one” when “its own citizens were feeling the pinch of growing population, poverty and unemployment.” It added that the amendment sought to address the influx of migrants entering the country unlawfully for economic reasons. The home ministry stated to the committee that given the prevailing lack of employment opportunities in India,“the country is unable to undertake additional burden of refugees from other countries.”

Soon after the committee submitted its report, the bill was passed in Parliament with minimal discussion and without any objection from the opposition parties. In the Rajya Sabha, Manmohan Singh, then the leader of opposition, and Shankar Roy Chowdhury, an independent member of parliament from West Bengal, highlighted the plight of minorities in neighbouring countries. While otherwise supporting the bill, they requested for a liberal approach in granting them citizenship. Advani responded expressing his full agreement.

The amendment did not prevent foreign nationals from applying for citizenship through registration or naturalisation, as long as they did not fall into the category of “illegal migrants.” But even the restrictions on illegal migrants do not seem to have been strictly enforced. According to a March 2012 submission by the home ministry in parliament, between 2003 and 2011, as many as 4,712 Pakistani nationals—of a total of 6,934 applicants—were granted Indian citizenship. The same response acknowledged that some of these Pakistani nationals who obtained Indian citizenship were members of minority communities who entered the country on valid travel documents but did not go back due to fear of religious persecution, technically making them illegal migrants. As of 31 December 2011, there were 8,037 Pakistani nationals overstaying in India.

Developments from the time indicate that the central government then made efforts to accommodate such refugees without any amendment to the citizenship law. On 29 December 2011, the United Progressive Alliance government circulated a standard operating procedure to provide long-term visas, or LTVs, to“foreign nationals who claim to be refugees.” In a letter circulated to all the state governments and union territories, the home ministry noted that the central government had “been considering enactment of a comprehensive ‘Refugee Law,’” pending which the government prescribed the SOP.

The SOP provided that any state government can recommend the case of a foreign national to the home ministry for the grant of an LTV on prima facie ground of “a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion,” after due security verification. If granted, the LTV holder is eligible for employment in the private sector and to undertake studies in any academic institutions.

The numbers indicate that many Pakistani and some Bangladeshi nationals benefited from this SOP. According to a home ministry submission in Parliament in February last year, between 2011 and 2018, as many as 36,610 Pakistani and 236 Bangladeshi nationals received LTVs. Another response from July 2019 stated that 41,331 Pakistani nationals and 4,193 Afghan nationals were living in India on long-term basis.

The SOP also paved the path to eventual citizenship, because individuals who had received an LTV were no longer considered illegal migrants, and could therefore now apply to become an Indian citizen. Meanwhile, procedures for citizenship were made less stringent, especially to help Pakistani refugees. For instance, in a 2012 response to a question in parliament, the home ministry stated that Pakistani migrants were finding it difficult to apply for Indian citizenship because the Pakistan government was not issuing certificates affirming the renunciation of Pakistani citizenship. To accommodate them, the ministry’s response noted, the central government decided to process their applications on a case-by-case basis even without the Pakistani government’s certificate, relying on an affidavit by the applicant instead.

In another response, given in November 2014, the home ministry noted that a special task force had been set up specifically to facilitate Pakistani nationals to register for Indian citizenship. It further stated that the process for online application “has also been relaxed for these migrants while doing away with certain documents.” The response also noted that between 1 January 2003 and 20 November 2014, a total of 5,223 Pakistani nationals were granted Indian citizenship. The home ministry’s subsequent submissions in Parliament also indicate an increase in these numbers after the BJP under Modi came to power, in 2014. Between 2011 and 2014, around 1,238 Pakistani nationals were granted Indian citizenship, whereas from 2015 to 2017, that number rose to 1,406. In effect, although the BJP introduced the CAA of 2019 to provide citizenship to individuals facing religious persecution in Pakistan, Afghanistan and Bangladesh, the data indicates that this was already being facilitated through LTVs followed by citizenship under the existing laws.

The BJP coming to power also led to an expansion in the categories of Pakistani nationals who could apply for an LTV, and a relaxation of the requirements to receive it. According to a revised SOP notified in December 2014, four categories of Pakistani nationals could apply for an LTV: minority communities in Pakistan, namely Hindus, Sikhs, Christians and Buddhists; Pakistani women married to Indian nationals and staying in India; Indian women married to Pakistani nationals but returning due to widowhood or divorce; and cases when the government chooses to grant citizenship out of extreme compassion. The current CAA has left out the latter three categories.

In 2015, the central government issued a notification to amend Passport (Entry into India) Rules, 1950, followed by another notification to amend the Foreigners Order, 1948. These laws governed the Indian state’s penal policy against foreigners who entered or stayed in India illegally. Both the amendments created exemptions from the penal provisions of these laws for illegal migrants for six communities—namely, Hindus, Sikhs, Jains, Christians, Parsis and Buddhists—fleeing religious persecution in Pakistan and Bangladesh, and who entered India before 31 December 2014. The same six communities benefit under the CAA of 2019. In 2016, Afghanistan was added to these notifications.

The cumulative effect was that the notifications regularised the stay of such illegal migrants in India, irrespective of whether they had valid documents. In 2018, the government issued a new notification granting additional benefits to LTV holders from the six non-Muslim communities who had entered India from Afghanistan, Bangladesh or Pakistan. These included empowering the beneficiaries to obtain documents including a PAN card, an Aadhaar card and a driver’s license, as well as to open bank accounts and purchase properties.

In 2016, the Modi government introduced the first iteration of the CAA of 2019, which proposed amending the definition of “illegal migrants” such that it would not apply to the six non-Muslim communities from Afghanistan, Bangladesh and Pakistan. As a result, this protected category of individuals would not be treated as illegal migrants, and would enjoy an easier path to citizenship. Unlike the 2015 notifications, the 2016 bill did not restrict the benefits of the proposed amendment to individuals fleeing religious persecution. The bill did, however, state that the relaxations would only be provided to specific individuals exempted from the provisions of the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920.

The manner in which the bill was drafted poses a danger that remains in the enacted CAA of 2019 as well—it leaves the scope open for future manipulation of the law. The 2016 bill and the CAA do not specify that only individuals fleeing religious persecution can benefit from the law. This condition prevails only due to the 2015 exemptions to the Foreigners Act and Passport Act. But such exemptions were created through administrative orders issued by the executive, and do not require legislative sanction through Parliament. If these exemptions were specified in the text of the bill itself, they could have been amended only by bringing another law. But as it was drafted, the bill—and now the enacted CAA—approved, for all time to come, any order of exemption, present or future, in the Foreigners Act and Passport Act. In effect, the condition of religious persecution could technically even be removed at any point, simply by bringing a notification to that effect, and it would immediately enjoy legislative sanction.

The 2016 bill was subsequently sent to a joint parliamentary committee for review, which submitted its report only in January 2019. The JPC report on the bill is revealing on many aspects. It opens with an alarming statement in its introductory paragraph, which almost seems to disclose the real intention of the CAA. After briefly discussing the concept of citizenship, the report stated, “Further, the ultimate resolution of the demographic problem depends on how countries define and enforce their respective citizenship policies.” It raises the question why a bill with the limited purpose of facilitating citizenship to persecuted refugees appeared to be seen as the “ultimate resolution of the demographic problem,” or even what problem it referred to.

The JPC spent several months reviewing the bill and received over nine thousand representations from across the country. The committee also made several visits as a part of its review process, including to areas with a concentration of Pakistani immigrants, specifically, Jodhpur, Ahmedabad and Rajkot. The report noted that most of these immigrants had applied for citizenship, but few had been granted it. Their concerns primarily focused on the long and complicated bureaucratic processes to gain citizenship, which left applications pending for years. The final report did not identify how the CAA would address this issue.

The report broadly proceeded on two tracks: the persecution of minorities forced to seek refuge in India and the infiltration of immigrants leading to unrest, particularly in the northeast. On both issues, the committee received a wide range of concerns about the bill that it eventually overruled. For instance, a predominant concern was that the bill would contravene the Assam Accord, which declared that individuals who entered the state after 24 March 1971 would not be considered Indian citizens, and that it would render its National Register of Citizens, a list of Assam’s Indian residents, redundant. Since the bill was applicable to non-Muslim migrants who entered India before December 2014, several Assamese groups expressed fears that the bill would allow Bangladeshi Hindus to settle in Assam as citizens. The JPC sought a response from the legislative department of the law ministry, which did not back down. The department stated that those who entered prior to 31 December 2014, and whose cases had not yet been decided by Foreigner’s Tribunal, would get the benefit of the proposed amendment and not be treated as an illegal migrant.

Another point of contention was the question of how to determine whether an individual had been or could be subjected to religious persecution. The Intelligence Bureau submitted to the committee that only those refugees who had claimed religious persecution at the time of their entry into India and received an LTV on such basis would benefit from this law. It stated: “As per our records, there are 31,313 persons belonging to minority communities (Hindus - 25447, Sikhs - 5807, Christians - 55, Buddhists - 2 and Parsis - 2) who have been given Long Term Visa on the basis of their claim of religious persecution in their respective countries and want Indian Citizenship. Hence, these persons will be immediate beneficiaries.” It added that “it would be difficult” for refugees who had not claimed religious persecution at the time of their entry to make that claim subsequently.

The IB also stated that as per an SOP under preparation by the home ministry, an applicant seeking citizenship would be required to file an affidavit detailing the religious persecution or fear of it, along with supporting documents, without specifying what these would be. Meanwhile, the home ministry submitted to the committee that inputs from security agencies as well as reports in media would be used to corroborate claims of religious persecution. This gives an impression that proving religious persecution is not likely to be very difficult even when migration is not a result of it. For instance, in the Calcutta High Court case of Ranjit Kumar Mazumdar vs State of West Bengal, two Bangladeshi nationals had entered India in December 2013 on tourist visas. They did not make any claim of religious persecution at the time of their entry and were still given the benefit of the 2015 notification which exempted them from the penal provisions of the Foreigners Act. The high court observed that the central government did not specify any “screening procedure” to verify the “genuinity of apprehension of persecution on religious grounds,” and as such, their claim was prima facie accepted.

The MHA also argued that “there is no specific report on whether the refugee migrant population from Bangladesh is causing unexpected demographic changes of certain North Eastern States.” The JPC rejected this assertion in its report, and suggested that rules and regulations must be formulated to ensure that indigenous identities are not threatened by unintended consequences of the bill. The report ultimately upheld the law despite nine members of parliament appending dissent notes to the report.

The Citizenship (Amendment) Bill of 2019 was introduced in the winter session of Parliament. Within days, it was passed by both houses, amid opposition from several parties. The days that followed saw widespread protests against the act, the police brutally clamping down on the protesters, and a greater mobilisation against the law that has still not relented. It has been over two months since the CAA was enacted.

Yet, it is clear that the CAA was not needed to grant citizenship to persecuted refugees. Even though Amit Shah has claimed in Parliament that the CAA will help “lakhs and crores of people” who “could not get citizenship for seventy years,” the home ministry’s numbers expose the falsehood. As the ministry’s data showed, many migrants have received citizenship in the past and the central government could have continued to grant citizenship even without the CAA. What, then, remains the purpose of this law? Perhaps a means to set in place a new citizenship regime, which permits differential treatment on the basis of religion, and which can eventually help the central government achieve an “ultimate resolution of the demographic problem.” The BJP government has never defined this demographic problem, but its ideological parent, the Rashtriya Swayamsevak Sangh, has long advocated for its well-known demographic agenda: the creation of a Hindu Rashtra.