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India’s new law may leave millions of Muslims without citizenship

Modi’s government is trying to create a Hindu nation.

- December 12, 2019

This week, India’s Parliament passed the Citizenship Amendment Bill, fundamentally changing the country’s Citizenship Act of 1955 — and setting off protests in the northeastern states and a curfew in some cities.

The Bharatiya Janata Party (BJP) government introduced the bill during Prime Minister Narendra Modi’s first term, but Parliament failed to pass the bill at the time. The BJP reintroduced the bill on Monday, and it cleared both the Lok Sabha (lower house) and the Rajya Sabha (upper house). President Ram Nath Kovind signed the bill into law on Thursday.

Why is there such strong domestic pushback, and why did the Indian government deploy more than 5,000 paramilitary troops and impose an Internet blackout to maintain order in Assam and Tripura? The following helps explain the new law and its potential effects.

1. What is the Citizenship Amendment Bill?

The law changes India’s naturalization process for acquiring citizenship, amending the law that previously prohibited “illegal immigrants” — those who enter the country without proper documentation, or outstay their visas — from becoming Indian citizens. The 2019 amendment allows Hindus, Sikhs, Buddhists, Jains, Parsees and Christians who migrated to India from Afghanistan, Bangladesh and Pakistan to become citizens. It also allows them to file expedited citizenship claims after six years of residency, down from a residency requirement of 11 out of the last 14 years in the original law.

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The amendment leaves Muslims off the list of protected groups, however. Many political analysts and human rights experts argue that the government designed the law explicitly to exclude Muslim asylum seekers from the possibility of acquiring refugee status in India and, eventually, citizenship.

2. What are the implications of using religious criteria for citizenship?

BJP leaders justify excluding Muslims, countering that the goal is to aid victims of religious persecution in their home countries. A government official noted that Muslims in Afghanistan, Pakistan and Bangladesh cannot, by definition, face persecution because these are Muslim-majority countries.

Domestic critics challenge this claim on multiple grounds. The government has provided no explanation for singling out migrants from Pakistan, Afghanistan and Bangladesh, given that the country receives more migrants from other neighboring nations.

Besides Afghanistan, asylum seekers in India typically are Tibetans from China, Tamils from Sri Lanka and Rohingya from Myanmar, so if the government intended to aid victims of religious persecution, these countries also would be included in the law. It overlooks, too, persecution that certain Muslim sects, such as the Ahmadiyya community in Pakistan, face even within Muslim-majority countries.

Legal scholars view this law as unconstitutional and argue that it violates Articles 14 and 15 of the Indian constitution: Article 14 guarantees equal protection for all, and Article 15 prevents discrimination on the basis of religion. More than 1,200 scholars and scientists in India have signed a statement arguing that it is “deeply troubling that the Bill uses religion as a legal criterion for determining Indian citizenship.”

3. Why did the BJP government push this bill forward?

The law fits within the BJP-led government’s larger agenda to construct a Hindu nation. Modi’s government, now in its second term, has already taken three key steps to implement this vision.

The National Register of Citizens (NRC) in Assam led to the identification of 1.9 million people as “illegal immigrants” who now risk statelessness. In August, the Indian government revoked the autonomous status of the Muslim-majority state of Kashmir. This removed Kashmir’s autonomy in making laws on all matters except defense, foreign affairs and communication.

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In November, a Supreme Court ruling granted Hindus permission to construct a temple on the site of the Babri Mosque, which Hindu extremists had demolished in 1992. These developments have not only emboldened Hindu nationalists, but also contributed to a growing sense of insecurity among Indian Muslims.

4. What do Indians think — and what has been the global reaction?

Legal scholars are likely to challenge the new law in India’s courts. Domestically, this religious test for citizenship has prompted fears that the government would eventually strip citizenship from as many as 200 million Muslims citizens. One of BJP’s key election promises was the creation of a nationwide National Register of Citizens, modeled on the NRC in Assam.

Those excluded from such a list will have to prove their citizenship. For many, that’s a tall order given the unprecedented scale of violence and displacement during India’s 1947 partition, when colonial India split into Hindu-controlled India and Muslim-controlled Pakistan. Many fear that Muslims who do not have documentation owing to the events of the partition may risk detention or deportation. Younger Muslims may not fulfill this burden of proof if they are unable to produce an old property deed or a birth certificate ⁠ — a possible scenario given the high rates of illiteracy and the voluntary registration of births before 1970.

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In September, India also began constructing large-scale detention centers in the northeastern state of Assam. While this has not received much mainstream attention, the threat of large-scale detention and deportation could easily turn into a humanitarian crisis.

Internationally, the law has also raised concerns on Capitol Hill. The House Foreign Affairs Committee spoke out against having any religious test for citizenship. The U.S. Commission on International Religious Freedom (USCIRF), a bipartisan U.S. federal government commission, has urged the U.S. government to impose sanctions on Indian Home Minister Amit Shah, who introduced the bill, and other leaders.

Legally, India is unlikely to face any international repercussions. The country is not a signatory to the 1951 Refugee Convention or the 1967 Protocol relating to the Status of Refugees. It also has not ratified the Convention against Torture, which prohibits refoulement — forcing refugees or asylum seekers to return to a country where they are likely to suffer persecution. Many within India will look to the Supreme Court to strike down the law, but others argue it will require broader political and ideological mobilization outside the legal sphere.

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Suparna Chaudhry is an assistant professor of political science and director of the Reiff Center for Human Rights and Conflict Resolution at Christopher Newport University.