Document or human being

9 February 2020, 09:50

Documents are sometimes more important than the human being itself. A person without a document has almost no access to anything and is branded as “illegal” by all states. But one of the best quotes of Eli Wiesel, noted Holocaust survivor, award winning novelist, journalist, human rights activist and winner of the Nobel Peace Prize in 1986, reads: “No human being is illegal. That is a contradiction in terms. Human beings can be beautiful or more beautiful, they can be fat or skinny, and they can be right or wrong, but illegal? How can a human being be illegal?” For a long time, these words were relevant to India, because, one could roam around freely for several decades. And the term illegal migrant, which was liberally used in Europe was never used in India. But no more. 

Unprecedenteddecisions adopted by the staggering mono-majority led by the Bharatiya Janata Party in both houses of the Indian parliament led to amendment of the law on citizenship. Its impact and connection with the implementation of the National Register of Citizens might lead to mass statelessness and discrimination. Union Home Minister and head of BJP Amit Shah said at a mass rally on 22 December 2019, that the NRC will be implemented nationally all over India and “before the country goes to polls in 2024 all illegal immigrants will be thrown out.” 

These steps and statements have led to mass protests in India and abroad. While the words more used today are “irregular migrants” or “unauthorized migrants” by international Human Rights bodies, top Indian policy makers are still talking about “cleansing” the country of “infiltrators” and “illegal migrants.”  

Post-independence India was a state not based on documents. The process evolved slowly and gradually, implemented with practicality, may be not always with the best levels of efficiency. Documents such as ration cards, school graduation certificates, or certificates of higher education, public utility bills were used as proofs of identity within the country. Indian citizens obtained passports only to travel abroad. Later, voter’s cardsand PAN cards (taxation payee numbers) were introduced, and even later, the “aadhar” card with an electronically readable bar code came up. 

Likewise,India’s Citizenship Act of 1955 was also amended in 1986, 1992, 2003, 2005 and 2015, to cater to emerging needs. Citizenship in India is based on the principle of “jus sanguinis” (by blood or descent) and not by “jus soli”. Therefore, acquiring Indian citizenship for foreigners of non-Indian origin through naturalization is important. 

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What was the need for Amendment to the Law?

Under the Citizenship law, irregular migrants cannot apply for Indian citizenship. Thus, those migrants from Bangladesh, who have entered India without papers cannot become citizens. It also excludes anyone who has entered using a legal document but has overstayed their visa. The Amendment bill seeks to change the Citizenship Act of 1955 and deals with the rules for obtaining Indian citizenship through naturalization; it states that Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan shall “not be treated as illegal migrants” even if they had entered India irregularly on or before 31 December 2014. This makes a fundamental change to India’s process of citizenship by naturalization which allows foreigners to become Indians. After the Citizenship Amendment Bill was passed on 11 December 2019, the communities identified above, will be able to apply for Indian citizenship even if they had crossed the border without papers or overstayed their visa. The Citizenship Amendment Bill also shortens the waiting time for naturalization for these select communities. Rather than having to reside in India for 11 out of the past 14 years, a six-year residence will now suffice.Moreover, any legal proceedings against them in respect of irregular migration shall cease if that person is able to become an Indian citizen. 

On the surface, this amendment seems to open ways for citizenship for undocumented migrants, reduce statelessness and empower people. However, the main problem is, most notably, that Muslims are missing from the list of communities identified. Parliamentarians from BJP said that these provisions will help victims of religious persecution from the neighboring countries access Indian citizenship. However, other omissions in the bill raise questions as to the soundness of this argument. For example, Myanmar – accused of persecuting its Muslim Rohingya minority – is missing from the list of countries in the bill, as well as China – noted for its persecution of the Uighurs, is also missing, both countries have a long border with India. Afghanistan is in the list, even though its slim border with India lies in Pakistan-Occupied Kashmir. Moreover, Sri Lanka is missing from the list even though its Tamils – most of them Hindu – have suffered a genocide at the hands of the Sri Lankan state. 

Therefore, observers associate these arguments with the Bharatiya Janata Party’s politics, which prioritizes a narrative of persecuted Hindu migrants from Muslim-majority countries, and they stress on how the dynamic will be utilized within India’s electoral politics. Moreover, it underscores the BJP’s ideology of seeing India as a Hindu rashtra or nation. The opposition says the Bill violates Article 14 of the Constitution – Right to Equality (entire ethos of our democracy) and claims that citizenship cannot be given on the basis of religion.

Creation of a National Register of Citizens

To justify the veracity or likelihood of the above, we need to know how is the Citizenship Amendment bill connected to the National Register of Citizens and what is the NRC? The NRC is a register of all Indian citizens whose creation was approved by an amendment of The Citizenship Act 1955 in 2003. It has been implemented for the state of Assam during 2015–2019.

Assam, being a border state with unique problems of irregular immigration, had an NRC created in 1951, based on the 1951 census data. But it was not maintained afterwards. In 1983, the Irregular Migrants (Determination by Tribunal) Act was passed by the Parliament creating a separate tribunal process for identifying undocumented migrants in Assam. The Supreme Court of India struck it down as unconstitutional in 2005, after which the Government of India agreed to update the Assam NRC. Following unsatisfactory progress on the update process over a decade, the Supreme Court started directing and monitoring the process in 2013. The final updated NRC for Assam, an exercise conducted from 2015 till 2019, was published on 31 August 2019, containing 31 million names out of 33 million population, leaving out about 1.9 million applicants, who are characterized as “undocumented migrants”. Many of them, surprisingly, are Hindus. 

Thus, Assam’s NRC eventually backfired for the BJP’s politics. In response, the BJP has pushedthe Citizenship Amendment Bill as a solution. Its leaders claim Hindus excluded from the NRC in Assam would be able to gain citizenship under the amended law, though it is not exactly clear how.

With the government threatening to conduct a nationwide NRC, there are fears that Muslims would be the only ones who stand to lose their citizenship in such an exercise, if the Citizenship Amendment Bill actually creates a mechanism for non-Muslims excluded from the NRC to gain citizenship. Amit Shah, along with a number of top BJP leaders, have explicitly communicated that Hindus need not worry about the NRC.

The opposition to the bill is divided into three broad streams. Most parties are against the introduction of religious criteria for Indian citizenship, arguing that it would gravely damage one of India’s foundational principles: secularism.

In the North East, additionally, the bill brings the fear of demographic change, with local politicians anticipating a large influx of people from Bangladesh. Also, purpose of helping Hindu migrants will not be served, because proving religious persecution would be very difficult. Additionally, how Hindu Bengalis left out of the Assam NRC can now be given relief by the present Amendment – a key BJP claim – given that both exercises contradict each other. Everyone applying for the NRC has claimed they were Indian citizens but the Amendment of Citizenship Act in 2019 requires one to explicitly claim that they crossed over from Bangladesh.

So the Citizenship Amendment Bill, which had been tabled in Parliament at the start of the year but withdrawn in the face of protests, should have been simpler and more inclusive to incorporate Muslims, when it was reintroduced in December 2019.

So, after its adoption, protests gathered steam first in the North East, where there are already 5 casualties, and then across India, including violent police action at universities in Delhi and Aligarh. Nationally and internationally, students took to the streets to express their disapproval of the brutality unleashed against their colleagues.

Kashmir and Assam – the difference 

Revoking of article 370 and taking off the special status of Kashmir was a sudden move, while the amendment to Citizenship Act was a planned and expected move. But in the first case opposition was minimal within India while the latter has faced nationwide protests. The Kashmir changes happened very fast, few were able to mobilize and the government was able to set the narrative. Kashmir is a Muslim-majority region, and sits next to Pakistan and decades of active campaign to demean and dehumanize its people and dismiss their concerns as either being “Islamic” or “sponsored” by Pakistan could work. As a result, there was little support among the public – making it difficult for Opposition politicians to even appeal to humanity, pluralism and secularism.

In the North East, and also to some extent in neighboring West Bengal, politics do not quite run along religious lines, but rather along locals vs. outsiders. Hence the ruling party BJP tries to focus on elimination of “infiltrators” from the NRC and the Citizenship Act, with vague references to Bengali-speaking Muslims, whether or not they are actually immigrants from Bangladesh. The biggest blow came from media reports of the tragic death of individuals who were Hindus and did not qualify for the NRC and were in the detention center. Even though India simply does not take well to Muslim political assertion, some Muslim organizations were able to mobilize and take to the streets and they were joined by others. Government spending huge amount on the first detention center in Assam, equivalent of seven football grounds, also sent shockwaves in a democracy, used to chronic poverty and struggle of its people, but unused to such treatment of human beings. It is not just nativism and ‘Muslim concern’ now, it has become “People’s concern”. Local political alliances with BJP and falling apart. 

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International dimension 

On 19 December, 2019, Mamta Banerjee, the Chief Minister of West Bengal said, “If the BJP has guts, it will hold a UN monitored referendum on the Citizenship Amendment Bill.” This was a bold and flippant statement, inviting external assistance for resolving an internal political issue. International negative consequences of the further implementation of NRC, followed by statelessness and detention of non-citizens cannot be foreseen now. To recall, India generates a big share of world migration and Indian diaspora will bear the impact of such policies. 

There are several factors also to be borne in mind that run above party politics. First, India is home to the second largest Muslim population in the world and by 2050, it will be home to the largest Muslim population in the world. Second, India is one of the most diverse country in the world in terms of languages and cultures and ethnic groups living in it. Third, the syncretic nature of its culture has always welcomed all and it was the home for all persecuted. Humanism runs high in the ancient Indian tradition. Last but not the least, the Constitution of India offers the foundation for unity and the democratic framework, which has lasted uninterruptedly for the past several decades and will reach its 70th anniversary in 2020. These are sufficient grounds for any political party, no matter how powerful, not to harp on its narrow agenda and jeopardize the international reputation of the nation as a whole, as well as enlarge the role of documents than the dignity of the human being. 

By Mridula Ghosh 

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