I Am A Student Protesting CAA. I Am Not 'Misguided'

"These protesters do not even know what they are protesting for"; "CAA has nothing to do with Indian citizens, it is only about foreign immigrants"; "read the act first"; "it was needed to help the persecuted minorities in the neighbouring countries"; "Muslims can go to 'Muslim countries'". These are a few things often said by the BJP and other pro-CAA parties. So, why am I, a political science student, perfectly capable of understanding the nuances of the act, protesting? It is certainly not that I am 'misguided' or that I have difficulty in 'understanding' the Citizenship Amendment Act (CAA).

The Citizenship Amendment Act allows the naturalisation of immigrants of Pakistan, Bangladesh, or Afghanistan living in India from (or before) 31 December 2014, belonging to six communities: Hindus, Sikh, Buddhist, Jain, Parsi, and Christians. The Modi government has celebrated the act as a symbol of "acceptance, harmony, compassion and brotherhood". Shah has claimed that the rationale of the act is to support minorities that have faced persecution in Muslim-dominated countries. The explanation for particularly excluding Muslims has been that they not 'persecuted minorities' in the countries relevant to CAA. Shah also argued that Muslims have other countries to go to, but Hindus - and other communities mentioned - have no other place to go but India.

The underlying premise of Shah's reasoning is deeply flawed. It is not true that Muslims are not persecuted in Muslim-dominated countries. It has been commonly pointed out already that people are persecuted for political, ethnic, and many other reasons. Hence, the logic for religion as the sole criterion is fallacious and unsatisfactory.

It is also consistently argued that Indian Muslims do not need to worry as CAA is relevant for immigrants seeking citizenship, not existing citizens. However, they conveniently ignore the fact that Shah has announced the intention for a nation-wise NRC at multiple instances. The CAA, in conjunction with NRC (National Register for Citizens), may potentially act as a 'Muslim filter'.

The CAA requires the beneficiaries to prove that they came from Pakistan, Bangladesh or Afghanistan to India before 2015. It depends on how exactly the rules are framed in future. In case the government decides to make it as simple as self-declaration, then it could allow (almost) everyone - Hindus, Sikh, Buddhist, Jain, Parsi, and Christians - except Muslims who fail to prove their citizenship in the NRC exercise to 'get back their citizenship' through CAA. 

The CAA also allows exemptions under the Passport (Entry into India) Act of 1920. This allows the government to freely make or amend the rules without needing approval from parliament. Hence, the government could simply remove or relax certain requirements - like that of proving that they came from Pakistan, Afghanistan, or Bangladesh for being eligible - thereby allowing the government to systematically provide citizenship to many non-Muslims excluded from the NRC while leaving out Muslims.

The CAA has already been critiqued on consequentialist grounds, particularly in its conjunction with the NRC. However, the CAA must be opposed simply as a matter of principle, irrespective of its potential or actual consequences. To say that Muslims should go to 'Muslim countries' - while (almost) everyone else is welcome - goes against the spirit of the Indian constitution. The makers of the constitutions rejected the logic of the two-nation theory and envisioned India as a country where every person ought to be treated equally irrespective of their religion.

The CAA implicitly legitimises the logic of two-nation theory. The amendment violates the fundamental principle of the constitution by explicitly mentioning religion as a criterion for determining prospects of citizenship. The fact that religion has been institutionalised as a criterion for citizenship is simply enough for it to be opposed tooth and nail.

The CAA does not go very well with general principles of legislation. Laws, by nature, are ought to be general and have an underlying rationale; the same principle - whatever it might be - should apply to all. The underlying principle in the case of CAA is persecution. Therefore, it fails the test of generality as it applies the principle of persecution to select communities (almost all) while excluding Muslims.

The amendment is also arbitrary as there is no obvious rationale for including only Afghanistan, Bangladesh, and Pakistan. If the rationale, as claimed by the Shah, is 'neighbouring countries' then why does it exclude other neighbours of India, namely Bhutan, China, Myanmar, Nepal and Sri Lanka?

If the intention was humanitarian as being claimed by the BJP, the first step should have been to accede to the United Nations 1951 Refugee Convention (and 1967 protocol), to which 146 countries are parties but not India. The 1951 Refugee Convention "defines the term 'refugee' and outlines the rights of the displaced, as well as the legal obligations of States to protect them".

It is true that India has already been largely following the protocols of the aforementioned conventions despite not being a party to them. However, if the reason behind CAA is to institutionalize support for 'persecuted minorities' from neighbouring countries, the logical first step should be to institutionalize refugee laws. In the absence of a comprehensive refugee law, there is no clear definition of what constitutes 'persecuted'. Despite all the talking about 'persecuted minorities', the CAA does not even mention any of the two words!

It is more than welcome if the government of India wants to be extra large-hearted by providing not only refuge but citizenship to the 'persecuted'. However, it first needs to define the criteria for being considered 'persecuted', independent of religion. Besides, it must also pass the test of generality and underlying rationale as a starting point.

(Fahad Hasin studies political science at Ashoka University and was a research associate at Trivedi Centre for Political Data, Ashoka University.)

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