Citizenship law developments in India (part 2)

Last week it was seen that India’s lower house of parliament has approved the Citizenship (Amendment) Bill, 2016 which grants residency and citizenship rights to non-Muslim immigrants. In the lead-up to this approval Mihika Poddar published a critical analysis in the Indian Law Review, explaining why the Bill was problematic in light of the prohibition under international law of religion-based discrimination.

The Bill essentially did two things. First, it proposed that Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan – all of them neighbouring countries – were no longer to be treated as illegal immigrants. Second, these same categories should become eligible for citizenship by naturalisation after only six years, while this is normally eleven years.

Poddar points out that while the Indian government ‘defends its stance as being aimed at extending protection to minorities fleeing religious persecution in neighbouring Muslim-majority countries, … it excludes multiple communities that are similarly subjected to religious persecution in neighbouring states, such as Muslim Rohingyas in Buddhist-majority Myanmar, Buddhist Tibetans, [and] Muslim Uighurs in China, among others’.

In that connection, it should be stressed that the “Partition”, i.e. the secession of (Muslim) Pakistan from (Hindu) India, took place along deeply religious lines. While India drafted a secular constitution and adopted a ius soli regime after its independence from Britain, over time its policies have shifted to a more exclusionary ius sanguinis model. As Poddar explains, Indian law was already amended in 2004 ‘such that the terminology of illegal immigrants was done away with for “minority Hindus with Pakistani citizenship”. This was the first time that religion was made an explicit ground to grant citizenship, cementing the move away from the religion-neutral constitutional provisions’.

The Bill that has just been adopted ‘squarely fall into this trajectory that seeks to read religious divisions explicitly rejected by the framers of the Constitution into citizenship law’. Apart from the alleged incompatibility with Indian law, Poddar also argues that the Bill violates international law – in particular Article 26 of the International Covenant on Civil and Political Rights. While she acknowledges that international law does allow some degree of preferential treatment in granting naturalisation, referring to the Costa Rica Naturalisation case that we discussed here and to the European Convention on Nationality whose explanatory report explicitly allows more favourable treatment of nationals of certain States, she rightly points out that this must be based on an objective and non-arbitrary criterion. In Poddar’s view, this requirement is not met as

no rational reasoning can justify the singling out of specified religious denominations to the exclusion of others. The differentiation is thus prima facie arbitrary, given that the underinclusive list questions the purported objective of the differentiation … If the intent was to in fact extend protection against religious persecution, not only should other similarly placed communities have been given the benefit, rather, the government should have explored more concrete solutions such as codification of a proper refugee law, still missing in India

Author: Dr. Olivier Vonk