By Gilles Verniers

Critics of the Citizenship (Amendment) Bill (CAB) have argued that it fails the test of constitutionality by introducing for the first time a religious criterion for acquiring citizenship.

This, they argue correctly, contradicts a basic tenet of secularism in India, which is that the State shall not discriminate against citizens on the basis of their religious affiliation.

While CAB does not affect the status of those who already are citizens, it breaches the principle of secularism by precisely establishing a selection criteria based on religion for those who apply for citizenship, under certain circumstances.

CAB Takes You for a Ride

Another critique of CAB is that its intent is disingenuous. It is less about extending a generous hand to members of endangered religious minorities from Pakistan, Afghanistan and Bangladesh than about providing a lifeline to non-Muslim citizens who will find themselves excluded from the National Register of Citizens (NRC). In October this year, home minister Amit Shah clearly stated that CAB shall be put in place before the extension of NRC from Assam to the rest of the country.

It is generally better to evaluate policies on the basis of their implications and consequences rather than by their declared intent. From this perspective, CAB is marred by fundamental misconceptions, contradictions, and by discrepancy between beliefs, intentions and consequences.

On the declared intent of the amendment, the majority in power can line up arguments about India’s age-old tradition of protecting persecuted minorities beyond its borders. But the fact remains that religion is not the best criterion to determine who is persecuted by a State. To begin with, minorities targeted by a State or a majority group in power vary in time.

Second, Pakistan’s most persecuted or endangered minorities belong to various groups within Islam — Shias, Ahmadis — who are de facto and de jure excluded from India’s generosity. Individuals who belong to majority religious groups may also be persecuted if they go against norms or conventions sanctioned by their religious authorities, or by the State agents who seek to enforce such norms and conventions.

Third, the exclusion of Sri Lanka and Myanmar from the ambit of the amendment only confirms the fact that the policy aims to exclude Muslim minorities from India’s neighbours, who do face discrimination and persecution, as is the case of the Rohingyas in Myanmar, or Tamil Muslims in Sri Lanka, under pressure from the Sinhala majority.

And, fourth, there are other forms of persecution than religion-based. India’s neighbours have a rich past of going against their ethnic minorities, who cannot always be distinguished through different religious affiliations. Clearly, therefore, it is religious identity that is set as the defining criterion for faster access to Indian citizenship, and not the fact of persecution per se.

One cannot imagine the government to be so ill-informed about the state of persecution of minorities among its neighbours, which reinforces the case for disingenuity stated above. There is absolutely no doubt that CAB and NRC ought to be taken together, as two important pieces of a larger puzzle that aims at recasting the Indian Republic, turning away from some of its founding principles.

CAB also reveals the discrepancy between avowed policy intent — made for symbolic or doctrinal reasons — and its consequences or implications, for which there is utter disregard. Looking at CAB, one can raise a number of doubts about the applicability of the policy.

Losing My Religion

Which authority, for instance, will attest to the religion of refugees applying for citizenship? Will there be a test? Conducted by whom and on the basis of what criteria? Faith can only be selfattested and a religious identity — unlike caste — is not ascriptive, that is to say not determined by birth, as one can choose to convert to another religion than that of one’s parents, or adhere to no faith in particular. Would the State accept people not revealing their real religious affiliations in public, as long as they don’t assert a Muslim identity?

A second implication is that those who initially claimed to be citizens for listing on NRC will have to declare that they were never citizens in the first place should they find themselves unable to prove their credentials as (non-Muslim) Indians. GoI has thrown them a lifeline, as it admits that many would find themselves wrongly excluded from the list for lack of documentation. The solution proposed amounts to asking them to renounce their claim of citizenship in order to be able to regain it.

This Kafkaesque solution further accentuates the discrimination against Muslims, since Indian Muslims who would find themselves wrongly excluded from NRC would not be extended the same opportunity.

A third implication is that incorporating religious distinctions into legal texts has the effect of sanctioning and deepening the rifts that exist between religious groups in real life. By pushing for a redefinition of who gets to be Indian, CAB validates the view that Muslims ought to be relegated to a subordinate or secondary status.

These implications and contradictions will not matter to the proponents of CAB, who seek to re-legislate the past, and repair wrongs committed more than 70 years ago, even at the cost of inflicting misery on individuals born long after those events.

(The writer is assistant professor of political science, Ashoka University, Sonipat, Haryana)