On the eve of the recently conducted elections in several states, an irregular decision was taken by the joint parliamentary committee (JPC) reviewing the Citizenship Amendment Bill of 2016, which is another clear effort of the far-right regime in New Delhi to redefine the contours of Indian citizenship. Rather brazenly trying to make a distinction between which color (read faith) of immigrant would be “naturally” entitled to Indian citizenship as an immigrant, what the Narendra Modi-led government, which enjoys a brute majority in the lower house of India’s parliament, seeks to do is to privilege the non-Muslim migrant over the Muslim. The lower house of parliament has passed the Bill which is now being re-considered by a Joint Parliamentary Committee.
For Assam, the faraway state in the northeastern part of India—which voted for a a far-right Hindutva government for the first time ever last year—this move has re-kindled long-standing schisms over the foreigner controversy. The bill’s staunchest critics are the old guard of the Assam Movement, and since the present chief minister, Sonowal, was one of its prominent leaders, before he shifted to the far right, he has been criticized for not openly objecting to the bill. The controversy threatens to unravel the coalition that brought the BJP-led alliance to power in the state only a few months ago. More critically, the JPC’s decision to apparently ride roughshod over political debate and opposition is yet another example of this dispensation pushing through legislation without necessary political debate. In this instance, the ruling party appears unwilling and unprepared to engage in a serious public debate on an issue that involves how the membership in the nation is defined. Winning elections by any means necessary is its priority.
The proposed amendment, in its current formulation, seeks to exclude undocumented immigrants belonging to certain minority communities from Afghanistan, Bangladesh and Pakistan (all majority-Muslim countries) — Hindus, Sikhs, Buddhists, Jains, Parsis and Christians—from the category of illegal migrants making them eligible to apply for Indian citizenship. The list of religious minorities, inexplicably, excludes Muslim groups like the Ahmadis, who are also among the most persecuted religious minority in Pakistan. This essentially means that, while non-Muslim migrants become eligible for Indian citizenship, Muslims are denied this right.
Given the ideological moorings of the current ruling dispensation under Modi, it is hard not to read the proposed amendment as being about something else. For Modi and the Rashtriya Swayamsevak Sangh (RSS) to which he belongs, this aspect of Indian citizenship is at a piece with what they see as the unfinished business of the Partition. They believe that Indian citizenship laws should recognize a right of return for Hindus from Pakistan and Bangladesh to India, similar to the right of Jews to return to Israel, or of ethnic Germans to Germany. Those of this persuasion are unhappy with the Indian Constitution’s unequivocal rejection of the two-nation theory. Today, based on the fundamentals of equality and non-discrimination within the constitution, Indian law cannot distinguish between Hindu and Muslim arrivals from Pakistan and Bangladesh. The real purpose of the citizenship amendment bill seems to be to introduce this distinction into India’s citizenship laws.
To step back to his election campaign, while campaigning in Serampore, West Bengalin April 2014, the man who would be prime minister, Modi, arrogantly told a mammoth gathering, “You can write it down. After May 16, these Bangladeshis better be prepared with their bags packed.” His statement echoes a time-tested policy of the RSS articulated by the BJP whenever in power. In the early 1990s, fiercely anti-Bangladesh (read Muslim) statements from this then-marginal brand of Indian politics had pushed an obscure administrative problem to the center of political discourse.
The 2014 statements of Modi took political discourse back to the days of Operation Pushback and Operation Flush Out—policies that derive as much from xenophobic political pressure as from India’s lack of a refugee policy fully in line with international law. For the party that had promised “change,” this vitriolic partisan policy carries the ruling Bharatiya Janata Party (BJP)’s majoritarian politics beyond India’s borders.
The BJP’s 2014 manifesto rather crudely states that “India shall remain a natural home for persecuted Hindus and they shall be welcome to seek refuge here.” Such a statement mimics the policy of only one other country, Israel—which sees itself as a sanctuary for Jews who are given an automatic right to enter the country and earn citizenship. In February 2014, Modi infamously said, “We have a responsibility towards Hindus who are harassed and suffer in other countries. India is the only place for them.” Israel, it is well known, has a dismal track record not just on the human rights of other peoples in general but of the Palestinians at the West Bank, in particular. In the paragraphs preceding this ill-considered statement in its 2014 manifesto, the BJP praised its “NRIs, PIOs and professionals settled abroad” who are a “vast reservoir to articulate the national interests and affairs globally.” The hypocrisy is patent. These NRIs and PIOs are able to live in these countries because of the relatively liberal immigration policies of their countries of residence. The BJP’s concern, in its manifesto, is only for middle-class and upper-class professionals (they too, Hindu), and it provides no reassurances for the Indian workers across the world whose remittances support their families and Indian foreign exchange balances.
Attacks on Bangladeshi slum-dwellers and disregard for Indian migrant workers indicate more than just the class bias of the BJP, however. This two-faced policy of the BJP seeks to discriminate within India, when it comes to refugees from foreign soil, while all Indians abroad, including die-hard BJP supporters, rely upon a non-discriminatory policy of foreign governments for bettering their own lives.
Why the Congress-led United Progressive Alliance government also did not build a national consensus for a rational refugee policy, in the decade that it was in power between 2004-2014, is also a question both pertinent and self-declaratory. It is just these fundamental abdications of the now largest, but much-depleted, opposition Indian National Congress, that has ensured further rightward shifts in Indian policy across the board. In fact, in the decades of 1980sand 1990s, when its sway on Indian politics was far more decisive, the Congress too had allowed passage of a controversial law that carries within it problematic stigmas.
India’sCompromised Refugee Policy
In the early 1980s, xenophobic utterances—fiercely anti-Bangaldeshi statements—had catalyzed targeted pogroms in Assam, where BJP now rules, but dictated its political consolidation in other parts of “mainstream” India. This occurred even as the term “Bangladeshi” was deliberately collapsed at really meaning “Muslim,” just as the terms “Pakistani,” “Muslim” and “anti-patriotic/national” are potently expressed interchangeably. Before the 1993 elections in Delhi, the national executive of the BJP attacked this “infiltration” of refugee workers from Bangladesh. After launching, along with its sister proto-fascist outfit, the Shiv Sena in Bombay in December 1992, the post Babri Masjid demolition pogrom, Dharamsinh Choradia of the Maharashtra BJP tried to turn historical chronology on its head and claim that behind the targeted killings of Bombay’s Muslims was the “unseen attack” from “illegal Bangladeshi immigrants!”
It was in 1983 that the government in New Delhi enacted The Illegal Migrants Determination by Tribunal (IMDT) Act, which was an Act of the Parliament of India implemented by the Indira Gandhi government. It was struck down by the Supreme Court of India in 2005 in Sarbananda Sonowal v. Union of India. It described the procedures to detect illegal immigrants from Bangladesh and expel them from Assam. The Act was pushed through mainly on the grounds that it provided special protections against undue harassment to the “minorities” affected by the Assam Agitation. It was applicable to the state of Assam only whereas in other states, detection of foreigners is done under the Foreigners Act, 1946. The current chief minister who shifted political allegiances to join the BJP on the eve of the state elections was the petitioner in the case.
The difference between the 1980s and now is the dominating position of the BJP in Indian politics today. The extreme, proto-fascist right is today the mainstream. In the 1990s, it was a marginal force in Indian politics. Today it calls the shots. Operation Pushback and Operation Flush Out derive as much from xenophobic political pressure as from India’s lack of a refugee policy fully in line with international law.
More than anything else, a closer look at India’s refugee policy is in order. We are neither a signatory to the United Nations’ 1951 refugee convention nor its 1967 protocol. The reasons why India did not join these is based on a genuine understanding of the state of affairs then — the 1951 convention defined “refugees” as Europeans who had to be re-settled and suggested that “refugees” were those who fled the “non-Free world” for the “Free world.”
It was in December 1950, at the UN’s third committee, that Vijaylakshmi Pandit (sister of Jawaharlal Nehru, India’s first prime minister) objected to the Euro-centrism of the definition of refugee.“Suffering knows no racial or political boundaries; it is the same for all,” she said.“As international tension increases, vast masses of humanity might be uprooted and displaced.” The refugee crisis across the world is now severe for reasons of war and economic distress. Three years later, the foreign secretary, R.K. Nehru, told the UNHCR representative that the UN agency helped refugees from “the so-called non-free world into the free world. We do not recognize such a division of the world.”
It was a fundamentally different India then—confident, outward looking and the proud architect of the Non-Aligned Movement (NAM) with the first prime minister, Jawaharlal Nehru, Nasser and other world leaders seeing wisdom in this expansive worldview.
But, in spite of its reluctance to join these international conventions, India has obligations under international law. India has signed onto the 1967 UN Declaration on Territorial Asylum and the 1948 UN Declaration of Human Rights. Even though it is not a member of the 1951 refugee convention that frames the work of the UNHCR, India is on its executive committee, which supervises the agency’s material assistance programme. Following this international human rights law, the Indian Supreme Court ruled in 1996 that refugees could not be forcibly repatriated because of the protections to life and personal liberty in Article 21 of the Indian Constitution.
India’s current refugee policy is governed by the Foreigners Act of 1946 that does not even use the term “refugee.” Without a clear-cut policy, Indian governments have, over the years, dealt with different refugee populations depending on their political worldview at the time. For example, India’s treatment of Tibetans conforms to its relationship with China.
It was this absence of a cohesive refugee policy that set the ground for Operation Pushback in the 1990s, which used the Bangladeshi refugees as a tool for communal politics. And today, this is dictating a political desire to fundamentally alter Indian citizenship law.
Even within the United Nations things have changed. The fundamental principles on which a universal and accepted regime on refugees and asylum has evolved is universality, under the UDHR or the 1951 Convention on Refugees that mandates that all people who seek refuge should be treated equally.
Hence, India—by its standing in various international protocols—has a responsibility to all asylum seekers and migrants, and must treat them equally. To do anything less than that would move India to join the wave of anti-immigration hysteria that has taken hold in Europe and North America, and has been structured into state policy in Israel. Worse than anything it would be back-peddling on our own tradition of a visionary and inclusive international foreign policy.
It was not long after the deplorable Operation Pushback of the 1990s that the former chief justice of India, P. N. Bhagwati, chaired a panel to create a model law for India on refugee rights. Bhagwati—who had also served as regional adviser for Asia and the Pacific for the UN High Commissioner for Human Rights — suggested that “an appropriate legal structure or framework” would give Indian states “a measure of certainty” in their policy-making and it would give “greater protection for the refugees.” Bhagwati’s model law defined refugees as people outside their country of origin who could not return there because of “a well-founded fear of persecution on account of race, religion, sex, ethnic identity, membership of a particular social group or political opinion.” This was a very broad and important standard, which would greatly improve Indian refugee policy. Bhagwati’s report—like so many other well-meaning commissions—has made little impact. It was turned into a draft law—the Refugees and Asylum Seekersbill, but was unable to leave the home ministry for Parliament because of pressure from the Indian security establishment and various political calculations. Even before the extreme right-wing present government assumed power, earlier political formulations simply did not have the will to see the law through.
So today, in 2016, when India’s parliament seeks to fundamentally alter the very basis of Indian citizenship laws, and may even do this without honoring Indian federalism, the implications of the change are huge for the country and subcontinent. The Constitution’s rejection of the two-nation theory is crucially important for the status of Indian Muslims as equal citizens.
The proposed amendment will impact not only the sense of security of Indian Muslims, but also the future security of Hindus in Bangladesh, and the credibility of India’s historical position on the Kashmir question. A hard national question across the political spectrum is in order. The implications of the bill are far more profound than the innocuous formulation “persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan… shall not be treated as illegal migrants” might suggest.
By Teesta Setalvad