Why India’s Citizenship Amendment Act Does not Discriminate on the Basis of Religion
Over the past two weeks, the passage of the Citizenship Amendment Act (CAA) in India has unleashed an extraordinary wave of vitriol, partisanship, and most importantly — misinformation — regarding the legislation. Until now, both the media and academic space has been almost exclusively saturated with arguments that excoriate the CAA for alleged discrimination against Muslims. Much of the countervailing discourse defending the CAA has focused on “low-hanging” fruit — the correction that the Act does not disenfranchise Indian Muslim citizens, for example.
Rather than continue a conversation where we talk past each other, I aim to bring the discourse to a generative place by analyzing the most plausible of the critiques made of the CAA. While this is difficult, it is also necessary if we aim to understand the implications of the legislation as well as its basis in democratic, constitutional politics. In other words, engaging in such an exercise is crucial in getting at the truth.
This piece is the first in a four-part series in which I present, analyze, and critique three major criticisms of the CAA, taking for each what I consider to be a “best-case” version of the argument against the legislation. These are:
- The CAA discriminates on the basis of religion
- The CAA is selective in its approach
- The CAA, when combined with the NRC, would lead to great human suffering
Each of the arguments is given its own part in the series, with this piece focusing on the first. The series ends with a final part in which I consider what the mainstream opposition to the bill tells us about partisanship and political messaging, two things I study as an academic, as well as how the discourse around CAA has personally affected me.
What is the Citizenship Amendment Act?
The Citizenship Amendment Act — so named because it amends India’s Citizenship Act, 1955 — grants citizenship to Hindu, Sikh, Buddhist, Jain, Parsi, and Christian migrants from the neighboring countries of Afghanistan, Bangladesh, and Pakistan who entered India prior to the start of 2015. The full text of the legislation can be found here.
The Indian Government’s stated intent in passing the CAA has consistently been to confer the certainty and assurance of citizenship in India to religious minorities in India’s neighboring Islamic theocracies whose persecution is facilitated by the State as a direct result of their religious beliefs. Opponents of the CAA allege that it (a) discriminates on the basis of religion by excluding Muslims from the ambit of the bill; (b) is selective in its approach; ; and © has the potential to cause widespread human suffering when combined with a National Register of Citizens at the national level.
Charges of Discriminating on the Basis of Religion
“Religious identity will play a dominant role in assessing claims to citizenship. Muslims will be increasingly marginalised from [India’s] conceptions of citizenship … For a bill to, ex ante, name some communities and exclude others from consideration in this pathway to citizenship is a clever way of keeping the communal pot boiling under a legal imprimatur. The bill is not meant to solve any problem that could not have been solved through a less discriminatory process.”
“The proposed amendment is a deviation from the conception of citizenship in India delineated in the Citizenship Act, 1955. It smuggles religious difference into a law that is presently religion-neutral. … There is good reason to be concerned about the consequences of the proposed Amendment. The political objective of … the [Citizenship Amendment Act] seems to be to give special recognition to religious identity in determining citizenship. The bill does this by definitively excluding Muslim migrants from eligibility for citizenship. It simultaneously appears to affirm the privileged status of Hindus as true citizens of India.”
The assertion that the CAA discriminates on the basis of religion takes shape by either arguing, (1) as Mehta does, that the legislation will over time shift Indians’ notion of citizenship as a social institution by tying it to religion; or (2) as Jayal does, that the CAA is the final culmination in shifting from birthright citizenship to citizenship that privileges Hindu-ness in the legal sense. Note that both of these are distinct. While Mehta and others contend that a “less discriminatory process” than the CAA would have succeeded in “prioritizing amongst different classes of refugees” without explicit reference to religion, Jayal laments even a 2004 Amendment to the Citizenship Bill which inhibits citizenship for those who are born to undocumented (illegal) aliens as “covertly introduc[ing] a religion-based exception to… citizenship” since many of these undocumented people were Bangladeshi Muslims.
Jayal’s thinking reveals that the “less discriminatory language” Mehta pleads for — language that, for instance, places religious persecution directly as the basis for citizenship — would still have elicited the same accusation of introducing a “religious test” for citizenship (but now covertly) from swaths of the Indian Left if “most of the refugees were Hindu.” This, of course, does not recognize that the reason why most of the beneficiaries of any exercise like the CAA would be Hindu is tied to the very real persecution of Hindus in India’s neighborhood, a point that has largely been ignored by the Indian Left as well as the Western media — the two groups most critical of the CAA. This tellingly reveals to us that any version of this Act would have sparked similar ire from many of its opponents. With this in mind, let us more carefully consider the arguments.
Why Only Enumerate Specific Groups?
First, since both center on the exclusion of Muslims under the enumerated class eligible for citizenship — a theme ubiquitous in Western media coverage — let’s start there. Importantly, such positive discrimination is not unprecedented in modern democracies. A famous example from the U.S. lies in the Lautenberg Amendment (1990) and Specter Amendment (2004). In 1990, after a visit to the Soviet Union, my former Senator, the late Frank Lautenberg (D-NJ) — appalled by the anti-Semitism he saw in the USSR — created a provision that allowed Soviet religious minorities to apply for refugee status in the United States without having to prove that they were oppressed or persecuted. In 2004, moderate Republican senator Arlen Specter extended the protections afforded by his colleague’s bill to include non-Muslims seeking refuge from Iran.
In an interview with Jewish refugee agency HIAS, Lautenberg remarked of his effort, “I wrote a law that permits people to come to this country without having to prove persecution or harassment — to say, ‘I’m a member of the Jewish faith,’ ‘I’m a Seventh-day Adventist,’ ‘I’m a Roman Catholic.’ And places where they were discriminated against, they could just come here as refugees.” The CAA does something very similar. It recognizes a specific class of vulnerable people already living in India and grants them citizenship, thereby granting them an alternative homeland and protecting them from potential deportation back to the persecuting states from where they came. This is because the locus of of their vulnerability and persecution is precisely their religion. Therefore, like Lautenberg’s effort, the CAA provides a lower standard of evidence (namely, where one need only prove her religion and pre-existing nationality) than for other migrants outside the class who wish to seek asylum.
The principal difference between the CAA and the Lautenberg and Specter Amendments is that the former grants a country’s citizenship to foreign nationals already within its jurisdiction, while the latter actively seeks to bring persecuted foreigners to the country as refugees (Arguably, this ought to make the CAA less controversial). The effects of both laws are similar in that refugee status allows foreigners migrating to the U.S. to “jump the line” for citizenship in a way similar to the CAA’s relaxation of an eleven-year residency period to a five-year residency period for its class. Much hoopla has been generated around the CAA not having the phrase “religious persecution” in the text; but like the Lautenberg and Specter Amendments, it enumerates the religiously persecuted people themselves.
Specific enumeration of people within the class and as belonging to a particular religion is not unprecedented and indeed makes sense. From a purely humanitarian point-of-view, placing a lower evidentiary standard by creating an easily verified class (e.g.,on the basis of religion as listed on one’s passport) eases a daunting, byzantine process. Specific enumeration also makes certain exactly who the legislation aims to protect and makes it difficult to reverse or re-interpret this in the future. The reception to such an approach is born out by the bipartisan consensus in India that used to exist as far as such specific conferrals of citizenship were concerned. For instance, the Indian National Congress — the country’s principal Opposition party — favored an expedited path to citizenship specifically for Pakistani Hindus living in Gujarat and Rajasthan from 2005–2007; not to mention the now well-publicized fact that former PM Manmohan Singh asked for citizenship for Bangladeshi minorities as a minority MP back in 2003.
Excluding any group whose status in Afghanistan, Bangladesh, and Pakistan is either demonstrably less vulnerable, or whose vulnerability emerges from a different or not easily verified impulse, is therefore not discriminatory. Arguing that it privileges Hindus specifically, as many — including Jayal — have, is bizarre considering that the Act also includes five other religious groups.
Hence, the takeaway from this analysis is to understand this basic point: like the Lautenberg Amendment, the CAA is not a final, exclusive exercise; its objective is to recognize a class of vulnerable people on an easily verified basis and provide them with citizenship.
The “Slippery Slope” to Nowhere
Note further that the conclusion the CAA discriminates on the basis of religion also takes the form of a “slippery slope” argument. Dr. Sarayu Natarajan of the Aapti Institute and Ganatantra Podcast notes, “[the CAA] is an attempt to introduce a religious element… into the notion of citizenship under the Constitution. Today, if you can do it for illegal migrants, tomorrow you might amend the Citizenship Act to say, ‘only non-Muslims born after 2021 are eligible for birthright citizenship.’” In dealing with this, I will say that “slippery slope” arguments are predicated on the continuity of the slope (i.e., not a “slippery cliff”). As in, it must be the case that as we move along the “slope,” Event A naturally follows as a foreseeable consequence of enacting B, if we are to worry about A happening as a result of B. This is certainly not the case with the events Natarajan highlights. Again, if naturalization is afforded to certain religious migrants enumerated as a result of persecution, it does not in any foreseeable way affect citizenship for future generations born in India under the existing provisions of the Citizenship Act.
Sarayu’s contention can also be seen as an extension of Mehta’s view that the CAA will alter the very notions of who is an Indian citizen and lead to further dilution. This is untenable for several reasons. First, all Muslims — including those from the countries enumerated in the Act — continue to have all the existing pathways of acquiring citizenship available to them (notwithstanding the New York Times’ misleading headline), which certainly undermines the idea that Muslims are rendered less Indian. The Government has taken great pains to point this out, which also undermines the idea that they wish to create a future in which this were acceptable. Were it that a group of citizens previously barred from becoming citizens were granted access to citizenship, or a class of citizens previously accepted was barred, it is indeed the case that the “face” of that country’s representative citizen would shift in the popular imagination and become more or less diverse. This happened in the U.S. with the passage of the Immigration Act in 1965 and the decision in U.S. v. Bhagat Singh Thind, for instance. With the CAA, citizenship has been granted to a class of migrants on a one-off basis while maintaining all other existing avenues of naturalization for potential citizens. It is difficult to see how the CAA is itself a signal that will have a lasting, long-term effect on who is seen as “a real Indian.”
Second, nothing in the present exercise excludes future generations of asylum-seekers, including Muslims, from being granted citizenship. This is a one-off piece of legislation; the Citizenship Act has been amended to deal with the changing situation in India’s neighborhood several times before (e.g., 1987, 2004) and it would be foolish to predict an immutable Statute. Third, concluding that conceptions of citizenship will shift as a result of this legislation relies on viewing it as instantiating a “religious test” that identifies “desirable” people and purposefully excludes others. However, as argued above, this class is identified on the basis of religious-based persecution in theocracies; its limited and specific nature hampers the analogy to a “religious test.”
This third argument is the most crucial, and will be taken up in the next part of the series.