By its very intent, the Citizenship (Amendment) Act, whose rules were notified by the Ministry of Home Affairs last month, over four years since the Act was passed in Parliament, goes against the ethos of the Indian Constitution
It is a short-sighted piece of legislation in its understanding that only religious persecution merits a reason for providing asylum and citizenship
Offering citizenship to migrants who have fled their countries of origin because of persecution and have stayed a sufficient time in their adopted country, is a humane endeavour by any nation-state and should be generally welcomed.
But by limiting this measure only to migrants from an arbitrary group of neighbouring nations and to narrow the definition only to “religious persecution”, and to further constrict this to not include Muslims, atheists, and agnostics among others, would suggest that the reasoning to provide this citizenship has less to do with humanitarianism
Even in Muslim-majority countries and those professing Islam as the state religion, such as Pakistan, minority Islamic sects such as the Ahmadiyyas have been subject to oppression and persecution.
The argument by petitioners against the CAA in the Supreme Court of India that the rules of the Act do not require foreign applicants to effectively renounce citizenship of their native countries, and that this allows for the possibility of dual citizenship which is directly violative of the Citizenship Act is also fair even if it is only a procedural one
India is not party to the 1951 UN Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, they have provisions that require signatories to provide refugee status to those who are subjects of different forms of persecution beyond just due to their religion.
Signatories must also apply these provisions “without discrimination as to race, religion or country of origin” and it is clear that the CAA would run afoul of them if India were a signatory.
1951 UN Convention Relating to the Status of Refugees
The 1951 Convention provides the internationally recognized definition of a refugee and outlines the legal protection, rights and assistance a refugee is entitled to receive.
UNHCR serves as the ‘guardian’ of these documents and help governments translate them into national laws to ensure refugees are protected and can excise their rights
The core principle of the 1951 Convention is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom.
The document outlines the basic minimum standards for the treatment of refugees, including the right to housing, work and education while displaced so they can lead a dignified and independent life.
It also defines a refugee’s obligations to host countries and specifies certain categories of people, such as war criminals, who do not qualify for refugee status
It also details the legal obligations of the States that are party to one or both of these instruments
The 1951 Convention restricted refugee status to those whose circumstances had come about "as a result of events occurring before 1 January 1951", as well as giving states party to the convention the option of interpreting this as "events occurring in Europe" or "events occurring in Europe or elsewhere"
1967 Protocol Relating to the Status of Refugees
It is a key treaty in international refugee law
The 1967 Protocol removed both the temporal and geographic restrictions.
This was needed in the historical context of refugee flows resulting from decolonisation
The protocol gave those states which had previously ratified the 1951 Convention and chosen to use the definition restricted to Europe the option to retain that restriction
Only four states actually chose that restriction: the Republic of the Congo, Madagascar, Monaco, and Turkey. Congo and Monaco dropped the restriction upon ratifying the 1967 Protocol; Turkey retained it, and Madagascar has not ratified the protocol
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