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India's Citizenship Amendment Act (2019): “Modi's Magic” and the Otherisation of Indian Muslims

13 Jul 2023
By Sumedha Choudhury
Locals in New Delhi protest against CAA CAB NRC. Source: Sanjeev Yadav/

The intentional persecution of Muslim minority groups in India has its origins in an exclusionist nationalist agenda held by the ruling party. The Citizenship Amendment Act is another blow to human rights as the world’s largest democratic country continues to backtrack on liberal values.   

Narendra Modi became the prime minister of India in May 2014. Modi and his Bharatiya Janata Party (BJP) have, since coming to power, not shied away from implementing policies which are unlawfully discriminatory to Muslims, a religious minority in India. With unsubstantiated narratives (such as “Hindus in India are under threat from Muslims”), the government, for petty political gains, has tried everything in its power to polarise the country along religious lines.

In this othering of the Muslims of the country, the law and legal institutions have served as fundamental tools for the BJP government. Moreover, its close association and support from the Rashtriya Swayamsevak Sangh (RSS), an all-male Hindu nationalist volunteer group, often described as a paramilitary organisation and formed in the 1920s, has proven extremely problematic. A leading argument is that the BJP government has sought to implement the vision of a “Hindu Rashtra”  (a Hindu nation) through the introduction of various discriminatory laws and policies. The recent Citizenship Amendment Act (CAA) of 2019 is a calculated step towards this ambition.

The CAA 2019 has changed the definition of “illegal migrants” in India. According to the Indian Citizenship Act 1955 (as amended 2004), an “illegal migrant” was “a foreigner” who entered India “illegally,” that is, entered without a valid travel document or overstayed in India “beyond the permitted period of time.” After this recent 2019 amendment, migrants who entered India “illegally” on/before 31 December 2014 from Afghanistan, Bangladesh, and Pakistan are eligible for citizenship if they belong to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian communities. This amendment has the effect of excluding the opportunity to acquire Indian citizenship for persons belonging to other religions (notably Muslims) and those from other countries.

Meanwhile, the situation in Assam, a Northeastern state of India where the BJP came to power in 2016, provides important context. The BJP has accused the former ruling party, the Congress Party, of encouraging infiltration from Bangladesh for the “Muslim vote bank” and destroying the demography of Assam. The narrative that “Hindus are in danger” and need saving from “illegal infiltrators” has helped the party gain electoral success in the area. They have explicitly distinguished Bengali-speaking Muslim immigrants as “infiltrators” and a threat to “national security.” The Home Minister, Amit Shah, used references such as “termites” and threatened that the “Bharatiya Janata Party government will pick up infiltrators one by one and throw them into the Bay of Bengal.”

The BJP has made every effort to redefine the “citizen” to fit within its Hindutva ideology and has, in the process, marginalised Muslim citizens. The updating of the National Register of Citizens (NRC) in Assam in December 2015 is a textbook example in this context. To be included in the NRC, residents were required to produce official documents demonstrating their “Indian roots” on or before 24 March 1971. In a country like India, where lack of documentation is a significant issue (due, among other things, to a shortage of human and financial resources), marginalised citizens, such as Muslims, women, members of the LGBTQ+, and persons with disabilities, have become even more disadvantaged. The process concluded in August 2019, with the final NRC updated list revealing the exclusion of 1.9 million people, or about 6 percent of the total of 31 million population of Assam (as per the 2011 census).

There is no official policy by the State Government of Assam explaining what actions would be taken against the excluded. Deportation seems improbable as India does not have a formal repatriation treaty with its neighbouring country Bangladesh. The lack of clarity on the citizenship status of those excluded raises concerns of possible statelessness. Applicants who are excluded from the NRC may petition before the “Foreigners Tribunals,” however, the efficiency and credibility of these tribunals have been repeatedly questioned by human rights bodies. While an appeal to the Guwahati (Assam) High Court (and afterwards the Supreme Court) is permitted, an appellant who loses their case before the Foreigners Tribunal could be arrested and sent to detention centres for an indefinite period.

Interestingly, the final NRC list is not what the BJP government in Assam envisioned. The BJP planned and promised to exclude primarily “illegal” Bengali Muslim immigrants in the NRC updating process. The final list has revealed that several Bengali-Hindus have also been excluded. The possibility of rendering more Hindus stateless led the BJP government in Assam to demand that the current NRC list, which took approximately ten years, employed 52,000 government employees, and cost the Government of India around INR12 billion (over AUD$200 million), be scrapped and begun again.

The connection between the CAA and NRC is indeed fascinating. Those individuals who are excluded from the NRC are still eligible for citizenship through the CAA. However, it would consequently leave out Muslim citizens who are excluded from the NRC.

Those who support the CAA argue that it will protect persecuted Hindus coming from India’s neighbouring countries. However, it is quite apparent now that the CAA was nothing but a political stunt to polarise India. The rules of the CAA, without which it cannot be implemented, are yet to be framed. Religious groups under the CAA who were promised a safe home in India are still waiting for a decision on their status. According to Seemant Lok Sangathan (SLS), a group that advocates for the rights of Pakistani minority migrants in India, approximately 800 Pakistani Hindus returned from India to their country in 2021 because they were unable to secure Indian citizenship. Additionally, the CAA has left out neighbouring countries such as Myanmar, Nepal, and Sri Lanka where the persecutors allegedly are non-Muslims. This exclusion assists the BJP in asserting that only non-Muslims (especially Hindus) are persecuted by Muslims, thereby othering the Muslims in India and creating a discourse that Muslims are non-deserving of citizenship.

The role of the Indian Supreme Court has been equally disturbing, failing entirely to challenge the BJP’s discriminatory laws and policies. Indeed, it was the Supreme Court that gave a green light for updating the NRC. Meanwhile, over 200 petitions challenging the Citizenship Amendment Act have since 2019 been pending in the Supreme Court. Some have argued that the Supreme Court, at least since 2014, has become an ineffectual, vulnerable body anxious about hurting the feelings of Modi and his party.

Yet not all is lost. India is not just representative of Modi and his party. Widespread protests against the CAA and the NRC have taken place, with several protestors languishing in jail for speaking truth to power as a result. These efforts provide hope that an alternative future for minorities and stateless persons will be found.

Instead of the preoccupation with “Modi’s Magic” (as propagandised in a few tabloids), we should talk about the human rights abuses and systematic polarisation of the Indian society. History has shown that there is much to lose in the reckless celebration of leaders – the world, and not just Indians, should be wary of that.

Sumedha Choudhury is a Research Fellow and PhD candidate at the Peter McMullin Centre on Statelessness, Melbourne Law School. She tweets @SumedhaCHDRY

This article is published under a Creative Commons Licence and may be republished with attribution.