CAB flouts India's international obligations, says ICJ

The International Commission of Jurists (ICJ) on Thursday said that the Citizenship (Amendment) Bill or the CAB passed by both Houses of Parliament of India was not only "highly discriminatory and arbitrary” but also contrary to New Delhi’s “obligations under international human rights laws."

"The Citizenship (Amendment) Bill creates two tiers of citizenship and migration status in India based on religion, with Muslims, relegated to the lower end," Frederick Rawski, the Director (Asia) of the ICJ, said. "This Bill, which entrenches discriminatory practices into law, must not be implemented unless substantially amended to provide for equal protection for persons of all religions or other status."

The ICJ comprises up to sixty globally acclaimed legal luminaries, including senior judges, attorneys and academics, with the professed objective of ensuring respect for international human rights standards through the law.

The commission called upon the Government of India to reconsider and repeal or substantially amend the CAB to bring it in line with international legal obligations and principles enshrined in the Constitution of India.

The proposed legislation was passed by the Lok Sabha on Monday and the Rajya Sabha on Wednesday.

"The implementation of this proposed legislation would violate core principles of non-discrimination, equal protection of the law and freedom of religion, guaranteed under international law and the Indian Constitution," said Rawski.

The commission stated that the legal framework for citizenship identified by the CAB was incompatible with a bedrock rule of law and democratic principles. "It is highly discriminatory and arbitrary, and manifestly fails to satisfy the State’s obligations under international human rights law, including the International Covenant on Civil and Political Rights (ICCPR), to which India is a party," said the ICJ.

The Bill amends the Citizenship Act, 1955, which governs questions of citizenship and aspects of the lawfulness of migration status in India. "While it purports to provide protection and shelter to religious groups such as Hindus and provides them paths to citizenship, it excludes from its ambit certain religious groups such as Muslims," the commission said in a press release issued on Thursday.

The Bill gives protected status to Hindu, Sikh, Jain, Parsi, Buddhist and Christian migrants from Pakistan, Afghanistan and Bangladesh, all Muslim-majority countries, who entered India on or before December 31, 2014. Similarly situated Muslims are categorized as "illegal migrants," noted the ICJ.

It also pointed out that the Bill provided the Hindu, Sikh, Jain, Parsi, Buddhist and Christian migrants from Pakistan, Afghanistan and Bangladesh an expedited route of citizenship giving them the opportunity to be eligible for citizenship by naturalization if they have lived or worked in India for six years, as opposed to twelve years, as otherwise required.

"The arbitrary inclusion of some groups while excluding others violates Article 14 of the Constitution of India and Article 26 of the ICCPR. India’s international obligations require that its regulation of citizenship under domestic law be compliant with the principle of non-discrimination, equality before the law, and equal protection of the law without discrimination on the grounds of, inter alia, race, religion, or ethnic or national origin," the ICJ noted. It added: "This Bill, which provides for differentiated criteria for citizenship and other legal protection based on membership of religious group, complies neither with international law nor Indian constitutional law."

Rawski said that the arbitrary inclusion of some groups while excluding others would only be permissible under Article 14 of the Constitution of India and Article 26 of the ICCPR if the classification was founded on an intelligible differentia between the group excluded and the group that was included, and the differentia had a rational relation to the objects sought to be achieved by the proposed legislation.

The Government of India claimed religious persecution as the ground of reasonable classification, but then arbitrarily excluded from the protection of the proposed legislation several similarly situated and widely persecuted religious minorities such as Ahmadiyya Muslims and Shia Muslims from Pakistan and Bangladesh, Rohingyas from Myanmar, Hazaras from Afghanistan from its protective ambit, underlined the ICJ. "It, therefore, does not meet these criteria under the Indian Constitution and international law."

The adoption of the Bill comes as the Ministry of Home Affairs of the Indian Government issued a directive on August 8, 2017, to state governments to "identify and deport" 40,000 Rohingya refugees from Myanmar, which has led to the deportation of seven Rohingya men to Myanmar already, the ICJ noted in its press release.

The commission further noted, “The Indian Government has indicated that it will pursue nationwide National Register of Indian Citizens, which will likely exclude numerous people, many also Muslim, who should be recognized as Indian Nationals. A similar exercise undertaken in Assam earlier this year was an arbitrary and discriminatory process that rendered some 1.9 million people stateless."

"This violates international law and standards which protects the right to nationality and safeguards against statelessness," said the ICJ.