Can a constitutional democracy use religion as a criterion for Citizenship?

On Dec. 11 India’s Parliament approved the Citizenship Amendment Act making religion a criterion for nationality in India’s citizenship law for the first time. It creates an expedited path to citizenship for Hindu, Buddhist, Christian, Sikh, Jain and Zoroastrian migrants who entered India illegally before 2014 from three countries — Pakistan, Bangladesh and Afghanistan. Notably absent from the list: Islam, the religion practiced by about 200 million of India’s more than 1.3 billion people. Post the passing of the bill, 100 were reported killed in protests that erupted across the country. 

When India became independent in 1947, its founders sought to create a secular nation where all religions were welcome — in contrast with Pakistan, which was conceived as a home for the subcontinent’s Muslims. By giving preference to certain religions in citizenship law, the government is moving away from that ethos. Peaceful protest as the hallmark of Indian resistance is being nipped in the bud and dissent is strongly quelled. 

The measure is “the first legal articulation that India is, you might say, a homeland for Hindus,” said Pratap Bhanu Mehta, one of India’s leading political scientists.

Spokesperson for the UN High Commissioner for Human Rights said in Geneva that it is “concerned” that the CAA is “fundamentally discriminatory in nature”. 

Assam has passed a citizenship registry intended to identify legal residents and weed out those without documentation. The Citizenship Amendment Bill could provide protection and a fast track to naturalization for many of the Hindus living there. Thousands of Muslims living there without documents will now have to prove Indian citizenship.

The Modi government says the law is a humanitarian measure aimed at helping persecuted religious minorities who have entered India. Such communities have faced hardship and, at times, violence in Pakistan, Afghanistan and Bangladesh — all Muslim-majority nations — and the government says India has a moral responsibility to help them. Critics argue that if the government was truly concerned about persecuted minorities in neighbouring countries, it would include groups like the Rohingya Muslims in Myanmar, or the Ahmadiyas in Pakistan.

The bill seems to be in violation of several provisions of India’s constitution, especially Article 14, which guarantees to all persons, and not just citizens, the right to equality before the law and the equal protection of the law. Opponents say that the law is retrospective: It applies only to migrants who entered India before 2014 and does not help religious minorities currently living in those countries or other types of persecuted communities. Experts say the government could have achieved its stated goal without using language that explicitly excludes Islam.

Amit Shah has described the CAB as a first step. The next priority would be to implement a nationwide register of citizens in which all Indians would be required to provide documents proving their citizenship. The exercise would be modeled on a registry carried out in Assam, a regressive step that threatens to leave 2 million people stateless.

Shah says no Indian citizen has anything to fear from a nationwide register of citizens that aims to weed out illegal “infiltrators.” But many Indian Muslims are afraid the exercise is an excuse to target their claims to citizenship — and some have already begun to assemble their ancestral documents ahead of a possible registry.

Will the Bharatiya Janata Party’s policies turn India’s Muslims into second-class citizens? India’s only Muslim-majority state, Jammu and Kashmir recently lost its autonomy and statehood, reversing seven decades of policy. In November, India’s Supreme Court approved the construction of a grand Hindu temple at the site of a 16th-century mosque illegally destroyed by Hindu extremists. 

The India in which I was raised, didn’t discriminate based on religion though fanaticism rose its ugly head a few times. In the 3 decades I lived there, I have witnessed the Sikh Genocide of 1984, Bombay riots of 1998, burning of Graham Staines in Orissa in 1999 by Bajrang Dal and the Godhra riots of 2002. Freedom of press was something journalists prided on as the likes of Tavleen Singh, Shobha De and Barkha Dutt became icons of feminism. Today I tearfully stand in mute testimony of the end of India as I knew it. 

As Khushwant Singh stated 14 years ago, “Every fascist regime needs communities and groups it can demonize in order to thrive. It starts with one group or two. But it never ends there. A movement built on hate can only sustain itself by continually creating fear and strife. Those of us today who feel secure because we are not Muslims or Christians are living in a fool’s paradise. The Sangh is already targeting Leftist historians and “Westernized” youth. Tomorrow it will turn its hate on women who wear skirts, people who eat meat, drink liquor, watch foreign films, don’t go on annual pilgrimages to temples, use toothpaste instead of danth manjan, prefer allopathic doctors to vaids, kiss or shake hands in greeting instead of shouting ‘Jai Shri Ram’. No one is safe. We must realize this if we hope to keep India alive,”