Does Citizenship Amendment Bill Mention ‘Religious Persecution’?

Operative part of the CAB doesn’t use the phrase, but the concept has been incorporated indirectly.

Legal editor Vakasha Sachdev explains how religious persecution has been incorporated into the CAB.

Photo: The Quint

Cameraperson: Mukul Bhandari
Video Editor: Purnendu Pritam

The Citizenship (Amendment) Bill 2019 (CAB), which has now been passed by the Rajya Sabha following its passage in the Lok Sabha, has been all over the news. It has been criticised as being anti-Muslim, it has been claimed that it provides illegal migrants from certain religious communities special dispensation without any rational basis, and legal experts think it will not stand scrutiny by the Supreme Court.

The Modi government has defended its latest legislative project by saying it is meant to protect those who face ‘religious persecution’ in Pakistan, Afghanistan and Bangladesh, where there is a state religion according to their respective constitutions. Home Minister Amit Shah has reiterated this point in the Lok Sabha on 9 December and in the Rajya Sabha on 11 December.

The Statement of Objects and Reasons of the CAB also addresses this, saying:

“Many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries. Some of them also have fears about such persecution in their day-to-day life where right to practice, profess and propagate their religion has been obstructed and restricted. Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.” (emphasis supplied)

But some of those looking at the Bill are starting to ask the question: Where is the concept of ‘religious persecution’ built into it?

News18 also reported that the terms ‘religious persecution’ or ‘persecuted communities’ are not included anywhere in the Bill, with senior advocate Colin Gonsalves and activist Harsh Mander questioning the absence of the wording in it.

Is ‘Religious Persecution’ Actually a Precondition for Application of the CAB?

It is correct that the operative portions of the CAB do NOT include any reference to the term ‘religious persecution’. See for instance the wording of the proviso added to the definition the Citizenship Act 1955 to exclude persons belonging to the communities it seeks to protect from the definition of ‘illegal migrant’:

However, this does not mean that the concept of ‘religious persecution’ is absent from the CAB.

As the highlighted portions of the definition above show, one of the preconditions for a Hindu, Sikh, Buddhist, Jain, Parsi or Christian from Afghanistan, Bangladesh or Pakistan to gain the benefit under the CAB (ie, not be considered an illegal migrant) is that they have been:

“... exempted by the Central Government by or under clause (c) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder...”

The Passport Act 1920 and the Foreigners Act 1946, which deal with identification and deportation of those who don’t have a valid visa or right to remain in India, also include the ability to create certain exceptions.

In 2015 and 2016, the Modi government introduced new exceptions for Hindus, Sikhs, Buddhists, Jains, Parsis or Christians from Afghanistan, Bangladesh or Pakistan “who were compelled to seek shelter in India due to religious persecution or fear of religious persecution”.

Therefore, by referencing the two Acts in the preconditions for not being considered an illegal migrant, ‘religious persecution’ has been incorporated into the CAB.

Why This is Still Controversial

Despite ‘religious persecution’ being baked into the CAB as described above, criticisms that it will still apply in a blanket manner to all Hindus, Sikhs, Buddhists, Jains, Parsis or Christians from Afghanistan, Bangladesh or Pakistan – are not entirely misplaced.

This is because:

• The concept has only been included through amendments to secondary legislation – the Passport Rules 1950 and the Foreigners Order 1946 (which relate to the exceptions in the Passport Act and the Foreigners Act respectively).
• Secondary legislation can be modified at any time, and without any Parliamentary scrutiny, which means that in 2020 or later, the requirement to show religious persecution could be removed altogether, with a minor amendment to these secondary legislation.
• Furthermore, even if the secondary legislation doesn’t change, the exemptions created under them apply not just to people who have faced religious persecution, but also those who came to India out of a “fear of religious persecution”.
• This is ambiguous enough to be very easy to argue, and effectively means the religious persecution requirement for application of CAB doesn’t exist for those belonging to the religions which qualify.

These only add to existing concerns about the standard for proving ‘religious persecution’, all of which put together raises serious doubts over how much of a precondition this is going to be for those claiming the benefits of the CAB.