Determination Of Citizenship On The Basis Of Religion In Secular India: What Makes It Possible?

In spite of the secular character of the State of India, how did it become possible for the current government to even think of making religion the basis for determining citizenship via constitutional amendment?

What made it possible is the fact that India is not part of the Refugee Convention, 1951, nor of its protocol of 1967, which came into existence during the prime ministerial tenures of Jawaharlal Nehru and Indira Gandhi respectively.

Thus, the principles of non-refoulment and impediment to expulsion are not applicable to India.

Legal status of the refugees is defined in these two instruments, signed by 136 member states of the United Nations. India is not one of the signatories.

The convention and its protocol made several provisions to ease the everyday life of refugees, ensuring the right to work, education, and public assistance, including access to court and social security and right to travel documents, since they are not in the position to use their own national passport.

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The convention related to the status of stateless persons was adopted in 1954 through the Economic and Social Council Resolution 526 (XVII). The Convention defined the term stateless person as a person, who is not considered as a national, under the operation of its law.

As per the terms of the convention, nationality should be granted by a nation to all people within its territory either on birth, or operation of law or upon an application being lodged with an appropriate authority.

The convention further says that child born in wedlock in the territory whose mother has the nationality of that state shall acquire the same and in case of any loss of nationality because of change of the personal status, such as marriage, termination of marriage, legitimation, recognition or adoption, such loss must be conditional till the acquisition of another nationality.

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This was a global step to regulate and eliminate statelessness. India refused to be part of this convention too.

Not being part of these conventions India is not legally bound to comply by the terms and conditions laid down in the instruments.

India has also not enacted any domestic legislations relating to the refugee and stateless in spite of the fact that it has always been struggling with a huge influx of refugees from almost all of its neighbouring countries and also with issues of statelessness.

In the absence of any relevant law, it is not clear as to what should be the legal status of these people. The lack of clarity is because steps to identify them have not been properly defined.

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Legislation on refugees and stateless could have had a far-reaching effect, but no government has as yet taken any step in this direction.

Perhaps it is so because there is widespread ignorance of the problems faced by the refugees and the stateless or/and because of the lack of sympathy for them, as they are more often than not perceived as an undesirable lot that fled their own country for the betterment of their social and economic life.

Indian Constitution under Part III along with other rights also provides equality before law, protection in respect of conviction, protection of life and personal liberty and protection against arbitrary arrest under Article 14, 20, 21 and 22 respectively.

These rights are available to ¡®all persons¡¯ within the ¡®territory of India¡¯ and consequently should also be available to the refugees or stateless or anyone within the territory of India.

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The global effort to reduce or eliminate refugees and stateless has had only limited effect so far, as it is still within the competence of individual nations and as an individual nation India does not appear to be conscious enough towards its responsibility to formulate a legislation in this line.

In 2019 India hosted 41,000 refugees as per the UNHRC record and the number of those who ¡°could be stateless¡± that India gave asylum to was estimated to be 19,00,000 in Assam alone (actual figures could be much higher).

With such huge numbers of ¡°People of Concern¡±, it is high time for India to come up with a proper legislation that is in conformity with global needs, both for the betterment of citizens and non-citizens; and the Citizenship Amendment Bill (CAB) cannot be that desired legislation in its proposed form because of its selective nature.