CAA violates international customary law. Review it
India must honour its international legal obligations and develop a national refugee protection frameworkUpdated: Dec 18, 2019 12:44 IST
The Citizenship Amendment Act (CAA), 2019, aims to give Indian nationality to non-Muslim “illegal migrants” from Afghanistan, Bangladesh and Pakistan, who came to India before December 31, 2014, due to religious persecution, and who enjoy the benefit of waiver of Foreigners Act and Passports Act. As several constitutional lawyers have argued, the CAA violates the fundamental right to equality enshrined in Article 14 of the Constitution. Excluding Muslims, who also face religious persecution, from the list of communities eligible to gain Indian citizenship constitutes an irrational classification. Moreover, restricting the CAA to just three countries is arbitrary, when there is evidence of religious persecution in several neighbouring countries. Tamils in Sri Lanka and Rohingya Muslims in Myanmar, for example, face religious persecution, and have taken refuge in India.
Since the CAA deals with persecuted refugees, its international legal dimensions need to be comprehended. The problem of mass inter-State influx of refugees is well known globally. To protect the human rights of refugees, in 1951, under the aegis of the United Nations, countries adopted a convention relating to the status of refugees (Refugee Convention), which was later amended by the 1967 Protocol. These two global legal instruments, now ratified by 145 countries, constitute the major international legal framework on the treatment of refugees globally. India is not a party to either the Refugee Convention or the 1967 Protocol.
As per these instruments, refugee means any person who owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, flees his country seeking protection in another. The scope of persecution in international law is wide, not restricted to religious persecution. A fundamental aspect of these two international legal instruments is the principle of non-refoulement. Laid out in Article 33(1) of the Refugee Convention, this principle prohibits a country from returning refugees to countries where they face a clear threat of persecution on account of race, religion, nationality, political opinion, among others.
Deviation from this principle is allowed only in two situations: First, where a refugee constitutes a threat to the national security of the host country; and second, where the refugee’s proven criminal nature and record constitute a danger to the community. The principle of non-refoulement is also part of the United Nations Convention Against Torture, which India has signed, but not ratified.
According to the United Nations High Commissioner of Refugees (UNHCR), the principle of non-refoulement has attained the status of customary international law (CIL). CIL is binding on all countries, unless a country has persistently objected to the customary norm. Consequently, the non-refoulement principle is binding on all countries, including India, regardless of whether they have acceded to the 1951 Convention or the 1967 Protocol. Indeed, on the global stage, India has always supported the non-refoulement principle, despite not acceding to the Refugee Convention.
In October 2018, India deported a group of Rohingya refugees to Myanmar where they are facing not just persecution but also alleged genocide. Recently, Gambia has moved the International Court of Justice (ICJ) against Myanmar alleging the genocide of the Rohingyas in Myanmar. In view of this, India deporting Rohingyas to Myanmar contravenes the principle of non-refoulement, thus international law.
The CAA makes India’s violation of the non-refoulement principle manifest. The CAA creates a legislative framework, which, on the one hand, allows India to give citizenship to Hindu refugees from Pakistan facing religious persecution. On the other hand, Rohingya Muslims from Myanmar, who fled their country because of persecution and are placed as Hindu refugees, will continue to be treated as illegal migrants. India will attempt deporting them despite the high risk of persecution, thus contravening the non-refoulement principle. The political rhetoric of the ruling party, promising to throw out all illegal migrants, is a clear pointer to this.
The CAA is not so much about protecting persecuted Hindu refugees from three Islamic countries. It is about propelling the Hindutva project’s belief that India is the sacred land and pitribhoomi of Hindus, not of Muslims. But this belief is neither supported by India’s pluralistic and liberal constitutional order — which rejected the idea of having religion as the unit of nationhood — nor by international law. Instead of this unnecessary law, India, taking into account its international law obligations, should develop a national refugee protection framework. This framework should explore the opportunities to shelter “the persecuted and the refugees of all religions”, as Swami Vivekananda had said at the Parliament of religions in Chicago in 1893.