CAA, International Law and Ahmadis & Hazaras

Title :

CAA , International Law and Ahmadis & Hazaras

Synopsis

1. Abstract

2. Introduction : What is CAA?

3. India's Statement on CAA

4. Ahmadis & Hazaras and the Violation of Indian Constitution

5. CAA Violating International Law

i) Arbitrary Deprivation of Nationality
ii) Principle of Non - Refoulement
iii) Article 26 of ICCPR

6. Conclusion

Vanchinathan R, RA2161001010109
 CAA, International Law and Ahmadis & Hazaras

Abstract

This article attempts to bring out that, Citizenship Amendment Act of 2019 (hereinafter called as
CAA) proposed by the BJP led Union Government violates International law as well as the
municipal law, i.e. Constitution of India.

It tries to assess the Act at both the national and international levels. Six religious communities
from Afghanistan, Bangladesh, and Pakistan are conditionally exempt from possessing
passports or other legitimate travel documents under the CAA.

A requirement for a migrant's naturalisation as an Indian citizen is also laid down in the CAA.
Yet, the new law's selection process for which illegal immigrants from a limited few adjacent
states may apply for naturalisation is arbitrary because it is focused on religion.

This religiously driven standard runs counter to the Indian Constitution's secular foundation.
Additionally, the CAA is capricious and irrational in the absence of a justifiable and consistent
explanation for the exclusion of Muslims and religious minorities from other surrounding states
of India.

Additionally, this law discriminates against Muslims and other religious minorities that are not
listed in the amendment due to its arbitrary nature.

The CAA also violates a number of international Legal Conventions due to its discriminatory
nature, including the 1951 Refugee Convention, the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, and the 1985 UN Convention against
Torture.

Vanchinathan R, RA2161001010109
 CAA, International Law and Ahmadis & Hazaras

Introduction : What is CAA

The Indian Parliament passed the Citizenship (Amendment) Act, which became law on 12
December, 2019. Yet, as it established the requirements for who may be granted citizenship of
the country, this sparked a surge of protests against it throughout the nation.

CAA amends the Citizenship Act 1955, such that it could offer Citizenship through Naturalisation
for Illegal Immigrants, who are Hindu, Christian, Buddhist, Sikh, Jain, Parsi and came from
Muslim majority countries, Pakistan, Bangladesh and Afghanistan, on or before 31 December
2014.1 This amendment arbitrarily opted not to include Muslims in its ambit.

Moreover, it confines to award Citizenship for illegal migrants, to only three of the neighbouring
countries. So the act would not confer citizenship for any refugees who are from the
neighbouring countries, Sri Lanka, China, Myanmar.

India's Statement on CAA

Against this arbitrary exclusion on the basis of religion and origin of country, a case was filed in
the Supreme Court challenging the Constitutional validity of CAA. The following justifications are
provided in the government's Declaration of Objects and Reasons:

i) The constitutions of Bangladesh, Afghanistan, and Pakistan all specify Islam as the state
religion. As a result, numerous members of the Minority Communities such as Hindu,Christian,
Sikh, Buddhist, Jain, and Parsi groups have been persecuted in those nations due to their
religion.

ii) Several of them worry about persecution in their daily lives, where their freedom to practise,
proclaim, and spread their religion has been impeded and limited. Many of these people fled to
India in search of safety and stayed there despite the fact that their travel documents had
expired, were incomplete, or they had none at all.2

Ahmadis & Hazaras and The Violation of Indian Constitution.

But there are a lot of problems in understanding the logic behind the objects and reasons stated
by the Union Government. Even Though the amendment uses the word Illegal Migrant, the
usage of the word 'Persecution' in Indias Statement denotes that CAA intends to give
Citizenship to the Refugees from those countries.

1
Dr. Sitaram, CAA Issue and Human Rights Obligations, International Journal of Research in Social Sciences

2
Professor Michelle Foster and Dr Adil Hasan Khan, Citizenship (Amendment) Act 2019 and International Law

Vanchinathan R, RA2161001010109
 CAA, International Law and Ahmadis & Hazaras

From India's statement, we could infer that only religious minorities are persecuted from
Bangladesh, Afghanistan and Pakistan. But that is completely wrong. There is this Ahmadissect
within Muslim religion in Pakistan. They are not accepted as Muslims in their Nation.

In 1974, Pakistans Constitution was amended such that Ahmadis are not Muslims and as well
as they are not even allowed to self claim themselves as Muslims. Since 1985, they have been
excluded from the Electoral College.

Pakistan does have a state religion, but Ahmadis are not muslims according to Pakistans
Constitution. In 2012, A survey was conducted that revealed, only 7% of the Pakistan population
consider Ahmadis as Muslims. Ahmadis follow the same practices as Muslims. They accept the
Quran, Sunnah. Only thing that they differ from other Muslims is Khatam-an-nabiyyin, which
means The Last Prophet. 3

According to them Muhammad Nabi is not the last prophet sent by god. They believe that the
founder of the Ahmadis sect, Mirza Ghulam Ahmed to be the Messiah/ Return of Muhammad.
This is the only point where Ahmadis differ from other Muslims.

Ahmadis are subjected to terror attacks in Pakistan. They arent even allowed to recite the
Quran. In 1953,1974 and 2010, there have been riots were Ahmadis were attacked brutally and
subjected to torture. Even in Azad J&K (Pakistan Controlled Jammu &Kashmir), they are not
considered as Muslims. But in India, Ahmadis are considered as Muslims. Ahmadis are
subjected to torture and persecuted from Pakistan. Rohingya Muslims from Myanmar are also
face persecution on religious grounds.4

Likewise, 'Hazaras' sect within Muslims in Afghanistan also face similar problems. The Hazara
people have endured ethnic cleansing, slavery, land grabbing, unjust taxes, home robbery, and
other atrocities for more than a century, which has consistently kept them out of the
government, economic prospects, and social dynamics.

Due to their religious beliefs and their distinct facial features, the Hazara population are facing
persecution from the Taliban and Islamic State, as well as structural violence, neglect and
complicity from the Afghan State, which further exacerbates their situation.

India would consider these people as Muslims but, Pakistan and Afghanistan do not consider
them as Muslims and they make them Refugees by persecution. Practical application of CAA
makes India to send these refugees back to their country where they are subjected to torture.

It is totally unfair to differentiate Refugees on the basis of Religion. Article 14 of Indian

Constitution, does not permit these arbitrary groupings. Because, there is no rationale behind
these groupings, i.e. there exists no Intelligible Differentia and Rational Nexus. It is important
here to note that India is a Secular State, from the Preamble of Indian Constitution to several
judgments till date, which reiterated the secular character of India. 5

3
Peter Gottschalk, The Conversation, https://theconversation.com/who-are-pakistans-ahmadis-and-why-havent-they-voted-in-
30-years-100797

4
Ibid.

Vanchinathan R, RA2161001010109
 CAA, International Law and Ahmadis & Hazaras

CAA Violating International Law

i) Arbitrary Deprivation of Nationality

It is clear from the above points that, CAA arbitrarily deprives nationality to people from
particular Religion. Article 15(2) of Universal Declaration of Human Rights convention also
says about Prohibition of Arbitrary deprivation of Nationality. In Anudo Ochieng Anudo v
Republic of Tanzania, African Human rights court held that Prohibition of Arbitrary Deprivation
of Nationality is now an Customary Principle of International Law.6

As it became a recognised custom of International Law, it is binding on all states even to those
who are not party to the convention. The Inter-American Court of Human Rights in its advisory
opinion on the Costa Rica Naturalisation Case held that differentiation might be permissible if
the criterion for categorisation is not arbitrary and capricious.7

ii) Principle of Non - Refoulement

The principle of non-refoulement means the practice of not forcing refugees or asylum seekers
to return to a country in which they are liable to be subjected to persecution.8

Article 33 of the Refugee convention prohibits Refoulement, India is not a party to that
Convention. But UN convention against Torture, also states that parties to Torture Convention
are bound by the Principle of Non - Refoulement.

India is a party to the Torture Convention. Practical Application of CAA makes India to send the
Refugees back to the country where they are subjected to Torture. This is against the Principle
of Non - Refoulement ,thereby directly goes violating the 1985 UN Convention against Torture.

Only two scenarios permit deviating from this rule: first, when a refugee poses a threat to the
host nation's national security; and second, when the refugee's demonstrated criminal nature
and record pose a harm to the neighbourhood.9

5
Jaideep Singh Lalli, Communalisation of Citizenship Law: Viewing the Citizenship (Amendment) Act 2019 Through the Prism of
the Indian Constitution, University of Oxford Human Rights Hub Journal.

6
Abdullah Mohsin and Hammad Raza Sultan, The Legality of the Citizenship (Amendment) Act 2019 under the Constitution of
India and International Law

7
Ibid

8
Trevisanut Seline, ‘International Law and Practice: The Principle of Non- Refoulement and the De-Territorialization of Border
Control at Sea’

9
Prabash Ranjan, Hindustan Times, https://www.hindustantimes.com/analysis/caa-violates-international-customary-law-
review-it/story-hbo1pEgphben4PgzfrzlJK.html

Vanchinathan R, RA2161001010109
 CAA, International Law and Ahmadis & Hazaras

iii) Article 26 of ICCPR

ICCPR stands for International Covenant on Civil and Political Rights. Article 26 of ICCPR
states that, Everyone shall have the right to freedom of thought, conscience and religion. As,
CAA outrightly deprives the Nationality to people from Muslim religion, it goes against the Article
26 of the ICCPR.10

Although the right to nationality is not expressly stated in the ICCPR, Article 26 expressly goes
beyond the rights previously guaranteed in the treaty and forbids discrimination in the
application of nationality law. According to the Human Rights Committee, the process of
naturalisation is covered by the rights to equality and non- discrimination.

Conclusion:

CAA violates International law as well as Indian Constitution.

i) CAA goes against the Prohibition of Arbitrary Deprivation of Nationality, which is recognised
Customary principle of International law.

ii) CAA's practical application makes India to violates the Principle of Non - Refoulement,
thereby violating the UNs Torture Convention of 1985, to which India is a party though not
ratified.

iii) CAA violates the Article 26 of ICCPR, India is a party to it.

iv) CAA also violates Article 14 of Indian Constitution.

10
supra 2

Vanchinathan R, RA2161001010109