Editor’s note: In light of the violent protests in India this week, we asked Suparna Chaudhry to update her December 2019 analysis of India’s Citizenship Amendment Bill.
In December, India’s Parliament passed the Citizenship Amendment Bill, fundamentally changing the country’s Citizenship Act of 1955. That prompted protests by people from a wide range of backgrounds, including students across the country.
The protests and sit-ins in the capital, New Delhi, have continued for more than two months and have been largely peaceful. However, the Bharatiya Janata Party (BJP)-led government has used incendiary rhetoric, threatening to shoot the protesters. A local BJP leader issued an “ultimatum” to protesters in the lead-up to President Trump’s first visit to the country on Monday and Tuesday.
Since Sunday, violent clashes between those favoring and opposing the law have left 13 dead and several injured. The violence has overwhelming religious overtones — unidentified groups have destroyed mosques and targeted Muslim-majority neighborhoods with gasoline bombs. Media reports also highlight widespread criticism that the New Delhi police failed to respond adequately to the violence.
This level of communal violence during a U.S. president’s trip to a country, especially in a capital city, is unprecedented. The following analysis helps explain the law and its potential effects.
1. What is the Citizenship Amendment Bill?
The law changes India’s naturalization process for acquiring citizenship, amending a law that previously prohibited “illegal immigrants” — those who enter the country without proper documentation or overstay their visas — from becoming Indian citizens. The 2019 amendment allows Hindus, Sikhs, Buddhists, Jains, Parsees and Christians who migrated to India from Afghanistan, Bangladesh or Pakistan to become citizens. It also allows them to file expedited citizenship claims after six years of residency, down from a residency requirement of 11 out of the past 14 years in the original law.
The amendment leaves Muslims off the list of protected groups, however. Many political analysts and human rights experts argue that the government designed the law explicitly to exclude Muslim asylum seekers from acquiring refugee status in India and, eventually, citizenship.
2. What are the implications of using religious criteria for citizenship?
BJP leaders have justified excluding Muslims, saying the goal is to aid victims of religious persecution in their home countries. A government official noted that Muslims in Afghanistan, Pakistan and Bangladesh cannot, by definition, face persecution because those are Muslim-majority countries.
Domestic critics challenge this claim on multiple grounds. The government has provided no explanation for specifying migrants from Pakistan, Afghanistan and Bangladesh, given that the country receives more migrants from other neighboring nations.
Besides Afghanistan, asylum seekers in India typically are Tibetans from China, Tamils from Sri Lanka or Rohingya from Myanmar, so if the government intended the law to aid victims of religious persecution, these countries also would be included. The law overlooks, too, persecution that certain Muslim sects, such as the Ahmadiyya community in Pakistan, face even within Muslim-majority countries.
Legal scholars consider this law unconstitutional and argue that it violates articles 14 and 15 of the Indian constitution: Article 14 guarantees equal protection for all, and Article 15 prevents discrimination on the basis of religion. More than 1,900 scholars and scientists have signed a statement arguing that it is “deeply troubling that the Bill uses religion as a legal criterion for determining Indian citizenship”.
3. Why did the BJP government push this bill forward?
The law fits within the BJP-led government’s larger agenda to construct a Hindu nation. Prime minister Narendra Modi’s administration, now in its second term, has already taken three key steps to implement this vision.
The National Register of Citizens in Assam led to the identification of 1.9 million residents of that state as “illegal immigrants” who now risk statelessness. In August, the Indian government revoked the autonomous status of the Muslim-majority state of Kashmir. This removed Kashmir’s power to make laws on all matters except defense, foreign affairs and communication.
In November, a ruling by India’s Supreme Court granted Hindus permission to construct a temple on the site of the Babri mosque, which Hindu extremists had demolished in 1992. These developments have not only emboldened Hindu nationalists but also contributed to a growing sense of insecurity among Indian Muslims.
4. What do Indians think — and what has been the global reaction?
Domestically, this religious test for citizenship has prompted fears that the government will eventually strip citizenship from as many as 200 million Muslims. One of the BJP’s key election promises was the creation of a nationwide National Register of Citizens, modeled on the registry in Assam.
Those excluded from such a list would have to prove their citizenship. For many, that would be a tall order, given the violence and displacement during India’s 1947 partition, when colonial India split into Hindu-controlled India and Muslim-controlled Pakistan. Many fear that Muslims who do not have documentation because of the events of partition may risk detention or deportation. Younger Muslims may not be able to fulfill this burden of proof if they can’t produce an old property deed or a birth certificate — a possible scenario given the high rates of illiteracy and the voluntary registration of births before 1970.
In September, India also began constructing large-scale detention centers in the northeastern state of Assam. While that has not received much mainstream attention, the threat of large-scale detention and deportation could easily turn into a humanitarian crisis.
Internationally, the law has also raised concerns on Capitol Hill. The House Foreign Affairs Committee spoke out against having any religious test for citizenship. The U.S. Commission on International Religious Freedom, a bipartisan government body, has urged the U.S. government to impose sanctions on Indian Home Minister Amit Shah, who introduced the bill, and other leaders. However, at a news conference in Delhi on Monday, Trump said that it was “up to India” to handle the wave of riots and communal violence.
Legally, India is unlikely to face any international repercussions. The country is not a signatory to the 1951 Refugee Convention or the 1967 Protocol Relating to the Status of Refugees. It also has not ratified the Convention Against Torture, which prohibits refoulement — forcing refugees or asylum seekers to return to a country where they are likely to suffer persecution. Many within India will look to the Supreme Court to strike down the law, but others argue that it will require broader political and ideological mobilization outside the legal sphere.
Suparna Chaudhry is an assistant professor of political science and director of the Reiff Center for Human Rights and Conflict Resolution at Christopher Newport University in Newport News, Va.