The Diplomatic Insight _ January 2020

Interestingly, the apex court had
said nothing about the process after
its conclusion.
Citizenship Act was one such
example that classified only some
ethnicities as national’, effectively
outlawing the Rohingya people.
While jus sanguinis is premised
on a country harking back to an
arbitrarily-determined past, jus
soli looks at the future, enabling
a country create a pluralistic and
inclusive society.
Citizenship by birth and
descent
While discussing citizenship in the
Constituent Assembly (CA), the
drafters were very conscious of
how they wanted to build the India
of their dreams. Sardar Vallabhbhai
Patel, now an icon for the Narendra
Modi regime, rejected citizenship
based on racial principle. His
enlightened views, and those of the
other CA members, were reflected
in the Citizenship Act of 1955
which provided for citizenship by
birth. This changed in 1987 when,
for the first time, India made just
sanguinis applicable after the Prime
Minister Rajiv Gandhi buckled
under pressure from Assamese
nationalists and signed the Assam
Accord.
The Accord created a frameworkgraded
citizenship, depending on
a person’s parentage and when
he/she had migrated to India. The
constitutionality of Section 6A of the
Act, which reflects the provisions of
the Accord, is still pending before
a five-judge bench of the Supreme
Court. Ideally, the court should
have disposed of this petition
before insisting on an Assam
NRC.
The Assam Accord and the
Sonowal verdict laid the grounds
for the Supreme Court-directed
NRC. Now, when the CAA has
made the inclusion of NRCexcluded
migrants belonging to
certain communities possible,
Assam Chief Minister Sarbananda
Sonowal, who was the petitioner in
the 2005 case, has himself expressed
doubts about the final list. He has
also assured the Assamese people
that their culture and language will
be preserved. None of the 19 lakh
excluded people have been issued
orders that would enable them to
appeal to a Foreigners’ Tribunal.
There is little doubt that the
Assam Accord implicitly targeted
Bengalis in general and Muslims
in particular. The CAA has
made this discrimination more
explicit by offering citizenship
to persecuted minorities from
certain communities who came
from Afghanistan, Pakistan and
Bangladesh before a specified date.
It is obvious that the Act intends to
exclude Muslims, including those of
persecuted religious denominations
from these nations. To make a
related point, the CAA could
possibly also enable people to
convert to one of the listed faiths
and seek citizenship. They could
well say that they adopted Muslim
names due to a well-founded fear
of persecution in these countries.
The CAA, in essence, not only
violates the constitutional values of
secularism and freedom of religion,
but also negates the principle of equal
protection and non-discrimination.
Finally, if the purpose of the CAA is
to preserve the spirit of Vasudhaiva
Kutumbakam (‘The world is one
family’), why does the government
not enact a comprehensive refugee
law that would provide for a
fair and objective procedure to
determine ‘persecution’ and allow
eligible refugees to seek asylum? By
conflating asylum with citizenship,
the CAA sadly prioritizes politics
over persecuted people.
20•THE DIPLOMATIC INSIGHT