TWO weeks ago, the Indian parliament passed the Citizenship (Amendment) Act 2019 (CAA).
Since then, there has been much hue and cry about it.
The law has also caused widespread protests in the north-east of the country which borders Bangladesh.
The Indian National Congress has been particularly vocal, saying that it would cause communal tensions and polarise India.
As an independent and sovereign state, India has the power to make any written law it deems fit and necessary for its people.
But such legislative power is not absolute and unlimited because there are “internal” as well as “external” constraints and limitations.
“Internal” — any law passed by Parliament which is contrary to the Indian Constitution is ultra vires, and can be declared null and void by the Indian Supreme Court, while “external” refers to the international obligations contained in various treaties and conventions to which India, as a state party, has acceded to or ratified.
The CAA, which amended India’s Citizenship Act 1955, confers citizenship rights on Hindu, Sikh, Buddhist, Jain, Parsi and Christian religious minorities.
These minorities had fled persecution from Pakistan, Bangladesh, Afghanistan and found sanctuary in India before Dec 31, 2014.
The United Nations human rights office has described it as “fundamentally discriminatory in nature”.
Critics have come down hard on CAA, saying that it violates India’s obligations under at least two conventions — the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
India ratified the ICCPR on April 10, 1979 and the ICERD on Dec 3, 1968.
The British Broadcasting Corporation (BBC), for instance, has said that the CAA is “anti-Muslim”, and that it forms part of an agenda by the Indian government to marginalise Muslims.
As pointed out by Indian historian Mukul Kesavan: “The new law was couched in the language of refuge and seemingly directed at foreigners, but its main purpose is the delegitimisation of Muslims’ citizenship.”
Pakistan’s National Assembly has also passed a resolution labelling CAA as “discriminatory” and contravening “bilateral agreements and understandings” between India and Pakistan.
A Muslim political party and human rights group have since challenged the law in India’s Supreme Court, which recently said it would take up a clutch of petitions against the law.
Indian Prime Minister Narendra Modi, however, said last Sunday, that the new law would not be scrapped.
Instead, he said, the opposition parties were “spreading lies and instigating violence” and accused demonstrators of trying to destroy the country through bloodshed.
The law does seem to infringe the principle of equality enshrined in India’s secular constitution.
And for the most part, the views by critics appear justified. While the intent to protect certain persecuted groups is welcomed, it has to be pointed out that CAA does not extend protection to Muslims, which number more than 200 million in India, including certain minority sects.
Nevertheless, the CAA should not be read in isolation.
To understand its full impact (whether it is unconstitutional, or it breaches India’s international obligations, or is discriminatory and will marginalise Muslims in the country), one needs to look beyond it.
The writer, a former federal counsel at the Attorney-General’s Chambers, is deputy chairman of the Kuala Lumpur Foundation to Criminalise War
The views expressed in this article are the author’s own and do not necessarily reflect those of the New Straits Times