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Indians protesting against the new citizenship law and verification policies at Shaheen Bagh, a Muslim-majority neighborhood in Delhi that became the iconic image of these protests, January 2020.
© 2020 Md Meharban
Summary
A video emerged from India in February 2020 showing five grievously injured men lying on the street being beaten by several policemen and forced to sing the Indian national anthem. The video was filmed on February 24 in Kardampuri, a neighborhood in northeast Delhi. One of the men, Faizan, a 23-year-old Muslim, died from his injuries two days later.
At least 52 more people were killed in the three days of communal violence that broke out in India’s capital. Over 200 were injured, properties destroyed, and communities displaced in targeted attacks by Hindu mobs. While a policeman and some Hindus were also killed, the majority of victims were Muslim.
Muslims in India have been increasingly at risk since the Hindu nationalist Bharatiya Janata Party (BJP) government led by Prime Minister Narendra Modi was first elected in 2014. Faizan died in a carnage amidst rising communal tensions in the country. On December 12, 2019, the Modi administration achieved passage of the discriminatory Citizenship (Amendment) Act (CAA). Under the act, for the first time in India, religion is a basis for granting citizenship. The law specifically fast-tracks asylum claims of non-Muslim irregular immigrants from the neighboring Muslim-majority countries of Afghanistan, Bangladesh, and Pakistan. The amended citizenship law, coupled with the government’s push for a nationwide citizenship verification process through a National Population Register (NPR) and a proposed National Register of Citizens (NRC), aimed at identifying “illegal migrants,” has led to fears that millions of Indian Muslims, including many families who have lived in the country for generations, could be stripped of their citizenship rights and disenfranchised.
Throughout the country, Indians of all faiths have protested peacefully against the law, singing songs, reciting poetry, and reading aloud from the constitution, which commits to secularism and equality. The iconic image of these protests was at Shaheen Bagh, a Muslim-majority neighborhood in Delhi. Since it first began on December 15, the protest, which was led by local women, drew civil society support from across the country. It also provoked the ire of the ruling BJP, with some of its leaders deriding the protesters or more dangerously calling them anti-national and pro-Pakistan. Some have described the protesters as “Pakistani hooligans,” others led a chant to “shoot the traitors,” inciting violence. On February 1, 2020, a man fired two shots in the air near the protest site. On March 24, authorities asked the protesters to disperse following the outbreak of Coronavirus and calls for a lockdown to contain its spread.
Since the Modi administration first took office, BJP leaders have repeatedly made Hindu nationalist and anti-Muslim remarks in their speeches and interviews. These have, at times, encouraged and even incited violent attacks by party supporters who believe they have political protection and approval. They have beaten Muslim men for dating Hindu women. Mobs affiliated to the BJP have, since 2015, killed and injured scores of members of religious minorities amid rumors that they traded or killed cows for beef. In February 2019, BJP supporters threatened and beat several Kashmiri Muslim students and traders, apparently to avenge a militant attack on a security forces convoy.
Government policy has also reflected bias against Muslims. Since October 2018, Indian authorities have deported over a dozen Rohingya Muslims to Myanmar despite the risks to their lives and security. After winning a second term in May 2019, the government revoked the constitutional autonomy of India’s only Muslim-majority state, Jammu and Kashmir, and, anticipating protests, deployed additional troops, detained thousands, and cut off phone and internet connections. The police have failed to intervene when BJP supporters engage in speech inciting violence or mob attacks but are quick to arrest critics of the government.
During protests against the citizenship law, there was a similarly partisan response. In many cases, when BJP-affiliated groups attacked protesters, the police did not intervene. However, in BJP-governed states in December, police used excessive and unnecessary lethal force, killing at least 30 people during protests and injuring scores more. In Delhi in February, some policemen actively participated in the mob attacks on Muslims.
The government’s Hindu nationalist and anti-Muslim policies have touched off protests not just in India but abroad. The government crackdown on the protests in India raised further outcries. The United States, the European Union, and the United Nations secretariat have all called on the Modi government to scrap its discriminatory policies. Following the COVID-19 outbreak, Indian authorities said the citizenship verification plans had been indefinitely postponed.
Earlier, Indian diplomats tried to brush off international concern as “internal matters,” and the BJP launched a public campaign to counter attempts to “mislead the nation.” Prime Minister Modi has insisted that these policies are not discriminatory, saying, “Muslims are a part of our nation, and they have equal rights and duties as others.” However, he has done little to initiate a dialogue with the protesters, rein in his party members and supporters who routinely vilify Muslims, or press state governments to prosecute those responsible for abuses.
Muslims, in particular, have raised concerns about the National Register of Citizens because of the problems that have already occurred in the northeastern state of Assam, which is the only state to have completed such a verification process. It excluded nearly two million people, most of them ethnic Bengalis, whom the authorities accuse of entering India illegally from neighboring Bangladesh. After a surge in migration to Assam during British colonial rule and around the 1947 partition and creation of Pakistan, the 1951 National Register of Citizens was used to document these settlers. The August 2019 update to verify Indian citizens in Assam was the outcome of a 1985 peace agreement and a subsequent 2014 Supreme Court ruling to address grievances, protests, and violence by Assamese groups over irregular migration. In practice, the process was arbitrary and discriminatory, particularly targeting Bengali Muslims, leading to concerns that similar abuse and bias will be replicated when it is extended to the rest of the country. A group of retired bureaucrats and officials in January 2020 publicly warned that the nationwide NRC process “has the scope to be employed in an arbitrary and discriminatory manner, subject to local pressures and to meet specific political objectives, not to mention the unbridled scope for large-scale corruption.”
This report is based on interviews with victims of abuses and their families from Assam, Delhi, and the state of Uttar Pradesh, as well as legal experts, academics, activists, and police officials. It examines the discriminatory nature of the Citizenship Amendment Act and how the law, when combined with government citizenship verification initiatives including the National Population Register and National Register of Citizens, places millions of Muslims and other minorities at risk of statelessness and disenfranchisement. It documents allegations of police abuses against protesters. It also details discriminatory and error-prone practices against Bengali-speaking inhabitants in the process of updating the National Register of Citizens in Assam and the arbitrary and biased functioning of Assam’s Foreigners Tribunals, heightening concerns about any planned nationwide process.
An Inherently Discriminatory Law
The citizenship law amendments passed by parliament in December 2019 will allow Hindus and other non-Muslims who were unable to prove their citizenship status in Assam – and thus were left out of the National Register of Citizens – to maintain their Indian citizenship. It will also apply to other religious minorities who might be left out in the proposed nationwide National Register of Citizens. It will not, however, protect Muslims left off the registry.
BJP leaders have publicly used the act to assure Hindus in other parts of the country that they will be protected in the citizenship verification process. “I want to assure all Hindu, Sikh, Jain, Buddhist, and Christian refugees, that you will not be forced to leave India,” Home Minister Amit Shah said in October 2019, conspicuously omitting Muslims from the list of protected religions. “Don’t believe rumors. Before NRC, we will bring [the] Citizenship Amendment Bill, which will ensure these people get Indian citizenship.”
The citizenship law amendment is discriminatory and in violation of international human rights law because it applies only to non-Muslims from Bangladesh, Pakistan, and Afghanistan. The BJP government describes them as “refugees” trying to escape persecution in their country of origin while excluding Muslims from these predominantly Muslim countries, treating them as “infiltrators.” Defending the bill in parliament, Shah said, “There is a fundamental difference between a refugee and an infiltrator. This bill is for refugees.”
The government has tried to justify the law, saying it seeks to provide sanctuary to religious minorities abroad fleeing persecution. However, that claim is belied by the exclusion of many other vulnerable groups who have sought refuge in India, such as minority Tamils from Sri Lanka and ethnic Nepalis from Bhutan. It also effectively excludes other persecuted Muslim minorities like the Hazaras from Afghanistan, the Shia and Ahmadiyya from Pakistan, and the Rohingya from Myanmar.
The Office of the United Nations High Commissioner for Human Rights called the law “fundamentally discriminatory.” In February 2020, UN Secretary-General Antonio Guterres said he was concerned about the future of religious minorities in India after the enactment of the citizenship amendment law, saying “there is a risk of statelessness.” The United States Commission on International Religious Freedom said the US government “should consider sanctions against the home minister and other principal leadership” and held a hearing in March 2020 in which one of the commissioners raised concerns that the law “in conjunction with a planned National Population Register and a potential nationwide National Register of Citizens, or NRC, could result in the wide-scale disenfranchisement of Indian Muslims.”
Linking the Citizenship Law, National Population Register, and National Register of Citizens
The National Population Register is a list of all people residing in India, irrespective of their nationality. Indian officials will distill those considered “doubtful” citizens based on the NPR, to create a final list of those verified. This will be the National Register of Citizens. Those not verified, if non-Muslim, can get citizenship under the amended citizenship law which applies to irregular immigrants.
There have been contradictory statements by senior government officials, including Modi and Shah, in which they have attempted to delink the three. Shah said in December 2019 that, “There is no link between the NRC and the NPR. The data collected for the NPR will not be used in the NRC.” In March 2020, he told parliament the NPR process will not ask for any documents and “nobody will be marked ‘doubtful.’ Nobody needs to be scared of the process of the NPR in this country.”
Shah’s reassurances, however, carry little weight in the face of past government statements and recent legal provisions. BJP officials have repeatedly indicated that data from the NPR will provide essential inputs when the government compiles the NRC, its list of verified citizens. Soon after the Modi government won its first term, in July 2014, Minister of State for Home Affairs Kiren Rijiju told parliament, “it has been decided that NPR should be completed and taken to its logical conclusion, which is the creation of NRIC [National Register of Indian Citizens] by verification of citizenship status of every usual residents in the NPR.” The BJP’s manifesto for the 2019 national elections also promised to conduct a nationwide NRC.
India has, over the decades, witnessed large numbers of migrants, particularly Bangladeshi Muslims. Successive governments have adopted measures in response, particularly to contain irregular economic migration. Under the Citizenship Act, 1955, a person gained Indian citizenship by birth, descent, registration, naturalization, or formal government incorporation of the territory in which they lived. Irregular immigrants, who entered the country without valid travel documents or overstayed beyond the permitted period, could be imprisoned or deported under the Foreigners Act, 1946, and the Passport (Entry into India) Act, 1920.
In 2003, the Citizenship Act was first amended to introduce the term “illegal migrant.” The government also adopted the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, which introduced the National Population Register and explained that the National Register of Indian Citizens will contain details of persons after “due verification made from the Population Register.”
The NPR process, which began in 2010 and was updated again in 2015, was not, however, used for a citizenship verification process. Nor did the process include details that have been sought by the Modi government, which on July 31, 2019, issued a notification to update the NPR throughout the country in 2020. According to the Modi government, the objective of the NPR is to create a comprehensive identity database of every “usual resident” in the country, defined as a person who has lived in an area for the preceding six months or has plans to live there for six months in the future. The proposed database will contain demographic as well as biometric information.
The National Population Register will form the basis for identifying verified citizens and screen out so-called “illegal immigrants” or “infiltrators.” However, the rules do not clarify the process or criteria for verification, who will be considered “doubtful,” and how they can establish their citizenship. Lack of clarity raises concerns of arbitrariness and bias of local officials, much like the verification process conducted in Assam. Nor is there clarity on various procedures, document requirements, and the type of questions to be included in the NPR. Officials have made contradictory statements that obfuscate facts in the face of growing criticism.
Following protests in December 2019, opposition-led governments of West Bengal and Kerala states suspended all work updating the National Population Register. Several other state governments have said they will not conduct a citizenship verification process. Over 140 petitions have been filed in the Supreme Court contesting the constitutionality of the amended citizenship law. In March 2020, the UN High Commissioner for Human Rights filed an intervention application as amicus curiae (third party) in the Supreme Court, urging it to take into account international human rights law, norms, and standards in the proceedings related to the Citizenship Amendment Act. The Indian government criticized the application saying the citizenship law was an “internal matter” and “no foreign party has any locus standi [grounds to sue] on issues pertaining to India’s sovereignty.”
State and Institutional Failures in Response to Protests
The violence in Delhi began soon after local BJP politician Kapil Mishra, who had earlier led a large demonstration calling to “shoot” the protesters, posted a video in which he gave an ultimatum to the police, threatening to take the matter into his own hands if the police did not clear the roads of protesters in three days. First there were clashes between Hindus who supported the government and Muslims protesting against the new citizenship law, but this soon transformed into Hindu mobs chanting nationalist slogans, armed with swords, sticks, metal pipes, and bottles filled with petrol, rampaging through several neighborhoods in northeast Delhi, killing Muslims and burning their homes, shops, mosques, and property.
While several Hindus were also killed, including a policeman and a government official, Muslims overwhelmingly bore the brunt of the brutality. The police not only failed to stop mob attacks by BJP supporters, some witnesses alleged that the police assisted mob attacks. In parliament, Shah, who is in charge of the Delhi police, praised them for “effectively containing the riot within 36 hours.”
Prior to the violence in Delhi, at least 30 people were killed, and hundreds arrested for protesting the new citizenship law and citizenship verification process, all in BJP-governed states: 23 in Uttar Pradesh, 5 in Assam, and 2 in Karnataka. Most of those killed were Muslims, including an 8-year-old boy in Uttar Pradesh who reportedly died in a stampede as protesters fled a police crackdown. Several policemen were injured.
The authorities also used a colonial-era law against public gatherings, as well as internet shutdowns and limits on public transportation, to prevent peaceful anti-citizenship law protests. The police arbitrarily arrested those critical of the government and accused several people under India’s draconian sedition laws. Several activists and protesters said that they were beaten in custody. A fact-finding report by Indian rights groups found that children were also detained and beaten in police custody. Police in Uttar Pradesh state raided Muslim neighborhoods and ransacked shops and residences, instilling fear among the community.
Police allegedly acted in a partisan manner, using excessive force against demonstrators protesting the law, but failing to intervene during violent attacks by government supporters. On January 30, 2020, the police did not take action when a government supporter shot at students protesting outside the Jamia Millia Islamia University in Delhi. Yet a few weeks prior, on December 15, the police had used teargas to disperse protesters at the same university, even entering the library and hostels, beating students and some staff. A video of police brutally beating a man as female students tried to protect him led to criticism over excessive police actions.
Jamia Millia Islamia University has a large number of Muslim students. The partisan police actions at the university have been accompanied by bigoted statements by BJP leaders, including the prime minister, who suggested that protesters could be “identified by their clothes,” implying only Muslims were protesting the new law. Another BJP leader described some protesters as “rabidly indoctrinated Islamists,” an assertion that can lead to arbitrary arrests and terrorism allegations.
Several BJP leaders made divisive, hate-filled remarks against the people protesting at Shaheen Bagh that may have incited violent attacks on protesters. One BJP lawmaker warned that those protesting in Shaheen Bagh “will enter your homes, they will pick up your sisters and daughters and rape and kill them.”
The Delhi High Court, while hearing petitions about the riots in the city in February, questioned the Delhi police decision to not file cases against BJP leaders advocating violence, saying it sent the wrong message and perpetuated impunity. Instead of responding to court orders, the government fast-tracked orders transferring the presiding judge to another state, taking the riot-related cases away from him. Critics said they found the timing “disturbing.” Under a new judge, the court accepted the submission of the government’s attorney that the situation was not immediately “conducive” for registering police complaints.
When activist Harsh Mander, petitioner in the high court case against BJP leaders, filed a special leave petition in the Supreme Court against this order, the solicitor-general, arguing on behalf of the government, accused Mander, instead, of inciting violence and being contemptuous of the Supreme Court in a previous speech – a clear act of reprisal.
Lessons from Assam
On August 31, 2019, the final National Register of Citizens in Assam was published, leaving out the names of over 1.9 million people, including many who have lived in India for years, in some cases their entire lifetime. Over 33 million people had submitted applications to enroll their names. Said Mohsin Alam Bhat, executive director of the Centre for Public Interest Law at Jindal Global Law School:
This is the single largest legal event in scale of affected population since the partition and resettlement of refugees. It is not just 1.9 million people but also their families. Considering that the government may introduce [a citizenship verification project] in other places, in terms of a cascading effect, this is absolutely unprecedented.
Human Rights Watch found the NRC process in Assam lacked standardization, leading to arbitrary and discriminatory decisions by officials. The NRC also applied more stringent verification standards regarding documentation to members of ethnic Bengali minority groups who were suspected to be “non-original” inhabitants. The process failed to take into account that poorer residents, often surviving on basic subsistence, do not have access to identity documentation – dating back for decades – to establish citizenship claims. Many also lost documentation during internal migration in Assam as they moved for livelihood, marriage or other personal factors, violence, or because they were displaced – a common occurrence in flood-prone Assam state.
Women in India are more likely than men to lack access to documentation and as a result were disproportionately affected, especially those from poor and marginalized communities. Many women do not have birth certificates and have never attended school. Child marriage rates are high in Assam, as they are in most of India, and about 40 percent of girls in Assam were married before they were allowed to vote at age 18. This means that their first official documents are often voter identification cards that carry their married names, making it impossible to prove their link to their parents. Any nationwide citizenship verification process is likely to hurt them similarly.
The process has been so fraught that a nongovernmental organization, Citizens for Justice and Peace, said that 56 people have died in Assam since 2015 over fears related to their citizenship status. Several are said to have committed suicide at least in part because of fear of being declared irregular foreigners or fear of detention, and some died in detention centers due to alleged negligence of authorities.
State-provided identity documents are also prone to errors. Human Rights Watch found that even people with legitimate documents proving their citizenship status were not registered because of technical reasons such as spelling mistakes or different names being used in the various documents.
Aslam (name changed), a Bengali Muslim who worked as a driver in Guwahati, was excluded from the NRC even though his parents, wife, and children were included. He was likely excluded, he said, because the spelling of his name on his voter identification card and his income tax identification card known as Permanent Account Number (PAN) are different. “The form for the PAN card is in English, but we fill the forms for voter identity card in Assamese,” he said. “Then when they change it into English, the spelling of the name often changes.”
Human Rights Watch also found that the Foreigners Tribunals, which decide the question of citizenship, lack transparency and fail to follow uniform procedures, often making their decisions inconsistent. Members lack independence and are vulnerable to pressure from the authorities because the government’s evaluation of their performance is often measured by the number of people they declare as irregular immigrants. A former member of a Foreigners Tribunal told Human Rights Watch:
I admit that there might be arbitrary actions by Foreigners Tribunals because there is an internal government policy that more and more people should be deemed foreigners. We are hired on the basis of contracts – those with records of declaring more and more people as foreigners are preferred.
Activists and journalists said that significantly more Muslims were being tried and a much greater proportion were declared foreigners as compared to Hindus, likely because of political pressure.
In the regular justice system, once a matter is decided in a lower court it can only be challenged in a higher court, but a person cleared by a tribunal can be tried multiple times for being a suspected irregular immigrant. There are numerous cases in which people who have been declared citizens are presented with fresh notices to appear before the tribunals.
Once a person is declared an irregular immigrant by the tribunals, they can be detained by the police. Currently, there are six-makeshift detention centers in prisons across Assam. According to official data, 988 people were detained in these centers as of November 2019. The government has said it will build 10 detention centers in the state for those who are declared irregular foreigners. In January 2019, the Modi government sent a “Model Detention Manual” to all states that called for the setting up of “one detention camp in the city or district where [a] major immigration check post is located,” and that said “all members [of a family] should be housed in the same detention centre.”
However, Prime Minister Modi, while speaking at a rally on December 22, at a time when he should have known the claims were false, said his government had never discussed a national register of citizens and denied that that there were any detention centers for irregular immigrants in the country.
International Legal Standards
The 2019 Citizenship Amendment Act violates India’s international obligations to prevent deprivation of citizenship on the basis of race, color, descent, or national or ethnic origin as found in the International Covenant on Civil and Political Rights and other human rights treaties that India has ratified. The 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities calls on governments to protect the existence and identity of religious minorities within their territories and to adopt the appropriate measures to achieve this end. Governments are obligated to ensure that people belonging to minority groups, including religious minorities, may exercise their human rights without discrimination and in full equality before the law. Governments also have an obligation to ensure gender equality. To the extent that the process has a disproportionately harmful impact on the citizenship rights of women and girls, it also violates the Convention on the Elimination of All Forms of Discrimination against Women.
Key Recommendations
The citizenship law and verification process are contrary to the basic principles of secularism and equality enshrined in the Indian constitution and in domestic law. Indian authorities should immediately reverse course and adopt rights-respecting laws and policies regarding citizenship. They should also uphold the rights to freedom of expression and to peaceful assembly.
The Indian government should:
- Repeal the Citizenship Amendment Act, 2019, and ensure that any future national asylum and refugee policy does not discriminate on any grounds, including religion, and is compliant with international legal standards.
- Discard any plan for a nationwide citizenship verification project until there are public consultations to establish standardized procedures and due process protections ensuring the process is not discriminatory and does not impose undue hardship on the poor, minority communities, and women.
- Protect the rights to freedom of expression and assembly of those protesting against the government’s citizenship law and policies.
- Ensure prompt, credible, and impartial investigations into the killings of protesters, allegations of use of excessive force by police, arbitrary detention, and raids on Muslims homes and property.
- Release all those arbitrarily detained for protesting against the citizenship law and dismiss politically motivated charges against protesters and civil society activists.
- Investigate hate speech by government officials and appropriately prosecute incitement to violence.
