India’s Citizenship (Amendment) Act — PS Deshmukh, 11 August 1949 2 INTRODUCTION Two years and the Radcliffe line separates the above two statements, addressed to the Constituent Assemblies of Pakistan and India, respectively. These continue, however, to offer competing visions of national citizenship and belonging in both countries, often at odds with received political wisdom in both states, that are relevant even today. Since 1947, the question of non-Muslims — read as largely, though not exclusively, Hindus fleeing from real or imagined persecution to India from Pakistan and Bangladesh — has figured significantly in the subconscious of successive governments. A spike in reported atrocities against Hindus and Sikhs leads inevitably to demands upon the Indian state to take action and, at the very least, to provide rehabilitation for these ‘victims’ within Indian territory. Indian governments — including the current government — have usually been sensitive to these questions, announcing long-term visas, 3 modifications to citizenship laws and other benefits to migrants from Pakistan, Bangladesh and Afghanistan. 4 Minority rights, therefore, continue to be inflected with the shadow of British India’s Partition and surveillance and control regimes that were drawn up in its aftermath. The Citizenship (Amendment) Act 2019 (‘CAA’), provides us with a very clear exposition of this pattern. As per s 2, persons belonging to the ‘Hindu, Sikh, Buddhist, Jain, Parsi or Christian community’ from Pakistan, Bangladesh or Afghanistan are entitled to expedited citizenship within five years rather than the 11 otherwise specified by law. 5 Though it ostensibly applies to ‘legal’ migrants, earlier modifications to the Foreigners (Amendment) Rules 2015 have, in respect of non-Muslim immigrants from these countries, effaced the distinction between a legal and illegal migrant. 6 At the same time, amendments to the Passport (Entry into India) Rules 1920 exempt minority communities in Bangladesh, Afghanistan and Pakistan who face ‘religious persecution or fear of religious persecution’, allowing them to stay in India even without bona fide documents. 7 Rather than a traditional refugee law paradigm, as some have argued, I shall argue here that the CAA performs two functions. Firstly, it serves as the culmination of a long-standing historical identification of non-Muslims in 2 3 4 5 6 7 India, Constituent Assembly Debates, 11 August 1947, 9.116.34 (PS Deshmukh). ‘Rajnath Singh Bats for Hindu Refugees' Citizenship’, The Times of India (online, 24 November 2013) <https://timesofindia.indiatimes.com/city/guwahati/Rajnath-Singh-batsfor-Hindu-refugees-citizenship/articleshow/26281979.cms>. See also, Vijaita Singh, ‘Govt to Expedite Citizenship Pleas of Hindu, Sindhi Refugees’, Indian Express (online, 7 August 2014) <https://indianexpress.com/article/india/india-others/govt-to-expedite-citizenshippleas-of-hindu-sindhi-refugees/>. Rahul Tripathi, ‘Steep Rise in Citizenship to Hindus and Sikhs from Pakistan and Afghanistan Under PM Modi-led Government’, The Economic Times (online, 21 May 2015) <https://economictimes.indiatimes.com/news/politics-and-nation/steep-rise-in-citizenshipto-hindus-and-sikhs-from-pakistan-and-afghanistan-under-pm-modi-ledgovernment/articleshow/47364314.cms?from=mdr>. Citizenship (Amendment) Act 2019 (India) s 2 (‘CAA’) specifically excludes these groups from the definition of illegal migrants. Foreigners (Amendment) Rules 2015 (India). Order GSR No 685(E) (Notification F No. 25022/50/2015–FI, 7 September 2015). 209