Testing India’s Immigration Policies Against Constitutional Morality.

Siddhant More
Jan 21
8 min read

Immigration policies in a country can easily reflect the state’s idea of who may or may not be a model population that the government wants to pass its legacy to. Immigration laws flesh out who ‘belongs” in a country, and who ‘belongs” gives us an idea of who is protected and who isn't. I use the word “belong” in quotation marks because this definition of belonging is highly subjective and varies by country. Different countries associate different values with this term. For this essay, I shall explore Indian immigration policies, with the Citizenship (Amendment) Act in the primary focus, along with their effects when coupled with the National Register of Citizens and the National Population Register, with a brief reference to the Foreigners Act of 1946 and the Foreigners (Tribunals) Order of 1964. I argue that a law like CAA has reshaped the national ethical landscape of Indian citizenship and immigration. I shall demonstrate this point by running the CAA-NRC-NPR combination through a series of ethical audits.

The Policies

The Citizenship Act of 1955 classified all undocumented entrants into India, regardless of religion or country of origin, as illegal immigrants; they were barred from citizenship through naturalisation or registration. The Foreigners Act of 1946 was a colonial-era statute that gave the government the power to detain, deport, or restrict the movement of any foreigner and placed the burden of proof on the individual to establish legal residence. This clearly overrides the constitutional guarantee of liberty for all documented people. The Foreigners Tribunal Order of 1964 was established to adjudicate citizenship disputes. Here, information indicates that the standards of evidence are inconsistent, and the burden is on vulnerable populations. The NRC exercise in Assam exposed almost 19,00,00 individuals to the risk of statelessness, many of whom were from marginalised communities. The Passport Rules of 1950 and later notified in 2015 and 2016 have now exempted non-Muslim migrants from Pakistan, Afghanistan and Bangladesh from being considered as illegal immigrants in India. This notification then laid the groundwork for the CAA in 2019.

The National Register of Citizens was initially used in Assam after the Assam Accord of 1985. The logic is basically to help identify illegal immigrants and illegal migrants using ancestry evidence from before 1971. However, this came with controversy since many people in Assam lacked documentation due to poverty, patriarchal household structures or simply because of displacement. The ruling party has expressed its interest in helping enact the NRC nationwide. However, people failing the NRC documentation have a higher susceptibility to being classified as illegal immigrants. The CAA explicitly protects only non-Muslims from detention or deportation. While the Muslims who failed the NRC would remain directly vulnerable, as provided under the Foreigners Act. The NP, or national population register, is a database that can feed into the NRC. It is not officially linked on the surface, but field-level verification and suspicious categorisation. That of doubtful citizens has now created a pipeline to citizenship adjudication. To provide more context.

Let us look at Assam. The anti-immigrant movement in Assam emerged, mainly from around demographics, linguistic identities, fear, fear of cultural, dilution and economic pressure, which mandated for the Assam accord that spoke about the detection and deputation of illegal immigrants, the NRC and Assam has been an historic example of the impossibility of being able to verify citizenship in a region that is very visibly shaped by interstate borders, displacement and historically partition. It was characterised by generational migration patterns, poor documentation, infrastructure and administrative overreach, which led to wrongful exclusion of people and a propaganda driven towards Bengali speakers irrespective of religion. I make this point to help critically evaluate the CAA today, since the nationwide NRC would simply amplify each of these inequities with a clear target: the Muslims.

The Citizenship (Amendment) Act of 2019 is a policy that fast-tracks Indian citizenship for six religious communities Hindus, Sikhs, Buddhists, Jains, and Christians) from India’s neighboring countries of Pakistan, Afghanistan, and Bangladesh who arrived in India before December 31, 2014, on grounds of protection from religious persecution. This law reduced the naturalisation requirement in India from 11 years to 5 years for all eligible groups. It also led to an exemption from the older framework of an illegal migrant under the Foreigners Act mentioned above, and, despite no explicit mention of the NRC, it was still interpreted in practice alongside the other.

The harsh truth is sadly that one community here is now singled out by the CAA-NRC combination- Muslims in and around India. The proposition for the CAA-NRC combination demands this near-impossible ancestral documentation, thereby creating an asymmetry. Every non-Muslim who fails the NRC receives a safety net through the CAA, while every Muslim who fails must deal with the force of the Foreigners Act and all its tribunals. This is a clear design to create two queues- one with exemptions and amenities to fast track into them, “belonging” while the other group is subject to potential statelessness. I argue that if an immigration law defines who ‘belongs’ by exclusion and if this exclusion is religiously specific and structurally produced, then it is not democratic.

Ethical Audit

To perform an ethical audit of the policy framework, I shall use a set of normative lenses that will serve as my litmus test to help establish whether the Indian immigration system can be called democratic. I shall now develop the concepts and tests through each lens, then examine where the policies stand with respect to the tests.

The first test we would like to perform is the Rawlsian lens of Justice as Fairness. Here Rawls would ask us to wear a veil of ignorance, which would ask us to design an ideal society where one would not know what their original position is, one would be born into society, not knowing their class, identity, nationality, national talents, social location, religion, or, in India’s case, caste. He argues that when we were to design society and an ideal form of social order, without knowing our original position, we would want society to benefit the world's worst off - he calls this the difference principle. When we put the CAA through this test, we clearly see it fail. The worst off in the region who face “religious persecution” are not just limited to the non-Muslims. The CAA discounts the Rohingya in Myanmar facing genocide, Ahmadiyyas in Pakistan facing state-sanctioned persecution under blasphemy laws, Hazara Shia Muslims in Afghanistan and Pakistan being a religious minority of the Shia clan, Sri Lankan Tamils in Sri Lankan civil war, and Tibetan Buddhists and I'd even make the argument for atheist dissidents and homosexuals (not persecuted religiously but still debatable since it is punishable by death in Taliban controlled Afghanistan). As for the NRC, it denies fair equality of opportunity to the poor who lack access to proper bureaucracy and documentation, migrants and displaced people and transgendered communities who have to face an identity mistaken.

Utilitarianism evaluates a policy by measuring to what extent the policy maximises welfare in a collective sense and to what extent it reduces aggregate suffering. To note this, we must require a comprehensive assessment of all the consequences of state action, including negative externalities, as well as the policy's benefits. Although the utilitarian audit shows us some benefits like the refuge to specific persecuted non-Muslim minorities and provides some level of political stability for those in the country seeking closure on the partition question for communities still recovering from the inherited trauma of the partition (many Hindu and Sikh communities), and supporters frame this as a belated moral correction by the Indian state.

Gandhi's ideas, rooted in the broad, civilisational tradition of Dharma, offer a moral ideal of Sarvodaya, roughly translating as the service and upliftment of all. This principle commits the state to uplifting and protecting all without discrimination, but the CAA extends its support and protection only to a select subset of persecuted communities. This selective concern creates suffering for communities and becomes antithetical to Sarvodaya. A law that benefits “some” instead of “all” is where the policy departs from this Gandhian ideal. Another doctrine that Gandhi's ethics uphold is Sarva Dharma Sambhava, the principle of equal moral regard for all religions. The CAA, here too, falters by benefiting and privileging only specific communities and faiths while excluding others who may be in equal or greater distress. Third, was his doctrine of Ahimsa or non-violence. It is important to note that violence doesn't just have to be physical, it can be symbolic and structural as well (enacted through laws, institutions and administrative processes that generate fear and humiliation. A CAA-NRC-NPR framework is structurally violent because it operates through bureaucratic procedures rather than overt displays of fear, tools, or aggression. Social fragmentation created as a result can still perpetuate forms of violence beyond the eye, something Gandhi would classify as himsa.

Lastly, Ambedkar, in his constitutional morality, laid down the premises of liberty, equality, and fraternity, and the constitutional morality framework he provided stated that state action must embody such a commitment. A policy that discriminates against rights selectively or includes protection based on religion departs sharply from constitutional morality. The CAA-NRC-NPR framework offers statutory amnesty to non-muslins and leaves behind Muslim populations (citizens and non-citizens) vulnerable to the paucity of the Foreigners Act. This violates the egalitarian spirit of articles 14, 15, 21, 25, 29, 51(c) and the very preamble of the Indian constitution (equality, justice, liberty, fraternity)

Concluding

The CAA NRC NPR framework has applicants excluded from the final list from 3290000 applicants in the NRC Assam final list as of 31st August 2019. A human rights report titles “Shoot the Traitors”

Clearly states to “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.” and to “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.”

In the end, the ethical audit reveals that this is not just a flawed policy but one that deliberately reimagines Indian citizenship. The CAA-NRC-NPR framework is redrawing the moral boundaries of who “belongs”. The policy extends acceptance to some and creates a bureaucratic rabbit hole for the others. This isn't neutrality but selection. A democratic republic like India cannot and must not organise citizenship around selective empathy driven by religious preference. Gandhi’s "sarvodaya," Rawls' difference principle and Ambedkar’s constitutional morality all point to the same thing through this audit. A state must not structurally produce discrimination. A constitutional democracy that is worthy of its founding promises enshrined in the preamble, as the largest democracy in the world, cannot survive if it is undemocratic. The framework as it is in India as of date, fails the ethical audit, not softly but clearly spectacularly.,

Sources

1. NRC Assam Final List (1.9 million excluded)

Hindustan Times. (2019, August 31). Assam NRC: 1.9 million names excluded from final list. https://www.hindustantimes.com/india-news/assam-nrc-1-9-million-names-excluded-from-final-list/story-KOlZwevNzXlKgrhpbDZvlO.html

2. Breakdown of excluded Muslims and Hindus

Scroll.in. (2024, March 29). 7 lakh Muslims, 5 lakh Bengali Hindus left out of Assam NRC, says CM Himanta Biswa Sarma. https://scroll.in/latest/1065331/7-lakh-muslims-5-lakh-bengali-hindus-left-out-of-assam-nrc-says-cm-himanta-biswa-sarma

3. Human Rights Watch report (“Shoot the Traitors”)

Human Rights Watch. (2020). “Shoot the traitors”: Discrimination against Muslims under India’s new citizenship policy. https://www.hrw.org/report/2020/04/10/shoot-traitors/discrimination-against-muslims-under-indias-new-citizenship-policy

4. Analysis on statelessness risk (Varshney)

The Print. (2020, January 3). CAA–NRC could render huge numbers of Indian Muslims stateless, says Ashutosh Varshney. https://theprint.in/india/caa-nrc-could-render-huge-numbers-of-indian-muslims-stateless-says-ashutosh-varshney/376008/

5. Documentation burdens & exclusion of the poor (CJP research)

Citizens for Justice & Peace. (2019). NRC: Who is being left out? The anti-poor impact. https://cjp.org.in/wp-content/uploads/2019/12/NRC-Anti-poor-A4.pdf

6. Rohingya genocide documentation (UN)

United Nations Human Rights Council. (2018). Report of the independent international fact-finding mission on Myanmar. https://www.ohchr.org/en/hr-bodies/hrc/myanmar-ffm