Legal basis of religion for Citizenship Amendment Bill

Question

According to the website http://www.prsindia.org, about the Citizenship Amendment bill that India recently passed in Lok Sabha is states that

The Bill amends the Citizenship Act, 1955 to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship.

So the way I see it is that anyone who wants to be a citizen of India under this criteria has to remember a few Hindu chants and visit a temple maybe and claim that they are Hindu, irrespective of what their actual upbringing is.

What is the legal definition of a religion? How do countries like Israel, Pakistan define religion? What about India?

Answer 1

The Israeli Law of Return isn't based on religion but on whether the applicant is a Jew or not. It is not the same thing as what you are asking about, but we can examine that as a form of precedent.

The law grants every Jew in the world the right to immigrate to Israel. Clearly, the law rests on the ability to partition the world's population into Jews and non-Jews. In theory, that is trivial, in practice, there is an endless amount of corner cases and grey areas.

For example, Brother Daniel (Oswald Rufeisen) was a Polish Jew who had converted to Christianity and became a monk. Was he a Jew according to the law? The Israeli supreme court decided that he was not and his application for citizenship under the Law of Return was therefore rejected. Bob Dylan would be an even worse corner case. Born a Jew, he converted to Christianity in the 1970's, but nowadays he doesn't seem to practice the religion that much. No one can really know what the court would say would he choose to apply for Israeli citizenship.

Other "corner cases" are the Indian Bnei Menashe community and the Ethiopian Beta Israel tribe. Both tribes claimed themselves to be Jews and applied for citizenship under the Law of Return. Many Israeli politicians were accusing them of "faking" being Jews to acquire citizenship. Today Beta Israel is accepted as part of Israeli society, but Bnei Menashe is still viewed with suspicion.

I realized that the above description of the law was overly critical. Given its objective, of facilitating Jewish immigration to Israel, it has been a huge success. More than three million Jews have emigrated to Israel since the enactment of the law. Most of those would be counted as "Jews" (or close relatives to Jews) under any reasonable definition.

Back to your question:

So the way I see it is that anyone who wants to be a citizen of India under this criteria has to remember a few Hindu chants and visit a temple maybe and claim that they are Hindu, irrespective of what their actual upbringing is

Yes! The law will have to deal with exactly the same corner cases and loopholes as the Israeli law. Since the Indian law appears directed against Muslims perhaps it will require some act that they would consider sacrilegious, such as denouncing Allah? Perhaps the law isn't even intended to be applied as written and is more about political posturing?

Note also that bribery is widespread in India - in practice whoever is determined to be a Hindu might be whoever can pay the bribe.

Answer 2

In some ways I think this question is too broad as each of the examples is likely to have a different legal definition so really the better question is how will India define each of these religions.

Nevertheless as a starting point, Israel has since its founding included a Right of Return for all Jews. See wikipedia for more details. The linked page notes that there was no legal definition of a Jew until 1970 when the following was adopted.

Those born Jews according to the orthodox interpretation; having a Jewish mother or maternal grandmother.
Those with Jewish ancestry - having a Jewish father or grandfather.
Converts to Judaism (Orthodox, Reform, or Conservative denominations—not secular—though Reform and Conservative conversions must take place outside the state, similar to civil marriages).
But Jews who have converted are not considered Jews and not eligible to immigrate under the Law of Return, but would have been persecuted as Jews under the Nuremberg laws, and are still Jews according to halakha

Answer 3

In India and Israel there are formal affiliations with a religion that can be provided to the government (Germany and historically at least, some Scandinavian countries also require religion registration for purposes of a state administered church tax which is collected by the government and paid to your registered religious denomination.) This registration process is necessary because in both India and Israel, legal rules regarding family law and inheritance are determined based upon your official religious affiliation. There are also additional laws governing mixed religion marriages.

In the case of India, that means that if your citizenship is based upon a particular religious affiliation that when you obtain citizenship in this way, you will be subject to that religion's family law and inheritance law rules.

So the way I see it is that anyone who wants to be a citizen of India under this criteria has to remember a few Hindu chants and visit a temple maybe and claim that they are Hindu, irrespective of what their actual upbringing is.

The group that is excluded in these cases is Muslims. And, the theory of the legislation is that non-Muslims are at risk of persecution generally in countries where Islamic law prevails that are predominantly Muslim.

One important feature of Islamic law is that persecution such as enslavement and death is mandated (although enforced in practice with differing degrees of vigor) for people are not "People of the Book" (i.e. Muslims, Christians or Jews) and "People of the Book" who are not Muslims are placed in a subordinate position in society and must pay a special tax associated with being non-Muslim.

Furthermore, if you were previously a Muslim and then convert to another religion, this offense is punishable by death in Islamic law, and in the countries in question, vigilante enforcement of this aspect of Islamic law is permitted and is even welcomed as a public service.

Any Muslim who applies for citizenship in India on this basis who is later discovered, either at home, or in India (which has a large Muslim minority) is at grave risk of execution by Muslims for religious reasons for the rest of their life. So, this is not something that would be attempted lightly by a Muslim in Afghanistan, Bangladesh, or Pakistan. Extrajudicial killings in Bangladesh on these grounds are not uncommon, and a Christian in Pakistan was recently released from death row based upon a false accusation of heresy (through the legal system).

Someone who wanted to prove their religious minority status would often want to show evidence of persecution to bolster their claim, as well as other indicators such as presence on church or temple rosters. The claim of an uncircumcised adult man from any of those countries that he was not a Muslim, for example, would be highly credible.

Ultimately, determining what someone's religion is is a question of fact (U.S. immigration courts make similar inquiries in asylum cases) and it comes down to what a judge will believe in light of the evidence presented. I strongly suspect that, in practice, some judges or immigration law administrators are easier to convince than others and a particular applicant faces the luck of the draw which determines their fate.

Also, since Bangladesh and Pakistan are economically similar to or even better off than India economically, the concern that someone is primarily an economic migrant rather than a legitimate asylum seeker or non-economic migrant is much less of a pervasive concern than it would be in the U.S. (although Afghanistan is still wretchedly less well off economically and less safe due to war than India, so a strong economic and non-religious based incentive to engage in fraud is present in that situation).

In theory, there could be a lot of fraud in this kind of process, but in practice, this hasn't proven to be a serious problem so far.