USCIRF REPORT IS LEGALLY INVALID

Thu May 07 2020 10:10:39 GMT+0530 (IST)

The annual report of the United States Commission on International Religious Freedom (USCIRF) has categorised India as a 'country of particular concern' on religious freedom and recommended that India should be placed on religious freedom blacklist. The said categorisation was made in the background of passing of Citizenship Amendment Act and revocation of Article 370.



The United States Commission on International Religious Freedom is constituted under Sec.201 of the International Religious Freedom Act of 1998. The statement and objectives of the said Act show that it has been enacted by the Senate and house of representatives of the United States of America to express the United States foreign policy with respect to, and to strengthen United States Advocacy on behalf of, individuals persecuted in foreign countries on account of religion. Sec.2 of the said Act pertains to the basis on which the said legislation has been made. It emphasizes religious freedom i.e., belief and practice as a universal human right. It also refers to universal declaration of human rights relating to freedom of religion, and other declarations relating to the religious freedom.

Sec.3(16) of the said Act defines violation of religious freedom as any violation of INTERNATIONALLY RECOGNISED RIGHT TO FREEDOM OF RELIGION AND RELIGIOUS BELIEF AND PRACTICE. The said provision also contemplates types of violations of religious freedom. It emphasises on arbitrary prohibition on, restrictions of or punishments for - assembling for peaceful religious activities such as worship, preaching and prayer, speaking freely about once religious belief, changing once religious beliefs and affiliations, not possessing a particular religion or any religion, possession and distribution of religious literature including Bibles or raising once children in the religious and practices of once choice and the acts of detention, interrogation, imposition of an onerous financial penalties, forced labour, forced mass resettlement, imprisonment, force religious conversions, forcefully compelling non-believers or non-theists to recant their beliefs or to convert,torture, mutilation, rape, enslavement, murder and execution on the basis of religious practice and belief - as violations of religious freedom. All the instances stated in the said provision relate to religious belief and practice.

Sec.202 of the said Act stipulates duties of the commission. The Commission shall conduct annual and ongoing reviews of the facts and circumstances of VIOLATIONS OF RELIGIOUS FREEDOM presented in the country reports on human right practices and shall make suitable recommendation to the President. Sec.203 stipulates 'conduct of hearings' for the purpose of making such recommendations under Sec.202. In the process  it is empowered to take testimony and receive evidence. Sec.401 empowers the President of America to take appropriate action basing on the said reports.

Article 370 of the Indian Constitution conferred a special status to Jammu & Kashmir a region located in the Northern part of the country. The said Article was placed in Part - XXI of the constitution which itself is titled as temporary, transitional and special provision.

Correspondingly, Article 35A was also incorporated which empowers the said State to define 'permanent residence' of the State and to provide special rights and privileges to those permanent residents. The privileges that were conferred were in relation to purchase of land and immovable property, ability to vote and contest elections, seeking government employment etc. The non-permanent residents of the State were not entitled for the said privileges.

Article 370 is a part of the Indian constitution and any amendment made to the constitution within its framework would be constitutionally sustainable. On 5 th August, 2019 the Government of India revoked the special status granted to Jammu & Kashmir and consequently Article 35A stood abolished. Legislature of the Union passed legislation re-organising the State.

The question with regard to abrogation of Article 370 has been challenged before the Hon'ble Supreme Court and the same is pending. Once Article 370 has been abrogated, the special status conferred upon Jammu & Kashmir stood revoked and the people of Kashmir are equally entitled to claim protection under Part - III of the constitution i.e., the fundamental rights being enjoyed by the other citizens of the country. The power to abrogate Article 370 is sub-judice before the constitutional bench of the Hon'ble Supreme Court.

The abrogation of Article 370 of the Constitution does not involve any violation of religious freedom being enjoyed by the people living in Jammu & Kashmir in any manner. There is no nexus between revocation of special status conferred upon Jammu & Kashmir and religious freedom being enjoyed by the people of Jammu & Kashmir. Therefore abrogation of Article 370 cannot be a basis to allege violation of religious freedom within the meaning of Sec.3(16) of International Religious Freedom Act, 1998. It is also not a case that post abrogation of Article 370 people residing in Jammu & Kashmir were subjected to religious persecutions within the meaning of 'violation of religious freedom' as defined under Sed.3(16) of International Religious Freedom Act, 1998.

The Citizenship (Amendment) Act, 2019 was passed by the parliament of India on 11 th December, 2019. The said amendment was brought in to confer citizenship upon foreign illegal migrants of certain religious communities coming from Afghanistan, Bangladesh and Pakistan. The Act had provided the said benefits to the illegal migrants who belong to minority communities in their countries and were subjected to religious persecution.

In India, citizenship is regulated by the Citizenship Act, 1955. The said Act specifies that citizenship may be acquired in India through five methods viz. by birth, by descent, by naturalisation and by incorporation of territory into India. There was no benefit conferred upon illegal migrants in relation to citizenship. He could be prosecuted in India and deported. The Citizenship (amendment) Act, 2019 is a benefit that was provided to certain category of illegal migrants excluding a particular category of illegal migrants basing on a legitimate classification which is not illegal. The constitutional validity of the amendment Act was challenged before the Hon'ble Supreme Court and the same is pending.

The Citizenship Amendment Act in fact is conferring protection to such illegal migrants who were persecuted in their respective countries. This cannot at any stretch ofimagination can be termed as a 'violation of religious freedom' within the meaning of Sec.3(16) of the said International freedom Act, 1998. The Citizenship (Amendment) Act, protects certain minorities who had illegally migrated to India due to persecution on the basis of religion in their countries.

The United States Commission on International Religious Freedom while preparing the report did not issue any notice to the affected parties in relation to recording of evidence for the purpose of the report. The said report has been unilaterally prepared without taking into consideration the scope of the said legislations. The two legislations i.e., (1) abrogation of Article 370 and (2) the Citizenship (amendment) Act, 2019 cannot be a basis for blacklisting India on the ground of violation of religious freedom.

- By Chittarvu Raghu, Advocate,
High Court's of A.P. & T.S.
craghuadvocate@gmail.com.