New Delhi: After the Supreme Court (SC) rejected the State Bank of India (SBI)’s request to postpone the electoral bond disclosure date — a development that was viewed as a significant setback and source of shame for the Centre’s Narendra Modi government, it was necessary to fabricate another major story in order to keep that from taking over the news landscape. And what could be more ideal than the announcement of the rules for the implementation of the controversial Citizenship Amendment Act (CAA), 2019?
The legislation seeks to grant citizenship to “persecuted” migrants of different faiths — except Muslims — who came to India from Muslim-majority Pakistan, Afghanistan and Bangladesh on or before December 31, 2014.
Ahead of the declaration of the “CAA Rules”, Assam Chief Minister Himanta Biswa Sarma had warned the Opposition parties that their registrations would be revoked if they dared to voice opposition to CAA. Activists in Delhi’s Muslim neighborhoods also witnessed an exceptionally heavy presence of security forces. The city police also reportedly called a few activists and either harshly or gently asked them not to engage in any agitational activities.
The enactment of the law in December 2019 had resulted in widespread protests across the country and a communal violence in the national capital — forcing the Modi-led Hindu supremacist Bharatiya Janata Party (BJP) government to postpone its implementation.
Those who are opposing the CAA (Muslim groups, Opposition parties and rights activists) say the law discriminates against Muslims and undermines the country’s secular Constitution.
While some wonder why it excludes Muslims, escaping Sri Lanka and Myanmar, the countries with a majority of Buddhists, people in Assam and other northeast states are raising concerns over migration from Bangladesh — a neighboring country that has been a flashpoint in the region for decades.
On the other hand, Muslims in West Bengal and Assam worry that the law — if linked with the planned National Register of Citizenship (NRC) in future — can be used to label them as illegal immigrants from Bangladesh and deprive them of their citizenship.
However, fearing repeat of a backlash, BJP governments in the Centre and states and leaders of the saffron party and its affiliates are leaving no stone unturned to convince Muslims (second largest religious group in the country) that they “need not worry” as the CAA neither meant to strip off anyone’s citizenship nor does it deal with the deportation of illegal immigrants. And therefore, the concern that CAA is against Muslim minorities is “unjustifiable”.
However, scholars, legal eagles and activists weighed in, countering the government’s claims with regard to the legislation and its impact on the Muslim community.
CAA is ‘devious anti-Muslim dog whistle’
They said the publication of the CAA rules is a reiteration of the Modi government’s ideology, which may be summed up in a single sentence: inform the community that it does belong to India in the way Hindus do. They alleged the government will devise strategies to include Hindus while excluding Muslims.
Explaining how the law impacts the secular nature of Indian citizenship, Professor Apoorvanand, who teaches at the Delhi University, said, “The notification of the CAA rules has formally opened the door to faith-based citizenship. And this door is opened for everyone, except Muslims. If we do not read the CAA in conjunction with the NRC, we will not be able to comprehend its true intent and implications. It’s not me who is saying this. The (Union) Home Minister (Amit Shah) himself has made it very evident that one finds significance in the company of the other. While CAA is an inclusionary process, the NRC is an exclusive one.”
Apoorvanand was referring to the repeated statements made by BJP, including Shah, that though the CAA would include the excluded Hindus, the NRC will filter out “outsiders” (read Muslims).
It is imperative — said the academician — to emphasize that the NRC introduces a substantial shift in granting Indian citizenship. “With the NRC, we have already witnessed a change in the concept of citizenship from jus soli (citizenship by birth) to jus sanguinis (citizenship by descent). Nonetheless, the compatibility of the CAA with the NRC is essential to its execution in Assam, not to mention crucial,” the professor pointed out.
With the help of the NRC, Assam was designated as the ideal testing ground for this citizenship re-verification mechanism. There is no denial that the state gave rise to legitimate grounds for such an implementation because of the Assamese nationalists demands. The NRC was used in Assam to identify “foreigners” (both Hindus or Muslims) whose ancestors once lived in East Bengal. The Assamese nationalist’s long-standing aim was to identify the “illegal Bengali” — irrespective of the latter’s religion.
Over 19 lakh people in Assam were excluded from the citizenship record by the NRC exercise. In addition to Bangla-speaking Muslims, they also included “original inhabitants”.
Now, here’s the catch: the Assamese Muslim community of Bengali descent is the only community that has been affected by the CAA notification.
“Those excluded, except Muslims, are now eligible to apply for citizenship under the CAA. So, it’s now proven that Muslims of Bengali descent are the main political victims of the NRC’s citizenship procedure. It is safe to say that the Indian state is using both the process as anti-Muslim initiatives,” said Apoorvanand.
The announcement of CAA rules, he alleged, reinforces Muslims’ concerns about their status as equal citizens, which is a “psychological attack”.
“Now that we have the CAA, won’t the NRC follow soon?” he asked.
Questioning the timing, he said, notifying the legislation during the holy month of Ramadan is in fact “a symbolic act that begs for violence against a group”. “This violence is symbolic in character. This declaration stabs at secular citizenship in India during a month that celebrates characteristics like justice, charity and peace, among others,” he concluded.
Senior Supreme Court lawyer Rajeev Dhavan said the CAA is aimed at giving out a message to the Hindu minorities in Pakistan, Afghanistan and Bangladesh: “You were and are discriminated against and miserable in your countries. So, I live in a Hindu-majority India where we discriminate against Muslims. Sadly, the end of 2014 is our cut-off date, even then we will do everything in our power to find a way for you as long as you do not practice Islam. Persecutors are always presumed to be working in your favor.”
A postscript, he said, is appended to this communication, stating: “All undocumented immigrants granted citizenship under the CAA are cautioned that employment or other means of subsistence in India are not assured because you are doing ghar wapsi (homecoming). Once traitors in your erstwhile countries, you can face discrimination. Don’t travel to the Northeast either, as you could face attacks there or worse. However, rest assured that you won’t come across Muslims who are either detained in camps or sent back to the nations you belong to. In order to conceal the Hindu preference, Sikhs, Jains, Buddhists, Christians and Parsis (together the group of six) have been included to the list of beneficiaries.”
He said the CAA is arguably the first of its kind a refugee legislation in contemporary times to be enmeshed in “prejudice and bigotry”.
Senior Supreme Court lawyer Indira Jaising said although it is a good idea to protect those who are being persecuted, the way to end this problem is to give all of them refugee status — regardless of the faith they practice.
“The government has claimed in public that the Act is predicated on providing fast-track citizenship to those who have been persecuted; however, neither the statute nor the Rules make any reference to persecution, nor do they (the beneficiaries) require any proof of persecution to serve as a basis for them to be granted citizenship,” says the former additional solicitor general.
The former additional solicitor general said citizenship is granted by the Constitution by birth, descent and migration. Articles 5, 6, 7, 8, 9, and 10 codify the provisions.
“One fundamental aspect of the Constitution that is reflected in these articles is its secular orientation. Parliament passed the Citizenship Act (1955) to control the granting and revocation of citizenship. Furthermore, the 1955 Act does not include religion as a requirement for citizenship. But now, under the amendment and the rules, it will be awarded through naturalization on the basis of religion alone,” she said.
Nine different documents can be attached with the application to demonstrate that the applicant is a citizen of Pakistan, Afghanistan or Bangladesh, according to the rules that have been notified. Thus it is assumed that there is no need to provide any proof of persecution.
“Identity documents of any kind issued by the Government of Afghanistan, Bangladesh or Pakistan or any other government authorities or government agencies in these countries would also suffice to prove nationality,” states Entry 5 of the Schedule IA.
Twenty papers are listed in Schedule IB to substantiate the applicant’s entry into India on or before December 31, 2014. Any one of these will support the applicant’s claim.
The documents required include copies of the applicant’s visa and immigration stamp upon arrival in India, a registration certificate or residential permit issued by the Foreigners Registration Officer (FRO) or Foreigners Regional Registration Officer (FRRO), a slip provided by the Census enumerators in India, any government-issued license, certificate or permit in India (such as a driving license or Aadhaar card), the applicant’s ration card, any official government or court correspondence, the applicant’s birth certificate issued in India, a marriage certificate and so forth.
In the case of the National Register of Citizens (NRC), one wonders if individuals claiming to be Indian citizens will be subject to the same lax standards regarding proof of residency.
In addition to assuming persecution and relaxing requirements for proof of origin, the federal administrative structure has become more centralized. A citizenship application has to be submitted to the relevant district collector prior to the implementation of these rules. Those who wish to take advantage of the CAA must now apply to the committee that the Union government will establish with authority.
‘The CAA will haunt Hindus too’
BJP leaders have often said that the CAA will cover all non-Muslim NRC left-outs — exempting them from Foreigner Tribunal’s appeals. But, how?
As per the CAA rules, the migrants — barring Muslims — who are seeking Indian citizenship must provide proof that they were nationals of Afghanistan, Bangladesh or Pakistan. How are they going to accomplish that as the majority of them have come here without any document? Would there be no state for these roughly 15 lakh Hindu citizens?
“It’s true that anyone, barring Muslims, who was excluded from the NRC may now apply for citizenship under the CAA, but doing so will require them to first identify themselves as a Bangladeshi. Additionally, in accordance with the CAA rules, an applicant will only be eligible for benefits under the law if he or she is able to produce documentation — attesting to his or her ancestry from Bangladesh, Pakistan or Afghanistan. They provided required documents prior to 1971 (the cutoff date) during the NRC exercise to establish their Indian citizenship; now, under the CAA, they will need to demonstrate that they or their ancestors are or were citizens of one of the three nations,” Advocate Aman Wadud, who practices at the Gauhati High Court and provided legal assistance to several during and after the NRC exercise.
He pointed out that many Hindus who failed to make it to the final NRC draft had ancestors who lived in British India, they never lived in Bangladesh or even East Bengal. “How will they be able to connect their lineage to Bangladesh now?” he asked.
How CAA violates Article 14 of the Constitution
The Act’s alleged denial of equality before the law and equal protection under the law is a violation of Article 14.
“It is important to remember that everyone is covered by Article 14, not only citizens. Muslims in comparable circumstances are not granted the same benefits of fast-track citizenship through registration or naturalization by the CAA,” alleged Jaising.
People from countries other than those listed in the Act are also not taken into account.
“Since it is well known that Muslims of different sects are also oppressed in those same nations, the CAA’s purported goal of granting citizenship advantages to persecuted minorities in these three countries appears to be nothing more than a front to favour Hindus,” argues the noted counsel.
It is impossible, according to her, to assume that individuals of the majority community who disagree with conventional politics won’t face persecution from their peers.
“It is often recognized that one of Pakistan’s most persecuted minorities is the Ahmadiyya Muslim community,” she claims.
Others have drawn attention to the fact that the CAA does not grant fast-track citizenship benefits to minority groups, which are subject to persecution in neighboring countries like Sri Lanka and Myanmar, where the Rohingya and Tamils, respectively, are subject to persecution.
Illegal refugees to become Indians?
The 2019 legislation has given refugees two major exemptions — reduction in 11-year window to five years for foreign nationals to become Indian citizens and the right to seek for citizenship even in the absence of documentation proving one’s residency before arrival.
UNHCR data indicates that the law is, in reality, neglecting the majority of refugee groups in India; if it is helping any of the groups, it is probably the undocumented ones. As of mid-2023, there were only 12 refugees from Bangladesh and none from Pakistan registered with the official agency in India.
The majority of the nation’s refugees and asylum seekers are from China, particularly Tibet, Sri Lanka and the Muslim minority known as the Rohingyas in Myanmar. Afghanistan stands out as an exception, with over 13,000 registered refugees and asylum seekers in India.
Nevertheless, given the ongoing conflict that affects all of the nation’s population groups, these individuals may be Muslims, including the persecuted Hazara ethnic group or they may be members of Afghanistan’s smaller Hindu, Sikh, Parsi and possibly Christian minorities.
According to the 2011 Census data, there were immigration waves from both Pakistan and Bangladesh prior to 1991, when about 80% of people who were born in Pakistan or Bangladesh and lived in India in 2011 immigrated. Merely 6.5% to 7.5% of all immigrants from these two nations came to India between 2002 and 2011.
