People wait to check their names on the final draft NRC in Assam | PTI
File photo | People waiting to check their names on the final draft NRC in Assam | PTI
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By making religion a ground for citizenship, India’s Citizenship Amendment Act is clearly unconstitutional legislation. But that’s not the only problem with it. It is feared the CAA is actually a loophole to make sure only Muslims run the risk of becoming stateless through the National Register of Citizens, in Assam as well as the rest of India, if and when an all-India NRC is held.

The Narendra Modi government says this fear is unfounded, even though it was Home Minister Amit Shah who explained the “chronology” between CAA and NRC in one speech after another.

To examine this, we need to see how the CAA will actually work in practice. The Modi government seems to be in no hurry to notify rules under the Citizenship Amendment Act 2019, passed by Parliament on 11 December.

The Modi government is waiting for the protesters to get tired and go home, so that it can then enact the rules without adding fuel to fire. Meanwhile, as the amendment has been challenged in the Supreme Court, the government is also taking its time to come up with rules that it may be able to defend better before the judiciary.


Also read: Why India should shelve NPR, the National Population Register


Illegal becomes legal

An illegal immigrant cannot by law get Indian citizenship no matter how many decades s/he lives here. This Act changes that for a certain category of illegal immigrants. To qualify, you must be:

1) from Pakistan, Afghanistan or Bangladesh;

2) must be Hindu, Sikh, Jain, Buddhist, Parsi or Christian by religion;

3) must have entered India on or before 31 December 2014;

4) must have “been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder.

If you fulfil all these conditions, you can become a citizen of India.

Now, what is the legalese in point 4 about?

While the bare act of the CAA does not use the term “religious persecution”, the references to the Passport Act and the Foreigners Act are about just that.


Also read: All-India NRC will certainly fail. Here’s what Modi govt should do for its citizenship plan


Show the documents you don’t have

The CAA refers to government notifications issued in 2015 and 2016. These notifications amended rules to the Passport Act of 1950 and the Foreigners Act of 1946. Thanks to these amendments, illegal immigrants of those six religions from those three countries were no longer to be counted as illegal immigrants provided that they were “compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December 2014.”

The two types of illegal immigrants were clearly defined:

“(i) without valid documents including passport or other travel documents; or

(ii) with valid documents including passport or other travel document and the validity of any of such documents has expired.”

Using these rules, the Ministry of Home Affairs put out procedures to grant such persons long-term visas. For this, a “Standard Operating Procedure” laid out in 2011 was used. This SOP says that to apply for a long-term visa, such persons as claiming to be refugees will have to furnish these documents:

  1. Documents issued by the government of your home country (Pakistan, Bangladesh or Afghanistan) to prove that you are a Pakistani, Bangladeshi or Afghan national;
  2. Documents issued by the government of your home country that prove you belong to one of those six listed minority religions;
  3. Documents to prove the date since you entered India or since you have been residing in India: even a Gram Panchayat Secretary Certificate would do.
  4. A sworn affidavit, attested by a government authority, stating that you were “compelled to enter in India due to religious persecution or fear of religious persecution.”


Also read: Religion, not religious persecution: Why amended Citizenship Act is clearly unconstitutional


Lawyer Nizam Pasha has pointed out an interesting contradiction here. While you could be an illegal immigrant by entering India without any documents, the exemption under these rules requires you to show documents to prove that you are a national of Pakistan, Bangladesh or Afghanistan, and also a document to prove your religion in that country.

What if you don’t have such documents? That’s where you may get lucky with one harmless-sounding line: “The documents listed above are only illustrative.”

The rules also clearly state that the Foreigners Regional Registration Office (FRRO) shall examine your claim of fleeing religious persecution or fear of religious persecution. In other words, it shall be a discretionary exercise. How is the FRRO going to determine whether the person’s claim is truth or fiction? We don’t know.

All the bureaucratic procedures listed above are indirectly referred to by the CAA, and hence needed for you to get citizenship through it. You need to pass these tests to be eligible for citizenship under CAA. However, we don’t know how the government could modify these through the CAA rules it is yet to notify.


Also read: CAA doesn’t alter or challenge rights of citizen, says union minister Hardeep Singh Puri


Preventing misuse of CAA

This is where we need to examine the potential misuse of the CAA for the NRC.

In the Assam NRC, it has been alleged that many genuine Indian citizens have been excluded for want of documents. This is despite the fact that a second NRC was held, and the number of excluded persons came down by more than half. Yet, many of these19-lakh excluded people standing at the edge of statelessness may actually be Indian citizens.

Through the CAA, the government is giving the non-Muslims excluded a chance to become Indian citizens. It is feared that many of these may actually be Indian citizens who could use CAA to lie that they were illegal immigrants from Bangladesh and thus get Indian citizenship.

Instead of real refugees — who are said to be only about 31,000 — the Modi government might use the CAA to grant citizenship to imagined refugees: the Indians who couldn’t show documents. Apart from being unethical and illegal, this would be grossly unjust to Indian Muslims who are not being given such a loophole.

That is why the procedure to identify real refugees is of importance. It should not be diluted. If an applicant does not have any document to prove that s/he actually immigrated from Bangladesh (or the other two countries), s/he should not be given citizenship (or long-term visa) under these new exemptions, rules and laws.

The nationality, religion and religious persecution tests for such persons, both for long-term visas and citizenship, should be taken very seriously.

The Modi government should not be allowed to get away with an automatic grant of citizenship to such a person on account of their religious affiliation alone.

The fear is that the Modi government may dilute these rules in the future. Senior advocate Sanjay Hegde told me, “The history of such laws is testament that once the law is pushed through, its rules are changed over the years. In this case, who’s to guarantee whether the burden of proving one was actually a citizen of Bangladesh et al will be stringently followed? Will the bureaucrat actually try to determine whether the person was facing religious persecution or blindly accept the affidavit? The rules are unlikely to be enforced strictly in the case of the Passport Act exemptions.”

If and when the Modi government gets the CAA the Supreme Court’s nod, what’s the guarantee it won’t quietly issue a notification or two to do away with the need for CAA applicants to prove their Pakistani, Afghan or Bangladeshi nationality? Just an affidavit might be enough. Self-certified refugees.

Views are personal.

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15 Comments Share Your Views

15 COMMENTS

  1. This article is baseless , hypothetically creating panic among muslims , Writer of the article itself is in ambiguity who is unable to see difference between NRC and CAA.and he passed his verdict that CAA is unconstitutional while matter is pending with court. CAA and NRC both are clearly different things. NRC is applicable for all persons in Assam irrespective of religion where CAA is for granting citizenship of suffering minorities coming from Pakistan, Bangladesh and Afganistan only three countries upto 31/12/2014. and not snatching citizenship of any Indian. Does writer think Muslim is minority in Pakistan or in Bangladesh or in Afganistan who is refugee in India? Acquiring Indian citizenship for foreigners including Muslims (section 6 of the citizenship Act) or Section 5 is still operational and it is not affected in any way by CAA. Writer of the article should see through lens of Welfare State of Indian constitution rather than communal lens for provoking or misguiding.

  2. Suppose a muslim has been living in India for 50 years and he does not have any of the described documents by the government or he does not come under the enacted rules which will be later told by the government.What would happen to those?

  3. I think tibbitian Nepalese and srilankakan migrants should learn Urdu nd then bribe bureaucrats they will claim refugee without documents from three countries….. Surely will get citizenship

    • Nepalese are legal migrants , indian and Nepalese can work in each other countries without restrictions as they have an agreement regarding this . For bhutan , you need to work permit and Tibetans are recognised as legal refugees by government . Srilanka na were also given indian citizenship

  4. As many or more Hindus are migrating out than the saffron crowd is inviting the Hindu refugee. in. Ganges can handle 3 or 4 Kumbh mela at the same time if that is what the saffron crowd wants.

  5. If you were an illegal immigrant, how could the date of entry into India be documented , since this was a secret entry across borders ? If one was a minority in say Afghanistan, why would their GOvt issue a certificate regarding one’s religion ? It doesn’t make sense. Finally if one was persecuted there, who would certify that ? WHy would a Govt indict itself ?
    The author’s point is that most applicants for citizenship under CAA will not have even a single document that is theoretically required.

  6. Agreed with the article, but we must also have the guts to demand that CAA include ALL genuine refugees… that is what India is asking. Do not use religion as a discriminator – do not trash our constitution.

  7. Good analysis! This is only the second article by Shivam in which he does not come across as a juvenile twit. We have to await the notification of detailed rules under CAA. But the bigger picture is that it is imperative for India to document the list of citizens so that we can identify illegal immigrants going forward – otherwise, we have no country. Nobody will question the need to ensure that no legitimate citizen of India will lose her citizenship. But the fear of how well the government will do that job cannot prevent us from securing vital national interests. We have enough safeguards through our legal systems to everybody. The entire lefty mediawallahs and their political masters are guilty of fanning a disinformation campaign against CAA.

  8. I agree with Shivam. We need to remove all arbitrariness in government, and not allow government employees to use any discretionary powers.
    Of course, I also hope Shivam supports my advocacy on another issue: We should not allow government employees to use their discretion in hiring for the UPSC-based services. Here, I mean the use of group discussions and interviews to perform a holistic evaluation of candidates – basically a ruse to get in more minority and deprived candidates (this is how Shah Faesal and other J&K candidates are topping the civil services exams, by the way).

    I think we all know which way Shivam will swing on this one!

  9. Why shame in accepting country was divided on the basis of religion, Gandhiji himself allowed as per religion.

    If they were against religion country division, they would have fought like abhrahm Lincoln fought war against slavery.

    • Lincon was a slave owner himself. And Gandhi never accepted that India was only for Hindus – that is why he was murdered by NRG. Nehru did not accept India as solely Hindu either and remember that HE was a Kashmiri Pandit. In any case, India is secular and if it does not remain so, it will not be India. So anyone saying India is only for Hindus is anti-India.

  10. The law of unintended consequences: just as Muslims are told to go to Pakistan, now Hindus in Pakistan, Bangladesh and Afghanistan will be told to go to India.

    So dear Modiji has done a great disservice not only to Indian Muslims, but also to Hindus in neighboring countries.

    Gade murdoan ko nahi khodna chaiye.

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