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.
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.
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:
- Documents issued by the government of your home country (Pakistan, Bangladesh or Afghanistan) to prove that you are a Pakistani, Bangladeshi or Afghan national;
- Documents issued by the government of your home country that prove you belong to one of those six listed minority religions;
- 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.
- 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.”
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.
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.