Citizenship (Amendment) Act, 2019: Fathom of Truth and Lies

Introduction

The political arena is a different perspective where the good of only one side is viewed upon. This by many means plays an active role in dividing the citizens and infringing their basic rights. The Bharatiya Janta Party had been contradicting its own viewpoints, on Citizen Amendment Act where the Government has proclaimed that no detention centers were present in India.

 During the month of July 2019, Central Government circulated the 2019 Detention Centre Manual to all state governments to set up at least one detention center in their state[i]. In addition, there were already 6 detention centers in Assam where 988 people were residing and 28 had died[ii]. It was also claimed by the government that CAA won’t apply to any new refugees.

The question here stands will CAA hold no evident value in the coming years? As a refugee seeks shelter in India, presently and will reside for the next 5 years, they’ll be eligible for citizenship under CAA after 5 years until the act is scrapped within 5 years from now. The government had proposed the bill citing that it intends to provide shelter to those who are “religiously prosecuted”.

On the contrary, no mention of ‘religious prosecution’ was found in the bill. The government in a sense is assuming the non-Muslim immigrants in India to escape religious persecution as per the mentioned dates. The people who are dependent upon economic opportunities would be deprived of their jobs, land, and other resources.  

Coming to a practical viewpoint millions of Muslims and other minorities don’t have their documents. The only life they know is that of being an Indian. Indian Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians will be granted citizenship without documents but not the Muslims.

Does it go against the constitutional value of India being a secular state? Millions of Muslims who have been living in India for decades could be made stateless and left without rights. The government suggests that those Muslims can seek refuge in other Islamic countries; this statement itself steals the essence of India’s secular. Citizenship cannot be rejected based on these arguments.

The United Nations, Human Rights Watch, and the US Commission on International Religious Freedom have all warned that it would turn into a humanitarian disaster if preceded by this plan.

Politics Surrounding CAA

Before CAA

About 2 million people were disenfranchised in August 2019 when NRC was published in the north-eastern state of Assam[iii]. A few months later in mid-December Citizenship Amendment Bill was passed which introduced a religion-based clause. Citizenship is a contested and controversial process in India since the Partition of India and Pakistan.

After Partition people in the territory of India were eligible for birthright citizenship[iv]. Hindu refugees coming from Pakistan however had to deal with challenges. In 1986 Indian Parliament passed a law that enabled the eligibility for becoming an Indian citizen; one parent had to be Indian. However, during the 2000s the BJP government classified migrants and refugees based on religion.

Many parties who with time changed their sides, were seen going against the CAA. A Hindu nationalist party, Shiv Sena was against the Act, but they had deprived them their right of voting for many years. The Tamil nationalist party AIADMK did not like the idea of excluding Sri Lankan Tamils, yet they voted against them.

A difference can be made in the bill drafted in 2016 and 2019. Fear of migrating by Hindu Bengalis and setting a firm footstep in northeastern soil the BJP government modified the originally proposed bill exempting states under Inner Line or the sixth schedule. The process of official CAA was initiated in the year 2015.

The visa rules were amended for the rest of the communities which were non-Muslims. The Term ‘Religious persecution’ was pioneered in the notification as a legal dense for this amendment. To the very fact if CAA becomes operational, the Assam Accord would be rendered ineffective as the cut-off date of 1971 would become void, and immigrants who entered between 1971 and 2014 would indirectly get a free pass to enter India. The uproar of the people clearly that it had hurt the ethnic sensibilities of the Assam people.

The CAA legislation has brought a huge turmoil, where the hope of resolving the issue of illegal citizens, through the Assam Accord has been diminished. In 2018, a massive protest broke out in North East India where the act was declared as non-operational in Arunachal Pradesh, Nagaland, and Mizoram due to the Inner Line Permit (ILP) as well as the sixth schedule areas of Assam, Tripura, and Meghalaya[v]. A long court battle can be drawn on CAA similar to that of the Illegal Migrants (Determination by Tribunal) (IMDT) Act of 1983, which made it difficult to deport immigrants from Assam.

The IMDT Act was eventually withdrawn in 2005 as it was declared ultra vires after a prolonged battle in Supreme Court[vi]. The CAA has led to unarticulated disappointment which has led to economic woes, political one-upmanship, and sheer incompetence in governance. Neither the CAA nor its opposition is seen in isolation.

The CAA debates had introduced the binary of Indian Politics, Hindutva v. liberals that had taken a concrete shape after the 2019 General elections. It is considered a direct attack on secular citizenship. Considering fact of the Nehru-Liaquat Pact of 1950 it had reflected concerns of Indian establishment towards minorities in Pakistan.

Both Governments had agreed to give citizenship rights to all communities and to protect the interest of minorities, irrespective of religion[vii]. This secular conception of citizenship in India was followed in the preparation of the National Citizenship Register (NRC) in 1951[viii]. In 1950 the nation-building process had already started and the secular rehabilitation of Sikhs and Hindus was done.

In contrast, Pakistani authorities refused to take Muslim migrants from India in later years, as they saw them as an economic and social liability[ix]. Pakistan does not grant citizenship to all Muslims of South Asia. Even after 1956 when Pakistan was officially declared as an Islamic state, it did not offer citizenship to any individual only on the basis of his/her Islamic identity.

Bangladesh too did not give any preference to Indian Muslims. The Muslim Citizens of India had to obtain a visa to visit Pakistan or Bangladesh. There is no statute or provision that will state the allowance of unrestricted access in these countries.

After CAA

The CAA had received a massive backlash from the opposition Parties. It is seen as much more controversial than the proposed NRC. The government had said that it will extend the NRC activity, an exercise hitherto specific to Assam, to the rest of the country.

It had already sparked off massive anti-CAA protests across the country, with some even taking a violent turn. The government had put up a staunch defense of the law, with Prime Minister Narendra Modi and Union Home Minister Amit Shah that it had nothing to do with religion. Prime Minister Narendra Modi stated that “CAA is introduced to correct historical injustices” and recalled the Nehru-Liaquat pact to assert that the law fulfills India’s “old promise” to religious minorities in neighboring countries. 

The Pandemic has forced the government to put the implementation of CAA on hold. The activists have warned that, if the government proceeds with the implementation of CAA, the protesters will hit the streets again. Several state governments had already urged the Union Government to revoke the Act.

Pakistani Prime Minister Imran Khan had suggested that the CAA may lead to a conflict between India and Pakistan[x]. Though, the Indian government’s image in the world did take a beating. But it only adhered to diplomatic rhetoric or discussions on human rights. The office of the High Commissioner for Human Rights (OHCHR) stated that it was planning to file an application on the CAA in the Indian Supreme Court. 

New Delhi has enjoyed friendliest relations with Afghanistan since 2011 thus, its ex-President Hamid Karzai, had asked the Indian Government to treat all Afghanis equally. The United States Former Deputy Assistant Secretary of State, Alice Wells showed concern about the CAA after coming back from Delhi in January 2020. As the Constitutionality of the CAA has already been challenged, the Supreme Court will probably decide using the concepts of “intelligible differentia” and “rational relation to the goal” in Article 14[xi].

What is happening today in the country is the fallout of many decades of deliberate insensitivity and electoral gains resorted to by political parties cutting across ideologies. Protest against the changes first began in North East and then spread throughout the country, bringing lakhs of people to the streets as well as the deaths due to police violence. The Protest had garnered support from celebrities, has received plenty of media attention and in some states, has been anchored by political parties.

One large grouping has even brought together many disparate organizations in the hopes of offering some guidance to the protests. No Part or leader is dominating any protests. If the CAA rules end up asking the applicants for any proof, it might defeat the very purpose of the act, which is to help the migrants who have no papers in the first place.

 If on the other hand, no proof is asked the CAA could present a situation where anyone from the region would avail of Indian citizenship. If we look the other way round CAA is safeguarding the minorities living in countries surrounded by us, where persecution is a way of life. It may be time taking as well as a lot has to be spent, people who had migrated to different countries would also want to come back and settle which may also take a long process.

Neoliberal globalization is leading India towards crisis and destruction. In order to attain public support, the BJP Government also induced social media campaigns. But this resulted in a failed campaign.

The viewpoints of Political parties on CAA were as follows;

The BJP Government- assured that no Indian Muslims need to worry over the Citizenship Amendment Act.

The Congress Party- the Congress’s student wing National Student Union of India(NSUI)  has been part of protests almost everywhere. Even the senior leaders protested against the CAA and also sat on dharnas.

The TMC Party- the Chief Minister of West Bengal Mamta Banerjee had strongly urged that CAA would not be implemented in her ruling state.

The Shiv Sena Party- initially they voted in favor of the CAA but later when the protests were in full link, the Shiv Sena chief Uddhav Thackeray linked to Hindu Rashtra and questioned the BJP Government saying that the new law is an insult to VD Savarkar , a controversial freedom fighter dear to both BJP and the Shiv Sena[xii].

AGP, BJD, JDU- Asom Gana Parishad(AGP), and Biju Janata Dal(BJD) voted for Citizen Amendment Bill(CAB) in the parliament but as the protest took a strong uproar the states changed their stands. Even the Janata Dal (United)(JDU) was of the same viewpoint and later expressed their views saying a mistake was made.

Conclusion

Nobody would oppose the right of a nation to control illegal immigration. But at the same time, most of us want state policies that do not put legitimate citizens at undue risk of becoming stateless. If CAA is a humanitarian project, as the government claims then why does it not mention the word ‘persecution’ in the Act?

It isn’t the CAA by itself that causes panic, but the combination of the CAA with NRC. Ancestral documents are required in order to prove citizenship in NRC. Most people in India may not acquire their ancestral documents.

The bitterness of each side against the other and perceived wrong is dominating the discourse. And, in this all the protests seem to have merged into one gigantic protest against a government that is perceived as discriminatory. Assam, with time, are growing against the illegal immigrants

Under Section 6B(3), any proceeding pending against a person in respect of illegal migration or citizenship shall stand abated and shall not bar a such person from applying for citizenship under the new law[xiii]. Therefore, members belonging to the Hindu, Sikh, Jain, Buddhist, Parsi, or Christian communities who have been left out will be entitled to citizenship under the provisions of the CAA on the basis of a self-declaration. The main stance, here is that the left-out Muslims of NRC will be labeled as illegal immigrants and will be liable for punishment and deportation.

 Sub-rule 4 of Citizenship (Registration of citizens and issue of identity cards) Rules, 2003 deals with the identification of individuals “whose citizenship is doubtful” and exclusion of the same from the NRC. Therefore, where while modalities have not yet been fleshed out, for all practical purposes. The CAA needlessly brings religion into the ambit of citizenship in the secular country.

Focusing on the global humanitarian law, India is not a signatory to UN conventions on refugees. We need a holistic refugee/asylum policy with some annual limits if need be like many other countries. The CAA is very dubious towards the refugees; the word in fact is not part of the amendment itself, it describes just the conversion of status from illegal to legal for six religions of three Islamic neighbouring countries entered before 2015.      

Its vagueness also angers people in the northeast because many of the illegal migrants are economic migrants and not necessarily persecuted on the basis of religion. The CAA itself is discriminatory towards the same categories of people it deems eligible for protection and thereof, protection.  

The article has been contributed by Lisa Supriya Tirkey, a student at KIIT School of Law, Bhubaneswar.

End Notes

[i] 1943.pdf (mha.gov.in)

[ii] ‘Six detention centres in Assam with capacity of 3,331 persons: Home Ministry tells Lok Sabha- The New Indian Express

[iii] Understanding India’s citizenship controversy – Atlantic Council

[iv] Subjects or Citizens? India, Pakistan and the 1948 British Nationality Act: The Journal of Imperial and Commonwealth History: Vol 41, No 2 (tandfonline.com)

[v] Manipur gets ILP Extension as shield from CAB, ECONOMIC TIMES, (Dec. 10, 2019)  https://economictimes.indiatimes.com/news/politics-and-nation/manipur-gets-ilp-extension-as-shield-from-cab-cm-biren-singh-thanks-amit-shah/videoshow/72449988.cms?from=mdr.

[vi] INDIA’S NORTH-EAST: Identity Movements, State, and Civil Society | By Udayon Misra | Pacific Affairs (UBC Journal)

[vii] PA50B1228.pdf (mea.gov.in)

[viii] Office of the State Coordinator of National Registration (NRC), Assam (nrcassam.nic.in)

[ix] The Long Partition and the Making of Modern South Asia | Columbia University Press

[x] Did the Controversial Citizenship Amendment Act Affect India’s International Position? – The Diplomat

[xi] How Democratic Processes Damage Citizenship Rights: The Implications of CAA-NRC – CPR (cprindia.org)

[xii] Protest against CAA: Where do political parties stand? – News Analysis News (indiatoday.in)

[xiii] https://www.tiss.edu/uploads/files/Citizenship_Act_1955.pdf