By Tariq Anwar
The Act has drawn harsh criticism, mainly for two reasons: one is that, for the first time in the country’s history, obtaining citizenship has been conditioned on one’s religious beliefs; and two, only non-Muslims would be able to apply for Indian citizenship.
New Delhi: A month before the nation goes to the polls to elect 18th Lok Sabha (Lower House of Indian Parliament), Hindu nationalist Bharatiya Janata Party (BJP) government in the Centre on March 11 notified the Citizenship (Amendment) Rules, 2024 — which outline the procedures for putting the Citizenship (Amendment) Act, 2019 or CAA into effect. The enactment of the legislation in December 2019 had sparked countrywide protests, but the spread of COVID-19 led the agitation to die down.
It aims to offer an expedited process for granting citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, except Muslims, who migrated to India from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014 without valid travel documents or stayed even after the validity of their documents expired.
The Act has drawn harsh criticism, mainly for two reasons: one is that, for the first time in the country’s history, obtaining citizenship has been conditioned on one’s religious beliefs; and two, only non-Muslims would be able to apply for Indian citizenship.
Regretfully, these concerns have apparently not been addressed in the rules — resulting in a significant escalation in the legal battle over the controversial law. As the Supreme Court gets ready to decide whether or not to uphold the new law, claims of discrimination, debates about federalism and alleged violations of the Constitution and the Assam Accord have taken center stage.
Religious discrimination: presumptive, not empirical
People who have fled the three countries due to “religious persecution” are intended to be protected by the law, according to the Statement of Objects and Reasons of the Citizenship Amendment Bill — which is now a law.
Remarkably, neither the CAA nor its provisions in conjunction with the Passport (Entry into India) Act, 1920 or the Foreigners Act, 1946 need proof of persecution on religious grounds. It is deemed sufficient to presume that the migrants, if they are a member of one of the six religious communities, are victims of persecution because of their religious identity.
This is still the case as the rules only ask for documentation — proving the applicant practices one of these six faiths. Though Form VIIIA of the rules seeks to know the “reasons for which applicant wishes to acquire Indian citizenship”, it is not a requirement for citizenship to be granted in accordance with any of the rules’ requirements.
In contrast, persecution is defined precisely under the United States immigration law, and petitions for citizenship are evaluated based on this evidence of persecution.
What about other nationalities and persecuted groups?
There are still a significant number of religious minorities living in India that are not protected by the CAA. The typical example is that of the Ahmadiya Muslims, who are estimated to number about 1,00,000 in India and were recognised as a sect of Islam in the 2011 census.
The requirements under the new citizenship legislation ignore the Rohingya refugees, the most persecuted group in South Asia, as well as the massive number of Afghan Muslims — who have sought asylum in India, particularly in the wake of the Taliban taking over the power in Afghanistan.
The Chakmas and Hajongs, who practice Buddhism and Hinduism respectively, are similarly marginalised and frequently denied rights in Arunachal Pradesh. Even more astonishing is the fact that the CAA and its rules ignore the predicament of Sri Lankan Tamils, who have been seeking safety in India for many years, by keeping their country outside the purview of the Act.
Citizenship Rules have already been modified in the past to better accommodate the situation of refugees. The then Union government changed the regulations in 2004 to enable district magistrates (DM) in some border districts in Rajasthan and Gujarat to give these migrants long-term visas (LTV) and citizenship.
In 2010, the United Progressive Alliance (UPA) government requested that state and union territory administrations examine the possibility of extending LTVs to specific groups of Pakistani citizens, without requiring them to possess valid passports.
However, this amendment never excluded Muslims because it gave DMs the authority to take into account “cases involving extreme compassion”. Muslim men from India who emigrated to Pakistan during the Partition and left behind their family members were given consideration for obtaining LTVs upon their return to India, using authentic Pakistani passports, and subsequent settlement in Kerala.
India implemented a system of citizenship being awarded solely on the basis of religion, first administratively and subsequently statutorily, only in the BJP-led National Democratic Alliance (NDA) government.
Overly lax application conditions?
The documentation needed to demonstrate that the applicant is a citizen of Afghanistan, Bangladesh or Pakistan are included in Schedule IA of the revised regulations. This includes any document proving the applicant’s parents, grandparents or great-grandparents are or were citizens of one of the three nations. This is a very broad criterion that allows people to apply for expedited citizenship in India even if they may not be nationals of any of the three countries.
In the past, an applicant had to demonstrate that they knew enough about one of the languages listed in the 8th Schedule by presenting a certificate from a reputable school, government agency or from two Indian citizens — living in the applicant’s neighborhood or district.
These individuals can easily self-certify that they are in possession of such knowledge under the new rules. There is no justification for granting such a waiver to individuals covered by the CAA or to others who are applying for citizenship through naturalization.
Three state governments, Tamil Nadu, West Bengal and Kerala, spearheaded the anti-CAA rallies by announcing that they would not permit the amendment to be implemented in their respective states. Applications for citizenship are often submitted to the district collector, who is governed by state administrative laws. However, the new rules get around this apparatus by allowing an Empowered Committee — both established by the Union government — to make decisions on applications that are sent to the District Level Committee.
For those not included in the NRC, is CAA a solution?
The claim that the new law aims to safeguard non-Muslims who failed to find mention in the National Register of Citizen (NRC) in Assam is one of the strongest arguments made against the CAA.
However, even the non-Muslims who are awaiting their fate in India’s many detention centers may not get much assistance from the CAA or the new rules, notwithstanding this assertion.
A person’s failure to provide proof of their Indian citizenship is the basis for their exclusion from the NRC. Many residents of rural or disaster-prone locations, as well as those from socially and economically poor backgrounds, may not have the necessary documentation — which has caused controversy surrounding the exercise itself.
Therefore, someone who has made poor attempts to establish his or her Indian identity might not even be able to demonstrate citizenship in any of the three nations on the list.
The Supreme Court is currently considering a challenge to the constitutional legitimacy of the CAA, and fresh applications have been filed to halt the implementation of the new rules. It is unclear how the top court will interpret the Constitution’s protection of fundamental rights in the contemporary situation and how the CAA and its rules would affect them.
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