A Side Door For CAA To Claw In

On a biting cold December night in 2019, violent protests erupted across Assam, shortly after Parliament approved a controversial legislation that expedites the process of granting Indian citizenship to non-Muslim “persecuted minorities” from three neighbouring countries—Bangladesh, Afghanistan and Pakistan. The protests against the Citizenship (Amendment) Act was soon to spread across the country, and Delhi’s Shaheen Bagh was to turn into the nerve-centre of a women-led mass agitation for more than 100 days till the novel coronavirus pandemic swept across the world.

Fourteen months since the agitation was temporarily called off, the legislation is back under the spotlight after the Centre issued a notification seeking application of citizenship from people eligible under the law, though CAA rules are yet to be framed. According to the notification, non-Muslim refugees residing in 13 districts of Gujarat, Rajasthan, Chhattisgarh, Haryana, and Punjab are eligible to seek Indian citizenship. Assam—which recently elected a BJP government for a second term—has been kept out of the notification.

The Centre’s move has riled protesters and activists who see it as a ploy to introduce CAA through proxy; the talk has now veered to regrouping and res­tarting the movement against the legislation that a UN human rights group has described as discriminatory. An angry Saima Khan, one of the Shaheen Bagh protesters, says they are ready to hit the streets if the government plans to implement CAA through unconstitutional means. “It will be a tough choice for us, but we are ready to fight injustice at any cost. Farmers are already on the road. There will be another protest if the government tries to implement CAA,” Khan, a mother of four, tells Outlook. Another woman, who had joined online protests against CAA, says that the spirits are still high. “How can the government go ahead with a communal agenda while the country is in grave crisis? Lakhs of people have lost livelihood and scores of children are orphaned (due to Covid),” she adds.

A case challenging the constitutional validity of the law is pending in the Supreme Court. The petitioner, the Indian Union Muslim League (IUML), has moved the top court again and challenged the recent notification. In its interim plea, the IUML argued that the Centre is trying to circumvent the assurance given to the SC earlier. Lawyer Mohammed Shah, who is representing IUML, says if the Centre is invoking CAA, it will be difficult to prove religious persecution in the abs­ence of rules. “The notification is a backdoor entry of CAA. Without rules, how will the refugees prove that they have undergone religious persecution in a particular country? We are not against giving citizenship to anyone. But don’t discriminate,” says Shah.

Other experts agree. Faizan Mustafa, vice chancellor of NALSAR University of Law in Hyderabad, says there is no clarity on the entire process. “Most importantly, the rules under CAA should have been drafted and notified. Without rules, CAA cannot be inv­oked,” he says. He also points out that though the government cited “religious persecution” of non-Muslim minorities as the key reason for bringing the controversial law, this expression was missing in CAA. “Since they didn’t use this crucial expression of religious persecution in the Act, the government should define it in the rule,” says Mustafa. The government should have waited for the SC to pronounce the constitutionality of the Act, he adds.

Under CAA, citizenship will be given to persecuted minorities—Hindu, Sikh, Jain, Buddhist, Parsi, and Christians—who have migrated from Bangladesh, Pakistan and Afghanistan to India till December 31, 2014. Earlier, the government had amended the Citizenship Act 1955 to circumvent provisions under the Passport Act and the Foreigners Act that barred these six communities from getting Indian citizenship.

M.R. Shamshad, an advocate who is appearing in the pending CAA cases in the Supreme Court, says that the long term visa notifications of 2015 and CAA are meant to grant benefits to non-citizens based on ‘religion’ and ‘region’. “Both are sub-judice in the Supreme Court. It is vague to the extent as to how this is not relatable to 2015 long-term visa (LTV) notifications 2015 and CAA 2019. Application of those holding valid documents under LTVs could be invited without identifying their religion and region,” he says. “Why these amendments in the Act of 1955 if the government could do it like this? he asks.

The story gets complicated in Assam where the issue of citizenship has been very contentious since the early 1970s when a mass agitation was launched against “illegal migrants”, a term used to denote undocumented migrants, especially from Bangladesh. Protests against CAA have also held different connotations in the state. While protesters in rest of India demand that Muslims also be included in CAA provisions, in Assam, those against the law are opposed to the legislation in its entirety.

Assam witnessed the most violent anti-CAA protests and at least five people were killed in police firing in 2019. Several groups at the forefront of the movement against implementation of CAA in Assam and the Northeast have reiterated that the legislation is not acceptable and the Assam Accord can be the only basis for granting citizenship.  According to them, the Centre’s latest move is the first step to implement CAA. They say the government was being clever by granting them citizenship even when the rules for CAA are yet to be framed and it could try the same trick with Assam and the Northeast as well.

“The BJP is playing vote-bank politics, which we will not allow,” says Samujjal Bhattacharyya, adviser to North East Students Organisation and chief adviser to All Assam Students’ Union (AASU). He adds that situation in Assam and the Northeast was different from the rest of the country and the issue of illegal immigration will have to be resolved only based on the Assam Accord of 1985, with March 24, 1971, as the cut-off for granting citizenship.  “They cannot place the burden of Hindu Bangladeshis on us,” he adds.

On the other hand, nascent Raijor Dal leader Bhasco de Saikia says that if the Centre were to do the same in Assam then the state would be burdened with “1.90 crore Hindu Bangladeshis” which cannot be acc­epted. Though there is no data on the number of people who could seek citizenship under CAA, those opposed to the law cite figures ranging from a few lakhs to crores. The Assam BJP says the number of beneficiaries will not be more than a few thousand.

(With inputs from Dipankar Roy in Guwahati)