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Framework and Challenges to the CAA and it's Relationship with the NRC

Updated: Jul 29


[Authored by Aishik Chakraborty, a 1st year BA LL.B (Hons.) student at School of Law, CHRIST (Deemed to be University), Bangalore.]

Introduction


This kind of upheaval is perhaps a first of its kind in the history of Independent India. The protest against the Citizenship (Amendment) Act (CAA), 2019 has gripped almost the whole country, although the reasons for the protest differ from place to place. The reason for some of their protest is that the CAA allegedly violates the secular identity of the country while the cause of concern for others is that the act will endanger their linguistic and cultural identity.[1] On the other hand, many people believe that CAA itself is harmless, combined with the proposed nationwide National Register of Citizens (NRC), an exercise that has run into a lot of controversy in Assam alleging that it will become a tool to exclude the Muslim population of the country. The Union Government evidently had a tough time tackling all these as we saw the Prime Minister Narendra Modi publicly contradicting Home Minister Amit Shah’s statement that a nationwide NRC will be prepared by 2024.[2]


A Brief Overview of Citizenship (Amendment) Act, 2019


According to Section 2 of the CAA, the Hindu, Buddhist, Christian, Jain, Sikh and Parsi migrants who have entered India without legal permits on or before December 31, 2014 from the Muslim-majority countries of Pakistan, Afghanistan and Bangladesh and have stayed within the country for five years, are eligible to apply for Indian citizenship.[3]

The Union government claims that people of these six religions have faced persecution in these three Islamic countries, Muslims haven't. It is, therefore, India's moral obligation to provide them shelter. According to the agenda propagated by the NDA government, this is the reason why the provision had been extended only to the people of six faiths and not the Muslims coming from these three countries.[4]

Although it apparently looks like the provision is open to only those who have been persecuted in these three countries, the reality is far from that. The CAA itself does not mention the word 'persecution' anywhere, contrary to the BJP's assertion that the act covers only persecuted people. And since persecution is not the criterion, the act does discriminate against the illegal Muslim migrants who came from these three countries.


Migrants from Sri Lanka and Myanmar


The government says this is a time-bound provision to provide some relief to immigrants who have suffered in the Islamic countries because India got divided on the basis of religion. From time to time, India has provided citizenship to immigrants of all religions from different countries. Sri Lankan Tamil Hindus also, were given citizenship in the 1970s and 1980s.[5] The Union government has openly declared that the Rohingyas are a threat to national security.[6] Even an Islamic country like Saudi Arabia has expelled Rohingya migrants. The BJP's logic behind the amendment is that the Hindu migrants have only India to fall back on while Muslim migrants have several Islamic countries to look for shelter in. [7]


Is Citizenship (Amendment) Act Unconstitutional and Against Secularism?


As many as sixty-five writ petitions had been filed in the apex court challenging the legal validity of the CAA. Constitutional experts say there are arguments both in favour of and against the act. One opinion is that Article 14 says that all persons are entitled to equality, but there have been several Supreme Court judgments which say that reasonable classification can be applied to this principle of equality.[8] Even all fundamental rights are subject to reasonable classification. Anyone can challenge the act in the Supreme Court and the future of the act will depend on whether the apex court accepts the classification made within this act as reasonable enough. The Centre relied to the apex court saying that Citizenship (Amendment) Act (CAA), 2019 does not violate any fundamental right or affect the legal, democratic and secular rights of any Indian citizens. The central government, in its 129-page affidavit in response to the pleas challenging the constitutional validity of CAA, termed the legislation legal and stated that there was no question of it violating constitutional morality which is not an "unruly horse". Seeking dismissal of the pleas, it said Indian secularism is "not irreligious", rather it takes cognisance of all religions and promotes harmony and brotherhood.


Is There a Need for This Amendment?


Although we already have provisions to grant citizenship to outsiders but that is only for people who have entered India legally, that is, with their passport and a valid visa.[9] India is among the very few countries in the world that has neither a national refugee protection framework nor a policy for immigration.[10] It is also not a signatory to the 1951 UN Refugee Convention, or its 1967 Protocol.[11] India has also not signed the 1954 UN Convention on Statelessness or the 1961 UN Convention on Reduction of Statelessness. It is under no obligation, therefore, to provide rights set out in the conventions to refugees. It takes decisions on granting long-term visas to refugees essentially on an ad hoc basis. It does have some laws that is used for governing the refugees, including the Registration of Foreigners Act, 1939; Foreigners Act, 1946; and the Passport Act, 1967.

In India, while refugees from neighbouring countries (barring Myanmar) can seek protection directly from the Government of India and are issued documentation by the Foreigner Regional Registration Officers (FRROs), non-neighbouring countries and Myanmar come under the United Nations High Commissioner for Refugees (UNHCR) directive that assesses each individual asylum claim and issues an ID card to those recognised as refugees after seeking biometric data for registration, followed by a comprehensive interview by a UNHCR officer. The whole process takes anywhere between six months and a year. The government currently allows refugees, including Rohingya, with UNHCR IDs to apply for a "long-term visa", which the government issues on a case by case basis.[12] However, this doesn't convert them into the citizens of India.


The Relationship Between CAA and NRC


CAA and NRC do not have any direct connection. The NRC is a national register which keeps a count of the number of lawful Indian citizens. Other than Assam, this exercise has never been done anywhere in the country. The main aim of this nationwide exercise is to detect illegal migrants as stated by the Home Minister.

The first NRC in Assam was prepared in 1951, because of the widespread allegations of massive, unabated illegal immigration from Bangladesh. The first NRC was published by recording the particulars of all the persons mentioned in that year's census.[13] The 1951 NRC found that nearly 1.5 million illegal immigrants that is one-sixth of Assam's population lived in the state. However, there is no track of what happened to those illegal immigrants. Three decades later, at the end of a six-year-long turbulence in Assam against illegal immigrants from Bangladesh, the Union government and student leaders signed the Assam Accord in 1985. As part of the accord, the 1951 NRC would be updated.[14] That's why people residing in Assam were asked to show documents which prove their connection to those whose names appeared in the 1951 NRC. Because the Assam Accord accepted any illegal migrant entering the state before March 25, 1971, as a legal Indian, documents showing connection to anyone whose name featured in the voter lists between 1951 and 1971 were also taken as a proof of citizenship.[15]


Conclusion


The Home Ministry of India had framed the rules and regulations for a nationwide NRC in 2003, following an amendment to the Citizenship Act of 1955.[16] The rules firmly stated that the central shall, for the purpose of the NRC, conduct a door-to-door for collection of specified information relating to each family and individual residing in a local area. Any document related to date and place of birth will suffice as a proof of citizenship. Voter ID cards, passports, the Aadhaar card, driving licenses, insurance papers, birth certificates, school-passing out certificates, documents relating to land or home or other government-issued documents will be acceptable.[17] If a person is not having the relevant documents, the authorities will allow them to bring a witness. Other evidence and community verification will also be allowed.

In simple terms, there is nothing wrong in counting the number of legal citizens in a country. But in a country like India, where the population involved is a huge issue and when gradually the thing is turning to be a basis for discrimination, then the Government should definitely ponder on it. If this exercise is carried out, then there can arise a lot of complexities like that of Assam. Thus, a lot of steps need to be taken for carrying out such a huge task and a lot of manpower and infrastructure is involved with it. Keeping the illegal migrants in detention centres is surely not a way out. A proper plan of action needs to be planned before carrying out such a huge nationwide exercise.

[1] Chandrachud, Abhinav, Secularism and the Citizenship Amendment Act (January 4, 2020). Available at SSRN: http://dx.doi.org/10.2139/ssrn.3513828

[2] Kaushik Deka, Expert view: Does India need CAA, NPR, NRC? (January 10, 2020). Available at: https://www.indiatoday.in/india/story/expert-view-does-india-need-caa-npr-nrc-1635665-2020-01-10

[3] The Citizenship (Amendment) Act, 2019 (India).

[4] Shylashri Shankar, How Democratic Processes Damage Citizenship Rights: The Implications of CAA-NRC (December 16, 2019). Available at: https://www.cprindia.org/news/8339

[5] Id.

[6] Suchitra Mohanty, Rupam Jain, India calls Rohingya refugees 'threat to national security (September 14, 2017). Available at: https://www.reuters.com/article/us-myanmar-rohingya-india/india-calls-rohingya-refugees-threat-to-national-security

[7] Deka, supra note 2.

[8] D.S. Nakara & ors v. Union of India, AIR 1983 SC 130 ; Madhu Limaye v. Supdt. Tihar Jail, (1975) 4 SCC 148.

[9] Van der Straaten, Jaap. (2020). Constitutional Conduct Group. An open letter to the citizens of India: India does not need the CAA-NPR-NRIC. Review and annotated version Jaap van der Straaten. 10.2139/ssrn.3551783.

[10] Id.

[11] Available at: https://www.unhcr.org/

[12] Deka, supra note 2.

[13] Chandrachud, supra note 1.

[14] Straaten, supra note 9.

[15] Id.

[16] Chandrachud, supra note 1.

[17] Deka, supra note 2.

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