The passing of the Citizenship Amendment Act, 2019 (CAA) in December 2019 brought with it widespread protests across the country leading to arrests of many activists, students and deaths in consequence of riots. The aftermath of CAA 2019 is something the country is still reeling under as students and activists like Umar Khalid, Gulfisha Fatima, Meeran Haider are still incarcerated for taking part in anti-CAA protests. On one hand, the Centre has been delaying formulating the Rules under CAA which makes it appear as if CAA is not being implemented and on the other hand, the Ministry of Home Affairs (MHA) is quietly taking steps to implement CAA. In fact, in August 2021, Union Minister of State for Home Nityanand Rai had stated in Rajya Sabha that Indian citizenship to the eligible beneficiaries under CAA will be given only after rules under the legislation are notified, reported Indian Express.
However, on October 31, the MHA issued an order empowering District Collectors of Anand and Mehsana districts of Gujarat to grant citizenship under section 5 (by registration) and section 6 (by naturalization) of Citizenship Act “in respect of any person belonging to the communities in Afghanistan, Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians”. This is to be done in accordance with Citizenship Rules, 2009. Significantly, while the Citizenship Amendment Act, 2019 (CAA) has been notified but the Rules for the same have not yet been framed by the MHA and at each deadline, it has sought extension of three months for the same. The latest extension was granted in October. It is under CAA 2019 that the Centre had introduced the discriminatory policy of granting citizenship to non-Muslim communities of only three neighbouring countries, which drew the ire of the masses and saw widespread protests across the country.
The order now passed by the MHA on October 31, allows the Collector to accept applications made under section 5 or 6, verify such application, make inquiry for ascertaining suitability of the applicant and eventually grant citizenship.
The notification may be read here:
The Centre has taken recourse to Rules already formulated under the pre-amended Citizenship Act to implement the latest amendment! The earlier rules were made in 2009 while the discriminatory provisions were brought in through amendments in 2019.
Under any Act the provision for rule making states that the government “may” make rules hence making of rules is not mandatory but an enabling clause. At the same time, if necessary details are not provided by way of Rules, the Executive may not be able to implement the said provision. Speaking in technical terms, any delay in framing Rules results in delay in implementing the law, since the necessary details are not available.
However, in this instance, Rules are already in place for implementing section 5 and 6 of the Citizenship Act which are to be used for operation of the latest amendment. Thus, while on paper, Rules of CAA 2019 have not yet been formulated, the rules required for the implementation of CAA are already in place and it is on this basis the MHA has issued this order.
Why have particularly these two districts of Gujarat were chosen for this order is unknown but it seems the MHA is starting implementation of CAA on trial basis and CAA seems to be creeping in stealthily and its implementation could, in this manner, reach all BJP ruled states. It is also very significant that these districts fall in a state that heads for elections at the end of 2022. It is more than likely that the rhetoric of citizenship to ‘persecuted minorities from Islamic countries’ may be used to garner votes.
We say only BJP ruled states because this implementation is the prerogative of the states and the bureaucracy that runs under them and many non-BJP ruled states such as Kerala, West Bengal have rejected CAA and have publicly declared that they will not implement CAA within their states.
Another instance of CAA being pushed was when Gauhati High Court gave an order in January this year directing a person declared foreigner to apply for citizenship under CAA. The bench of Justices Malasri Nandi and N Kotiswar Singh were unable to consider the petitioner, Bablu Paul, to be a citizen under section 6(A) of the Citizenship Act and which has specific provisions for citizenship of a person who has entered Assam within a specific time period and at the same time could not declare him to be illegal migrant because he was given refuge by the Indian government after fleeing from Bangladesh. Thus, the bench after having explored the rest of the provisions of the Citizenship Act, felt compelled to give directions as per CAA.
CAA challenged
Multiple pleas have been filed before the Supreme Court against CAA which the court is currently hearing.
Petitions were then filed against the discriminatory nature of this law which leaves out the Muslim community from the process of getting citizenship and is therefore perceived to be promoting religion-based discrimination. It is only applicable to migrants who entered India on or before December 31, 2014. As per the amendment, certain areas in the Northeast are exempted from the provision.
Indian Union Muslim League, a Kerala based political party, Trinamool Congress MP Mahua Moitra, Congress leader and former Union minister Jairam Ramesh, All India Majlis-e-Ittehadul Muslimeen (AIMIM) leader Asaduddin Owaisi, Congress leader Debabrata Saikia, NGOs Rihai Manch and Citizens Against Hate, Assam Advocates Association, and law students are amongst several others who had filed the plea before the top court challenging the Act.
The amendments have also been challenged on several other grounds, including the violation of secularism, Articles 21 (right to life), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 19 (right to freedom), as well as the provisions on citizenship and constitutional morality.
The pleas against the CAA first came up for hearing in the Supreme Court on December 18, 2019. In March 2020, BC Joshi, Director in the Ministry of Home Affairs, filed a 129-page affidavit on the behalf of the central government, in response to the pleas challenging the constitutional validity of CAA, termed the legislation legal and asserted that there was no question of it violating constitutional morality.
Asserting that the citizenship law was is “perfectly legal and constitutional”, the central government said that it is matter concerning the sovereign power of parliament and “could not be questioned” before the court. Responding to the fact that the amendment applies only to six communities in three countries when there are other minorities in these countries, the Centre put forth that the conferment of citizenship is a sovereign function. “The Indian parliament, which doubtlessly has the legislative competence, is not required to take into consideration as to which other communities are treated as minorities in the said three named countries,” reads the counter-affidavit filed by the government.
The pleas will next be heard on December 6 and at the October 31 hearing, the bench consisting of Chief Justice UU Lalit, Justices Ravindra Bhat and Bela M. Trivedi decided to treat the petition filed by the Indian Union Muslim League as the lead matter. As many as 232 plus petitions challenging the CAA were listed before the Court.
The CAA threat
Lest we forget, the threat of CAA looms large. The fears that sparked the protests in the first place still prevail and even if Centre plans to implement CAA in such a piecemeal manner, the larger picture remains the same; that CAA paves the way for National Register of Citizens (NRC). Sabrang India’s sister organization. Citizens for Justice and Peace (CJP) had conducted a detailed analysis of the “toxic cocktail” of CAA+NPR+NRC demonstrating how this will not only affect Muslims in the country but also for women and marginalized sections as well. The detailed analysis may be read here.
Related:
FREQUENTLY ASKED QUESTIONS (FAQS) ABOUT THE CAB/CAA 2019
CITIZENSHIP LAWS IN INDIA – FAQS