There is a lot of sophistry passing off as legal analysis around the controversial Citizenship (Amendment) Act, 2019 (CAA), the exercise to compile the National Register of Indian Citizens (popularly known as NRC) recently concluded in Assam and impending in the rest of the country, and the recent protests surrounding these. While some of these are relevant legal arguments which will be tested in the Supreme Court, there are others which are downright dishonest and designed to mislead. It is therefore necessary to understand and call them out.
Claim 1: The protests are unjustified and are a result of popular misconceptions surrounding the CAA and NRC
Is there a direct link between the NRC and the CAA, and has the CAA been brought to fill in loopholes in the NRC? As with any binary question, there exist only two possible answers. One, that as is being alleged by the protestors, the CAA has been brought into force to save non-Muslims from the hardships of the NRC process so that it can remain what the BJP always intended it to be, a tool to deprive large sections of the Muslim population of citizenship. Two, that the CAA does not cover non-Muslims who have been left out of the NRC in Assam or who will be left out of a nationwide NRC and will be able to single out persons who have actually come from Pakistan, Bangladesh and Afghanistan.
In the first case, it goes without saying that the protests by Muslims and liberal groups against the religion-based discrimination are fully justified. In the second case, the protests are still not as widespread as they could have been. If the CAA does not save Hindus, Sikhs, Jains, Buddhists, Parsis and Christians from the hardships of the impending NRC, and they too will have to prove their identity or lose citizenship, then members of these communities, particularly the underprivileged amongst them, should be out on the streets in strength as well. Because who besides a handful of the landed, educated elite, can produce papers of birth or legacy?
Claim 2: CAA does not benefit Hindus left out of NRC
It is being argued that in order to benefit under CAA, a Hindu will have to prove that s/he is a national of Pakistan, Afghanistan or Bangladesh and that s/he entered India on/before December 31, 2014. On this basis, it is being said that someone who applied in the NRC and was rejected will not then be able to avail the benefit of applying for citizenship under CAA.
This is a misleading argument because an illegal migrant can never ‘prove’ that s/he entered India illegally. Imagine the universe of documents that can prove a person’s entry into a country – visas, immigration stamps on passport and air/train/bus tickets. None of these are available in the case of an illegal migrant. In fact, the very definition of exempted persons under the MHA notification of September 7, 2015 is persons who entered into India “without valid documents including passport or other travel documents” prior to December 31, 2014.
The application under the provisions introduced by CAA will have to be based on a self-declaration. Otherwise, let the government put it's money where it's mouth is and make production of a Pakistani, Bangladeshi or Afghan passport or national ID a condition precedent for applying for citizenship under the amended law. But this is not the intention at all. Hence, all that an applicant will be required to produce is evidence of having been in India prior to the cut-off date. This can be by way of phone bills, bank statements, school certificates, lease deeds, etc issued prior to this date.
Further, under Section 6B(3) introduced by the CAA, any proceeding pending against a person in respect of illegal migration or citizenship shall stand abated and shall not bar such person from applying for citizenship under the new law. Therefore, the proceedings relating to citizenship against members of the Hindu, Sikh, Jain, Buddhist, Parsi or Christian communities who have been left out of the NRC shall stand abated and they will be entitled to apply for citizenship under the provisions of the CAA on the basis of a self-declaration. The corollary is that only Muslims left out of the NRC will be prosecuted for being illegal migrants and liable for punishment and deportation.
Claim 3: A nationwide NRC is just speculation at this point in time
The Prime Minister, in a speech on December 23, said that his government has never even mentioned a nationwide NRC. While a quick recap of practically every speech given by the home minister, including on the floor of Parliament, will show this to be false, this is belied also by a notification issued by the MHA on July 31, 2019 saying the process of updation of the ‘Population Register’ will commence on April 1, 2020.
Let’s put at rest this semantic difference between the NRC and this ‘Population Register’. This notification was issued under Rule 4 of the Citizenship (Registration of Citizens and Issue of Identity Cards) Rules, 2003, that were issued by the previous NDA government. This rule empowers the central government to carry out throughout the country a house-to-house enumeration for collection of particulars of each individual “including citizenship status” and compile the information into a “National Register of Indian Citizens” i.e. NRC.
Sub-rule 4 of the same rule deals with identification of individuals “whose citizenship is doubtful” and exclusion of the same from the NRC. Therefore, while modalities have not yet been fleshed out, for all practical purposes, the nationwide NRC exercise to identify persons whose citizenship is doubtful has already been notified.
Claim 4: Muslims who are illegal migrants will in any event be prosecuted/deported; their grouse against the CAA benefiting some other persons is mere envy
Let’s get this straight once and for all. The BJP government will never have the political capital to implement an NRC that excludes non-Muslims as well. The reason why the CAA has been rushed through Parliament at this point is that a majority of the 19 lakh people left out of the NRC in Assam are Hindus. The optics of putting Hindus to hardship by questioning their Indian identity would put the BJP at odds with their core voters in rest of the country.
If the NRC, from a tool to target Muslims, goes on to become a looming specter with the potential to rob any Indian whose identity documents are not in order of their citizenship, it will be the death knell of the BJP as a national party. And more immediately, the protestors, which, at present, comprise Muslims and liberals, will swell to include all sections of society who typically do not have documentation of birth or residence, namely, landless agricultural labourers, migrant workers, Dalits, tribals, all manner of poor, uneducated and/or underprivileged sections of society, to wit, the vast majority of the Indian population.
As in Assam, women would be the biggest sufferers as they are less likely to have school records and lack proof of historical residence in the villages or cities they migrate to after marriage. The Modi government cannot afford to have all these persons out on the streets. Therefore, without the CAA, we can safely bid the nationwide NRC goodbye.
Claim 5: The rational basis for selection of the three countries is that they were a part of undivided India
There are no two views about the fact that in matters of policy, the State is given elbow room for selecting its policy priorities. Supreme Court rulings are being cited which say that the State’s policies cannot be challenged merely on ground of under-inclusion. The first thing to be clarified is that the doctrine of under-inclusion has been laid down by the Supreme Court in the context of economic policies and in classification of offences. The rationale for this given by the Supreme Court is that the State must be allowed room for experimentation.
The doctrine of under-inclusion has never been applied in the context of human rights or to exclude persons based on religion. Needless to say, tolerance for the room to “experiment” will have to be much lower in the case of human rights, particularly citizenship, which is the right to have rights.
It is being said that the rational basis for selection of Afghanistan, Pakistan and Bangladesh is that they were a part of undivided India. The Nehru-Liaquat Pact and our “civilizational responsibility” towards the persecuted minorities of undivided India are variously being cited as the reasons behind this selection. Therefore, it is important to point out that Afghanistan was historically never a part of undivided India.
On the other hand, Burma (now Myanmar) actually was a part of British India, and was, in fact, covered by the Government of India Act, 1935, which was the precursor to our Constitution. It was only in 1937 that Burma was separated and brought under a separate Burma Office by the British government. Therefore, if anything, we have a civilisational and constitutional responsibility to the Rohingyas of Myanmar, as the government of Myanmar is being tried for genocide at the International Court of Justice and the region is facing the biggest humanitarian and refugee crisis in the world in recent past. It is in this light that this so-called under-inclusion in a law that claims to be for the benefit of persecuted minorities of undivided India is without any rational basis or historical truth.
Claim 6: Declining population ratio of Hindus in Pakistan demonstrates persecution and forced conversions
If anything, this is the lie that exposes the lack of bona fides of the BJP government. The statistics being cited are deliberate manipulations designed to mislead. The first synchronous Census was conducted in British India in 1881 and since then has been conducted every 10 years. So the last Census data available at the time of Partition was of 1941. The first Census in independent India and in independent Pakistan was conducted in 1951.
What the home minister did in his speech in the Lok Sabha and his supporters have been doing ever since is to compare pre-Partition data from the 1941 Census with present population figures in Pakistan to show the decline in the population of Hindus, Sikhs and other minorities in Pakistan. Any honest assessment of change in minority populations in Pakistan since independence would instead require comparing the 1951 population figures with the present figures and judging their human rights record accordingly.
Between the 1941 Census and the 1951 Census, there is a watershed that altered population ratios in the region forever — Partition. Majority of the Hindu and Sikh population of Pakistan migrated to India in 1947 and have been given citizenship by the Constitution of India. Therefore, saying that the population of Hindus and Sikhs in West Pakistan was 11% in 1947 and fell to 1.6% in 1998 is meaningless.
The Hindu population in Pakistan has actually increased after partition from 1.5% in 1951 to 1.6% in 1998, when the last Census was conducted in Pakistan. So instead of spinning wild theories about what became of the Hindu and Sikh population in Pakistan that was recorded in the Census of 1941, the apologists of this government would do well to ask their own grandparents.
(Nizam Pasha is a lawyer practising in the Supreme Court of India. Views expressed are personal)