No, CAA 2019 won't disenfranchise anyone, CAA 2003 will

No, CAA 2019 won’t disenfranchise anyone, CAA 2003 will

India, Politics
Reading Time: 9 minutes

Recently, in a survey conducted on a very small sample size on Twitter, it was found that 76.9% respondents believe that Citizenship (Amendment) Act, 2019 (CAA 2019) will snatch the citizenship of Indian people. While 12.8% respondents believe it’s CAA 1986, only 10.3% believe that CAA 2003 will snatch the citizenship of most of Indian poor, who don’t have enough papers to prove their date of birth or place of origin. This small sample shows how misconceptions regarding the CAA 2019 are prevalent in India and how the ruling Bharatiya Janata Party (BJP) is capitalising this to farther its obnoxious agenda.

The small survey conducted by People’s Review

Disenfranchisement of Indians can happen through the National Register of Indian Citizens (NRC or NRIC) exercise, which will build a new database of citizens following the criteria set according to India’s Citizenship Act, 1955, read with all its amendments, viz CAA 1986, 2003, 2005, 2015 and 2019. This NRC exercise isn’t provisioned by the CAA 2019, rather, it’s CAA 2003 that introduced the concept to Indian citizenship system.

The CAA 2003 added a notorious clause––Section 14A––to the original Act, which mandated the creation of a national citizenship database under the Central Government. The CAA 2003 also introduced the concept of “illegal migrant” in the Act for the first time and defined it ambiguously.

Section 2 of CAA 2003 introduced the concept of “illegal migrant” by amending clause (b) of Section 2 of the original Act. The sub-clauses of clause (b) read:

(b) “illegal migrant” means a foreigner who has entered into India––

           (i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf;

           (ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time; (sic)

The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, published on December 10th 2003 to show how the Act will be implemented by the executive. These Rules clearly show that the Government of India considers every citizen’s credentials as “doubtful” and thus wants to create a new NRC, with the help of the National Population Register (NPR), which it has integrated with the National Census to build a database.

Therefore, according to the Act and Rules, for the Government of India, the citizenship of Indians can be confirmed only after an NRC is created. The Congress party-led government, which enacted the CAA 2003 in December 2004, after the BJP passed the Bill in both houses of the Parliament in December 2003, carried out an NPR exercise in 2010 on a pilot basis, along with the 2011 Census. But as that NPR lacked in-depth data, like the birthplace of the respondents and their parents, as well as biometric linking, so, the BJP wants to complete the leftover task.

Sections 3, 4, 5 and 6 of the Citizenship Act define how one can be either citizenship by birth, by descent, by registration, etc. In these clauses, the most important part is of citizenship by birth. Subclauses (a), (b) and (c) of clause 3 clarify who can qualify for citizenship by birth in the following way:

[3. Citizenship by birth.—(1) Except as provided in subsection (2), every person born in India, ––

(a) on or after the 26th day of January, 1950, but before the 1st day of July, 1987;

(b) on or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth;

(c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where ––

            (i) both of his parents are citizens of India; or

           (ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth,

shall be a citizen of India by birth.

Now, if we consider the situation where there is a family where A and B are the spouses, and they were born in 1951 and 1953 respectively. Now their children, C and D, were born in 1979 and 1988 respectively, and C is married to E, and D is married to F. Now C and E have a child G, born in 2005, whereas D and F have a child H born in 2015. Now how will we sort the citizenship by birth, the only by default clause of gaining citizenship in India through the help of Section 3?

In this case, both A and B should be ideally citizens of India under Section 3 (1) (a). However, as the process of giving birth certificates started in 1969 and even didn’t become popular till 2002, it’s unlikely that both or either can show one to prove they were born in India. In this case, both A and B have to show proof of their parents’ residence in India at that period of time, or according to Section 6(b) of the Indian Constitution, their presence in Indian territory before July 19th 1948. In case they fail to prove their credentials through authentic legacy documents, they won’t be considered as citizens, irrespective of their names in voter roll or their Aadhaar registration, driving license, passport, etc.

C, who was born in 1979, can be considered as an Indian citizen if there is a birth certificate to attest the fact. Unless there is one, C will also not qualify as an Indian citizen. D, however, will have further problems as the year of birth is 1988. Hence, under Section 3 (1) (b), D has to prove that either A or B was a bona fide citizen of India during D’s birth. In case that can’t be proved, then D’s citizenship will not be valid.

The spouses of C and D––E and F––also have to qualify according to the above-mentioned steps to be considered as Indian citizens. Now, if we consider the case of G and H, they were both born after the commencement of the CAA 2003, ie, after December 2004. Therefore, it’s mandatory in their case to not just ensure that C and D, as well as E and F, are citizens of India during their birth, but also that none of them was an “illegal migrant”, as described in Section 2(b) of the Citizenship Act, during the birth of G and H. Otherwise, not only G and H will be categorised in the “illegal migrant” category, they will also lose the opportunity to apply for Indian citizenship forever.

At any point in time the Citizenship Act, 1955, should be read with Article 6 of the Indian Constitution. It defines an Indian citizen at the time of commencement of the Constitution, ie, the period between August 15th 1947 and January 26th 1950.

6. Notwithstanding anything in article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if—

  • (a) he or either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and
  • (b) (i) in the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or
  • (ii) in the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefor to such officer before the commencement of this Constitution in the form and manner prescribed by that Government:

Provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application. (sic)

If the Article 6 is read carefully, then it will become clear that those who want to escape the ordeal of losing their citizenship due to 14(A) of the Citizenship Act, must present their ancestors’ legacy documents dating back to a period before July 19th 1948. Unless they can show any such documents, especially the land records, which is unavailable to the majority of Indians, they can’t be considered as citizens of India.

When the BJP passed the CAA 2003 in December 2003, and the Congress party enacted a year later in December 2004, no political party vehemently protested this macabre atrocity against the poor people of India, whose citizenship is now subject to an NRC exercise. In case they don’t make it to the NRC list, like the 1.9m people of Assam, they will be turned into cheap labourers for the big corporate houses, bringing down the labour cost significantly. Even those poor people who will retain their citizenship will have to sell their labour at a lower wage to compete with those without citizenship. This will eventually incite antagonism between these two sections of the poor and spark violence.

Why the political parties, who remained mum on the CAA 2003, became vocal against the CAA 2019? Why did they portray it as a law that is snatching the citizenship of the Muslims? Why did they only mobilise the Muslims to oppose the CAA 2019 and not the non-Muslims, especially the Dalits, tribal people and backward class Hindus? They remained mum because the CAA 2019 could’ve exposed their hypocrisy as well.

The CAA 2019 doesn’t promise citizenship to anyone or threaten the citizenship status of anyone. It merely freed 31,313 non-Muslim refugees, mostly from Pakistan, from the “illegal migrant” status, after they have been exempted from the Passport (Entry into India) Rules, 1950, and Foreigners Act, 1946, by amendments in 2015 and 2016. It’s an amendment to the existing Citizenship Act that will only create fissures among the people at the receiving end due to the NRC and will also befool a large number of poor non-Muslim refugees, especially those who fled from Bangladesh.

If we closely study the CAA 2019, we will see that this amendment has only dealt with clauses of two sections of the Citizenship Act, 1955. In section 2, sub-section (1), in clause (b), the CAA 2019 made the following amendment:

“Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;”. (sic)

This shows that only those who are “exempted by the Central Government” through the Passport (Entry into India) Act, 1920 or the Foreigners Act, 1946, shall “not be treated as illegal migrant” as per section 2, clause (b) sub-sections (1) and (2). Under the amendments done to section 6, the amendment allowed these people to apply for citizenship, however, there is no guarantee that they will get citizenship.

In points 2.17 and 2.18 of the Joint Parliamentary Committee’s (JPC) Report on Citizenship (Amendment) Bill, 2016, which was later modified with the exclusion of Sixth Schedule areas of northeastern states and passed as CAA 2019, the Intelligence Bureau representative informed that only 31,313 will be instantly eligible for citizenship among millions of refugees from Afghanistan, Bangladesh and Pakistan. He informed the JPC that any new application, citing religious persecution as a reason of migration, needs verification by India’s external intelligence agency, Research & Analysis Wing (R&AW).

It’s clear that the R&AW can’t process millions of applications, hence, none of the millions of poor refugees will get citizenship under the CAA 2019. But that won’t stop these hapless people from applying for citizenship, which the BJP will cajole them to do. But in that case, they will voluntarily declare that they aren’t Indian citizens but citizens of Afghanistan, Bangladesh or Pakistan. By doing this they will themselves put their citizenship in threat and will make the task of the NRC easier, as their data will help the government to exclude them from the list.

But the purpose behind the CAA 2019 wasn’t merely to provide citizenship to a chosen few but to hoodwink and bamboozle the masses so that the BJP can do a communal polarisation over the citizenship issue. The hullaballoo over the CAA 2019’s purported discrimination against Muslims was blown out of proportion, but the real issue wasn’t addressed. This helped the BJP to assure its core vote bank, millions of Bengali Hindu refugees, that before the NRC it will provide them citizenship through CAA 2019. It blamed the Muslims of obstructing the citizenship of the refugees and thereby fuelled Islamophobia. Such Islamophobic propaganda helped the BJP to instigate a ghastly anti-Muslim pogrom in North East Delhi.

If rather than criticising the CAA 2019 as anti-Muslim legislation, whereas it didn’t threaten the citizenship of any Muslim except in Home Minister Amit Shah’s rhetoric, its real content, ie, it’s an amendment that can, at the most, provide citizenship to only 31,313 refugees and not all, was highlighted through the mass movements, then the common people could’ve been better educated about the peril of the CAA 2003, which has already rendered the citizenship of millions of Indians in a “doubtful” state, and which is the source of the NRC. However, due to some ulterior motive, the mainstream opposition and many social organisations that joined the “anti-CAA” movement, didn’t take any initiative to build a mass movement over the real issue but turned the issue into an assault on Muslims, providing enough communal ammo to the BJP.

For any practical problem, a practical solution is needed. The mainstream opposition and the major organisers of anti-CAA 2019 movements have either manifested their myopia on the citizenship issue or have deliberately concealed the truth from the people and prevented the Hindus, the Dalits, the tribal masses and the other minorities apart from Muslims to join the movement in order to save themselves from the onslaught of the NRC. Rather, they ensured that the Muslims’ movement remains isolated from the majority community. It’s a time to break this vicious cycle of communalism.

Rather than raising opaque demands of scrapping the CAA 2019, without providing any alternative solution, it’s imperative to raise the demand for a total overhaul of the Citizenship Act, 1955, and repeal all CAAs, viz CAA 1986, CAA 2003 and CAA 2019. Through a new amendment to the Citizenship Act, 1955, citizenship by birth must be made unconditional, while a new humane system must be created that can provide citizenship to all refugees living in India until now. Also, a new system is required to deal with the issue of immigration in a humane way and developing a dual citizenship solution by giving the states greater rights to determine who can be their citizens, apart from the citizenship granted by the Union. Unless there is a lot of work done in this regard and the people are educated, the misconceptions regarding CAA 2019 can’t be allayed and the BJP will continue to benefit from them.

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An avid reader and a merciless political analyst. When not writing then either reading something, debating something or sipping espresso with a dash of cream. Street photographer. Tweets as @la_muckraker

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