Citizenship (Amendment) Act: Enforcement Is Fraught with Legal Hurdles

The union government expended considerable political capital to enact the Citizenship (Amendment) Act, 2019. But, the implementation process is likely to lay bare the inherent contradictions of the Act, and could throw up unforeseen challenges for the government.   

The Citizenship (Amendment) Act, 2019 (CAA) was enacted by Parliament on 11 December 2019, sparking off widespread protests across the country (Ministry of Law and Justice 2019). Ever since, a great deal has been written about how the act violates the principle of equality of all persons before the law enunciated under Article 14 of the Constitution, and goes against the tenets enshrined in the preamble of the Constitution. 

However, the Members of Parliament (MPs) who voted in favour of the law have paid little heed to the concerns raised against the legislation, and did not anticipate the spontaneous protests happening around the country. An argument advanced in the run-up to the passage of the legislation was that it would benefit persecuted religious minorities of Afghanistan, Bangladesh, and Pakistan. The Narendra Modi government also accused (and still continues to accuse) the previous governments of deliberately postponing the passage of such a humane law. Amidst the allegations and counter-allegations between those who support and oppose the act, it is important to look at the finer details of the legislation and its consequences.

While the act has already come into effect since 10 January 2020, it is important to note that the government is yet to frame the rules for its implementation. At this juncture, it is pertinent to take a look at the two important issues that the law has brought into focus. First, what are the consequences when migrants are solely classified on the basis of their religion and the country of their origin? Second, what are the practical implications to disregard documentary proof, factual evidence, and animus manendi[1]  from those who seek to make India their home.   

The following sections of the article present some of the practical issues that the implementing agencies could run into in the days to come. 

Absence of a Mechanism

There is currently no designated authority or a system in place to scrutinise if the evidence of religious persecution presented by migrants is valid or not. 

The courts have already faced difficulty in adjudicating on the problems that arise due to the absence of such a mechanism. In the Ranjit Kumar Mazumder & Anr v State of West Bengal (2016), a division bench of Calcutta High Court dealt with an issue in 2015–16 where two Hindu migrants were taken into custody on the allegation that they remained in India after their tourist visas had expired. The migrants were also accused of obtaining birth certificates and ration cards, among other documents, by fraudulent means. When they were brought before the court to be prosecuted under the Foreigners Act, 1946, they sought protection under a 2015 Ministry of Home Affairs (MHA) order[2] that exempts minority communities of Pakistan and Bangladesh from proving that they have fled religious persecution in their home countries. The division bench of the Calcutta High Court then ruled that the detention of the migrants under the Foreigners Act, 1946 was illegal. The judges on the bench observed:      

“We find that so far as charges against the petitioners under Foreigner’s Act 1946 is concerned, the aforesaid Notification and the Order protect them from prosecution under the 1946 Act. We have taken into consideration submission [...] that the petitioners had not raised any complaint of facing religious persecution in their home country while they entered into India, and had not reported their fear or apprehension before any statutory authority in India. […]In our opinion, detention of the petitioners under the Foreigners Act cannot continue[...] In our opinion, the petitioners are entitled to the protection contemplated in the said Notification and the Order.”
(Ranjit Kumar Mazumder & Anr v State of West Bengal 2016)

Scope for Misuse 

The CAA, 2019, when read with the MHA 2015, order creates a conducive environment to commit fraud by those who had come to India on tourist visas and overstayed in the country, if they are from the protected religious groups and the specific countries mentioned in the legislation. When law enforcement agencies nab such migrants for staying back in India even after their visa has expired, they can simply say that they faced religious persecution in their countries, without producing any documentary evidence to the effect. The fact that they have committed a crime by living in India even after their visa expired cannot be taken into consideration. The practical implication is that these migrants will not be deported or imprisoned for being in India without valid documents.  They might have committed crimes while living in India, but they will not be tried, and they can seek refuge under the latest act. Over time, they would become eligible to apply for Indian citizenship. Thus, in reality, the citizenship legislation can be misused by those migrants who do not actually face any religious persecution. 

Rightful Claimants to Get a Raw Deal 

The law allows the government to deport and imprison migrants who actually entered India to escape religious persecution, but do not belong to protected religious groups and/or select countries mentioned in the legislation. Even if they produce evidence to prove religious persecution in their own country, their religion and country of origin would negate their genuine concerns and lived experience. These migrants could be law-abiding individuals who spent their life-time in India, but their religion and country of origin would make them “suspect individuals” overnight and would be denied Indian citizenship. They could be even deported from India, or could be imprisoned. 

For instance, this could mean a Muslim migrant would be declared as a “foreigner,” and their life spent in India could be tainted as “illegal” overnight. The migrant’s familial ties and cultural bonds are invisiblised, and their future would have bleak prospects. The children of such migrants would also have to carry the burden of “illegality.” This would be similar to the Germany of 1935 where it did not matter if a Jewish individual had been living in Germany for generations, made German their mother tongue, and contributed to the German culture and economy. They were all deemed illegal, and what followed from such a discourse was a genocide against Jews, the memories of which still haunt the world today.  

Inherent Contradictions 

One of the other major issues regarding the CAA is what happens to immovable properties acquired by the “illegal” migrants who are from the three favoured countries and six protected religions. According to the Foreign Exchange Management Act (FEMA), 1999, only a “citizen” is permitted to acquire immovable property in India.  

Although the latest act allows the select illegal migrants to become citizens from the time of their entry into India retrospectively—whom the act refers to as “deemed” citizens—what remains unclear is what would happen to their immovable property. The act does not go beyond the issue of citizenship, and it remains silent on the consequences that would emerge from granting citizenship. There is nothing in the act that talks about the rights of “deemed” citizens over immovable property in the context of FEMA, 1999. Will their property get regularised like their citizenship status? Or, will the government confiscate their properties as they were not citizens at the time of acquisition? Such anomalies and contradictions in the act could open the floodgates for litigation in the future. 

Conflating Refugees and Migrants 

It must be highlighted that India neither is a signatory to the 1951 United Nations Refugee Convention, nor does it have a comprehensive policy on migration and refugees. The government does not even have a deportation policy to address the question of “illegal” migrants. In such a situation, the current government’s decision to enact such a contentious law seems to be purely based on its political agenda. The reason behind such an accusation is that the latest citizenship law does not distinguish between the very distinct terms “migrant” and “refugee.” Instead, it erroneously conflates the two: “illegal migrant.” On the other hand, it does not take into consideration the unique circumstances and lived realities of refugees as opposed to migrants. Consequently, it has created confusion, fear, and left several questions unanswered.     

Exclusionary Provisions 

The government also does not provide a plausible explanation as to why minorities who have been facing atrocities and persecution due to their religious beliefs in neighbouring countries are excluded from the ambit of the legislation. For instance, the law does not cover Madhesis in Nepal, Rohingyas in Myanmar, Tamils in Sri Lanka, and Hui and Uyghurs in China, who have been facing persecution.  

It is reasonable to say that the government’s emphasis is not on “persecution” per se, but on the “religious identity” of the individual migrants. Therefore, if a migrant does not belong to one of the six favoured religions, they would not qualify for protection, regardless of the fact that they have faced “religious persecution.” 

India’s Interests at Stake 

The latest citizenship legislation has the potential to damage India’s relations with Afghanistan, Bangladesh, and Pakistan. By declaring that minorities in those countries face religious persecution, India would paint them in a negative light in the international sphere (Dhaka Tribune 2019). 

On the other hand, it would have been beneficial for India’s interests if the government took time to understand the lived realities of the migrants, rather than paint them as “illegal.” In the light of the confusion and inherent contradictions, the latest citizenship law has the potential to spawn social, economic, and political crises in the country. It is disheartening to see the issue of Indian citizenship transform from being “identity-neutral” to a narrow religious and racial one.   

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