New Rules Fail to Answer Questions on CAA; Give Rise to Many More

The requirement of persecution on religious grounds is not required to be proven under the CAA.

On 11 March, the BJP-led central government issued the Citizenship (Amendment) Rules, 2024 which provides the mechanism for implementing the Citizenship (Amendment) Act, 2019 (CAA). The Rules come four years after the CAA attracted nationwide protests between December 2019 to March 2020, which abruptly came to a halt in the wake of the COVID-19 pandemic. 

The CAA, which seeks to provide an accelerated mechanism for granting citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians who have migrated from Pakistan, Bangladesh, and Afghanistan before 31 December 2014 and had entered India without valid travel documents or continued to stay even after the validity of their documents expired, has received scathing criticism, largely on two grounds.

One is that for the first time in India’s history, religion has been instituted as the core essential for the granting of citizenship. And two, that for the persons excluded from the National Register of Citizens (NRC), the CAA will provide recourse to only non-Muslims to seek Indian citizenship. Disconcertingly, these apprehensions seem to persist in the Rules, even as the relaxed norms provided by the Rules have been attracting more objections. 

Religious Persecution – Assumed, Not Proven

The Statement of Objects and Reasons of the Citizenship Amendment Bill highlighted that the law intends to grant protection to people who have fled the three neighbouring countries on the grounds of religious persecution.

Surprisingly, the requirement of persecution on religious grounds is not required to be proven either under the CAA or even under its provisions read with the Passport (Entry into India) Act, 1920 or the Foreigners Act, 1946. That the concerned person belongs to one of the six religious communities is considered adequate to assume that they have migrated to India due to persecution because of their religious identity.

The Rules do not change this position – they merely require proof that the concerned person belongs to one of these six religions. While Form VIIIA of the Rules asks for “reasons for which applicant wishes to acquire Indian citizenship,” it is not a condition for the granting of citizenship under any provisions of the Rules.

Contrastingly, for example, US immigration law clearly defines persecution, and this proof of persecution is taken into account while determining applications for citizenship. 

Excluding Persecuted Muslims, Other Nationalities

Even at present, India houses a substantial number of religious minorities that the CAA does not protect. The classic case is of the Ahmadi Muslims, who were recognised as a sect of Islam in the 2011 census, and whose number is estimated to be roughly around 1,00,000 in India. Especially in the wake of the Taliban returning to power in Afghanistan, the new citizenship norms fail to recognise the vast number of Afghan Muslims who have taken refuge in India, or the Rohingyas, who are South Asia’s largest persecuted minority.

A similar exclusion is faced by the Chakmas and Hajongs, who are Buddhists and Hindus, but regularly denied entitlements in Arunachal Pradesh. What is even more surprising is that by excluding Sri Lanka from the ambit of the law, the CAA and the Rules overlook the plight of Sri Lankan Tamils who have sought refuge in India for decades.

Even in the past, Citizenship Rules have been tweaked to address the plight of refugees. In 2004, the Union Government amended the Rules allowing District Magistrates (DM) of certain border districts in Gujarat and Rajasthan to grant long-term visas (LTV) and citizenship to such migrants. In 2010, the UPA (United Progressive Alliance) government asked state governments and union territories' administrations to consider cases of extension of LTVs to certain categories of Pakistani nationals without insisting on valid passports.

But Muslims were never excluded in this amendment, as DMs were allowed to consider “cases involving extreme compassion.” Originally-Indian Muslim men, who moved to Pakistan after the Partition leaving behind family in India, were considered for the granting of LTVs when returning to India on valid Pakistani passports and settling in Kerala. It was only under the NDA (National Democratic Alliance) government, that India instituted a system of citizenship being granted purely on grounds of religion, first administratively, and then statutorily.

Excessive Relaxation of Requirements?

Schedule IA of the new Rules lists the documents required to prove that the applicant is a national of Afghanistan, Bangladesh or Pakistan. This includes any document that shows that either of the parents or grandparents or great-grandparents of the applicant is or had been a citizen of one of the three countries. This is an extremely wide criterion, leaving a loophole for persons who may themselves not be citizens of any of these three countries to seek fast-tracked citizenship in India.

Previously, an applicant was required to prove adequate knowledge of one of the languages specified in the 8th Schedule by providing a certificate issued by a recognised educational institution, or a recognised public organisation, or from two persons of the locality or district of the applicant who are citizens of India.

Under the new Rules, these persons can simply self-declare that they possess such knowledge. There is no rationale based on which such relaxation is granted to persons covered under the CAA and other persons seeking citizenship by naturalisation.

The protests against the CAA were led three state governments – Kerala, West Bengal, and Tamil Nadu – that declared that they would not allow the implementation of the amendment in their respective states. Ordinarily, citizenship applications are made to the District Collector, who is under the administrative control of states. But the new Rules circumvent this machinery by providing for an Empowered Committee to decide on applications routed through the District Level Committee, both instituted by the Union Government.

Excluded in the NRC – is CAA the Remedy?

One of the staunchest lines of criticism against the CAA is that the new law seeks to selectively protect non-Muslims who have been excluded from the NRC exercise. But despite this claim, the CAA and the new Rules may not be of much help to even the non-Muslims, who await their fate in the several detention centres of India.

The exclusion from the NRC is based on a person’s inability to prove their Indian citizenship. The exercise has been itself mired in controversies as several citizens from socially and economically disadvantaged sections, and those living in rural areas or disaster-prone areas, may not have the requisite documents. So, a person who unsuccessfully tried proving their Indianness, may not even be able to prove citizenship of any of the three listed countries.

The challenge to the constitutional validity of the CAA is pending before the Supreme Court of India, while new petitions have been instituted seeking to stay the application of the new Rules. In the current context, it remains to be seen how the Supreme Court interprets the fundamental rights granted by the Constitution, and what implication the CAA and the Rules have on those guarantees.

(The author is a Project Fellow at the Vidhi Centre for Legal Policy, Delhi. This is an opinion article and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)