Applicability of CAA on nationwide NRC: Notion that citizenship law automatically applies en masse to all non-Muslims left out of NRC in Assam not legally correct

  • Even in terms of the nationwide NRC that the BJP is proposing, it is too premature to determine how the CAA will be extended to religious groups left out of the NRC

  • Would there be separate authority set up such as the Foreigners Tribunal? Who would have the last say in declaring individuals as illegal foreigners?

  • What would be the proof required to prove citizenship? What documents would an illegal foreigner have to furnish to show the entry to India and country of origin?

There comes a time in every political regime when people unite against a cause that goes against the idea of India and even against the ethos of the Constitution. Presently, such a protest can be seen against the Citizenship Amendment Act (CAA) erupting in different parts of the country.

In a nutshell, the CAA allows expedited citizenship to people belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community that have entered India on or before 31 December 2014 and have come from Pakistan, Bangladesh and Afghanistan. The objective of the Act is to safeguard persecuted religious minorities from these neighbouring countries. One of the main shortcomings of the Act is that it misses out various persecuted Muslim minority groups such as Ahmadiyyas and Shias who have been facing persecution in some of these countries.

Another important aspect of the Act that is being talked the most about is its connection with the National Register of Citizens (NRC) exercise, which is currently being undertaken in Assam, and as per the recent claims of the government, might also be undertaken pan-India in the coming future. While the government has repeatedly said that the CAA will not affect the Muslims in the country in any matter, the interconnection between the CAA and the NRC has been the cause of much furore and rage among the people.

Many are of the view that the NRC exercise in Assam or a possible pan-India NRC in future will place Muslims under a greater risk when compared to other religious groups covered under the CAA. Social media sites are flooded with posts and flow-charts describing how non-Muslim groups with improper documents will be able to take refuge under the CAA while Muslims with no proper document will be left out. While there is no doubt that the CAA is arbitrary in various terms, the nexus between the CAA and the NRC needs to be carefully deliberated keeping in view the existing legal procedure and structure.

Is there a link between CAA and NRC?

Let us first delve into the issue of CAA with NRC taking place in Assam. To detect illegal foreigners, particularly from Bangladesh, the NRC list in Assam was first released in 1951. The list contains the names of Indian citizens in Assam. As per the final list released by the government in 2019, around 19 lakh people have been excluded. Several media reports point that the majority of these individuals are Hindus.

 Applicability of CAA on nationwide NRC: Notion that citizenship law automatically applies en masse to all non-Muslims left out of NRC in Assam not legally correct

File image of citizens queuing up outside NSKs in Guwahati. Reuters

In furtherance of this exclusion, several people and media reports have highlighted that all these excluded Hindus in NRC will be automatically given citizenship through the CAA. This stand is not correct. To understand this issue, it is important to examine the manner in which the NRC process takes place in Assam.

NRC is largely governed by the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 which lays down the manner in which data needs to be collected and the authorities in-charge of identifying citizens. To detect illegal foreigners, appropriate authorities carry out a survey for the identification of suspected individuals. The survey takes place door to door in which all the members of the family are expected to produce documents in support of their citizenship.

Reasonable opportunity is given to an individual to show documents in support of their citizenship. In a scenario, where the documents furnished are unauthentic an enquiry is initiated and after the receipt of the enquiry-report, the matter is referred to the Foreigners Tribunal, a quasi-judicial authority that deals with these disputes. Hence, one must note that an individual would deem to be an illegal foreigner only when the Foreigners Tribunal decides on the matter.

Even Section 6A of the Citizenship Act, 1955 mandates the same. Accordingly, the 19 lakh individuals left out of the NRC are not illegal foreigners until decided by the Foreigners Tribunal. As per the Foreigners Tribunal Order, 1964, the tribunal is bound to provide a reasonable opportunity to an individual for making a representation and provide evidence to support his/her claim. Only after that, the final decision is given.

Now, let us examine the nexus between the CAA and the NRC in Assam. Let us assume that a Hindu or a Christian left out of NRC in Assam is declared an illegal foreigner by the Tribunal. In such a scenario the CAA would not automatically extend to the individual because he/she would have contested by way of an affidavit, for an Indian citizenship in the Tribunal. If the individual claims after the decision of the Tribunal, that he/she was actually an illegal immigrant from one of the three countries stipulated under the CAA, such a claim would amount to perjury (lying under oath) which is a punishable offence.

The claim will not be acceptable either by the courts or by the government. Now, another question may come up: what if a person belonging to Hindu or a Christian group left out in the NRC in Assam outrightly lies in the Tribunal and claims that he/she is an illegal immigrant from one of the countries stipulated under the CAA? Even then, the CAA will not be automatically extended, as the person will have to show or rather fabricate the proof that he/she entered India before 31 December 2014, and that their country of origin is Pakistan, Bangladesh or Afghanistan.

The Tribunal will look at all the material facts and evidence before adjudging one as an illegal foreigner. Telling the truth and providing sufficient evidence in support of the citizenship would perhaps give one much higher chances of getting citizenship than lying and showing fabricated documents to the Tribunal. Also, the individual would be subject to further scrutiny and background checks. Hence, there are statutory safeguards in place to check if a person is a genuine illegal foreigner or not. Further, one needs to wait for the rules to be issued which will provide the exact type of documents required to be shown by people claiming to be illegal foreigners. In any case, the notion that the CAA automatically applies en masse to all non-Muslims who are left out of the NRC in Assam is not legally correct.

Even in terms of the nationwide NRC that the BJP is proposing, it is too premature to determine how the CAA will be extended to religious groups left out of the NRC. Would there be separate authority set up such as the Foreigners Tribunal? Who would have the last say in declaring individuals as illegal foreigners? What would be the proof required to prove citizenship? What documents would an illegal foreigner have to furnish to show the entry to India and country of origin? These are some of the crucial questions that need to be answered to determine the applicability of the CAA on the nationwide NRC.

Intrinsic issues with CAA

The issue with the CAA is much deeper. The unreasonable classification and purposeful exclusion of persecuted Muslims, non-inclusion of neighbouring countries such as Tibet, Sri Lanka, Myanmar etc. where minority religious groups are being persecuted for decades are some of the key problems with this Act.

While the objective of the Act is to safeguard persecuted religious groups, it nowhere mentions the word 'persecution' in the entire body of the Act. As it stands now, an individual under the Act does not even have to show persecution. As long as they fit under the criteria laid down under the Act, they would be included. Instead of naming the persecuted religious groups, if the Act would have provided a concrete definition for religious persecution whereby anyone who fits under the definition would have been considered irrespective of any religion, that would have certainly made this entire exercise more inclusive, impartial and bipartisan. Instead, we have an Act with us which is non-inclusive, partial and partisan.

The author works with a civil society organisation and acknowledges the help provided by Alok Prasanna towards this article. All views are personal.

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Updated Date: Dec 25, 2019 14:58:34 IST