The enactment of the Citizenship Amendment Rules is a perfect embodiment of a polity where rulers are utterly cynical, and their supporters increasingly credulous. The enactment of the rules was inevitable after Parliament passed the Citizenship Amendment Act in 2019. But it is worth recounting the progression of aspects of this issue to understand where we are at.
First, on the CAA itself. The government could claim, quite rightly, that it was something of a scandal that persecuted refugees from neighbouring countries who had been residing in India for years had not been given a pathway to citizenship. No one ought to be opposed to granting citizenship to groups covered by the Act. But it cynically downplayed two important facts. First, the Citizenship Amendment Act was not necessary to grant refugees a pathway to citizenship. Second, the purpose of the Act was not to clear a pathway for groups persecuted on grounds of religion from neighbouring countries residing in India.
Even on the question of persecution, the Act is inconsistent. For example, why stop at 2014 as a cut-off date, since, by the government’s own account, persecution of minorities is an ongoing phenomenon? It was to send a clear signal that Muslims will be excluded from this pathway. It is simply false to assert that there are no persecuted Muslim groups in the neighbourhood. It introduced a religion-based difference in how migrants, persecuted minorities and refugees were treated. The aim was nothing other than the transformation of Indian citizenship, and to reinforce the idea that Muslims do not naturally belong to India. Having made that point, the government took four years to enact the rules, conveniently trotting it out a few days before elections, when there is some spotlight on its perfidy in the electoral bonds case.
But what made the CAA such a cynical exercise was its ideological alignment with another ominous project, the NRC. The challenge for any citizenship law in India, as Niraja Gopal Jayal had written very powerfully at the time in the most comprehensive piece on the subject, Faith Based Citizenship (India Forum, October 2019), was that “The NRC and the CAB are manifestly conjoined in their objectives. The first paves the way to statelessness and detention centres for many poor and vulnerable people, and most unjustly for those whose genuine nationality is repudiated only on the basis of their faith. The second offers a smooth path to citizenship for groups of migrants who are deemed acceptable only on grounds of their faith.” The current anxiety over the NRC has its roots in the politics of Assam, where the issue of illegal migration has understandably deep resonance. But by insisting on a fast-tracked and un-implementable NRC, the SC helped create the conditions where the prospect of hundreds of thousands of citizens or residents getting dispossessed of their rights was real. This is what gave the protests against the CAA such urgency.
The newly enacted rules, for now at least, drive a wedge between the CAA and the NRC. They emphasise only the positive side of granting non-Muslim refugees (who by definition will be treated as a persecuted group), a path to citizenship. This, for the moment, throws cold water on the apprehension that while all Hindus excluded under the NRC would automatically get citizenship, Muslims would not. Under the current rules it seems that for Hindus to be eligible they would have to furnish documentary proof of their connection to Afghanistan, Pakistan or Bangladesh. So the challenge will not be that of producing Indian papers, but of producing some papers from these countries. The rules are not discriminatory in the general way that the pairing of NRC and CAA was going to produce.
This could potentially be consequential in a state like Assam. In the rest of India, outside of the CAA framework, it is still possible that the state is simply likely to assume that all Hindus are entitled to be here; Muslims have to potentially bear the burden of proof. It is unlikely to consider non-Muslims as illegal migrants in the way Muslims might be. As Aman Wadud, who has tirelessly worked on how people can be stripped of citizenship through administrative procedures and law, has often pointed out, a lot of the action on citizenship is not the formal promulgation of the law, but the shifting of the burden of proof.
But this move is potentially clever. At the moment, it blunts some of the formal legal charge of discrimination amongst those who might be Indian citizens. It symbolically reminds the electorate that this government will progressively enact laws that privilege Hindus. But it does not, for now, precipitate the kind of exercise the NRC was signaling. By driving, for the moment, a wedge between the CAA and NRC, even for NRC-excluded Hindus, the rules become limited in scope and application. It defuses the ground for protest. It also potentially protects the rules from legal challenge.
It will be difficult to mobilise a broad coalition on this. We must give the Shaheen Bagh protest credit, even as we recognise its limitations. The credit consists in the fact that the government has not been able to proceed with the NRC on quite the scale that it was signaling in the heady days of 2019. We must have no doubt about the direction in which the government wants to move. But at the margins, it is still having to comply with some limits that the current constitutional form imposes. Shaheen Bagh was the last and most significant protest that used that constitutional argument in an effectively public way.
But having said that, the protests also had two limitations. As much as the protests displayed an extraordinary grammar of constitutionalism, they did not draw as much widespread support amongst non-Muslims. Now that potential might have diminished even more. And in India any protest ends up labouring under the ability of the state to whip up the fear that the protest will be hijacked by extra-constitutional forces. It will be hard to circumvent that fear at this moment.
At some point, the SC will awaken from its slumber and fully consider the complex issues involved in the CAA. But for now, the government gets to fulfill its promise, and use it as an election talking point, while throwing cold water over the apprehensions of an NRC being used to disenfranchise citizens. Civil society will have to remain vigilant on the last point. The project of transforming Indian citizenship may be proceeding more by stealth than big bang.
The writer is contributing editor, The Indian Express
With CAA Rules, excluding minorities by stealth
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14.03.2024
The enactment of the Citizenship Amendment Rules is a perfect embodiment of a polity where rulers are utterly cynical, and their supporters increasingly credulous. The enactment of the rules was inevitable after Parliament passed the Citizenship Amendment Act in 2019. But it is worth recounting the progression of aspects of this issue to understand where we are at.
First, on the CAA itself. The government could claim, quite rightly, that it was something of a scandal that persecuted refugees from neighbouring countries who had been residing in India for years had not been given a pathway to citizenship. No one ought to be opposed to granting citizenship to groups covered by the Act. But it cynically downplayed two important facts. First, the Citizenship Amendment Act was not necessary to grant refugees a pathway to citizenship. Second, the purpose of the Act was not to clear a pathway for groups persecuted on grounds of religion from neighbouring countries residing in India.
Even on the question of persecution, the Act is inconsistent. For example, why stop at 2014 as a cut-off date, since, by the government’s own account, persecution of minorities is an ongoing phenomenon? It was to send a clear signal that Muslims will be excluded from this pathway. It is simply false to assert that there are no persecuted Muslim groups in the neighbourhood. It introduced a religion-based difference in how migrants, persecuted minorities and refugees were treated. The aim was nothing other than the transformation of Indian citizenship, and to reinforce the idea that Muslims do not naturally belong to India. Having made that point, the government took........
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