Deepa Punjani

| @ | February 2,2020

In this article, the author not only discusses the obvious constitutional problems with Citizenship Amendment Act (CAA) – National Population Register (NPR) – National Register of Citizens (NRC) – but goes further to analyze the much less spoken about, yet pernicious and complex societal and legal issues. CAA could lead to an increase in racism and allow authorities to mark citizens as ‘doubtful’. India also does not have due process of deportation, no data protection bill, nor the financial capacity to bear the costs of implementing these laws.

 

 

[dropcap]T[/dropcap]HE uproar around the Citizenship Amendment Act (CAA) – National Population Register (NPR) – National Register of Citizens (NRC) has highlighted the deeply problematic issues that go to the very heart of our Constitution. Yet there are more pernicious undercurrents that have not been spoken of enough or have been lost in the overwhelming narratives surrounding the legislation of The Citizenship Amendment Act, 2019 and the impending administrative exercises of the nationwide NPR and NRC (NRIC) emerging from the Citizenship Amendment Rules, 2003.

The deliberate erasure of Muslims in the CAA, abhorrent as it is, to the Basic Structure of our Constitution, implies an even greater evil, which is to condone Islamophobia and to assert some of the most pathetic delusions of the Hindutva supremacist. A superficial semblance is thus carved out among the selected faiths while ignoring the Muslim – making them non-existent in fact. A party that has thrived on Hindu-Muslim divisions now seeks to cunningly isolate the Muslims further. The sordid subtext seeks to promote the illusion of a shared purpose and community among the faiths selectively named, never mind, if they too are not tolerated in the ideology and the lexicon of the ruling party’s alma mater.

The events following 9/11 in America led to a more global hardening against Islam and back home in the very following year, Modi, then Chief Minister of Gujarat, rode the popular wave post-Godhra. Rising to the Centre in 2014, Shah-Modi’s ideological powerhouse has spawned even more ingenious ways of not only keeping the tensions between the communities alive but to also turn them against one another, while seeking to capitalise on the perceived benefits of sympathetic and malleable vote banks, and distracting the nation from the real, hard issues facing it.

Peeling off the layers of the CAA, one would find that while the central government’s purported purpose is to address persecution, in the same breath, it is strangely legitimising the “illegal migrants”, who came to India on or before 31st December 2014.  The reference to religious persecution is found in the Statement of Objects and Reasons (SOR) and not in the Act. The Act, on the other hand, provides for “illegal migrants” but not “refugees”. This is a very calibrated and cynical move, not least rising out of the debacle of the NRC exercise in Assam in which more than 19 lakh people, many of them Hindus, have been left out. There is no explanation in the SOR about the cut-off date.

Threat of racism

In making a blanket assumption that because Pakistan, Bangladesh and Afghanistan have Islam as their State religion, only non-Muslims are persecuted in these countries, can only be understood in two ways: either the drafters have zero knowledge about persecution and the forms it takes, or, they are quite literally biased in overlooking the persecuted Ahmadiyas from Pakistan or the Hazaras from Afghanistan, to give just two examples.

Besides, any reasonable person going by the similar yet very distinct differences between the words ‘migrant’ and ‘refugee’ would know that migrants usually travel for work and refugees fleeing religious persecution, war, or natural disasters. The first group usually has an economic incentive while the latter group must simply flee. These differences can blur, but in the case of the CAA, the need to emphasise the “illegal migrant” in stark absence of the “refugee” is more than just curious. It leads to unanswered, yet pertinent questions: If indeed the government wants to be humane towards the persecuted, why be selective? Also, why not ratify the international conventions on refugees or have a robust law to address refugees? Why are the “illegal migrants” privileged in the Act?! Who are these “illegal migrants”? How will they show religious persecution in order to claim citizenship when their purpose to migrate in all likelihood has been economic? Or does this mean, that since the selected faiths are relieved of the label of being “illegal migrants”, they need not worry? Why has the CAA made special provisions for “illegal migrants” when they were barred in the Act earlier?

Both the options of registration and naturalisation were not open at all to “illegal migrants” under the previous version of the Act. Now, members of the selected faiths, even if they are “illegal migrants”, can still apply for citizenship, but the Muslims either way, simply can’t. Is that not specious if not downright discriminatory? The long tail of this ends with the NRC, which is why there is outrage and fear among the Muslims, since those declared ‘doubtful’ under the NRC, can expect no reprieve under the CAA, which would be available to the other communities.

Separately, one should also ask: how do illegal migrants get in at all? Are our borders so unsafe and porous? Is our border force not capable of dealing with illegal migrants? Should it not be? What really goes on between our border force and the migrants seeking to enter surreptitiously? Assam is a vulnerable State. But not Maharashtra. Do we even understand which States are most at risk? Have we bothered to ask for studies documenting legal and illegal migration across States as a logical, first step to the proposed NPR and the NRC?

There is also not much awareness about the amendments that have been made earlier to the Passports (Entry Into India) Act, The Foreigners Act, The Foreigners (Tribunals) Order in anticipation of the CAA, the NPR and the NRC. Piecing these amendments together in their chronology, leading to a plan that has not quite taken off as desired, and worse, has backfired, reveals not only deviousness but also a very planned and systemic assault on the Indian polity and soul.

Studies show that migration, legal or illegal, is largely driven by the need to find better opportunities for work. In the case of Assam, which has had a more unique and particular history of migration, it is necessary to know that history and recognise the cultural and political nuances driving the issue. In Assam even, there is recognition by those who have researched its migration, that without the migrants, many big projects in Assam to bolster its economy may suffer. Migrants are not always a drain and often they may be especially skilled for the job. No doubt in certain conditions there may be fallout, but this is an issue that needs engagement at an economic policy level rather than fuelling baser passions and encouraging exclusivist notions such as cultural purity.

Needless to say, if Assam is up in arms over the NRC today, and things have gone badly wrong there, one cannot even begin to think of the economic and human loss, if the NPR-NRC were to be implemented nationwide. In a country where most of its population is not literate or barely literate, in a country that has a poor registry of births, in a country where errors are common on the face of documents and where the bureaucracy is insensitive and corrupt, our claims to prove citizenship will be pretty much left to the discretion of registrars, not judges. The Citizenship Amendment Rules of 2003, which provide the legal framework for the NPR first and the NRC later (remember, it is meant to take place in that order and is clear in the Rules), even allow any person to raise an objection against the finding of the registrar. While such objection is shrouded in the right to appeal, the more sinister implication underlying it is outrageous, if not downright ridiculous. So effectively, if I don’t like the fact that the registrar has cleared you as a citizen, I will have the right to object. This unfettered provision is again, little known.

No process of deportation

What is also commonly not known is that there is simply no process in place to deport a person if declared a foreigner. Such people can forever be in limbo in one of the many detention centres the government has built or is building.  In order to deport the foreigner, presumably to the country they are from, that country in question needs to first accept the person. If that country does not, which is what Bangladesh has been vehemently denying, in the case of Assam and West Bengal that are particularly affected by migrants from Bangladesh, nothing can be done but to condemn the ‘foreigner’ to the detention camp. The detention camp is no better than a prison, and in our neo-fascist context, can only be read as a concentration camp, designed for not only racial and ethnic seclusion but also for any dissenting voice, especially from the disadvantaged sections of our society.

No data protection

Another important issue that has not been vocalised enough is the vast amount of personal data that will be collected by the government without any checks and balances. The spectre of Aadhar has clearly not settled. It is well nigh possible for the government to make Aadhar mandatory through this route. Many Aadhar cards have already been linked to the NPR, which was done in 2015. The NPR due, as reports go, have new and additional questions, among which relate to one’s parents’ dates and places of birth. They may hoodwink you now saying they don’t want your documents for the NPR, but the NRC which logically follows has to verify the information provided in the NPR. You are compelled to provide the information under the Rules. You cannot deny it. Penal consequences in terms of a fine, which may extend to Rs. 1000, have been contemplated under the Rules.

However, the new set of questions and the added criteria (the particulars) need a legal framework, which is currently not provided by the 2003 Rules. The extra particulars that may be sought will only add to the collective stress of individuals and families. Muslims have no doubt more to fear of being excluded given that they have been debarred from the CAA, but in reality, many people risk being excluded ranging from the Dalits to the nomadic tribes, not to mention the many poor of our country. The middle class is not safe either. Like the havoc that demonetisation unleashed with people dying in queues to their banks, this too will come as a big jolt to day to day life as people will scamper around for their documents, explaining the authorities why their names are misspelt, or initials missing or addresses not wholly correct, or why their birth certificate is missing, or birth not registered, because that is how it happens in India.

Doubtful citizens

Since the local registrar has the power to mark a ‘doubtful citizenship’ status, during the verification process under the NRC, and since that verification as mentioned above will be based on the NPR, it is easy to see how during the NPR itself, an exclusionary mindset, and perhaps even a muted empowerment to make a ‘doubtful’ noting will be encouraged.

Though this has been addressed, it needs amplification that the NRC is a very different creature compared to a Census, which has its own legal framework. The NRC is nothing like the Census. The Census systematically acquires and records information of the population. The information is a statistical exercise in order to not only have a sense of the population numbers but to also use that information for varied social purposes. The NRC, on the other hand, is a register of the citizens, which in the case of Assam dates back to 1951.

For the rest of the country, the first appearance of the NRC was in 2003 when Vajpayee was Prime Minister. Today, the BJP trolls the Congress for bringing in the NRC, conveniently bypassing Assam’s history, but very deliberately does not mention The Citizenship (Amendment) Act of 2003 and the Rules thereunder that provide a template for the nationwide NRC. The Bill for the same was introduced by Advani who was Home Minister then. In many ways, the CAA-NPR-NRC is a case in study of perfecting the Hindutva agenda going all the way back to Golwalkar who was very clear about the minorities not having citizens’ rights if they do not adopt the ‘Hindu culture and language’ in his book We, Or Our Nationhood Defined (1939).

Fiscal cost

Cultural politics aside, it is said around 1600 crores of the exchequer’s money has been spent for the NRC in Assam this time. This is the official figure. Unofficially the number is much higher when bribes are taken into account for example. A nationwide NRC will run into thousands of crores for 135 billion people and is estimated to take 10 years to complete. Meanwhile, there will be no end to the chaos and the suffering of the people. A budget of 3000 plus crores has already been assigned for the NPR. All this when we are literally sinking economically.

As independent institutions crumble, with the RBI lately saying that a letter from the NPR is an officially valid document for KYC, the noose will tighten. The Supreme Court has been woefully dismal in its approach. Yet where the high and mighty institutions are falling back, or being co-opted, people are showing strength. Women are showing strength. Students are showing strength. This resilience is not without its cost and one can only anticipate darker days ahead. Yet hope lives and persists. But first, we must be fully aware of the many issues and the dimensions surrounding the vicious, unholy trinity of the CAA-NPR-NRC. Only then we can engage and counter more meaningfully.

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