Protected: Seeing the CAA for what it is

No one really knows the number of illegal immigrants in India. Figures mentioned in parliamentary debates put the estimate at upwards of 20 million. That’s more than Mumbai’s population! Then again, nobody really knows. Irrespective, the Government looks to carry through various previous attempts (over decades and across governments) to identify and deport these alleged millions of illegal immigrants. Now that’s an unexceptional aim in itself, was it not for the calamitous triumvirate of the National Population Register (NPR), the National Register of Citizens (NRC) and the Citizenship Amendment Act, 2019 (CAA).

Identifying Illegal Immigrants

If it comes to pass as notified, the exercise of identifying illegal migrants would start with an innocuous knock on your door sometime after April 2020 to collect personal data for the NPR (and also perhaps for the decennial Census, which is a separate exercise but also due contemporaneously) requiring, amongst others, the disclosure of one’s claimed nationality (not religion though, that entry is only in the Census schedule). Once collected, the Citizenship Rules, 2003 require this superset of NPR data to be ‘verified and scrutinised by the Local Registrar’ to identify individuals ‘whose citizenship is doubtful’. Again, while nobody really knows the mystifying algorithm that the Local Registrar will use to identify ‘doubtful’ citizens, one reckons it will involve, a) matching the antecedents of all individuals in the NPR to previously existing Government records for verification (dated Census records, land records, voter lists, etcetera), and b) determining whether such antecedents evidence the statutory thresholds of citizenship (that is, being born in India before July 1987 or having Indian parentage as prescribed in the Citizenship Act, 1955).

Now that’s a daunting logistical task for any office. Imagine, if you will, the nation-wide workings of the process which would traverse: a) all NPR data being corroborated with previous government records (or worse, not being so corroborated) to determine the doubtfulness of somebody’s citizenship, b) the Registrar’s office calling upon neighbours or others to give information about the ‘doubtful’ individual, c) such ‘doubtful citizens’ being served notices and being heard by the ‘Sub-district or Taluk Registrar’ tasked with delivering quick, final decisions on citizenship, d) appeals following such decisions pending before the ‘District Registrar’ even as a provisional NRC is published causing panic and a flurry of objections, e) all objections being summarily disposed of by the ‘Sub-district or Taluk Registrar’, f) the final NRC being published even as individual appeals turn into writs before various High Courts (for those who can still afford legal proceedings), and g) those left out of the NRC appealing separately to the Foreigners Tribunal (again, if they can still afford it). Clearly, even when not accounting for the Rs 1 lakh crore (or more) in its expected administrative costs, just getting to a final version of the NRC is a terribly exhausting exercise.

The Practicalities of Deportation

Consider also the equally fraught practicalities of the illegal immigrants’ deportation. In the absence of any binding norms or bilateral agreements, India must negotiate ad hoc with other countries so they take back the millions it is confident of identifying as illegal migrants from those countries. The procedure typically requires sharing an illegal migrant’s details with the relevant foreign consulate (say Afghanistan) which may then issue requisite travel papers after having confirmed the illegal migrant’s nationality (for re-entry into Afghanistan). Evidently, this ad hoc bilateral process is far from a guarantee of deportation of illegal migrants. No wonder India only manages to deport a few thousand illegal immigrants every year (sometimes, only hundreds or even lesser) against the alleged hundreds of thousands that cross into India. So anybody claiming that all illegal migrants ‘shall’ be deported probably needs a reminder that India itself has previously refused to agree to the repatriation of allegedly illegal Indian migrants in other countries (from the UK in 2018, for example).

The other option is to detain illegal migrants in aid of their ultimate deportation. That brings us to questions surrounding the cost of constructing and maintaining detention centres and their capacity (total estimates run into lakhs of crores—the biggest one pending completion in Assam cost about Rs 47 crore and has a capacity of 3,000), the separation of children from their parents during detention (or at least from one parent, depending on their age), the invariably fetid conditions of detention (admittedly, over 30 detenues have died since 2016), and the maximum permissible period for such detention (indefinite detention is neither practical nor lawful).

The latter two issues (that is, the conditions and the maximum permissible period of detention) are pending before the Supreme Court in litigation initiated by Harsh Mander (Supreme Court Legal Services Committee v. Union of India), an activist who resigned as the NHRC Special Monitor on Minorities and made public his report documenting the abject conditions of detention in Assam, the unreasonably long detention periods and the misery of those who were willing to be repatriated but were waiting out bureaucratic delays or had been rendered stateless. Acting on the petition in May 2019, the Supreme Court ordered that the detenues who had served more than three years in detention in Assam (some had served over nine years!) would be released on bond with weekly reporting obligations to the police. Thus, even as the Government promises to lay before the Supreme Court alternatives to prolonged detention and has issued a ‘Model Detention Centre Manual’, these are the clear limits to what can be achieved via the processes of detention and deportation.

The Assam Precedent 

Take Assam’s tumultuous example where illegal migration has dominated peoples’ history since the partition in 1947, leading to early legislation [Immigrants (Expulsion from Assam) Act, 1950] and an Assamese NPR in 1951—the 1951 Census had extra questions for Assamese residents related to their land holdings and indigenousness. While the 1950 Act for expulsion was never operationalised, Government inaction against uncontrolled demographic changes in the wake of Bangladesh’s creation in 1971 led to intense protests spearheaded by the All Assam Students’ Union (AASU) and culminated in the Assam Accord of 1985 whereby the Government agreed that Assam’s electoral rolls would be cleared of all individuals who had entered Assam after March 1971.

That process, operationalised via the Illegal Migrants (Determination of Tribunals) Act, 1983, was completely ineffective (partly because the Act was silent on whom the burden of proof lay) and was struck down by the Supreme Court in 2005 (in a petition initiated by the then AASU President, Sarbananda Sonowal v. Union of India) with the observation that it would be ‘easier to secure conviction of a person in a criminal trial where he may be awarded capital punishment…than to establish that the person is an illegal migrant’. Having wasted 20 years and equivalent resources, the NRC process for Assam was re-started via a Supreme Court order in 2013 (in a petition by an NGO, Assam Public Works v. Union of India). Ultimately, this fresh exercise ended in August 2019 sifting out 1.9 million people from a total population of 33 million in the final rendition of the NRC (at a cost of Rs 1,220 crore). The excluded 1.9 million now have the option of appealing against their exclusion to a Foreigners Tribunal (which has the power to confirm the status and pass detention/deportation orders) even as the Government struggles to set up hundreds of such tribunals and to staff them adequately.

Notwithstanding the fact that the NRC process in Assam was relatively straightforward—all one had to do was to credibly establish one’s link to the names in the legacy data already on record (Assam’s 1951 NPR and its voter lists up to 1971)—it still took six years with constant Supreme Court monitoring to yield subpar results. For instance, the provisional NRC in Assam had sifted out 4 million people as illegal immigrants which ultimately came down to 1.9 million people in the final NRC. Clearly, the provisional NRC was staggeringly wrong by more than 50 per cent and it is anybody’s guess how much of that error has carried over into the final version. If you are feeling confident of your documents as you read this (the Supreme Court prescribed a list of 10 documents for Assam which could credibly establish pre-1971 residency such as dated land records, passports, LIC policies, etcetera.) take a moment to consider that amongst those who have been excluded in Assam include a retired Army veteran (who was detained), the family of a former President, the family of a freedom fighter, numerous Government employees, people whose names have not matched the records due to spelling mistakes/changed surnames and, more commonly, those who have been excluded even as their immediate family has been included. Also spare a thought for the majority who may not have documents at all and would be most vulnerable to discretionary excesses.

The above then, in brief, is the tortuous exercise the whole country is scheduled to undergo with all its administrative charms, including middlemen for whom business will boom (all kinds of paperwork, even the occasional complaint on the doubtful credentials of an unsuspecting citizen). But this approaching chaos is not what the resilient Indian citizenry is up in arms against. The protests, very rightly so, are against the capstone to this entire exercise—the CAA—which singularly defiles core constitutional principles in exchange for a sectarian vote bank.

What the CAA Does  

The CAA is the successor to four executive notifications issued between September 2015 and September 2016 which enabled Hindus, Sikhs, Buddhists, Jains, Parsis and Christians (hereafter ‘the six religions’) who had entered India before December 31st, 2014 fleeing religious persecution from Pakistan, Afghanistan and Bangladesh to stay on in India on long-term visas (by making an exception in our immigration laws). The CAA takes this further and grants this above class of people an accelerated citizenship in five years (to be counted from December 31st, 2014) as against the prescribed eleven years and explains its legislative objective to be that ‘[t]he constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many belonging to [the six religions] have faced persecution on grounds of religion in these countries’ and that such people ‘who have entered India up to the cut-off date of 31.12.2014 need a special regime to govern their citizenship matters’.

Even before considering the constitutional precepts short-circuited by the CAA, there is enough here to take exception on commonsense alone. For instance, what separates those who entered before December 31st, 2014 from those who came in after? Why do they need accelerated citizenship when provisions could have been made for their stay via the regular route (as is the case with certain other refugee groups)? How do we verify whether someone actually came in before December 31st, 2014 and from the three specified countries (again, a gleeful opportunity for middlemen)? How do we verify claims of religious persecution or do we just have to take someone’s word for it (Ranjit Kumar Mazumder v. West Bengal)? Why do cut-off dates for citizenship keep changing as per political expediency, for example, March 1971 or December 2014, instead of the cut-offs already in the Constitution and the Citizenship Act, 1955 (this question too is pending before the Supreme Court, Assam Sanmilita Mahasangha v. Union of India)?

In its ultimate form, picture the NRC to be the (imperfect) comb dividing the country’s population into citizens and the alleged millions of illegal migrants. And then picture the CAA further dividing the illegal migrants into two queues: a) one with all Muslims (and some others) being marched off to the Foreigners Tribunal to have their status confirmed and possibly their detention and deportation, and b) qualifying people of the six religions headed to pick up their naturalisation forms to become citizens. While the sudden addition of potentially millions of citizens to India’s population on the basis of their religion alone is already troubling at many levels, let us limit our analysis to the constitutional principle of equality.

The CAA’s Constitutionality

The constitutional principle of equality (Article 14) translates into the following tests for the validity of a law: a) to the extent a law differentiates between a class of people, that classification must be based on an intelligible differentia, b) that such classification must have a rational nexus to the objective of the law, and c) that at no point should the law be irrational or arbitrary (either in its objective or in its practice).

With the above in mind, consider the many absurd classifications the CAA is based on. For instance, a) the choosing of an arbitrary cut-off date (December 31st, 2014), b) the choosing of only religious persecution over all other forms of persecution, c) the selection of just three bordering countries to the exclusion of Sri Lanka (which has a state religion) and Myanmar (known for instances of religious persecution). These are already an arguably arbitrary exercise of executive power to draw such distinctions for policy reasons.

Consider another fatal inconsistency. The legislative object of the CAA states that ‘[t]he constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many belonging to [the six religions] have faced persecution on grounds of religion in those countries’. But that assertion is non-sequitur. For instance, Pakistan’s constitution provides for the freedom to practice and propagate any religion and to manage religious institutions (Article 20). Similarly, Afghanistan’s constitution provides that followers of other faiths shall be free within the bounds of law to exercise and perform their rituals (Article 2). Equally, Bangladesh’s constitution ensures equal status and equal right to practice religions other than Islam (Article 2A). Clearly, those generously worded constitutions are not the source of religious persecution in those countries—and that is where the legal legerdemain in the CAA must unravel.

As it stands, the CAA’s statement of objectives is unreasoned and without an adequate determining principle. Its finding of religious persecution in the chosen countries should have been based on a study which stated that specific fact (and there are many). But that would have forced the CAA to acknowledge the religious persecution of certain Islamic minorities too. For example, the Hazaras in Afghanistan or the Ahmadis in Pakistan. In ignoring that ‘inconvenient’ but essential strip of logical reasoning, the CAA trips over itself to make unconstitutional religious distinctions based on false presumptions.

To be sure, legislation can validly differentiate against Muslims (or anybody else) as a class unto themselves to the extent the objective of the legislation is rational. For instance, a 1949 legislation aimed at restoring persons (mostly women and children) abducted during the Partition to their families in Pakistan validly assumed that it would apply only to Muslims (State of Punjab v. Ajaib Singh). That was a different context. Here, the CAA cannot make Muslims a class unto themselves on the flawed presumption that no Muslims have ever been persecuted in Pakistan, Afghanistan or Bangladesh.

Consider also that this was not legislative oversight but a deliberate ignoring of constitutional values. The Report of the Parliamentary Joint Committee in January 2019 (JPC) records constitutional experts advising that the phrase ‘persecuted minorities’ be used instead of the selective labelling of six religions. While that sensible proposal would have achieved almost the same outcome in a constitutional manner, it was rejected.

Let’s go back to the two queues. Despite their evident religious persecution, the Hazaras and the Ahmadis (their numbers do not matter) would necessarily be in the queue for detention/deportation because of an irrationally discriminatory legislative object. Their differentiation into that queue—on Indian soil and on the basis of only their religion—that there is a clear heist on constitutional equality and a betrayal of our national identity.

What’s all this for ultimately? Safe to say it’s what all politics is about ultimately—votes. What other impulse leads to a calculated manoeuvre to add potential millions to India’s population as grateful voting citizens while weeding out those whose marginalisation is essential to a political manifesto? We’ve seen some part of that principle in play previously too. Recall that it took six years of violent protests by AASU (1979-85) to have the then Government agree to something which was obvious, that is, to identify and expel illegal migrants from Assam (Assam Accord of 1985). That process laboured under a sham law for 20 years enabling illegal migrants a safe haven and, of course, voter cards. At each instance then, the country’s demographic and economic interests have made way for the importation of fresh votes from across the border.

Another bewildering point, the JPC records a member querying the number of expected beneficiaries under the CAA, and the Intelligence Bureau (IB) responding that there would be just 31,313 immediate beneficiaries, that it would be ‘difficult’ for other persons to be included, and that the CAA was in consideration of that ‘small number’ and the ‘human angle’. Could it truly be that all of this is just because the Government wants to grant expedited citizenship to 31,313 people already on long-term visas?

Arguments on deep constitutional law enquiries often translate into competing versions of contextual universes, each built using the same set of legal axioms and each being almost equally convincing. It is the difficult choosing between those universes which falls to the decision makers in the quiet of their corridors. In that moment of decision, I believe the CAA will be seen for what it is—demographic gerrymandering which unspools decades of Constitution- and nation-building.

About The Author

Manu Sanan

Manu Sanan is a lawyer currently based in Oxford