Reading into the CAA's cold storage three years on

Mridugunjan Deka

(The writer is a Senior Research Fellow, Department of Political Science, Gauhati University)

Despite the passing of three years, rules to the Citizenship Amendment Act (CAA) 2019 await formulation, and the Parliamentary Standing Committee on Subordinate Legislation has granted multiple extensions for the same. Passed with alacrity in the Parliament by the nationalist regime, it aborted a political backlash for leaving 1.2 million Hindus out of the then just-concluded NRC. After a long hiatus, the Supreme Court of India has finally started the hearing of some 232-odd petitions challenging the constitutionality of the CAA.

However, even as it remains under the apex court's scrutiny, the government has blamed the Covid-19 pandemic, and bizarrely a need for "further consultation" for failing to frame the rules and implement the law. With the macro-economy facing inflation and the likelihood of citizens challenging the might of the neo-liberal ethno-centric state again, most recently seen during the farmers' protests, a cautious approach cannot be ruled out. Internationally, the CAA still continues to attract censure for being discriminatory and arbitrary. One factor, however, is at large without much acknowledgment.

Despite the CAA's dormancy, its goal is being incrementally advanced. In May 2021, with the devastating second coronavirus wave in the backdrop, a Notification was issued for verifying the prospects of citizenship of migrants hailing from the same communities and countries as mandated by the CAA. The Opposition saw this as an attempt to implement the CAA through the backdoor despite the Notification applying to legal migrants in 13 districts across five states. Again in November, 2022, a Notification directed two districts in Gujarat to provide citizenship to the migrants of same heritage and location as provided by the CAA. The twin Notifications of September, 2015 exempted "illegal migrants" of the same six communities and three countries from being prosecuted under the Passport (Entry into India) Act, 1920 and Foreigner's Act, 1946 by amending their rules. Members of Parliament Mohammad Salim of the Communist Party of India (Marxist) and Sushmita Dev (then with the Indian National Congress) had pointed out this anomaly in their notes of dissent attached to the Joint Parliamentary Committee Report on the CAB, 2016. They argued that the CAA was being implemented in a piecemeal fashion with the help of subordinate legislations.

Hindus (and Indian non-Muslims), especially the ones emigrating from Pakistan, have been preferred as legitimate refugees and potential future citizens in India, transcending the legal and constitutional obligations of citizenship. In the backdrop of the partition of undivided Assam (Sylhet), Bengal, and Punjab, Hindus were seen as "returning home" to India, despite leaving behind ancestral properties and belongings in the newly-created Islamic republic of Pakistan. Early post-colonial laws like the Abducted Person's (Recovery and Restoration) Act, 1949 and the Immigrants (Expulsion from Assam) Act, 1950 also contributed to an implicit policy. These measures were shaped by a tendency to see their presence in India, in the words of political scientist Sanjib Baruah, as "technically illegal but licit". The historian Willem van Schendel also notes that transnational migrants are prone to regimes of licitness, than legality.

The idea of Hindus as quintessential refugees was also manifested in the Parliamentary debates on the Citizenship Amendment Bill, 2016 and 2019. The supporters of the Bill(s) saw it as a correction of history, after labelling the Nehru-Liaquat Pact of 1950 as an agreement for protecting the lives and properties of minorities on either side, an "imaginary contract" for failing to protect Hindus in Pakistan.

The BJP legislators, interestingly, argued that the "right of return" of Hindus did not form the political goal of traditional Hindu nationalists alone. In this endeavour, select speeches of past Indian National Congress leaders were quoted. While these were cited out of context since they were far more complex and never postulated the doctrine of an exclusive right of Hindus to return to India, they provided the Bill's supporters with the ammunition of history. The Bill, as the supporters further argued, was not unprecedented and merely reflected the legacy of an approach that was contingent with India's (lack of a) refugee policy.

The language of the Bills' opponents used axioms from Hindu or Indic scriptures, like Vasudhaiva Kutumbakam (the whole world is one family), Atithi Devo Bhabo (Guest is like God), and Yaadhum Oore Yaavarum Kelir (Every town is home, everybody is kin). India was presented by the BJP, INC and every other political party irrespective of ideology, as a safe haven for the persecuted around the world since "time immemorial".

Electoral calculations are expected to ultimately take the CAA out of cold storage, especially in the interest of spaces where the BJP had succeeded in recently establishing a strong foothold. Important leaders of the Matua community in West Bengal have already voiced displeasure over the CAA's non-implementation. Reading the tea leaves, the West Bengal state BJP president had pressed for the CAA's application by 2024 General Elections. The CAA, interestingly, has not been mentioned in the Home Ministry's annual report of 2021-22.

However, the current spate of endowing citizenships via Notifications to the same groups as mandated by the CAA, testified by the annual report, is apparent in intent. Like the Uniform Civil Code (UCC) being raised in a few states by BJP governments, the CAA for the moment seems incrementally advancing without it even being put into practice. In Assam, the resistance has transformed into a matter of annual remembrance and any new outburst is unlikely. With the government facing challenges in managing the economic health of the nation, and with social tensions on the boil, it remains to be seen whether the agenda of the CAA reaps electoral dividends in the near future. It must be remembered that the CAA was passed just seven months after the current Lok Sabha was elected.