Assam elections 2021, CAA & proposed rules

Udayan Hazarika

(The writer can be reached at udayanhazarika@hotmail.com)

Various interpretations, clarifications and hypotheses have been floated while defining the non-inclusion of the issue of CAA in the ruling party's manifesto prepared for Assam Assembly elections 2021, while in West Bengal, it found a prime place in the manifesto. Some of the party stalwarts who faced media and also gave interviews did not hesitate to comment that the CAA is not an issue in this election and in fact CAA is no longer an election plank. Undoubtedly, the party is playing politics of hide & seek in the matter of CAA. This time they knew it for sure that the issue will pull them down if brought to the centre stage. Even the Raijor Dol and Assam Jatiya Parishad apart from accommodating the CAA in their manifesto did not talk much about its implementation or have narrated their strategies to block the pathway of the CAA. However, the constant attack of the Congress-led opposition alliance on the ruling party on clearing their stand on the CAA, has finally forced the party to come out with the announcement that the CAA will be implemented after the completion of election. This is contrary to what the Home Minister earlier stated that the CAA would be implemented after Covid-19 vaccination is completed.

During the Lok Sabha debate, (March 23) in reply to a question about the implementation of the CAA, the Minister of Sate of Home affairs had informed the House that the Rules pertaining to the Citizenship Amendment Act 2019 are under preparation and once the rules are finally notified, the migrants concerned will be able to submit their application for citizenship. Thus, in other words until the rules are framed the CAA cannot be implemented. In view of this submission, the Committee on Subordinate legislation has extended the time for preparation of rules under the CAA and their submission to Lok Sabha and Rajya Sabha till 9th April and 9th July respectively.

Lets us now have a look at the main issue of conferring citizenship to this category of migrants. The matter involves mainly three legislations, namely, i) The Passport (entry into India) Act 1920, Foreigners' Act 1946 and iii) the Citizenship Act 1949. The Citizenship Act 1949 provides for the procedure to be followed in conferring citizenship to a person. The Act in Section 2 (b) lays down who is an "illegal migrant". It sets two characteristics i.e. i) the person who entered Assam (India) without valid passport or other travel documents or ii) the person who entered Assam with a valid passport but remained in the country beyond the permitted period. By this definition all the migrants both Hindu and Muslims who entered Assam from Bangladesh are all "illegal migrants" and subject to all sorts of punishments laid down in the Act. However, now, the Government inserted a proviso under this Section 2(b) saying that the persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government under Passport Act or Foreigners Act or any other Act shall not be treated as illegal migrants. Interestingly, the Act has not specified the reasons as to why these exemptions have been made? Without mentioning the reasons for exempting this category of persons from being "illegal migrants" this provision becomes an arbitrary in character. Earlier, rule 4 of the Passport Rules 1920 was amended saying that persons belonging to non-Muslim communities who were compelled to seek shelter in India due to religious persecution or fear of religious persecution in their country and entered into India on or before the 31st December, 2014- are exempted from having passport, etc. Section 3 of the Foreigners Act was also amended inserting a new Section 3A in the similar manner. But while amending the citizenship Act, the Government hesitated to mention the words "religious persecution" and left it to the imagination of the people. Obviously religious persecution is not the reason for migration of Hindus from Bangladesh that happened in recent times (after creation of Bangladesh till recent times). The Government was in a hurry to pass the Act and they did it leaving all the details to be taken care of by the Rules to be framed thereunder later.

The migrants of above category i.e. those entered Assam till 31st December 2014, shall be able to apply for Indian citizenship in the category of citizenship by naturalisation. Interestingly, government do not have any concrete information about these migrants - neither their strength of population nor their names. No preliminary enquiry was conducted while allowing them these special rights of "no passport" in 2016. More than four years have elapsed thereafter and even now prior to giving them the right to citizenship also Government have no idea as to how many of them are sheltering in Assam.

Under Section 6(B) (4) of the Act, these provisions are not applicable in the 6th Scheduled areas of the State i.e in Karbi Anglong, Dima Hasao and BTR districts of Assam. This is a meaningless provision as the migratory character of these migrants will help them coming out from these areas and make application from the neighbourhoods. In absence of any documents in their hands which the Government of India has also admitted (Joint Committee Report CAB 2016)- the government will be at the receiving end as the migrants will start dictating their terms.

While framing the Rules exercising power under newly inserted Section 6(B) of the Citizenship Act, Government will face an uphill task. For better exercising the power, Government should have amended the Section 18 which confers the actual rule making power, incorporating therein the exempted provision under rule making power. But this was not done. While framing the Rules, Government may make provision for a special cell or an office to look after the whole business of conferring citizenship to this category of migrants. Although the citizenship matter is exclusively within the domain of the Central Government, yet most of the certificates that required to be submitted along with the applications will come from the Deputy Commissioners concerned who are State officials. For example, certificates relating to length of stay in the place, activities concerning the person, information relating to pursuing of government or private jobs, etc. The greatest difficulty will be in getting records of criminal character of the applicant. The Deputy Commissioners and SPs at the most can submit information pertaining to criminal records of the applicants only for their period of their stay in Assam. But the history of his criminal records in his own country will be difficult to procure. Similarly, in case of religious persecution government should ask for proof. The procedure of obtaining all these should be laid down elaborately in the Rules.

Will the government be able to frame rules in time incorporating specifically the religious persecution issue? Bangladesh has already objected to the issue of religious persecution in 2019. PM Modi, while visiting Bangladesh recently (March 26-28), categorically stated that Bangladesh is the strong example of communal harmony (Sentinel: March 26)? If that is so where is the scope for exodus due to religious persecution! During his stay in that country as many as five bilateral MoUs were signed and lengths of discussions were made on broad issues with the Bangla PM but never the reference of this burning issue was figured. The strategic importance of Bangladesh in South and South East Asia is growing gradually. Of late Bangladesh is maintaining far better diplomatic and trade relationship with China and other South Asian Countries than India. The country has become a hub of assembling quality Chinese products for export purposes. China has helped Bangladesh with various Covid-19 products and accessories and team of Doctors. Considering all these, it would be difficult for India to frame rules for conferring citizenship under the pretext of religious persecution.