Source: Institut Montaigne

Which proposed amendments of the Citizenship Amendment Act will have the greatest impact on the Indian society, and what is the timeline for its implementation?

The Citizenship (Amendment) Act (CAA), which was passed by the Indian Parliament last December, creates a new path to Indian citizenship for Hindus, Sikhs, Buddhists, Jains and Christians who are victims of religious persecution in Pakistan, Bangladesh and Afghanistan, and who have found refuge in India before 2014. These refugees would only have to prove six years of residence in India to apply for citizenship status, rather than the twelve years that the law previously required. It is likely to have a significant impact in some regions because, at the same time it was passed, the Modi government revived an old legislative draft, actually dating back to the first government led by the Bharatiya Janata Party (BJP), the National Register of Citizen (NRC). The NRC was established in 2003 via an amendment to the Citizenship Act to create a register of all Indian citizens. The aim back then was to target undocumented migrants, particularly in Assam, a neighbouring state of Bangladesh from which many migrants have come. In Assam, several laws dating back to the 1980s have enabled the expulsion of undocumented migrants who had arrived after 1971 – when Bangladesh was established – but had never been implemented. The NRC’s creation has revived the case. The Congress-led government from 2004 to 2014 had initiated the first pilot projects, establishing "Foreign Tribunals" to deal with contentious cases, and building the first internment camps.

The BJP’s return to power in 2014, however, gave these operations a new scope, under pressure from the Supreme Court, annoyed by the process’ markedly slow pace. The NRC was extended to the whole of Assam, where the administration declared, in August 2019, that 1.9 million people were in an irregular situation. New "Foreign Tribunals" have been established, new camps have been built, and so on.

The government is now considering extending this process to the whole of India, by replacing the NRC with the National Population Register (NPR), which would in substance hardly make any difference. The combination of the two, the CAA and NPR, would have important consequences because Muslims with an illegal status, unlike other undocumented migrants, would not be eligible for refugee status nor citizenship for that matter. They could end up in camps that the government recently asked Indian states to build.

As for the timeline, it remains uncertain. Pilot projects are said to have started on January 1st 2020, but the full-scale exercise is expected to start in April – though several states, led by the BJP, have already released figures specifying the number of undocumented migrants they have identified... It is all the more unclear because in February 2021, as is the case every decade, the government is due to conduct the customary census operations following the same modus operandi going door-to-door. It is difficult to picture India carrying out this daunting exercise twice, a few months apart.

Which aspects of the text has the protest movement focused most on?

What triggered the first protests was the use of religion as a criterion for citizenship access. Traditionally, as evidenced by the Citizenship Act of 1955, citizenship in India was acquired by birth on Indian soil (jus soli) or by descent (the son or daughter of Indian citizens are themselves an Indian citizen, even if they were born abroad). The reforms which took place from 1987 onwards tended to fully replace the old jus soli by a form of jus sanguinis as at least one of the parents had to be born Indian (and after 2003, the other parent should not be considered as illegal at the time of birth). The CAA poses an even greater problem for those who hold a territorial definition of the nation: by distinguishing refugees' eligibility for Indian citizenship on the basis of their religion, the government is, according to many lawyers, introducing discrimination contrary to Indian law, and the principle of equality for all people before the law.

The law reflects a key dimension of the ethno-religious definition of the nation that Hindu nationalists have always favoured as well as the age-old problem they have had to integrate Muslims into the Indian nation.

What triggered the first protests was the use of religion as a criterion for citizenship access.

Besides this discrimination, there are two others to consider. The CAA, which claims a humanitarian dimension by welcoming members of minorities who are victims of persecution in the South Asian region, still excludes Muslim minorities victims of persecution in the region (Rohingyas, Hazaras, Shiites, Ahmadis) and several countries in the area where non-Muslim minorities are also victims of persecution: Tibetans living in China, Tamils from Sri Lanka, etc.

Still, the current protest movement has little to do with the issue of religious persecution in neighbouring countries. It is in fact explained primarily by the Muslim masses’ fear of losing tangible rights, a fear which could be described as irrational but is evidently understandable. The procedure to be followed is indeed very unclear. The government has sought to reassure everybody by replacing the NCR with the NPR, where, it seems, it would be possible to register without having to produce any documents. Minister Jawadekar has thus indicated that this list, which is intended to identify inhabitants and not citizens, would be based on information provided orally by the head of the family. But the population’s concerns, and not only of Muslims, remain strong for three reasons.

• First, in Assam, it was necessary to provide documents proving ancestry or residence. That task has proved impossible, even for a retired army officer who had found it extremely difficult to leave the camp he had forcibly ended up in.
• Secondly, authorities have sent mixed signals, with the press reporting on an internal memo that includes a requirement for heads of families to provide birth certificates of parents or grandparents. Yet, a majority of Indians does not have documentation. Few Indians have a certificate attesting of their own birth – and this percentage is even lower when one considers the most underprivileged classes and the lowest castes.
• Thirdly, the law provides discretion over registration in the NPR to local authorities in which Indians – especially those with the least privileges in society – have little confidence; especially since any member of the locality in whose care these authorities are placed can denounce as untruthful the declarations of so and so. Undoubtedly, this is an open door to denunciation.

Is there room for flexibility from  the executive or legislative branches?

The government could, of course, give up on implementing the NPR, or make concessions on the CAA. It has no intention of doing so for the time being, as shown by recent statements of Amit Shah, Minister of the Interior, father of this reform and new strong man in Narendra Modi’s government – of which he has been the right-hand man for at least 20 years. The government is playing on decay and polarization. This strategy is dangerous but credible.

The Bharatiya Janata Party can hope to further divide society and bring Hindus together against Muslims

Polarizing may seem like the best idea for Narendra Modi at a time when the economy is sinking into a particularly serious crisis. Rather than attempting to get out of the slump, an ambition for which human and financial resources lack, the government may be tempted to forge ahead regardless. This approach will probably not be thwarted any time soon by the Supreme Court, whose pusillanimity is the greatest since the 1970s. For example, it has not yet taken up the issue of Jammu and Kashmir, which dates back to August 5th of last year. If the judges do not intervene – which could offer a way out that the government might appreciate were the crisis to escalate – opposition party-led states could give New Delhi a run for its money. Several states, such as Kerala, Punjab, Rajasthan and West Bengal, have announced that they will not implement the CAA. What will happen if the case goes to the Supreme Court and is ruled against them? This issue is probably bound to hit headlines for a long time.

This article was orignally published by Institut Montaigne.