In late 2019, both houses of the Indian parliament passed the Citizenship Amendment Act (CAA) 2019. The Bharatiya Janata Party (BJP) government had pushed with great alacrity the amendments to India’s citizenship laws. In doing so, it was able to abort a potential political backlash to the recently concluded National Register of Citizens (NRC), which had left out 1.2 million Hindus.
Three years after the passage of the CAA, it remains unimplemented. The Parliamentary Standing Committee on Sub-ordinate Legislation has extended multiple times the deadline for the government to frame rules for the new citizenship law. After much foot-dragging, the Supreme Court has finally started to hear petitions that challenge the constitutionality of the CAA. The CAA opened the way for fast-track citizenship by naturalization to undocumented Hindus, Sikhs, Buddhists, Jains, Christians, and Parsis from Pakistan, Bangladesh, and Afghanistan, having entered India before 2015.
Meanwhile, the government has blamed the COVID-19 pandemic and the need for “further consultation” for failing to frame the rules and the delay in the implementation of the CAA.
It can be expected to take a more cautious approach given the country is battling inflation and the government has had to grapple with a string of protests, including most visibly, the farmer’s resistance and anti-Agniveer demonstrations. Two additional observations, however, need to be underlined in this context.
An Implicit Policy
In May 2021, amid the second COVID-19 pandemic wave, the government issued a notification for verifying the prospects of citizenship of migrants hailing from the 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 only legal migrants of 13 districts across five states.
Again in November 2022, a notification directed two districts in Gujarat state to provide citizenship to the migrants of the same identity and location as provided by the CAA. The two notifications of September 2015, to cite a much older instance, 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 respective rules.
Following this, opposition legislators pointed out the anomaly of subordinate legislation preceding the parent law in their notes of dissent attached to the Joint Parliamentary Committee Report.
The CAA could be located in a broader context where Hindus, especially those emigrating from Pakistan, were perceived as legitimate refugees and future citizens of India. Against the backdrop of the 1947 Partition of the Subcontinent, they were seen as “returning home” to India, despite leaving behind ancestral properties in the newly created Pakistan. Early post-colonial laws like the Abducted Person’s (Recovery and Restoration) Act 1949 and the Immigrants (Expulsion from Assam) Act 1950 implicitly treated Hindus (and Sikhs) as potential refugees. The former reclaimed Hindu (and Sikh) women as Indians from their abductors and the latter exempted from expulsion those communities seeking shelter in India due to fear of “civil disturbances” in Pakistan.
These measures made their presence in India, according to political scientist Sanjib Baruah, “technically illegal but licit.” The historian Willem van Schendel notes that transnational migrants are more prone to regimes of licitness, than legality.
This notion of Hindus was also manifested in the Parliamentary debates on the Citizenship Amendment Bill (later Act) 2016 and 2019. Proponents of the bill saw it as “correcting history,” and labeled the Nehru-Liaquat Pact 1950, devised to protect minorities of India and Pakistan, an “imaginary contract”.
BJP legislators, interestingly, argued that the “right of return” of Hindus was not the desire of Hindu nationalists alone, by citing select past speeches of Indian National Congress leaders. Originally much nuanced, they nevertheless provided the bill’s supporters with the ammunition of history. The bill was not unprecedented, reflecting merely the contingent approach of India’s refugee policy, they argued. Even the bill’s opponents used axioms from Hindu scriptures that projected India as a safe haven for the persecuted since “time immemorial.”
Indeterminacies are also seen in a critical reading of the text of the Citizenship Amendment Bill (CAB) 2016 and CAB 2019 together with their stated objectives. The former did not explicitly mention a cut-off date, termed the beneficiary groups as “minority communities,” and was silent on the issue of religious persecution, unlike the latter.
The CAA’s supporters were anxious to defend its secular status during the debate in parliament. They argued that the version of secularism as commonly understood in India was flawed. Attempts to legitimize the CAA’s non-sectarian nature have continued, ruling out any possibility of its scrapping, unlike the farm laws. In Assam state, where the law was seen as inimical to indigenous interests, the BJP took great care to never mention it in the 2021 Assembly Elections. The Home Ministry also did not mention it in its annual report for 2021-22.
Internationally, the CAA continues to attract censure for being discriminatory and arbitrary.
All in Good Time?
The CAA, it must be remembered, came just seven months after the second Modi government was formed. Electoral calculations are expected to ultimately take the CAA out of cold storage, especially in states where the BJP has managed to gain a foothold of late. Leaders of the Matua community in West Bengal state have made their grouse known over the delay, and the state’s BJP president has pressed for its implementation before the 2024 national elections.
However, at the moment, the CAA increasingly seems to mirror how the Uniform Civil Code is being raised in some BJP ruled states. It is being incrementally advanced in a non-dynamic fashion. It remains to be seen whether the agenda of the CAA reaps electoral dividends in the near future.