11, Nov 2022 | Sanchita Kadam
The Ministry of Home Affairs in its 2021-22 Annual Report has revealed that it has delegated powers under Citizenship Act to grant citizenship under the controversial 2019 amendment. Delegated powers have been “given” to Collectors of 13 more districts and Home Secretaries of 2 more states. With this, Collectors of 29 districts and Home Secretaries of 9 States have been authorized to grant citizenship in respect of foreigners belonging to Hindu, Sikh, Jain, Buddhist, and Christian or Parsi community from Pakistan, Bangladesh and Afghanistan.
The report states, “The delegation will speed up the process of granting Indian citizenship to aforesaid category of migrants as the decision would be taken at local level.”
The report states that from April 1, 2021 to December 31 2021, a total of 1414 citizenship certificates have been granted by all authorities including this Ministry. Out of this, 1120 were granted by registration under section 5 and 294 were granted by naturalisation under section 6 of the Citizenship Act. These notifications clearly invoke the 2019 amendments.
They clearly direct that “the Central Government hereby directs that powers exercisable by it, for registration as a citizen of India under section 5, or for grant of certificate of naturalisation under section 6, of the Citizenship Act, 1955, in respect of any person belonging to minority community in Afghanistan, Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians (hereinafter referred to as “the applicant”), residing in the districts mentioned ..
The latest two districts to be added to this list of 29 districts were Anand and Mehsana districts of Gujarat. We had reported that on October 31, the MHA issued an order empowering District Collectors of Anand and Mehsana districts of Gujarat to grant citizenship under section 5 (by registration) and section 6 (by naturalization) of Citizenship Act. This has brought the total to 31 districts now!
This exclusionary and discriminating provision was brought in by the much debated and contentious Citizenship Amendment Act, 2019 (CAA) which, in the consequence of becoming a law, saw widespread protest across the country.
On the one hand, the Centre has been officially and formally delaying formulating the Rules under CAA which makes it appear as if CAA is not being implemented and on the other hand, the Ministry of Home Affairs (MHA) is determinedly taking steps to implement CAA. This despite the assurance given to Parliament, in August 2021, by Union Minister of State for Home Nityanand Rai, who had stated in the Rajya Sabha that Indian citizenship to the eligible beneficiaries under CAA will be given only after rules under the legislation are notified, reported Indian Express.
CAA being delegated to selective districts
Apart from the October 31 latest notification delegating powers to two Gujarat districts to implement CAA, there have clearly been earlier notifications to delegate these powers to the other districts. We found one other such notification publicly available.
The May 2021 notification delegated these powers to the following districts and states:
(i) Morbi, Rajkot, Patan and Vadodara in the State of Gujarat ;
(ii) Durg and Balodabazar in the State of Chhattisgarh ;
(iii) Jalore, Udaipur, Pali, Barmer and Sirohi in the State of Rajasthan ;
(iv) Faridabad in the State of Haryana ; and
(v) Jalandhar in the State of Punjab ;
Further, these powers were delegated to the Secretary of the Department of Home of the States of Haryana and Punjab.
Three of these states, Chhattisgarh, Punjab and Rajasthan are opposition ruled states and despite this, nothing has been heard from these state governments on this move by the MHA. Politically, however some of these governments have been opposing both CAA 2019 and the proposed implementation of the All India NPR and NRC.
The May 2021 notification may be read here:
Both notifications lay down the procedure that the District Collectors are supposed to follow. The application for citizenship is to be filed online which will then be verified by the Collector by making an inquiry for ascertaining the suitability of the applicant and then issue a certificate of citizenship, a record of which is to be maintained online as well as in physical register.
A search on the Indian Gazette website for the notifications issued by MHA in the past two years only yielded results for these two notifications. It is unclear how the rest of the 16 districts have been delegated powers to grant citizenship as per CAA 2019 provisions.
CAA being implemented stealthily
The Centre has taken recourse to Rules already formulated under the pre-amended Citizenship Act to implement the latest (2019) amendment! The earlier rules were made in 2009 while the discriminatory provisions were brought in through amendments in 2019. These 2009 amended Rules are simply procedural, they mention in detail the Forms etc that have to be filled for application of Citizenship. The substantive impact of these Notifications is, for the MHA to, without any Rules being drafted or circulated for the 2019 amendments, is to begin their implementation.
Under any Act the provision for rule making states that the government “may” make rules hence making of rules is not mandatory but an enabling clause. At the same time, if necessary, details are not provided by way of Rules, the Executive may not be able to implement the said provision. Speaking in technical terms, any delay in framing Rules results in delay in implementing the law, since the necessary details are not available.
However, in this instance, Rules are already in place for implementing section 5 and 6 of the Citizenship Act which are to be used for operation of the latest amendment. Thus, while on paper, Rules of CAA 2019 have not yet been formulated, the rules required for the implementation of CAA are already in place and it is on this basis the MHA has issued this order.
MHA’s clarifications in previous Annual Report
In the MHA’s 2020-21 Annual Report, the Ministry gave a detailed clarification on CAA and how it does not affect Indian ‘citizens’ stating thus,
The CAA does not apply to Indian citizens. Therefore, it does not in any way takeaway or abridge the rights of any Indian citizen. Further, the present legal process of acquiring Indian citizenship by any foreigner of any category as provided in the Citizenship Act, 1955 is very much operational and the CAA does not amend or alter this legal position in any manner whatsoever. Hence, legal migrants of any religion from any country will continue to get Indian citizenship once they fulfill the eligibility conditions already provided in the law for registration or naturalization.
It further gives a clarification on how CAA does not affect protection granted to tribal and indigenous people of North-Eastern region as follows:
“The Constitution of India has provided special provisions under Sixth Schedule to grant protection to tribal and indigenous people of North-Eastern region. CAA has excluded areas under Sixth Schedule of the Constitution and areas covered by Inner Line Permit system under Bengal Eastern Frontier Regulation, 1873. Hence, CAA does not affect the protection granted by the Constitution to indigenous population of North Eastern States.”
It also states that between April 1, 2020 and December 31, 2020 a total of 412 Citizenship Certificates have been granted by various competent authorities (MHA plus authorities delegated powers of the Central Government in 7 States and 16 Districts) to foreigners under the provisions of The Citizenship Act, 1955. Out of this, 398 were granted by Registration under Section 5 and 14 were granted by Naturalization under Section 6 of the Citizenship Act, 1955.
CAA challenged before SC
CAA 2019 amendments have also been challenged before the Supreme Court by several petitioners and is currently in the hearing stage, with December 6 as the next date of hearing. At least 220 petitions against the CAA were filed before the top court.
In 2020, the Kerala government also filed a suit in the apex court becoming the first state to challenge the CAA.
The law fast-tracks the process of granting citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who fled religious persecution in Afghanistan, Bangladesh and Pakistan and took refuge in India on or before December 31, 2014.
The top court had earlier issued notice to the Centre and refused to pass an interim order staying the law without hearing the Centre.
The Centre had filed its affidavit before the apex court saying that the CAA Act is a “benign piece of legislation” which does not affect the “legal, democratic or secular rights” of any of the Indian Citizens.
The CAA threat
Lest we forget, the threat of CAA looms large. The fears that sparked the protests in the first place still prevail and even if Centre plans to implement CAA in such a piecemeal manner, the larger picture remains the same; that CAA paves the way for National Register of Citizens (NRC). Citizens for Justice and Peace (CJP) had conducted a detailed analysis of the “toxic cocktail” of CAA+NPR+NRC demonstrating how this will not only affect Muslims in the country but also for women and marginalized sections as well. The detailed analysis may be read here.
The complete Annual Report may be read here:
Image Courtesy: timesofindia.indiatimes.com