Hold Off on CAA for Now but the Distinction Between Citizens and Residents is a Must

The distinction between citizens and mere residents, including undocumented migrants, should not be lost.

India is in the eye of a political storm over the Citizenship (Amendment) Act (CAA), the updating of the National Population Register (NPR), and the compiling of a National Citizens Register (NCR). It is being fallaciously projected as an ideological battle between the Bharatiya Janata Party (BJP) and some political parties.

Several non-BJP ruled state governments have declared that they will not allow the CAA to be implemented in their states and will not permit action to be undertaken for the NPR and the NCR. This is in total disregard of the obligations cast under Article 256 of the Indian constitution on each state to exercise its executive power “to ensure compliance with the laws made by parliament”. The Kerala government’s decision to invoke Article 131 of the constitution (exclusive jurisdiction of the Supreme Court) to challenge the CAA does not seem feasible as it is a legislation on a subject in the Union List of the Seventh Schedule.

P. Chidambaram, who was the Union home minister in the UPA government when the NPR and Aadhaar schemes were approved, in an interview with India Today, clearly highlighted the politics of it all and admitted that “inherently, there is nothing wrong with it [NPR]. One needs to know the population of the country and who the usual residents are. It is an aid to the census…It [NPR] was a logical thing to do.”

He, however, argues that “the context of the NPR is very different today. We did not contemplate an NRC because we had not thought it through its pros and cons…The Assam NRC exposed the current government’s intent. We now fear that NPR can lead to NRC.”

Chidambaram seems to have forgotten that the NRC in Assam was the outcome of the Assam Accord, signed in 1985 in the presence of the then Prime Minister Rajiv Gandhi. Since successive Congress Party governments and UPA governments headed by the Congress, had failed to take any follow-up action, the matter was raised in the Supreme Court and the NRC was carried out under that court’s supervision.

Also read: Why the CAA Is More Lethal Than a Projected NRC

Chidambaram’s interview brings out that the crux of the problem is the trust deficit of the Modi government. Chidambaram has advocated deferment of the NRC till after the next Lok Sabha elections. He probably hopes that if the Congress comes back to power, the NRC can be shelved indefinitely as in the past.

His primary concern is the 1.9 million undocumented migrants identified in Assam. “What do you intend to do with them? Unless you address that problem, you must not even whisper the word NRC”. I entirely agree with Chidambaram but why did the Congress Party not address it when it was in power?

As I have been arguing since the passage of the CAA, a great deal of controversy could have been avoided if the question of the status of Muslim undocumented migrants had been dealt with in the Citizenship (Amendment) Bill. Fears are being expressed that Muslim migrants would be segregated, put in detention camps and deported. Speeches by the Union home minister Amit Shah have been responsible for this feeling of insecurity.

The identification of non-citizens in Assam has led to genuine fears of harassment and misery. If similar surveys are conducted for compiling the NRC, these fears must be addressed sympathetically. But they should not lead to opposition to the NRC.

What are the options for dealing with the huge problem of undocumented migrants? The legal procedures for declaring a person an ‘illegal foreigner’ are complex and time-consuming. And after a tribunal declares a person a foreigner, it is impossible to deport the person since Bangladesh has taken a stand that the migrants are not their citizens.

Also read: Citizenship and Assam: An Explainer on the Legal Questions That Still Loom Large

As a result, over the years, hardly a few thousand persons could be deported. Thus, deportation is not a feasible option. Considering their huge numbers, keeping them in detention centres would also not be feasible, as shown by the experience of a few thousand persons held in detention camps in Assam. The detainees have been languishing there for months, and, in some cases, for years together. This option will also militate against India’s record of human rights.

The only feasible option left is to declare them as stateless persons. It could be laid down that they would not be eligible to vote for ten years or associate with any sensitive activities pertaining to national security, and would not be eligible to acquire and hold immovable property. At the same time, international conventions on stateless persons visualise that such persons may be assimilated as citizens in a period of about ten years.

Never in the past, except during the Emergency under the Indira Gandhi regime, has the Indian polity been as polarised as it is at present. India’s multi-party system makes it all the more difficult to deal with such divisive communal issues. Public memory is short but it must not be forgotten that political parties now backing the anti-CAA agitation have mostly been responsible for creating this unsustainable situation by over-looking and even encouraging undocumented migration for years for their vote-bank politics.

The present confrontation should be looked at as a challenge and an opportunity to re-examine all issues and concerns with an open mind. It is high time India evolves a national policy to deal with the gigantic problem of undocumented migration. I would suggest that the CAA be kept in abeyance to create a congenial atmosphere for commencing a national debate.

The government should bring out a comprehensive white paper on all issues, including the CAA, NPR and NRC. Giving indication therein of the government’s intention to declare undocumented migrants as stateless persons will do away with their fears of confinement in detention camps and deportation, and create an atmosphere for the acceptance of  the NPR and NRC, which are in the larger national interest.

Also read: An All-India National Register of Citizens Will Be an Economic Disaster

At the same time, issues must be examined afresh to avoid the need to approach millions of people again and again when the same data has been obtained in other surveys. In this light, enactments pertaining to the census, Aadhaar and others may be re-examined to do away with their unnecessary secrecy. These issues may be discussed in the white paper.

But in no case should the distinction between the citizens and mere residents, including undocumented migrants, be lost sight of. No other democracy has followed this path.

Madhav Godbole is a former Union home secretary and secretary, justice, Government of India. His two recent books are The Babri Masjid-Ram Mandir Dilemma—An Acid Test for India’s Constitution, and India’s Governance.