Exactly three months ago, on December 11, India’s parliament passed the controversial Citizenship Amendment Act. This, for the first time, introduced a religious element to India’s citizenship law. The legislation allowed so-called illegal migrants from Pakistan, Bangladesh and Afghanistan to apply for Indian citizenship – as long as they were not Muslim.

This law was even more controversial given the fact that leaders of the ruling Bharatiya Janata Party said that it would work in tandem with a proposed National Register of Indian Citizens. By linking the two, the BJP intended to convey that only Muslims would be targeted by an NRC.

The Citizenship Amendment Act sparked off massive protests, international condemnation and large-scale chaos. Yet, the BJP has been steadfast in that it will not roll back the law. Despite being so adamant, three months after the act was passed, the Modi government is yet to begin the process of implementing the legislation on the ground. The rules to the CAA – guidelines on how the legislation will be implemented – are yet to be notified by the Union government.

What explains this delay for a law so core to the BJP’s current politics?

Sweeping protests

The CAA catalysed fears amongst Muslims that they could be rendered stateless using an NRC, leading to massive protests. This, in turn, prompted often-brutal crackdowns by BJP-led state governments. In one case, threats by a BJP leader to violently uproot protestors in Delhi were a major factor in sparking of widespread communal rioting and attacks by the police on Muslim neighbourhoods.

In the three months since the act was passed by parliament, 80 people have died: two in Karnataka, six in Assam, 19 in Uttar Pradesh, and 53 in Delhi.

One simple reason for the delay in framing the rules therefore could be that the Modi government is wary of further fanning protests.

A similar process has already occurred in the case of the NRC. Till before the protests started, the BJP volubly stated that an NRC was going to be conducted. However, after the protests, the party suddenly changed its public position, claiming that “nowhere has the NRC word been discussed or been talked about”. (Notably however, this has still meant the BJP is proceeding with the National Population Register, a door-to-door survey that collects data for an NRC.)

A protest new citizenship law at Jantar Mantar in New Delhi on January 29. Credit: Sajjad Hussain/AFP

Practical problems

The other difficulty when it comes to framing the rules for the CAA is the self-contradictory nature of the law itself. The act is so unusually framed that experts have argued the legislation would fail to help many migrants gain Indian citizenship.

A scenario where the CAA is operationalised but very few migrants apply for citizenship under it would greatly embarrass the BJP. The party would have upturned India in pursuit of its stated aim of helping non-Muslim migrants – except that the CAA would not have helped them. This could, thus, be a significant factor in the delay in framing rules.

Scroll.in had first pointed out the serious flaws in the proposed legislation, three month before it was passed.

First, India’s internal intelligence agency, the Intelligence Bureau had pointed out that the act would involve a “strict antecedent verification process” for anyone claiming religious persecution in order to “ensure that undesirable elements do not take advantage of these provisions”. It is unclear how migrants fleeing persecution would be able to prove their own persecution. This is especially so since neither Pakistan, Afghanistan or Bangladesh would help India in this regard.

Second, the Intelligence Bureau also claimed that migrants had to declare persecution as reason for migration at the time they arrived in India If they had not done so, “it would be difficult for them to make such a claim now”. This would immediately shrink the scope of the CAA, since only a very small number of migrants have made such a declaration.

Third, critics of the act have also pointed to a paradox. If the legislation is meant for undocumented migrants, how can particulars like religion, country of origin or date of entry into India (as per the cut off, December 31, 2014) be proved at all?

Fourth, the BJP has claimed that the CAA will help Hindu Bengalis if they are excluded from the NRC. While direct numbers are unavailable, speculation about Hindu Bengalis being the principal target of the Assam NRC have swirled since 2018 – a politically harmful point for the BJP’s ambitions in West Bengal. However, there is a paradox here too. When applying for the NRC, Hindu Bengalis had claimed there were Indians. But when applying for the CAA, these same people will now have to contradict themselves and claim they came from Pakistan, Bangladesh or Afghanistan. There is no clarity on how this contradiction will be managed.

Fifth, the vast majority of undocumented migrants from Bangladesh have already acquired all the trappings of Indian citizenship such as voter identity cards. This is something the Intelligence Bureau has itself flagged when pointing to the flaws in the CAA. “There will be many others who might have come and they might have already taken citizenship by various means,” said the Intelligence Bureau, explaining how Bangladeshi Hindu migration typically takes place into India. “They might have obtained passport, ration card. All other documents they might have obtained and they might have already registered themselves in the voters list. So, for all practical purposes, they are already citizens of this country”.

These significant flaws in CAA have led to the Intelligence Bureau identifying that only a very small number of migrants will benefit from the legislation: around 30,000.

A demonstration against India's new citizenship law, in Kolkata on January 21. Credit: Dibyangshu Sarkar/ AFP

Managing the CAA message

This naturally worries the BJP, given that it has staked a significant amount of its political capital on the CAA. In January, anonymous leaks from the Modi government to the media argued that the CAA would not seek proof of persecution. However, even those leaks admitted that documents proving date of entry in India and religious identity need to be produced. Six weeks after the leaks, however, there are still no rules and no surety that when the rules are finally framed, they would follow those leaks.

In January, the Uttar Pradesh government also conducted a drive to identify people who would benefit from the CAA. While its results are yet to be made public, significantly, as per a report by NDTV, people surveyed already had the trappings of Indian citizenship such as voter identity cards and ration cards. This confirms what the Intelligence Bureau had noted: that most migrants would “have already taken citizenship by various means” and thus the CAA is irrelevant for them.

As per the Manual of Parliamentary Procedure, rules need to be framed within six months of a law coming into force. So the Modi government still has time.

However, given the importance of the law to the BJP’s current politics, this delay gives ammunition to its critics who have argued that the CAA is less about helping migrants and more about adding a communal element to Indian citizenship law.