CAA revisited: How the May 2021 order of the MHA furthers a discriminatory citizenship regime

On May 28, 2021, the Ministry of Home Affairs passed an order under Section 16 of the Citizenship Act, 1955 which empowers the Central Government to delegate powers under the Act. However, exceeding mere delegation, this o rder created a specific procedure for naturalisation and registration for citizenship in respect of applicants from ‘minority communities’ in Afghanistan, Pakistan and Bangladesh, namely Hindus, Sikhs, Christians, Jains, Parsis and Buddhists, resident in specified districts in five states. This order was immediately challenged by the Indian Union Muslim League (IUML) in an interlocutory application that they filed in an earlier writ petition challenging the constitutionality of the Citizenship (Amendment) Act, 2019. IUML’s primary objection was that this order seeks to implement the CAA 2019 in a roundabout fashion, even while the constitutionality challenge is under examination by the Supreme Court. The Union Government in its reply stated that the notification had nothing to do with the CAA, and merely allows for delegation of powers of registration and naturalisation under certain specific circumstances, to a class of ‘legal’ migrants. As on date, two other writ petitioners who challenged the CAA, have filed applications also challenging this order.

At Parichay, we have prepared a detailed brief on the May 2021 order. This brief sets out the contents of the May 2021 order, and its relation, if any, to the CAA 2019. To summarise, this brief argues the following:

  1. The CAA, 2019 exempts persons belonging to Hindu, Sikh, Christian, Jain, Parsi or Buddhist communities from Afghanistan, Pakistan and Bangladesh from falling within the definition of “illegal migrant” in Section 2(1)(b) of the Citizenship Act, 1955. We argue that this amended definition now allows even those without valid documents to apply for citizenship under the procedure laid down under May 2021 notification. However, this benefit is not available to similarly situated Muslim applicants.
  2. The May 2021 order significantly truncates the procedure for registration and naturalisation of citizens under Sections 5 and 6 of the Citizenship Act, but denies similarly situated Muslim applicants this benefit.
  3. The May 2021 order implements the amendment to the Third Schedule of the Citizenship Act, 1955 brought into force by the CAA, 2019. This amendment reduced the residency requirement for naturalisation under Section 6 from 11 years to 5 years for Hindu, Sikh, Christian, Jain, Parsi or Buddhist communities per se (without any requirement of claiming religious persecution) who come from Afghanistan, Pakistan or Bangladesh.
  4. The May 2021 order creates a distinction between applicants of Indian origin for the purposes of registration under Section 5, by retaining what is admittedly an onerous and difficult process of citizenship registration for Muslims of Indian origin, while easing the process for Hindus, Sikhs, Jains, Christians, Buddhists and Parsis of Indian origin.

    Most importantly, if the May 2021 order is purportedly in the interests of refugee protection, then it is time to consider the adoption of a non-discriminatory and inclusive refugee policy in consonance with India’s constitutional values.

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