Last week, the Ministry of Home Affairs (MHA) issued a notification empowering the District Collectors of 13 districts in Gujarat, Chhattisgarh, Rajasthan, Punjab and Haryana, as well as the Home Secretaries of Haryana and Punjab, to process applications for the grant of citizenship by registration as well as by naturalisation made by Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan.
While the selection of the communities and countries is identical to that in the Citizenship Amendment Act, 2019 (CAA), the notification has been issued under the un-amended provisions of Citizenship Act, 1955 — namely, Sections 5 and 6.
What the Present Notification Really Implies
Although reports have suggested that by this notification, the Central government has sought to implement religion-based citizenship because rules under the CAA have not yet been framed, that is not a correct reading of the present notification.
The 28 May notification does not provide the basis on which citizenship will be granted — it just says that the officers empowered under the notification can process application for the grant of citizenship, but only of persons of these 6 religions from these 3 countries. The applications will, however, continue to be processed under the same pre-existing norms.
To explain this with an analogy, let’s say, to reduce the workload of the Regional Transport Offices in different districts, some additional RTO windows were to be opened by the Ministry of Transport at the taluka-level. However, the appointing notification says that these RTO counters would not process the vehicle registration and transfer applications of Muslims, who would still need to apply to the regional headquarters.
So, while the basis on which applications for registration/transfer will be processed will be the same for Muslims and non-Muslims, non-Muslims are being provided additional centres in which their applications can be filed and processed. The reason why this distinction is important is that this notification is not even serving the supposed purpose that the CAA was claiming to address. It is discriminating between similarly-situated persons on the basis of religion without any justification at all.
Rules and Notifications Cannot Go Beyond the Statute Itself
We also need to appreciate that the CAA is a statutory enactment passed by the Parliament, creating two categories within foreign citizens applying for citizenship based on their religion and country of nationality. While the power of the Parliament to make such a classification that discriminates between non-citizens on the basis of religion is itself the subject matter of challenge before the Supreme Court, any such classification by an executive order is completely illegal.
The notification in question has been issued under Sections 5 and 6 of the Citizenship Act, which were not changed by the CAA. Section 5 is the application process for the grant of citizenship by registration to “any person not being an illegal migrant”. Section 6 of the application process is in a similar vein, for the grant of citizenship by naturalisation to “any person of full age and capacity not being an illegal migrant”.
It is a well-known principle of law that rules and notifications cannot go beyond the statute itself, and the powers delegated to the executive arm are circumscribed by the statute. Therefore, when the statutory provisions provide a common application route for all non-citizens, delegated powers under the provisions cannot be exercised to make a sub-classification on the basis of religion within non-citizens.
This would be contrary to the parent statute, and violate both the Citizenship Act and the Constitution of India.
And now that it is clear that unlike the CAA, which provides accelerated citizenship to the chosen communities, all that this executive order does is provide separate application windows to non-Muslims from these three countries to apply for citizenship under the un-amended pre-CAA regime, the next question is: why was this necessary?
Let’s Look at the Numbers
The blatant illegality of the move aside, the only possible justification could have been that the volume of applications from persons from these 6 communities and these 3 countries was such that logistical constraints required additional dedicated counters to be provided. However, this is not borne out by facts.
It was reported that the Minister of State for Home, Nityanand Rai, stated in the Rajya Sabha in March 2020 in response to a written question from CPI member from Kerala, K Somaprasad, that 2,935 Pakistanis, 914 Afghans and 172 Bangladeshis were granted citizenship from 2014-2020 (not counting an exchange of conclaves with Bangladesh in 2015).
These numbers are broadly consistent with the figures in the answer to an un-starred question in Lok Sabha in September, 2020, where it was stated by Shri Nityanand Rai that the applicants (of all religions including Muslims) under the regular application process between 2015 to 2019 was 2,668 persons from Pakistanis, 665 from Afghanistan and 148 from Bangladesh.
These figures include people of all religions, including Muslims, since the Minister stated that the government does not maintain religion-wise data of persons who have been granted citizenship. From these numbers is to be deducted the number of Muslims applicants.
Why Are Executive Orders of Doubtful Legality Being Passed Time and Again?
According to Home Minister Amit Shah’s speech in Parliament during the debate on CAA, as quoted in the same news report, 566 Muslims had been granted citizenship in around the same time frame. These numbers are not such as to require additional officials to be appointed across states to process applications of only non-Muslims applicants from among those applying. And mind you, just on 23 October 2018, a similar notification had been issued appointing District Collectors of 16 districts across 6 states and New Delhi, besides empowering all the Home Secretaries of States and Union Territories where the applicant was residing, to process applications for citizenship made under Sections 5 and 6.
So, if this new executive order does nothing besides providing additional and separate application windows for persons of the 6 enumerated non-Muslim communities from Pakistan, Bangladesh and Afghanistan, and the volume of applications from these communities is not such as to require additional point-persons to be appointed, why are such executive orders of doubtful legality being passed time and again?
Is it a coincidence that the October 2018 notification came just prior to the 2019 general elections? Is the present notification meant to set the tone for the elections to take place in 5 states including Uttar Pradesh, Uttarakhand and Punjab in a few months? Is this meant to divert attention from the heat the Central government is facing on its perceived mismanagement of the COVID-19 crises? Who am I to speculate? The answer, my friend, is blowing in the wind.
(Nizam Pasha is a lawyer based in New Delhi. He can be reached on Twitter @MNizamPasha. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)