In a recent move, the Central government has sought further extension of time from the Parliamentary Committee on Subordinate Legislation for framing the Rules of Citizenship (Amendment) Act 2019.

Usually, the rules are to be framed within six months of the passing of the Act. This move was the 9th in a row and the Government got the extension up to 9th January 2023 from Rajya Sabha while a nod from Lok Sabha is still awaited.

It appears that the government has not made up their mind on framing the rules of the CAA even though more than 39 months have elapsed since its notification on 12th December 2019. The amendments were made in such a way that the provisions of the Act cannot be made operational unless rules are framed under Section 6B (1) read with Section 18(2) (eei) of the Act specifying ‘conditions, restrictions and manner’ of conferring citizenship.

The Act contains several grey areas and the rules, when framed, are expected to bring clarity to these and other conditions required to fulfil before applying for citizenship by a person.

None of the provisions of the Act has categorically confirmed who is actually eligible to apply for citizenship under this Act.

As of now, the government has no concrete data about the actual number of Hindu migrants who entered India after facing religious persecution in Bangladesh.

We have no information regarding i) their date of entry into India, ii) their whereabouts during all these years, iii) the reasons for leaving their own country, iv) places where they are staying after their entry, v) the occupation that they are pursuing here, and above all their vi) past criminal records, if any.

All these are primary information required for processing applications for citizenship under the Act.

It would be a difficult proposition as to how the government is planning to make out cases of religious persecution in each case in absence of any information about it.

The country of origin of the applicants evidently will not like to share any information or antecedents on this matter. The practical question that will impede the process of conferring citizenship to an applicant is when actually the applicant entered India. In absence of any information, the government will have to depend on the certificates of the local authority.

The local authority and for that matter, the Collector’s certificate cannot confirm the actual date of entry. Many infiltrators against whom the proceedings are pending in Foreigner’s Tribunals in Assam and elsewhere in India will attempt to apply for citizenship concealing actual information although under Section 6(B)(3) of the Act pending a judicial proceeding against an applicant is not a disqualification.

The proposed rules, if declare any local authority as competent to issue a certificate for the purpose, will face an uphill task of procuring information from various sources. For this purpose, such authority will have to depend on the records of the village elder men (Gaon Burhas).

On the whole, it would undoubtedly lead to a chaotic situation. The new proviso added to Section 2 of the Act fixes the terminal date of entry into India of a Hindu Bangladeshi national as 14th June 2014 while no initial date has been fixed. Unless the rules fix this problem, it appears that the infiltrators will be at liberty to state any date as the date of entry into India before the terminal date.

The government’s intention behind the non-insertion of an initial date from which the entry is to be considered could be to avoid the issue of the Assam Accord as the most probable initial date could have been the terminal or cut-off date fixed by the Assam Accord.

So, the period of operation of the CAA remained blurred and the proposed rules must make an effort to bring clarity to this point. Non-insertion of a period in the principal Act could in future prove to be a big lacuna of the Act.

The foreigners’ tribunals are guided by the cut-off date fixed under Assam Accord i.e., 24th March 1971 depending on provisions of the Accord, the Foreigners’ Act as well as Citizenship Act, as amended.

Now under the CAA, the cut-off date appears to have been shifted from 24th March 1971 to 31st December 2014 for the Hindu Bangladeshis – but this is only a mere assumption.

Now there is no doubt that the Act was enacted haphazardly and as a result, many errors have now been detected and many more are expected to come up in course of its implementation – if not declared as an ultra-virus by the Supreme Court in the meantime.

While presenting the Citizenship Amendment Bill before the Parliament, the Statement of Objects and Reasons submitted along with the Bill did not even mention the existence of the Assam Accord and for that matter the cut-off date set by the government in that document for regularisation of the Bangladeshi nationals.

This was a big mistake and amounts to the suppression of facts by the government. The present government’s attitude towards the imposition of the CAA doesn’t appear to be that of a serious law-enforcing authority.

Although the Home Minster has been reiterating from time to time that CAA will be implemented in letter and spirit, but Government’s inaction in framing the rules says a different story.

There could be several reasons for this:

1) The provisions of the Act have been challenged in the Apex Court on various grounds. It is undoubtedly that the provisions of the Act directly contravene the equality principle of the Constitution of India and also compromised with the ideals of secularism. It has attempted to differentiate between Hindu Bangladeshi immigrants and Muslim Bangladeshi immigrants. As such, once the Act comes under judicial scrutiny it will be difficult for the Government to protect the legislation due to this discriminatory principle.

ii) The ruling BJP is losing interest in the Act for the simple reason that their objective of enacting this legislation has been defeated as they could not garner power in the last West Bengal Assembly elections. It was enacted to appease the voters belonging to a specific community.

iii) Ever since Bangladesh as a nation came up in the year 1971, no known religious persecution took place in that country which resulted in a large-scale exodus of religious minorities to this country. Therefore, Bangladesh evidently will not agree to any move which openly marks the country as having pursued a religious persecution path to do away with the section of minority living in that country.

At present, among the neighbouring countries, it is only Bangladesh with whom India is having good bilateral relations. But Bangladesh’s relations with China are growing into a bigger proportion in recent years, especially during the pandemic and now China is having comfortable access to the South Asian region via Bangladesh through Nepal in the North and Myanmar in the East.

Under this backdrop, India cannot afford further to strain their relations with any neighbouring country including Bangladesh. Bangladesh is in an enviable position due to its strategic location in the Bay of Bengal region and the US is closely eyeing the IndoBangla tie and will not be liking any deviation from the present stand.

The situation is well under the comprehension of India and because of this when PM Modi visited Bangladesh in March last year categorically praised the country for their peaceful co-existence and integration of various communities.

But despite having ample opportunities to discuss the cross-border infiltration, Mr Modi preferred not to mention anything about it in that tour. Now since the next general election to Lok Sabha is approaching, government will undoubtedly use CAA as a weapon to appease those who are prospective applicants of the package provided by CAA 2019.

The writer is a former IAS officer who retired as Secretary, Finance, Government of Assam.