Indian Citizenship Revisited

Abstract

Sukumar Muralidharan, The Nation and Its Citizens: Tales of Bondage and Belonging, Rupa Publications, 2022, 263 pp., ₹395, ISBN: 9789355206381 (Paperback).

Anupama Roy, Citizenship Regimes, Law and Belonging: The CAA and the NRC, Oxford University Press, 2022, 280 pp., ₹1495, ISBN: 9780192859082 (Hardcover).

Harsh Mander and Navsharan Singh (Eds.), This Land Is Mine, I am Not of This Land: CAA-NRC and the Manufacture of Statelessness, Speaking Tiger Books, 2021, 421 pp., ₹499, ISBN: 9789390477180 (Paperback).

It may be true that the law cannot change the heart, but it can restrain the heartless.

—Martin Luther King, Jr. (1967, November 13). ¹

In this review article on Indian citizenship, we wish to raise a counter-question of whether particular ‘legal regimes’ may work to galvanise heartlessness and even let loose the force of violence and tyranny against sections of India’s own people by slackening the basic requirements of justice enjoined in our constitution. Drawing on the recent amendments to India’s citizenship laws and the rich and illuminating discussions that swirl around them in the books under review, an attempt is made here to ‘uncover’, that is to say, selectively probe, rather than exhaustively ‘cover’, some aspects of the layered and complex meanings of citizenship, state, and nationality in contemporary India, using the tropes of identity, equality, precarity, sovereignty, and humanity. Looking through these conceptual prisms, we aim to understand the nuts and bolts of the present citizenship regime as moulded by the ‘trinity’ of the Citizenship Amendment Act, 2019 (CAA), the National Register of Indian Citizens (NRIC), and the National Population Register (NPC) (Mander & Singh, 2021). ² We also seek to probe the extent to which the force of citizenship law, in its new incarnation, departs from the constitutional conscience, aligned with a spirit of social conscience, which Dr B. R. Ambedkar and his colleagues infused into the vision of Indian citizenship at the dawn of India’s independence. In other words, it is arguable, and echoing the compelling and evidence-based arguments presented by the authors in these volumes, that recent changes in citizenship laws need to be understood in the light of their ideological and political embedding within a larger field of power, watered carefully with the majoritarian notion of Hindutva. With the foregrounding of this larger backdrop, it would be possible to make sense of the mutation of the idea of Indian citizenship—from one of republican citizenship to that of ‘bounded’ citizenship (Roy, 2022). In a similar vein, it would shed light on why there has been a palpable urge in the present legal order to deploy the conjoined and combined ‘sorting mechanism’ of the CAA and NRC to distinguish between citizens and others and, at once, ‘… to rid “every inch” of India from illegal immigrants’ (promises made by Home Minister Amit Shah, as quoted in Muralidharan, 2022, p. 61).

Identity Tagged

The contributors to these volumes trace the progression of this legal and political journey of the idea and practice of citizenship in India with rich historical, archival, and ethnographic details, as well as through incisive political commentaries. They justifiably and helpfully characterise its principal nature as one of an unmistakable shift from birth-right citizenship to blood-tied citizenship. We aim to add to this interpretation by arguing that underlying this pro-parentage/lineage swing is a play of identity tagging and identitarian closure of a non-random nature. As Muralidharan observes, ‘…the new nationalism advocates a form of bondage to fixed ideas and identities’ (p. vii), drifting away from its promise ‘…to be a nation for all’ (p. xiii).

A particular reference may be made here to the amended laws that allow a fast track to citizenship for Hindus, Sikhs, Buddhists, Parsis, and Jains (but not Muslims), admitted as religiously persecuted refugees from the neighbouring countries of Bangladesh, Pakistan, and Afghanistan, notwithstanding the inadequacy or lack of their legacy and linkage documents. This provision of the CAA, 2019, does not involve any threat of ‘the loss of citizenship’ of any person but only a promise of ‘conferment’ of the same on some people which, it is argued by some, speaks for its lofty intent (Muralidharan, 2022, p. 46). For example, to quote Roy (2022), ‘In his opening statement in the Lok Sabha introducing the CAB, ³ the HM ⁴ called it a “historic bill” which would free “lakhs and crores” of people from their tormented lives [as refugees/illegal immigrants] into a life of dignity as citizens’ (Roy, 2022, p. 134) .

However, its inherent discriminatory bias remains concealed as it masks favoured inclusion and unfair exclusion. Undocumented Hindu migrants from these specified countries, even when unable to satisfy the parentage principle (i.e., produce legacy data and linkage documents), are entitled to citizenship; only one singular ‘minoritarian’ identity is marked and subjected to the rigorous requirements of proving the right kinds of ancestry and lineage. The transition from the jus solis principle (birth-based citizenship) to the jus sanguinis principle (descent-based citizenship) is therefore a qualified transition, with non-random exceptions. That is to say, the parentage principle comes into full force only to exclude migrants/people of Islamic faith, otherwise remaining inert and thus effecting favoured inclusion within the fold of Indian citizenship for migrants of Hindu faith. Jayal describes this model as ‘faith-based citizenship’ and astutely observes that the NRC carves out paths to statelessness for disfavoured groups ‘only on the basis of their faith’, and the CAA creates paths to citizenship for preferred groups ‘only on grounds of their faith’ (italics original) (Mander & Singh, 2021, p. 88). To put it in other words, ‘…CAA [shields] non-Muslims, while NRC [facilitates] the exclusion of Muslims, without affording them the protection of the CAA’ (Roy, 2022, pp. 86–87). This kind of selective and non-random in/consequence of faith for eligibility for Indian citizenship is what challenges the constitutional principle of a ‘religious-neutral’ law (Mander & Singh, 2021), as well as the equality principle, as we elaborate below.

At the individual level, by caging a citizen within the confines of a singular religious identity alone, their multiple identity claims are derecognised. For example, Roy (2022) quotes Derek O’Brien, who spoke in the Rajya Sabha, illustrating the multiple identities that a ‘Bengali faith’ inheres: ‘My Ishwar is Vidyasagar, my Thakur is Rabindranath, my Ram is Rammohan, my Qazi is Nazrul, my Fakir is Lalon’ (Roy 2022, p. 153). Extending this spirit of multiculturalism beyond the borders of Bengal, it may be claimed that not all Indians, and not even all Hindus, believe in monoculturalism.

And at the societal level, by reducing ‘Indian identity to Hindu identity’ the background political regime appears to install a legal regime of citizenship that puts up an identitarian ‘wall’ of closure vis-à-vis persons of a particular religious identity in the erstwhile pluralistic ‘multiverse’ of India. Arguably, one may find in all this an effort to ‘redefine’ the basic political identity of the Indian nation itself, especially when a political majority tends to advocate majoritarianism and ‘…construct a hegemonic identity for all Indians’ (Muralidharan, 2022, p. 17). An idea of bounded citizenship thus seems to produce a narrowly bounded idea of Indian nationhood, particularly when ‘…a majority thinks itself as the entire nation and in its attempt to absorb the minority actually separates them even more’ (Nehru as quoted in Muralidharan, 2022, p. 82). Such predatory social identities, as Arjun Appadurai has warned us, may mutate into a predatory state, jeopardising the constitutional principle of people being the source of sovereignty as well as citizenship (Muralidharan, 2022, pp. 245–246). ‘Documentary citizenship’, ‘hyphenated citizenship’, ‘graded citizenship’, and so on—the myriad forms that are identified with much care by the scholars in these anthologies—hint at this disconcerting possibility. We will return to this issue a little later.

Equality Retrogressed

But do the recent amendments to citizenship laws transgress the right to equality that the Constitution of India assures to all its citizens, irrespective of their identity—their religious identity in particular? To grapple with this question, some legal scholars as well as political leaders have alluded to the concept of secularism in either a disparaging or laudatory tone. In fact, the so-called ‘Sarbananda Sonowal judgment (2005)’ ⁵ that is regarded as the precursor to the later developments in the citizenship laws voicing concerns about ‘illegal immigrants’ and ‘external aggression’, especially in the ‘exceptional’ context of Assam, asserts that ‘misconceived’ notions of secularism ‘….must not come in the way of extending the protection of citizenship to non-Muslim religious minorities who faced persecution in Afghanistan, Bangladesh and Pakistan’ (Roy, 2022, p. 22).

In his incisive analysis of secularism and its discontents, Sen (2005) forcefully argues that secularism goes against giving any religion ‘a privileged position in the activities of the state’ (Sen, 2005, p. 296). To put it differently, there must be a basic ‘symmetry of treatment’ towards all religions. Importantly, therefore, secularism, defined as this requirement of symmetric treatment, is not violated when the state protects everyone’s right to worship. But by favouring non-Muslim religions over Islamic religion and thus giving asymmetric attention to the former, CAA 2019 appears to violate, so the counter-argument goes, the constitutional ideals of secularism and equality and, more foundationally, the code of constitutional morality sculpted in its Preamble.

The charge that CAA 2019 violates Article 14 (even if not so straightforwardly Article 25 that guarantees the right to freedom of religion) is worth probing. Under Article 14, the constitution guarantees equality before the law (i.e., ‘protection against discrimination’) and equal protection of the law (i.e., ‘protection against the arbitrary exercise of state power’) to all persons—citizens and aliens. Bringing all people across territorial borders within the ambit of this equality principle establishes a close linkage and synergy between basic citizenship rights and human rights.

Indeed, while contemplating treating citizens (and more generally, fellow humans) as equals, political philosopher Ronald Dworkin makes a distinction between ‘equal treatment’ and ‘treatment as an equal’ (Holborow, 1983). Equal treatment essentially ensures procedural equality, which may not necessarily translate into equity. For example, equal treatment of ‘unequals’ may not level a historically lopsided playing field and hence may require an affirmative principle that our constitution, for example, mandates in the interest of reducing entrenched social inequalities in our society (Muralidharan, 2022). But what more is involved and required in treating people as equals? In Dworkin’s thesis (Holborow, 1983), the right to treatment as an equal is premised on the foundational right, for all, to equal concern, dignity, and respect in political decisions. Extending this argument to the present legal order defining Indian citizenship, one may ask whether it satisfies these two principles of ‘equal treatment’ and ‘treatment as an equal’. More specifically, one may ask whether Indian citizens or aliens of the Muslim faith are treated as people deserving of equal dignity.

Roy (2022) alludes to a public speech made by a leader of the current political dispensation in which he claimed that ‘…the CAA would ensure a life of dignity (emphasis mine) to refugees of minority communities from Pakistan, Bangladesh and Afghanistan, without “taking away” anything from Indian citizens’ (Roy, 2022, p. 83). It is intriguing that the same motif of respect is used to assert the right to dignity for favoured groups but is thrown away in denial of the same right for the disfavourable group. The CAA, thus, seems to be a clear case of retrogression as far as the test of equality and dignity is concerned. Consequently, Muslim migrants remain the sole target of indignity and scrutiny under the legal scanner; as Roy (2022, p. 230) refers to concerns raised by several petitioners in Assam, ‘…the Foreigners’ Act would apply “only on Muslims and Foreigners’ Tribunals will adjudicate only Muslims”’.

Precarity Perpetuated

The precarious status of many so-called right-bearing citizens in India within the domestic context is undeniable, thanks to the entrenched social inequalities of caste, class, ethnicity, and religion, not to speak of those reeling under the perpetual uncertainties of ‘disputed’ citizenship (Mander & Singh, 2021). The latter, indeed, live in an ever-ambivalent zone of ‘perpetually indeterminate citizenship and suspect legality’ (Mander & Singh, 2021, p. 19).

Take the case, for example, of a resident of Assam who is a target of durable doubt from the side of the authorities. As Abdul Kalam Azad writes, ‘My “doubtful” uncle has a Master’s degree in Economics from Gauhati University and teaches in a government school. During elections, he would perform the duty of a presiding officer, even though he was barred from exercising his voting rights for almost two decades’ (Mander & Singh, 2021, p. 142).

Again, let us recount the deeply distressing case of Dulal Paul, a declared foreigner since 2017 and an inmate of a detention camp in Tezpur since then, who died in October 2019 in Guwahati Medical College Hospital. His name did not appear in the final National Register of Citizens (NRC) published in August 2019, though every other member of his family, including his son, found a mention in the NRC. His family refused to take his body—technically the body of a Bangladeshi man—home (Roy, 2022). It is against this backdrop of such impossible situations rendered possible by the violent force of law that one begins to understand the import of Mander’s comment, ‘In the women’s camp, in particular, the inmates wailed continuously, as though in permanent mourning’ (Mander & Singh, 2021, p. 224).

Intriguingly, and viewed from another end of the register, it is not always uncertainty in one’s citizenship status that produces a state of ‘permanent fear and desperate insecurity’ (Mander & Singh, 2021, p. 4); rather, it is the near-certain possibility of some people receiving treatment as second-class citizens of India through mechanisms of subjugation under the new legal regime that may exacerbate precarity. It is the constancy of this state of diminished and undignified existence of some citizens that threatens to empty the constitution of its code of morality, and hence is unsteady.

And such a ‘permanent solution’ to the minority question was sounded in ringing notes by M. S. Golwalkar ⁶ who, in response to a question on what would happen to those living in India but could not be included within the Hindu nation, wrote in 1939:

There are only two courses open to the foreign elements, either to merge themselves in the national race and adopt its culture, or to live at its mercy so long as the national race may allow them to do so or quit the country at the sweet will of the national race. This is the only sound view on the minorities problem’. (Chatterjee, 2021, p. 124)

In the light of such a vision of the nation and the national community, likely having inspired some of the recent amendments, it is conceivable that the violent force of citizenship laws will disempower some sections of India’s own people and empower the sovereign leviathan, inverting the notion of popular sovereignty enshrined in our constitution.

Sovereignty Distended

It is essential to bring the state into focus in a discussion on India’s national community, infused lately with a spirit of muscular nationalism. More pertinently, the relationship between citizens and the sovereign, shaped by the ideological, political, legal, and juridical orders of the day, must be centred in the debate on citizenship. As Muralidharan (2022, p. 9) contends, the new turn towards ethno-nationalistic principles of citizenship cannot be discussed without bringing ‘…the State into focus’. ⁷

Increasingly, what is palpable in our political landscape is an encounter between the sovereign power of the state and the constituent power of the people. In this interaction, the state, with its heightened surveillance, physical violence, and the violence of the law, tends to produce more and more what may be called ‘sovereign violence’. To put it differently, by reframing citizenship through its particular ‘assemblage’ within the law, the state reframes sovereignty by distending its own role disproportionately at the expense of popular sovereignty.

The intensification of state authority over the territory of India and the amplification of the ‘logic of the security state’ become obvious in a variety of ways, including its incessant demand for documents for acquiring citizenship and its ‘legal regime of suspicion’ enlivened through the workings of Foreigners’ Tribunals, which often hyper-activates its bureaucratic apparatus at the expense of due process (Mander & Singh, 2021).

Let us take note of the recently amended citizenship law, which describes immigration from specified countries not only as ‘illegal entry’ but also as ‘an act of aggression’; the figure of the migrant—though some migrants, not all—becomes a threat to ‘national security’, justifying hyperactivity on the part of the sovereign state in identifying and weeding out ‘infiltrators’ for the protection of its population from such unwanted ‘termites’ (Roy, 2022).

One cannot help but notice an inversion of the source of sovereignty here—from the people to the state. As Charvak contends, ‘Citizenship was given to Indians by Indians through the constitution… The people came first, the state came later, because it is the people who gave themselves a constitution that defined the form of the state’ (Chatterjee, 2021, p. 228).

Democratic re-claiming of the space of ‘counter-sovereignty’ by ordinary people both at the local and supra-local level, within and across national borders, is emergent and energetic on the question of citizenship, seeking to extend its contours to establish human (even non-human) connectedness, contrary currents of divisiveness and partitioning notwithstanding.

Humanity Conjoined

The passage of the CAA 2019 led to a series of peaceful popular protests across the country, taking a variety of forms such as rallies, sit-ins, street theatre, public interest litigations, as well as the artistic forms of protest poetry (Mander & Singh, 2021). Importantly, as Roy (2022) asserts, the constitution became a symbol of several such citizen protests. Equally importantly, participation in such assemblies did not remain strictly confined to the beleaguered sections alone. On the contrary, the non-beleaguered Indians/Hindus for human rights also stood in solidarity with the aggrieved groups, actively practicing and performing their citizenship in the public sphere (Mander & Singh, 2021).

It is this connection between individual citizenship rights and those flowing from a broader notion of between-group and human connectedness that the amended and narrow legal regime of Indian citizenship fails to recognise and value. At this time of transnational and transterritorial climate crises, many people, however, are getting drawn towards the notion of ‘ecological citizenship’, acknowledging the need to protect our planet with a more inclusive sense of solidarity without borders. In a related stride towards exploring bonds and ties around the world, let us quickly and cursorily review the recent research on the common ancestry of all living humans and reassess the ‘appeal’ of descent-based citizenship in India in the light of this new scientific evidence. For example, we now know from the work of Douglas L.T. Rhode, Steve Olson, and Joseph T. Chang, which focuses on genetic ties, that the Most Recent Common Ancestor (MRCA) of all present-day people would have lived in the very recent past. From a standpoint of science, the trope of ancestry, descent and lineage will, therefore, take us to the path of fair and equal inclusion of humans, whereas an ideologically-charged, narrow idea of blood-ties, unsupported by scientific evidence, will take us along the road of divisiveness and exclusion. It is up to the Indian citizens to decide which way to go.