Remaking the idea of who is ‘Indian’

YAMINI AIYAR

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IN December 2019 Parliament delivered a deathly blow to India’s secular, plural constitutional foundation. The Citizenship Amendment Bill (CAB) passed in the Lok Sabha on 9 December and in the Rajya Sabha on 11 December, has fundamentally transformed what it means to be an Indian.

The Indian Constitution and the subsequent Citizenship Act of 1955, adopted a universal, religion-neutral idea of citizenship. India belonged equally to all. It was home to all who called themselves Indian, irrespective of religion. This was the foundation of India’s secular promise. This is what defined the idea of India. The citizenship amendment, 2019, upends this fundamental promise. It introduces religion as a marker of citizenship and in this process legitimizes through law, the ideological construction that India is a Hindu nation, the natural home of all Hindus in which Muslims will be consigned to second class citizenship – an idea that India had firmly rejected in 1947.

Along with the Citizenship Amendment, the BJP has reiterated in Parliament its commitment to implement a nationwide National Register of Citizens (NRC). In the run-up to the 2019 general elections, Amit Shah promised the nation that his party would ‘remove every single infiltrator from this country except Buddhists, Hindus and Sikhs’. He likened illegal immigrants to ‘termites’ and ‘ghuspethiya’ (intruders). As Home Minister, six months later, armed with the twin instruments of the Citizenship Amendment and the NRC, he is now close to fulfilling this promise. But in the process he has unleashed a state sponsored project of ‘othering’ which strikes at the heart of India’s plural, secular ethos that is the foundation of the Indian republic.

The Citizenship Amendment Act 2019 (CAA) seeks to fast track citizenship for persons belonging to specified minority communities, namely Hindus, Sikhs, Jains, Parsis and Christians from a specified list of neighbours – Afghanistan, Bangladesh and Pakistan. The bill stipulates that persons belonging to these specific communities and countries will not be treated as ‘illegal’ and be eligible for naturalization as Indian citizens within six years, rather than the stipulated ‘no less than 11 years’ of residence in India. Responding to concerns (and protests) over the implications of the amendments in the North East, the 2019 amendment exempts certain areas in the North East from this provision. In addition, the amendment introduces an important provision empowering the Indian state to cancel registration of Overseas Citizens of India (OCI) cardholders on grounds of violation of laws in the country.

The full import of the amendment can only be understood when scrutinizing the careful, selective identification of certain ‘minority communities’ and ‘countries’ at the cost of others. The explanation for this selection is provided in the ‘Statement of Objects and Reasons’ appended to the CAA, which states that these three countries have an official state religion. It is for this reason, the argument goes, that persons belonging to Hindu, Sikh, Parsi, Jain and Christian communities have faced persecution on grounds of religion. Speaking in the Lok Sabha during the debate on the bill, Home Minister Amit Shah reiterated this view. The Nehru-Liaqat Pact of 1950, he argued, was signed to protect minorities in India and Pakistan, but has not been implemented in spirit by our neighbours. The amendment is aimed at redressing this historical wrong.

 

The clearest articulation of the rationale for exclusion of Muslims is in the recommendations of the Joint Parliamentary Committee (JPC) report, tabled in the 16th Lok Sabha in January 2019. The JPC rejects the suggestion offered by experts and some members of the committee itself, to adopt a ‘secular’ criterion for determining persecution by using the term ‘persecuted minorities’ because, to quote from the report, ‘the goal of religious persecution would be lost sight of.’ Moreover, the JPC report argues that the use of the term persecuted minorities would negate the objective of the bill as it risks being ‘construed to include other communities (religious or otherwise).’1

Through the debate on the amendment, in Parliament and outside, the inconsistencies in this argument have been repeatedly challenged. After all, if the goal is to protect what the Home Minister referred to as ‘tortured’ minorities in Parliament, what then is the rationale for excluding Muslim minorities like the Ahmadiyya and Rohingya from the ambit of the amendment? What about Sri Lankan Tamils? And what was the rationale for including Afghanistan and not Sri Lanka or Myanmar? The answer was given by the Home Minister during the Parliamentary debate. He said, ‘this bill is specifically to provide citizenship to those who have been persecuted in these three countries based on their practice of a non-Islamic religion.’2

 

The roots of the exclusionary project underlying the bill lie in the broader ideological project of Hindutva and the construction of India as the land of ‘Hindus’, their homeland and holy land, that has no place for foreign elements. In V.D. Sarvarkar’s words (Hindutva: Who is a Hindu), ‘…the essentials of Hindutva: a common nation, a common race, a common civilization …he who is Hindu, is to whom Sindhustan is not only a Pitrubhumi but also a Punyabhumi…’ Savarkar makes an important distinction between holy land and homeland. He argues that the ties of a common holy land are often stronger than motherland. ‘Look at Mohammadeans… their love is and must necessarily be divided between the land of their birth and the land of their prophets.’ Those who have a right to a territorial claim to India are those who ‘recognized our common mother not only as fatherland but even as a holy land… would be most welcome to the Hindu fold.’ The CA is the legal instrument through which this imagination of India is to be realized. As RSS chief Mohan Bhagwat argued in response to questions on the rationale for the CAA, ‘There is no place for Hindus in the world, except India.’

 

Throughout the debate on the CAA, supporters of the amendment sought to justify the bill by drawing links to India’s ‘unfinished partition project’. For the Hindu right, India’s handling of the aftermath of the partition, particularly in East Bengal, did not do enough to protect Hindu’s living in East Paksitan. The Nehru-Liaqat pact faced intense criticism from the Hindu Mahasabha leading to S.P. Mookherjee’s resignation from the cabinet. The CAA, as the Prime Minister himself has argued, is an ‘atonement of the wrong that was done during India’s Partition.’ ‘We did not talk about transfer of population during Partition. While India remained a secular country, Pakistan and Bangladesh became Islamic countries.’ The Hindus, the argument goes, ‘were never given a choice. Their safety is our responsibility.’3 Citizenship amendment is the means of fulfilling this responsibility. It is about a ‘right to return’, a ‘homecoming’.

BJP Member of Parliament, Swapan Dasgupta, carefully articulates this position in a column in the Hindustan Times stating, ‘Just as Jews all over the world view Israel as their homeland… Hindus and Sikhs have seen India as something much more than a modern nation-state… India remains their desh… yet unlike Israel, India hasn’t actively encouraged their homecoming.’4 The Citizenship Amendment Bill (2019) offers the means for doing just this.

In facilitating this ‘homecoming’, the CA fundamentally upends the constitutional promise of what it means to be an Indian citizen: a promise of citizenship that is religion neutral and inclusive based on the principle of jus soli (citizenship by birth, on the soil of the country). This conception of citizenship served as the foundation of India’s constitutional ethos of secularism – all religions are equal in the eyes of law and that the state shall not propagate one particular religion. The CA undermines this, as Jayal (2019) argues, by explicitly creating two categories of citizens with differing citizenship regimes: those professing Hinduism and other ‘acceptable religions’ and those professing Islam.5

 

Of course the experience of Indian citizenship and its relationship with the politics of religion since Independence has been extremely complex resulting in a slow dilution of the principle of jus soli citizenship. As Niraja Jayal has demonstrated in her definitive work, Citizenship and its Discontents (2013),6 the constitutional promise of a religion neutral citizenship has long sat in tension with the politics of religion, which framed the construction and experience of citizenship in its everyday sense through laws, rules and governmental action. In seeking a resolution to this tension, India has, over the decades, witnessed a slow dilution of jus soli based citizenship and a subtle shift toward a jus sanguinis, descent based, religion dependent, conception of citizenship.

The shift gained momentum with the political response to the agitation in Assam in the 1980s, which resulted in a crucial amendment to the Citizenship Act in accordance with the Assam Accord of 1985. The act introduced an Assam exception to India’s framework for legal citizenship by creating new categories of citizenship linked to the year of migration into India: migrants before 1966 and, under certain conditions, migrants between 1966 and 1971. Those entering after 1971 were declared illegal, marking the first critical legislative shift towards descent based citizenship. In 2004, the act was further amended to exclude a new category of potential citizens – those born to a parent who was an illegal migrant at the time of his/her birth.

 

In the same year, Jayal documents a critical amendment to the citizenship rules. This amendment marked the first covert reference to religion in India’s legal citizenship regime. The amendment was made to explicitly exclude ‘minority Hindus with Pakistani citizenship’ from the definition of illegal migrants. In 2015 and 2016, two further amendments were made to the Passports Rules (2015) and Foreigners Act (2016). These amendments, referenced in the citizenship amendment, make specific exemptions for persons belonging to minority communities in Pakistan and Bangladesh who needed to ‘seek shelter due to experience or perceived fear of "religious persecution".’

Despite the gradual dilution of jus soli and movement toward a jus sanguinis conception of citizenship and implicit religious bias in determinations of citizenship, thus far the constitutional promise of an inclusive, religion neutral citizenship has remained unchallenged and served as a moral check against the worst majoritarian instincts of the politics of religion. The Citizenship Amendment by carefully identifying and extending specific privileges and protections to certain religions and the explicit exclusion of others, upends this. With the passage of the Citizenship Amendment Bill, India today has embraced a new conception of citizenship. And through this shift created a legal and constitutional justification for institutionalized discrimination and ‘othering’ of an entire class of people, on the basis of religion.

 

The full import of the CAA can only be understood when viewed in conjunction with the promise of implementing a nationwide National Register of Citizens (NRC). While the CAA deals specifically with the question of migrants and their claims to citizenship, the nationwide NRC will open up the issue of citizenship for all Indians. Designed as an administrative tool to, quite literally, create a registry of all ‘citizens’, and through this weed out ‘infiltrators’ and ‘termites’. To do this, the NRC will effectively empower all arms of the administration to interrogate its people and evaluate the authenticity of their claims to citizenship based on documents in their possession. For those belonging to specific religious categories identified in the CA, the act will serve as a protection device. For others, read Muslim, their vulnerabilities will be further enhanced, condemning them to new, torturous paths of discrimination and dispossession.

The roots of the NRC lie in anxieties over Assamese language and culture arising from a long history of in-migration of Bengalis in colonial India and an influx of migration from East Pakistan and Bangladesh in 1971. The first NRC was conducted in 1951. However, the influx of migrants post-1971 triggered a violent anti-foreigner movement culminating in the Assam Accord in 1985.

Assam’s quagmire brought the issue of in-migration on to the political centre stage and laid the ground for the politics of religion to shape approaches and political positions on citizenship. On the assumption that most Bangladeshi migrants (illegal and otherwise) were Muslim, the BJP came out in support of the agitation in Assam in the 1980s. The issue of ‘illegal immigration’ from Bangladesh, and the need for ‘detection, deletion and deportation’ first found place in the BJP manifesto in 1996. Since then, it has remained a constant presence in the BJP manifesto along with its other three ideological pillars – the Ram temple, Article 370 and the uniform civil code. And by 2019, emerged as one of the most critical rallying points for the BJP.

 

It is important to recognize that the BJP was not alone in communalizing the citizenship conundrum in Assam. Various political parties, including the Asom Gana Parishad, played their part. Most important the Supreme Court too, as documented by Jayal (2013)7 was not immune to communalizing the issue. Its 2005 verdict striking down the Illegal Migrants (Determination by Tribunal) Act, 1983 had several communal undertones to it. The petitioner, Sarbananda Sonowal is now the BJPs Chief Minister of Assam. In fact the Supreme Court’s role in adjudicating the NRC process and setting the legal terms for determining citizenship has been particularly arbitrary and unusually interventionist, raising important questions about the role and objectivity of the judiciary.8

In 2014, in response to a set of petitions related to the Assam issue (including the NRC), the court considered the issue of the constitutionality of Section 6A. A two-judge bench raised several important questions of law related to constitutional validity of 6A, and referred the matter to a larger constitutional bench. Yet, even as the constitutionality of 6A was to be determined, the courts deemed it necessary to conduct and tightly monitor the NRC under a court-determined time-line. In the chaos that ensued, the court routinely intervened on what ought to have been routine decisions made by those with a ground level understanding of bureaucratic procedures. Instead, the court busied itself often passing conflicting orders on details including the types and numbers of documents that could be furnished by applicants to prove their citizenship claims, creating havoc on the ground.

It was in this scramble for documents that the real NRC nightmare unfolded for Assamese residents, exposing the insidious ways in which the state can use its very own documents and procedures to coerce, disempower and discriminate. The NRC process required all Assamese residents to furnish official documents in their possession as proof of citizenship on or before 1971, leaving it to the powers of the state to certify their authenticity.

 

Reportage from Assam offers vivid accounts of how disempowering this process has been. Routine state capacity failures – misspelt names, differences in dates and names recorded across documents belonging to the same individual and data entry errors – were all to frequent. This coupled with rampant corruption, which made it easy to purchase fake documents, led the bureaucracy to view its own documents with deep suspicion resulting in denial of claims. Even panchayat certificates, an option for residents with no access to identity documents because of state failure, were treated with suspicion.

The human costs of this suspicion have been significant. Applicants had to go through multiple forms of verification, often being asked to submit new documents – including claims, objections and corrections – and appear for hearings at the very last minute. The result has been widespread fear and panic amongst applicants. The irony is that the NRC empowered the bureaucracy to simply convert its own failure into an instrument of coercion and discrimination. The very fact that the number of applicants excluded from the NRC in the final list released in August 2019 reduced from nearly 40 lakh (as revealed in the draft list in 2018) to 19.6 lakh a year later, after a new round of verification, is evidence of how poor the quality of government documentation is in the first place and how arbitrary and disempowering the process. Even today, it remains unclear how many of the 19.6 lakh Assamese are genuinely ‘illegal’ and how many are victims of the state’s own capacity failures.

 

The bureaucracy’s documentary failures have also proved to be an unexpectedly powerful political tool in the BJPs armour. After the release of the 2019 list, it became clear that many on the list, by some estimates more than half, may be Bengali Hindu’s. This was an uncomfortable reality for the BJP. ‘Suspicious’ documents formed the basis of the political demand to review the NRC. Himanta Biswas and several other senior BJP Assamese leaders went on record with the claim that legacy papers have been ‘managed’. rendering the process of updating the NRC ineffective. And in November 2019, the key bureaucrat coordinating this exercise on behalf of the Supreme Court was transferred out of Assam.

The NRC misadventure in Assam points to a critical lesson about the role of the state in mediating citizenship: where bureaucratic failure is rife, citizenship mediated through documents can serve as a powerful instrument for state coercion and legitimized exclusion. This is a lesson the BJP has learn’t well. And it is this lesson that has emboldened it to pursue its goal of a nationwide NRC, despite the difficulties it has encountered in Assam. The consequences for India will be diabolical. Millions will struggle to ‘prove’ their citizenship to the state through documents, while the state will exercise its own discretionary powers to determine which of its documents are ‘authentic’ leaving millions of Indian’s with an uncertain future.

 

Inevitably, with the protection of the Citizenship Amendment Act, it is the Muslim’s whose citizenship will be questioned and they will likely be forced to live under the cloud of detention camps and eventual statelessness. In the words of Mohan Bhagwat, ‘Hindu’s need not be apprehensive about being made to the leave the country irrespective of whether their names feature on the NRC, in Assam or elsewhere.’

As 2019 comes to a close, India is on the brink of a dangerous transformation. The twin actions of the CAA and the NRC will fundamentally upend what it means to be an Indian. In 1947, India firmly rejected the ‘two nation theory’ emerging as a proud, secular nation, home to all religions with a promise of an inclusive, universalistic conception of what it meant to be Indian. This promise has often only been partially fulfilled but for all its flaws India’s constitutional commitment remained steadfast. Now this promise is on the verge of being broken.

In the days following the passage of the CAA, India has responded with a large number of protests breaking out across the country. These protests are themselves an expression of India’s multi-ethnic, multi-religious character. The mobilizations in the North East are about anxieties of ethnicity, culture and language as much as religion, while the protests in Delhi, Aligarh and Lucknow, and in universities across India, are chiefly about religious identity and discriminatory exclusion of Muslims from the CAA. These protests are simultaneously about ethnicity, religion, communal polarization and state authoritarianism. What these movements lack is a common vocabulary that binds them together. In many ways, secularism is that vocabulary.

 

It is the constitutional ethos of secularism that provided the framework for India’s multiple identity claims to be articulated and negotiated in the political sphere. Secularism allowed India to both celebrate and defend identities when threatened. The current wave of protests have found voice precisely because when secularism is overtly threatened, so too are these multiple identities. This is the lesson that Home Minister Amit Shah and the BJP ought to learn. India needs secularism to survive in peace and harmony.

However, secularism in India today is in deep crisis. India’s experiment with secularism has been flawed. Competitive party politics has sought to legitimize the blatant, opportunistic entrenchment of religious politicization in the name of ‘secularism’ rather than serve its cause. And it is in this abdication of the core principles of secularism that the BJP successfully appropriated the term, even defending the citizenship amendment as ‘secular’ while accusing political opponents of being ‘pseudo secularist’.

The challenge to the protests and resistance to the CAA and NRC is that they are bereft of a vocabulary to defend secularism’s cause even though it is the threat to secularism that sparked these protests. India urgently needs to wrest and reclaim secularism, anchoring it in a new vocabulary that redeems its credibility. Our collective ability to do so will determine whether India in 2020 will reclaim its constitutional foundations or continue onward in this march towards re-imagining its very foundations.

 

Footnotes:

1. http://prsindia.org/sites/default/files/bill_ files/Joint%20committee%20report% 20on%20citizenship%20%28A%29% 20bill.pdf (downloaded on 6 December 2019)

2. Debate in the Lok Sabha, December 2019, https://www.youtube.com/watch?v= yAV8lJQkVcs

3. https://www.sirfnews.com/bhagwat-assures-hindus-kashmiris-lgbtq-everybody/

4. Swapan Dasgupta, ‘The NRC has Distorted Indian Nationhood’, Hindustan Times, 2019. https://www.hindustantimes.com/analysis/the-nrc-process-has-distorted-indian-nationhood-set-it-right/story-Gfe7e N273IYl3qBPMX84XO.html

5. Niraja Jayal, ‘Faith Based Citizenship’, India Forum, November 2019. https://www. theindiaforum.in/sites/default/files/pdf/2019/11/01/faith-based-citizenship.pdf

6. Niraja Jayal, Citizenship and its Discontents: An Indian History. Harvard University Press, Cambridge, 2013.

7. Ibid.

8. Gautam Bhatia, ‘The Constitutional Challenge to 6A of the Citizenship Act’, https://indconlawphil.wordpress.com/2017/05/07/the-constitutional-challenge-to-s-6a-of-the-citizenship-act-assam-accord-a-primer/

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