A legacy grounded in Indianness

The Indian republic in its seventieth year returned to political views on refugees and citizens aired by members during the Constituent Assembly Debates of 1949, as the Narendra Modi government at the Centre, passed the historic Citizenship Amendment Act (CAA) in both houses of Parliament in early December 2020. The Act introduces special provisions for Hindus, Christians, Sikhs, Parsis, Jains and Buddhists fleeing persecution in Pakistan, Afghanistan and Bangladesh.

Legal experts and scholars with secular concerns voiced their alarm against the declaration and eventual passing of the Bill in both houses of Parliament. Niraja Gopal Jayal argues that the new Act is an abrasion of the Citizenship Act of 1955, from the legal and political perspectives. Legally, Jayal explained, the Act implies 'a foundational shift in the conception of the Indian citizen' that involves 'a move from soil to blood', or 'from a jus soli or birth-based principle of citizenship' towards a 'jus sanguinis or descent-based principle'. Politically, the CAA involves a 'tectonic shift from a civic-national to an ethnic-national conception of the political community'.

This shift involves other moments between 1955 and 2020. The 1985 Assam Accord between the Assamese students' organizations and the Rajiv Gandhi government, Jayal added, was responsible for introducing 'categories of eligibility' for migrants that included a cut-off date.

In her work on citizenship, Anupama Roy points out, the Assam Accord also made a (conceptually) dubious distinction between what constitutes a citizen, and what constitutes a migrant. On the one hand, Roy argued, the Assamese people were defined in terms of 'the abstract universal citizen'. On the other hand, migrants identified by their linguistic and religious identity were forced to occupy a zone of 'ambivalent citizenship', where legality was suspect till proven otherwise. The migrants lived in an indeterminate (borderless) time zone, where they faced constant threat and occasional violence over their disputed status.

Almost a decade later, the 2003 Citizenship Amendment Act under the National Democratic Alliance (NDA) government introduced the category (and figure) of the 'illegal migrant' in the Citizenship Act. It also prepared the contentious ground for making 'religious identity . . . the basis of legal citizenship'. The political and legal precursors to the CAA show concerted moves to weaken the status of refugees or migrants, and rob them of their natural rights.

However, the shift from the 'civic' to the 'ethnic', argued by Jalal, is caught in a binary understanding. Civic nationalism is about right-bearing citizens sharing universal values like freedom and equality. Ethnic nationalism is based on cultural particularism, where the idea of belonging and solidarity is based on inherited markers of identity. If the virtues of civic nationalism are based on the individual who is presumably free and rational, ethnic nationalist claims are based on the notions of group identity.

The values of civic nationalism, however, do not fully address the problem of accommodating refugees and migrants within a nation's citizenship laws. Migrants have a collective identity, and they belong to particular communities. They move out of their national borders due to a variety of reasons: from persecution, to natural disasters, to acute issues of livelihood.

Amending the Citizenship Act of 1955, the Citizen Amendment Act (CAA) makes a partial gesture of inclusivity, but within an exclusionary framework. The idea of citizenship has been broadened to include persecuted migrants seeking asylum. The criterion includes minorities only from Muslim-majority countries, and persecuted Muslims have been kept out. By excluding Muslim refugees from the bill, and including everyone except Muslim immigrants in the proposed National Register for Citizenship (NRC), the government has closed the doors to India's largest minority from both sides.

The Debates on Citizenship

It will be illuminating at this point to draw a historical and political comparison with the mindset behind the CAA, and views expressed by certain members during the Constituent Assembly Debates of 1949. We will also find a noteworthy coincidence of how Nehru spoke of the secular State during the Constituent Assembly Debates in the context of citizenship.

On 11 August 1949 the lawyer Dr P.S. Deshmukh tabled his amendment to Article 5 of the Draft Constitution that dealt with the basic principles of citizenship in India. Deshmukh found Ambedkar's definition of anyone born within the territory of India being a citizen, 'ridiculously cheap'. It is a disdainfully rude remark. Deshmukh, however, backs up his dismissal with arbitrary fancies, proving his incapacity to understand what entails an accommodating and sensitive definition of citizenship. Deshmukh found the definition lacking clarity on exemplary situations: like a child born to foreign nationals on Indian soil, or a spy who lives on for five years to execute plans of sabotage. Popular thrillers haunted the borders of his imagination.

Deshmukh was surprised to learn that there was no 'register' kept for foreigners coming to India, nor 'any rules and regulations governing the entry' of such people. He was aghast that 'we should throw open our citizenship so indiscriminately'.

The lack of a strict process of enumeration is understandable when the country has just achieved a painful and difficult freedom. But Deshmukh must register his territorial paranoia. Behind what he considers a reckless attitude towards strict documentation of Indian citizenship is, in his words, 'the specious, oft-repeated and nauseating principle of secularity of the State'. Deshmukh elaborates his discomfort:

I think that we are going too far in this business of secularity. Does it mean that we must wipe out our own people that we must wipe them out in order to prove our secularity that we must wipe out Hindus and Sikhs under the name of secularity, that we must undermine everything that is sacred and dear to the Indians to prove that we are secular?

For Deshmukh, secularity draws a false equivalence between communities that deserve State asylum. Some communities, according to him, are more Indian than others. To deny privilege to these communities vis-à-vis minorities or others, would be undermining the 'sacred'. The secular is seen as the enemy of the sacred. The real intent of Deshmukh's inflated logic becomes clearer in the clause he wished to insert in the Article: that 'every person who is a Hindu or a Sikh and is not a citizen of any other State shall be entitled to be a citizen of India.' Offering reasons behind the clause, he drew an idea of India that belonged to Hindus and Sikhs alone:

Here we are an entire nation with a history of thousands of years and we are going to discard it, in spite of the fact that neither the Hindu nor the Sikh has any other place in the wide world to go to. By the mere fact that he is a Hindu or a Sikh, he should get Indian citizenship because it is this one circumstance that makes him disliked by others.

(Excerpted with permission from Manash Firaq Bhattacharjee's Nehru and the Spirit of India; published by Penguin India)