The three-pronged idea of citizenship germinating at the constitutional moment as status, rights and identity, have undergone significant transformations since the Constitution was drafted. In this Special Issue on Citizenship, we take the occasion of the Republic Day to look back at the historical and material conditions surrounding the citizenship debates in the Constituent Assembly, as well as in the everyday lives of ordinary citizens who negotiated, resisted, or facilitated legal belongings with the state.
From the constitutional moment of the Constituent Assembly Debates to the ‘normal’ politics witnessed in Parliament, the conversion of citizenship as a means for intensifying state power, and making a particularistic articulation of citizenship as the only relevant one, was made decisive through the force of law, writes ANUPAMA ROY, Professor, Centre for Political Studies, Jawaharlal Nehru University. This is the first article in The Leaflet’s Special Series on Citizenship edited by Jhuma Sen.
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The National Register of Citizens (NRC) and the Citizenship Amendment Act 2019 (CAA) have become an integral part of the ideological landscape of citizenship in contemporary India. Having emerged as discrete tendencies out of the 2003 amendment in the Citizenship Act, the NRC and CAA 2019 have become conjoined to produce a spectre of national citizenship based on the logic of descent as its organising principle.
While the NRC, as the experience in Assam has shown us, is a legal regime of enumeration of Indian citizens based on evidence that establishes a legacy of inherited belonging, it is simultaneously and often primarily presented as a modality of identifying illegal migrants.
The CAA 2019 is embedded in the idea of national citizenship with religion as its distinguishing principle. The CAA 2019 makes a distinction among ‘illegal migrants’, a category inserted by CAA 2003 to constrain citizenship by birth and naturalisation, to identify those among them who would be considered eligible for Indian citizenship through naturalisation.
These two principles – of citizenship as descent and religion-based citizenship – have coalesced in the ruling practices of the present political regime to determine who belongs to the political community. The politics of Hindutva serves as an ideological apparatus to cast citizenship into claims of territorial sovereignty and totalising power over people. Through such claims, citizenship becomes an instrument for reproducing and reconstituting state power. At the inaugural moment of republican citizenship, as the debates in the Constituent Assembly (CA) suggest, citizenship was less about territorialising state power and more about creating ‘the sovereign people’ as the source of state authority.
Joint Parliamentary Committee on CAB and Article 11
While recommending that the CAB 2016/2019 be discussed in the Parliament, the Joint Parliamentary Committee (JPC) invoked the ‘legislative competence’ of the Parliament drawn from Article 11 of the Constitution of India to claim that the Parliament can make laws on all matters concerning citizenship. This assertion of legislative competence was buttressed by the JPC through a normative claim drawn from the Constituent Assembly of India.
While claiming legitimacy from the constitutional text and the deliberative processes in the CA, the JPC prepared the ground for exceeding the scope of Article 11. The reference to Article 11 of the Constitution as the source of Parliament’s legislative authority over all matters pertaining to citizenship was presented by the JPC report as an unfettered power of the Parliament to regulate the ‘right to citizenship by law’.
This position was fortified with reference to the debate in the CA, where Ambedkar, among other members, reported ‘hardships’ in drafting the citizenship provisions of the Constitution of India.
Ambedkar’s statement that citizenship provisions pertained only to the ‘date of commencement’ of the Constitution’ and did not intend to ‘lay down a permanent law of citizenship for the country’ – which would be drafted by future Parliament – was cited by the JPC to affirm that the Parliament could, in the exercise of these powers may make ‘altogether a new law embodying new principles’.
In asserting the Parliament’s legislative competence through recourse to the CA, the JPC selectively cited Ambedkar’s statement while initiating the debate, ignoring the spirit of the debate that subsequently followed and conclusively established the principles that should remain fundamental to citizenship in India.
The JPC disregarded the fact that while the Parliament’s powers of regulating citizenship by law were not restrained by anything laid down in Part II of the Constitution on citizenship, but Article 11 did not exclude the constraints that other parts of the Constitution, including the Fundamental Rights provisions, would continue to apply on the law making powers of the Parliament.
Debating Citizenship in the Constituent Assembly
The debates in the CA from 10th to 12th August 1949, when the final provisions of citizenship were deliberated upon and approved, show the complexity of the citizenship question in the context of Partition and large scale movement of people across the newly created borders amidst unprecedented violence along religious lines.
It is evident from a reading of the CAD that the question elicited deep ‘ideational’ (Lerner 2016) disagreement among members of the CA.
These disagreements reflected anxieties around the implications the constitutional framing of citizenship would have on the idea of Indian citizenship.
Distributed along the familiar fault-line of whether ‘birth’ (the territoriality principle; jus soli) or ‘descent’ (the parentage principle; jus sanguinis) should be the foundational principle of citizenship, they were concerned with questions of both the source of citizenship and its expression as an identity– attached to ideas of home and belonging.
In the course of the final reading of the draft constitution, on 10 August 1949, B. R. Ambedkar proposed the Citizenship Articles, immediately after the provisions pertaining to financial relations between the Union and the states and the establishment of a Finance Commission had been considered and passed.
The two Articles, 5 and 6, were presented for deliberation as a ‘consolidated amendment’, along with what Rajendra Prasad termed – a ‘veritable jungle’ of 130 to 140 amendments. These amendments, some of which were moved in the CA and voted upon, manifested dissonance within the CA on the foundational principles of citizenship, even among those from the Congress Party, who would later become members of Nehru’s first Cabinet.
Uneven Fault Lines
A close reading of the CAD shows, however, that the fault line was unevenly drawn and no position was absolute. Those who argued for descent as the source of citizenship also sought to make citizenship conditional for ‘returnees’ from Pakistan, and were apprehensive of the ‘dual ties’ citizenship would generate when extended to the diaspora community.
Similarly, apologists for the principle of birth sought to make it conditional on domicile and combine it with ‘inheritance’ or lineage from Indian parentage. The need to specify the uniqueness of Indian citizenship among countries that subscribed to one or the other forms of citizenship was asserted amidst concerns that the inscription of ‘birth’ as a definitive condition of citizenship would make it ‘cheap’.
Anxieties were also expressed that indiscriminate absorption of people migrating across borders would make Indian citizenship precariously flexible and embarrassingly indecisive.
The discussions which ensued show that the CA constituted itself as a discursive body in which contestations over the provisions unfolded in a deliberative mode. The decision on citizenship was, however, not reached through a deliberative consensus.
The positions taken in the CA on citizenship were strongly agonistic, expressed along with plural and intersecting axes of dissonance rather than parallel binaries.
The debate in the CA over a period of three days becomes important, however, for giving insights into the fraught nature of the citizenship question, generated by uncertainties about the present and anxieties around the ramifications any resolution of the present problems would have for the future.
Among its many strands-some of which reverberated in the debates on the CAB 2019 in December 2019 in the Parliament – what prevailed was a prior consensus among the members of the CA, regardless of their own positions on specific issues, on their commitment collectively to the objectives of the Constitution.
Significantly, the debates provided the space where secularism as a democratic and republican ideal was discussed and affirmed as the basis of citizenship, even as the relationship between citizenship and religion, the principles on which mobility could be made legible, questions of loyalty and allegiance, and the centrality of birth or descent as the source of citizenship, remained disputed.
In a manifestation of an ‘incrementalist’ (Lerner 2016) approach, the CA kept the future course of citizenship open for the Parliament to decide through the legislative process. It was, however, in the space created by deferral (Lerner 2016) that agonistic expression of difference and deference to a prior procedural consensus became possible.
Yet, the deferral was not complete nor was it unequivocal.
Laying Down Principles for a Future Law
In what was a deviation from Ambedkar’s opening statement explaining that the Parliament would have the power to make ‘altogether a new law’ on citizenship ‘embodying new principles’, Nehru’s speech towards the end of the debate conveyed that the objective of the deliberations in the CA was different.
The CA was a body that was articulating policy – the norms and principles that would define citizenship, and not the details of acquisition and termination of citizenship. While these details should appropriately be in the domain of law making for the Parliament to decide, deliberations in the CA, Nehru declared, must lay down the principles which would guide future law.
As the theory of constitutional moments tells us, constitution-making processes represent ‘extraordinary’ moments of intense participation and deliberation, which are of a different order from the ‘normal politics’ of deliberations in legislative bodies (Ackerman 1993). Constitutional moments do not produce merely the text of the constitution, but an inscription of the principles that would be adopted by ‘We, the people’.
Strands of Citizenship Debates in 2019
The debates in Parliament on CAB 2019 show that three different trajectories of citizenship’s troubled present were being traced in the discussions. Each of these trajectories framed the present through an understanding of the past that was disputed by the other.
The dominant strand representing the ruling political formation of the BJP led NDA presented the CAA as a historical necessity made imperative because of Partition, and was framed as ‘communitarian majoritarianism’.
A second strand comprising the parties which opposed the CAB on the ground of constitutional secularism foregrounded the constitutional moment while making a case for national citizenship, may be termed ‘deliberative-constitutional’.
A third strand was found dispersed among different opposition parties which found comparisons for the present in laws of citizenship in the totalitarian and authoritarian pasts of contemporary democracies.
They also called for resistance outside institutional spaces invoking what may be called a ‘citizen activist’ strand, laying claims to higher ethics of political action. These claims were drawn from different vocabularies of the anti-national liberation struggle, e.g., civil disobedience of Gandhi and revolutionary patriotism of Bagha Jatin.
Locating the CAB in the trajectory of India’s ‘transition to dictatorship’, these strands drew correspondence between development in citizenship laws in Germany under the Nazi regime eighty-four years back and found ‘an eerie similarity’ between them and what the Parliament was going to pass.
They referred also to the possibility of judicial scrutiny and the certainty of popular resistance – both essential to democracy.
Significantly, the ‘competence’ of the Parliament to legislate on a subject within the purview of its law making powers, which was being claimed on the basis of electoral outcomes, was questioned by large sections of the legislators on moral grounds.
In his intervention in the debate in the Rajya Sabha to oppose the CAB, P. Chidambaram warned against the pattern that he argued, had emerged in law making in recent times, when laws were invariably ending up before the Supreme Court, enhancing the court’s adjudication powers over law making.
Paradoxically both the detractors and supporters of the CAB, referred to the Constitution of India, the Preamble as a statement of its foundational principles, and secularism as its core value, for sustaining their arguments.
Fragmenting Legal Categories
While facts were contested and evidence questioned on both sides, legitimacy was drawn from claims to speaking for the ‘vulnerable’ people. In the course of the debate the legal category of ‘illegal migrant’, which was central to the CAB, became a fragmented category-comprising the sharanarthi (refugee) and its other-the ghuspaithaiya (infiltrator).
The sharnarthi – the ‘persecuted minority’ – who the CAB sifted out for protection, became a figure burdened by antagonistic discursive formulations which made it simultaneously an object to be rescued and a threat to cultural identity and economic stability.
The ghuspaithiya was antithetical to the sharanarthi. A residual category – filtered out after the sharanarthi was brought within the purview of state protection – the ghuspaithiya was to be extracted and expelled since it constituted a threat to national security.
In his statement, the Home Minister termed the government’s efforts to legislate on citizenship ‘constitutional’ and not part of a political agenda, making a distinction between what is done merely for electoral gains and what comprised a democratic mandate emerging from the electoral process.
The members of the opposition refused to accept an electoral victory as the ground on which the government could claim constitutionality for the Bill, nor as a mandate of ‘the people’ for CAB.
Indeed, the government was constantly reminded of the disgruntlement over CAA in Assam and other states in the North-East.
Exhortations in the name of the people abounded on both sides–the government and the opposition-but took different forms.
In what may be seen as the deployment of populism as a political strategy, distinct from its invocation as emancipatory politics, those who spoke in favour of the CAB, placed faith in Prime Minister Narendra Modi and his ‘authorisation’ of the Bill in order to liberate ‘lakhs and crores’ of people from their suffering. The installation of the PM as the absolute referent for CAB was established by alluding to the extraordinariness of what CAB would accomplish, a remarkable feat that only he could have achieved.
The ascription of extraordinariness in achieving what was described as historical and unprecedented resonated from the BJP’s slogan in the 2019 Parliamentary elections: ‘Modi hai to mumkin hai’ (If Modi is there, anything is possible). Speaking in the Lok Sabha MP Meenakshi Lekhi identified the PM and HM as the worthy subjects for her ‘naman’ (devotion) – for showing the capacity to recognise the truth of ghuspaith (infiltration). ‘… Migration without persecution is called a silent invasion and that is what is happening in this country…’, she argued.
The installation of a ‘hero’ to propel the populist articulation of a saviour of Hindus was replete in all such interventions. From the constitutional moment of the Constituent Assembly Debates to the ‘normal’ politics witnessed in the Parliament, the conversion of citizenship as a means for intensifying state power, and making a particularistic articulation of citizenship as the only relevant one, was made decisive through the force of law.
(Anupama Roy is a Professor, Centre for Political Studies, Jawaharlal Nehru University. The views are personal.)
