Majoritarian politics and the judiciary’s uneven scrutiny: An interview with Anupama Roy

In this exclusive interview, Professor Anupama Roy turns the intense gaze of her expertise on the changing dynamics of citizenship in India and the role of the judiciary.

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ANUPAMA Roy is a professor at the Centre for Political Studies in the School of Social Sciences at Jawaharlal Nehru University, Delhi. Her research and publications are in the fields of citizenship studies, political anthropology of public institutions, constitutionalism, law and democracy, and gender studies.

Her most recent publication is Citizenship Regimes, Law and Belonging: the CAA and NRC in India. She is the co-author of Election Commission of India: Institutionalising Democratic Uncertainties and author of Mapping Citizenship in India, Citizenship in India and Gendered Citizenship: Historical and Conceptual Explorations.

She has co-edited Dimensions of Constitutional Democracy and Poverty, Gender and Migration in South Asia. Her research articles have appeared in various national and international journals including Asian Studies Review, Australian Feminist Studies, Citizenship Studies, Critical Asian Studies, Contributions to Indian Sociology, Economic and Political Weekly, Seminar, Election Law Journal and Studies in Indian Politics.

She was a senior fellow in the Centre for Women's Development Studies and has been a visiting scholar at various universities, including Sydney University, the University of Warwick and the University of Wurzburg, Germany.

She was Sir Ratan Tata post-doctoral fellow at the Institute of Economic Growth in Delhi and a key technology partner fellow at the University of Technology, Sydney, Australia.

In this exclusive interview with The Leaflet, she discusses the complexities of Indian democracy, the implications of the Citizenship Amendment Act (CAA), the role of the Supreme Court in upholding democratic rights and its uneven scrutiny of government actions, and the tensions between majoritarian politics and minority rights.

Excerpts from the interview

Abhish K. Bose: The strength of Indian democracy is to be judged not by voter turnout or macro-level generalisations of political participation but through an evaluation of its ability to provide the conditions for the meaningful exercise of its citizenship rights. India's condition is dismal in this regard. What are the underlying reasons for this?

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Anupama Roy: Free and fair elections held periodically are an essential part of any democracy. But elections are not sufficient for democracy. Universal adult suffrage marked a significant rupture in the passage from colonial rule to sovereign citizenship. Holding elections periodically on such a vast scale to achieve peaceful regime change is not a mean achievement.

The Constitution of India guarantees a range of rights— political, civil, social and economic— that are fundamental to the lives of citizens. Among these are rights that ensure equality before the law and equal protection of the laws, equality of opportunity, and freedom of expression and association. All of these are indispensable for the fullness of citizenship— as relational and transformative.

They are also crucial for the robustness of democracy— for making power or government responsible and accountable and restrained by the rule of law. While much has been achieved on all these counts in the past several decades, a lot remains to be done.

Sustaining a resolute adherence to the rule of law, stern commitment to non-discrimination, alleviation of poverty, preservation of institutional integrity, judicial independence, the autonomy of the Election Commission of India, democratic and multilevel federalism, a vibrant civil society and the regeneration of the deliberative content of parliamentary democracy are important for entrenching democracy in India.

Abhish K. Bose: The CAA is apparently legislation intended to exclude the Muslim community from the purview of constitutionally guaranteed equal rights. Why has the Bharatiya Janata Party (BJP) government decided to implement the CAA on the eve of the general elections? How can legislation that isolates the Muslim community benefit the BJP when Muslims also have immense numerical strength in the country?

Anupama Roy: It must be recalled that the CAA, 2003 had made 'illegal migrants' ineligible to apply for citizenship through naturalisation or registration, and their children, even when born in India, could not be citizens of India by birth.

The CAA, 2019 made an exception to allow specific categories of 'illegal migrants', that is, Hindus, Sikhs, Buddhists, Zoroastrians, Jains and Christians, who had fled Pakistan, Bangladesh and Afghanistan before December 31, 2014 to escape religious persecution, to apply for Indian citizenship.

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The provisions of CAA 2019 do not take away the constitutionally guaranteed rights of Muslims. They make, however, a distinction among illegal migrants on the basis of religion, protecting those who have suffered persecution on religious grounds while simultaneously retaining religion to distinguish between those who are eligible for protection— thereby making a distinction on the grounds of religion and nationality among persons in similar circumstances.

The CAA 2019 is commensurate with the BJP's notion of citizenship as an identity sutured to the idea of India as a Hindu nation. When it notified the CAA rules in March 2024, the BJP was fulfilling its poll promises.

The implementation of the CAA has figured in the BJP's 2024 Sankalp Patra. The BJP expected to mobilise votes through the CAA, especially among the Matua and Namsudra communities in West Bengal, but it also produced anxieties in several states, including those with a large Muslim population.

Abhish K. Bose: Though the Union government insists that states implement the CAA, states such as Kerala have decided not to implement the legislation.  The implementation of such a law being vested with state governments other than BJP-ruled states is a victory of the federalist principles enshrined in the Indian Constitution, in the sense that the state governments can sabotage the undemocratic laws imposed on them. Do you agree?

Anupama Roy: Several state governments, including Kerala, Tamil Nadu and West Bengal, have stated that they would resist the implementation of the CAA in their states.

The process of giving citizenship certificates under the CAA is, however, under the ministry of home affairs and empowered committees responsible for each state will be processing and handing out citizenship certificates.

The state governments may be able to do little beyond expressing their opposition, and as in the case of Kerala moving the Supreme Court to declare the law unconstitutional.

In the debates on the CAA in Parliament in December 2019, several political parties opposed the CAA, which was passed with a very narrow margin in the Rajya Sabha. Several state assemblies, including Andhra Pradesh, Bihar, Delhi, Tamil Nadu, Kerala, West Bengal and Madhya Pradesh, opposed the National Population Register (NRC), and states such as Rajasthan, Punjab, Kerala, West Bengal, Telangana, and Chhattisgarh, in addition, passed anti-CAA resolutions.

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On September 8, 2021, the Dravida Munnetra Kazhagam (DMK), which formed the government in Tamil Nadu after the state assembly election in April 2021, passed a resolution in the assembly against the CAA for 'betraying' and 'usurping' the rights of Sri Lankan Tamil refugees in India.

A major impediment in the implementation of the CAA is inherent in the documentary regime that it puts in place— furnishing adequate documents for processing their application under the CAA may prove an impediment for many applicants.

Abhish K. Bose: Does a government of such majoritarian compulsions as that of the BJP government at the Union instil apprehension that they may change the prevailing laws on citizenship in the future as part of their majoritarian agenda? Do you share such apprehensions?

Anupama Roy: The citizenship law in India has changed over the years through several amendments. It has gravitated from being premised on the principle of jus soli (principle of birth tied to land) to jus sanguinis (principle of blood and lineage), and since 2013 and more emphatically in 2019, it has become sutured to ideas of ethno-cultural majoritarian identity under the veneer of liberal citizenship.

Abhish K. Bose: Do you think there are any indications of, not merely a legal but also a political model being derived from the Zionist lobby around Israel— with the rich Indian diaspora in the US and UK likening itself to the Jewish diaspora? Is CAA modelled on Israel with Muslims having second-class citizenship and not being eligible to serve in the military?

Anupama Roy: The CAA, 2019 resonates with the principle of the right to return in the citizenship law in Israel but it is not the same. The circumstances of the incorporation of this right in the two citizenship regimes— India and Israel— are different.

Whereas in Israel the principle has been sustained through the 1950s law of return, and inscribes a principle of nationality associated with a non-territorial notion of Judaism, in India the 'exemption' made in CAA 2019 on the basis of religion is based on the territorial imaginary of 'Akhand Bharat'.

The CAA 2003, through the category of the overseas citizen of India, extended a de-territorialised 'overseas citizenship', short of dual citizenship, to the Indian diaspora.

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The 2019 CAA curtailed the terms of 'overseas citizenship' by restricting the mobility of Overseas Citizens of India (OCIs) into India and facilitating the withdrawal of the status in cases where the OCI is seen as acting against the interests of India. So, the trajectory has been uneven.

Abhish K. Bose: What about the challenges to NRC in Assam itself, that led to loss of support for NRC in Assam, since Hindus were being affected, and that went against the intention of the legislation?

Anupama Roy: The 2003 amendment empowered the Union government to prepare a National Register of Indian Citizens (NRIC) and issue national identity cards to persons identified as Indian citizens.

The rules framed for the implementation of this provision lay down an exceptional procedure for Assam, whereby those seeking a place in the NRIC in the case of Assam would be required to provide documentary evidence showing descent from those who were citizens of India of Assamese origin. The NRIC, as the experience in Assam has shown us, is a regime of documentary citizenship.

Under this regime, the enumeration of Indian citizens based on evidence that establishes a legacy of inherited belonging is simultaneously, and often primarily, presented as a modality of identifying illegal migrants.

In the case of Assam, the preparation of the NRC and its reliance on legacy data which had NRC, 1951 as the base document around which the electoral rolls till 1971 accumulated, and the various linkage documents that were to establish connection with the legacy person, generated disputes over whether 1971,1966 or 1951 should be seen as the cut-off date for deciding who are the legitimate citizens of Assam.

In December 2023, the Supreme Court heard petitioners consisting of organisations from Assam that questioned the constitutionality of Section 6A of the citizenship law, which inserted March 24, 1971 as the date for consideration of citizenship in Assam.

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The decision is still awaited. The Section 6A challenge as well as the prevailing political opinion in Assam have emphasised the need to go back to the constitutional deadline of July 18, 1948 as the cut-off date.

While the final NRC was published on August 31, 2019, the political and popular consensus around the NRC ruptured as it came to represent a field of contradictions for reasons that were different from the conflict over categories and procedures witnessed in the course of its preparation.

The Assam government was dissatisfied with the outcome of the NRC, which did not appear to corroborate the claims of the large-scale illegal presence of Bengali Muslims from Bangladesh and contested the integrity of the procedure.

The passage of the CAA, 2019 exempting Hindus, Sikhs, Jains, Buddhists, Christians and Parsis from the category of 'illegal migrants', making it possible for them to apply for citizenship, has further unsettled the field of citizenship in the state.

Abhish K. Bose: Can you comment on the role of the Supreme Court, which alternately seems to question and support the government (for example, on electoral bonds versus the CAA, Ayodhya)?

Anupama Roy: The exercise of judicial scrutiny by the Supreme Court over the legislative and constituent powers of the Parliament has been uneven. One can see this scrutiny in terms of a duality: The Supreme Court has, on one hand, intervened to enhance and buttress democratic rights (e.g., the right to privacy) and electoral democracy through decisions that have established the citizens' right to know, prescribed guidelines for the selection of the Chief Election Commissioner and other commissioners, and in the electoral bonds case restored transparency in election funding.

On the other hand, the judiciary has remained procedural rather than substantive in endorsing the neo-liberal security State by upholding the constitutionality of extraordinary laws, such as the Armed Forces Special Powers Act (AFSPA) and Terrorism and Disruptive Activities (Prevention) Act (TADA) in the 1990s and the Prevention of Terrorism Act (POTA) in 2002, and specific provisions of laws such as the Unlawful Activities (Prevention) Act, 1967 (UAPA) and the Prevention of Money Laundering Act, 2002 (PMLA), which reinforces their extraordinary provisions, e.g., those pertaining to bail in the UAPA.