While we may have gathered a somewhat limited understanding of who is an Indian citizen, do we, as a people, understand what citizenship means and entails; more particularly, do the State and the so-called mass leaders understand the Indian idea of citizenship, its importance as also of the rights attached to the status?
IN late September 2021, news of a clash, between police and persons affected by a purported eviction drive, emerged from Assam. The video that later emerged, however, went on to show a different manner of a clash altogether. If images of a lathi-bearing man being gunned down by armed personnel at close quarters were not enough, the dance of death that followed showed another man, a supposed photo-journalist, jumping over the dead body of Moinul Hoque, aged 28 years, with all his might, in a Kafkaesque and abhorrent display of hatred and malice. The other death was that of a 12-year-old kid.
Proponents of the eviction drive, needless to state, based their arguments upon the land being illegally encroached upon and rather most encroachers themselves being illegal migrants. So much has also been the seeming response of the administration.
Thanks to social media and advancing technology, similar incidents are not only captured but are now able to gain wider, if not adequate, attention in the country. However, for Assam, this is nothing new. The eviction drive was just another face of the monster which has been rising its different heads, each more vicious and tormenting than the other. Apart from the extreme acts of barbarity and violence such as those in Nellie (1983) and Kokrajhar (2012), the daily tests of citizenship and the constant doubt looming upon a large number of Assam’s inhabitants has largely gone unnoticed in the past decades.
From the Border Police to start with, who may at their own whims refer your name to the Foreigners’ Tribunal; to the Election Commission, which will indicate the letter “D” (for doubtful) against your name, making you one amongst more than two lakh D-voters in Assam; to the Tribunals themselves, which expect you to pass an elephant through the eye of a needle in proving your citizenship; to the eviction drives purportedly aimed at redevelopment of the Char (riverine) areas; and now, to the bogey of a need for re-verification of the final National Register of Citizens for Assam published in 2019 and a carefully created narrative to blur the finality of the same – Assam has been the boiling pot of identity politics, discrimination and ethnic bias. Constant narratives built up suggesting large scale influx of illegal migrants from Bangladesh have now led to multiple heads of this monster, and the same narratives are being successfully repackaged and propagated in the rest of the nation, making citizenship the most discussed – yet least understood – subject of our times.
Unlike much of Europe and the West, where the idea of citizenship and of rights attached to it had been concretised much earlier in time, we have for long been subjects of one authority or the other until independence from the British and formation of a democratic republic in the mid-twentieth century. It was as if we were almost thrust into being citizens rather than being mere subjects, no more than a change of nomenclature. It can also be safely said that the Constitution itself did not do much to define the confines and parameters of citizenship, and the protections the status entails, providing only for modes of acquiring citizenship.
Assam has been the boiling pot of identity politics, discrimination and ethnic bias. Constant narratives built up suggesting large scale influx of illegal migrants from Bangladesh have now led to multiple heads of this monster and the same narratives are being successfully repackaged and propagated in the rest of the nation, making citizenship the most discussed – yet least understood – subject of our times.
That the constitutional provisions (Articles 5 – 11) did not lay down a law of Indian citizenship becomes more certain when one looks at the relevant Constituent Assembly Debates pertaining to these articles. While the President of the Assembly had noted the “veritable jungle”of over 130-140 amendments to these articles,Dr. B.R. Ambedkar himself had stated that in his thinking, save for one article, no other article had given the Drafting Committee “such a headache”. Stating that the Drafting Committee had ultimately agreed upon the draft being moved, which he felt is “the draft which satisfies most people, if not all”, Dr. Ambedkar had very clearly stated that “this article refers to, citizenship not in any general sense but to citizenship on the date of the commencement of this Constitution. It is not the object of this particular article to lay down a permanent law of citizenship for this country”, a task left to the Parliament. However, the legislative enactment that came forth in 1955, also only loosely defined the methods through which Indian Citizenship can be conferred/acquired.
It is for this reason, that while the British Nationality Act, 1948 had recognised Indians, as potential Indian citizens, meanwhile granting them the status of Commonwealth citizens or British subjects until the newly independent country makes her own citizenship laws, the same was never recognised as per the 1948 legislation even after enactment of the Citizenship Act, 1955. The status of citizenship laws across the border in Pakistan is the same.
This lack of a definition of Indian citizenship was also felt by a nine-judge Constitution bench of the Supreme Court of India in the case of State Trading Corp. of India Ltd. vs. Commercial Tax Officer & Ors. (1963). While the case related to the question as to whether a Corporation could claim the fundamental rights conferred upon citizens, in answering the same the court also went through the concept of citizenship, trying to trace how Indian citizenship came to be and who it is meant for.
The then Chief Justice of India, B.P. Sinha, in his opinion, noted that neither the Constitution nor the Citizenship Act, 1955 had done much to define the idea of Indian citizenship, which was also the argument advanced by the petitioners’ counsel M.C. Setalvad. However, in the facts of the said case it was considered unnecessary to refer to the controversy as to whether there were any citizens of India before the advent of the Constitution.
The Constitution itself did not do much to define the confines and parameters of citizenship, and the protections the status entails, providing only for modes of acquiring citizenship.
On the other hand, Justice M. Hidayatullah, in his separate opinion, addressed the development of the idea of citizenship extensively, beginning from Greek citizenship to the Roman developments, and further to the American and British concepts to the duality of citizenship, connoting political and civil aspects. This detailed analysis also noted the lack of a definition of citizenship in the Constitution of India as well as the Citizenship Act, while at the same time, sought to source a definition from the preamble of the Constitution. Justice Hidayatullah noted that “[t]he preamble in solemn words sums up what is later provided in the Constitution. “Citizens” in the preamble mean those individuals who under the Constitution are guaranteed civic rights in the body politic that is India and who can hold public offices and elect their representatives to the parliament and Assemblies of the people.” He also observed that while “the Constitution also confers some rights on aliens and assists and protects them but the guarantee in the preamble is to the citizens alone that is individuals who enjoy full civic rights in the body politic”. Noting that though the Constitution made provisions for citizenship on the Constitution’s inauguration, he observed that it was not a law for the purpose of the British Nationality Act, 1948.
Even before the aforesaid preamble-based approach in tracing Indian citizenship, a glimpse of what rights citizenship ought to have entailed, if not what citizenship itself meant, for the newly independent States of India and Pakistan can be traced to the Nehru-Liaquat Agreement signed in April 1950, wherein both the governments had agreed upon ensuring to the minorities within their territory certain fundamental rights. These included, to begin with, “complete equality of citizenship, irrespective of religion; a full sense of security in respect of life, culture, property and personal honor; freedom of movement, of occupation, speech and worship, subject to law and morality; equal opportunity to participate in the public life of their country, to hold political or other office, and to serve in their country’s civil and armed forces.”
The questions, however, still remain – what does Indian citizenship mean and how is the recognition understood by the citizens themselves? Was there an Indian citizenship before independence, and if so, what was it? While we may have gathered a somewhat limited understanding of who is an Indian citizen, do we, as a people, understand what citizenship means and entails; more particularly, do the State and the so-called mass leaders understand the Indian idea of citizenship, its importance as also of the rights attached to the status? While indigeneity as a concept was raised in response to colonial oppression, as a manner of asserting one’s identity, can it safely be said who is indigenous and who is not and more importantly, can indigeneity be a test for citizenship, especially in a country with diverse cultures, beliefs and languages, and their intermingling throughout the history of the subcontinent, making every person indigenous in one manner or the other to this land?
During the trial of Roman Magistrate Gaius Verres, Roman statesman, scholar and lawyer Marcus Tullius Cicero, as prosecutor, had planned to invoke in his second speech the chargesheet against Verres. In addition to charges of bribery and corruption, the foremost charge was his ill-treatment of the citizens of Rome.
Cicero’s second speech, thus, had planned to appeal to the judges narrating how a Roman citizen was flogged while he kept invoking Civis Romanus Sum – I am a Roman Citizen – in hopes of saving him from the brutality. In Cicero’s words, “…in the meantime no groan was heard, no other expression was heard from that wretched man, amid all his pain, and between the sound of the blows, except these words, ‘I am a Roman Citizen’. He fancied that by this one statement of his citizenship he could ward off all blows, and remove all torture from his person.”
This was Cicero’s criticism of Verres charging a Roman citizen to be a spy for outlawed slaves leading to his public flogging and ultimate crucifixion, all without witnesses or a fair trial. Cicero’s assertion being that a citizen of Rome must be assured of certain basic protections against indignity, injustice and arbitrary action.
It was this same sense of protection attached to the Roman citizenship that had also saved St. Paul the Apostle from being questioned under torture and ensured his safety pending a fair trial. The Book of Acts records his famous retort to the Centurion who was about to scourge him, questioning if it were at all lawful for him to do so when Paul was a “Roman and uncondemned”.
What does Indian citizenship mean and how is the recognition understood by the citizens themselves? Was there an Indian citizenship before independence, and if so, what was it? Can indigeneity be a test for citizenship, especially in a country with diverse cultures, beliefs and languages, and their intermingling throughout the history of the subcontinent, making every person indigenous in one manner or the other to this land?
Two millennia later, we are still grappling with the same questions, ever revolving around citizenship, but neither are we in Rome nor are leaders prosecuted for the mistreatment of citizens; perhaps it is the unchecked and arbitrary exercise of power that allows such abhorrent actions, always justified in some cause shown to be greater than human life and dignity. Even Cicero, in his own turn as Consul, ended up doing the very acts that he charged Verres for – executing the Catiline conspirators – citizens of Rome – without a trial and citing the good of the republic. Nonetheless, even this execution of Roman citizens without trial would later become the reason for Cicero’s exile under the Claudian Laws.