By
Usha Ramanathan
November 8,
2019
The idea of
citizenship has become uncertain and insecure. In a strange twist of law and
logic, all people living in the territory of India are suddenly on trial to
establish their citizenship. This is not what it always was, not even in the
tumultuous years of Independence, Partition, the amalgamation of the princely
states, and the making of a Constitution for India.
As the
country was being carved up, citizenship was recognised in every person who was
domiciled in the territory of India, was born in the territory of India as it
was then emerging, or either of whose parents was born in the territory of
India, or who had been ordinarily resident in India for not less than five
years immediately before the Constitution was promulgated. At that point in our
history, both territory and population had to settle into new identities. The
Constituent Assembly left the task of determining the contours of citizenship
to Parliament, for when it was good and ready. It is striking that the first
general election held in 1952 preceded the Citizenship Act, 1955 by three
years.
When the
Citizenship Act was amended in 1985 to deal with the Assamese anxiety about a
demographic transformation, the law acknowledged the common heritage of the
people of the region before Partition, and that borders divided up not just
territory but people as well. The law spoke of persons of 'Indian origin' where
either the person himself (the default gender for the law) or either of his
parents or any of his grandparents was born in undivided India. All persons of
Indian origin who had entered Assam before 1 January 1966 and "who have
been ordinarily resident in Assam since the dates of their entry into
Assam" would be deemed to be citizens of India.
Those who
had come to Assam after 1 January 1966 but before 25 March 1971 and had been
ordinarily resident in Assam, and had been detected to be 'foreigners' in
accordance with the Foreigners Act 1946 and the Foreigners (Tribunals) Order
1964 could register themselves, and they would become citizens in 10 years.
In the
interim period, they would have the same rights and entitlements as a citizen,
including the right to obtain a passport, but not the right to vote; that would
accrue only after the 10-year period when they became citizens. A definite
shift in rhetoric around the illegal migrant found its way into the law in
2003, when the Citizenship Act was amended to make some fundamental changes to
ideas of citizenship and belonging.
Till this
amendment, if either parent of a child was Indian, the child acquired Indian
citizenship. The 2003 amendment changed that: the child would now get
'citizenship by birth' only if neither parent was an 'illegal migrant' at the
time of birth. In other words, the child would be stateless. Ironically, but
unsurprisingly, this amendment also conferred special status on the 'overseas
citizen', who could trace his ancestry to any person who could have become a
citizen of India at the commencement of the Constitution, but had, in fact,
taken citizenship in another country. Not, however, anyone who had been a
citizen of Bangladesh (then East Pakistan) or Pakistan.
The 2003
amendment also introduced a provision for creating a National Register of
Citizens (NRC). The National Population Register, a prelude to the NRC, was
quickly adopted as a Mission Mode Project by those selling eGovernance, giving
a veneer of technology and governance to something that was deeply political,
challenging the idea of Indian citizenship, at the same time making citizen
data a commodity for commercial exploitation.
This still
did not raise hackles, for it was not yet quite imaginable that a whole
population could be challenged to prove their citizenship; it was reasonable
that only suspect identities would be questioned. Since the NRC began in Assam
in 2013, and the Supreme Court adopted the language of influx, illegal migrant
and 'external aggression', the climate has changed.
In the past
six years, in Assam, every person has had to establish their citizenship
through documents-legacy documents (such as land records, court cases, birth
certificate, school or university certificates) and lineage documents (to
provide evidence of relationship with an ancestor who was a citizen of India).
Women, who move on marriage, and the poor have borne the heaviest burden of
this shifting burden of proof. Mismatches and errors in the documents have
spelt doom. The official registers upon which verification of documents depend
have had to survive not just the ravages of time but also fire and flood.
The process
has so far been powered by the Supreme Court. The NRC co-ordinator Prateek
Hajela reported directly to the court using the extraordinary 'sealed cover'.
(The Court has now asked the Centre to transfer him inter-cadre to Madhya
Pradesh). It is not known when these covers may be unsealed, so it may be a
while before we know what they contain and what formed the basis of the Court's
orders. The entire process has been treated as belonging to a zone of
exception, and the Supreme Court had the first and final executive word on
applying the NRC in Assam.
Any
expectation that this seismic shake-up will settle questions of citizenship has
begun to evaporate. Those who made the assumption that the ones excluded would
largely be Bangladeshi Muslims have been proven wrong. The indigenous people in
Assam have demanded that their citizenship be acknowledged.
The
Bharatiya Gorkha Parisangh, a national pressure group of ethnic Gorkhas settled
in India, has declared that the over 100,000 Gorkhas excluded from the list
will not approach the Foreigner Tribunals; instead, they may file defamation
cases, contesting the denial of the citizenship of Gorkhas and Nepali-speaking
people. Their indignation is understandable; the wonder is that there hasn't
been greater outrage.
The
government's utopia is now out in the open. The leadership, including the Home
Minister, are bruiting their determination to enact the Citizenship (Amendment)
Bill, 2016, which will protect Hindus, Sikhs, Buddhists, Jains and Christians
from Afghanistan, Bangladesh and Pakistan from being treated as illegal
migrants. That is, it is only Muslims who can be illegal. There is no way to
read the Constitution that can render such a provision constitutional. But even
before a court can consider its constitutional merit and pass an order, the
population can be reconstituted and a fait accompli firmly established.
Himanta
Biswa Sarma, a key BJP leader in the Northeast, proclaims: "After the CAB
is passed, Assam detention camps will be shut for Hindus, Buddhists, Jains,
Christians. Regarding the other population, it is for the court to take a call.
Detention camps are there because of a court order, not because the state
government wants them there." This is disingenuous, for the court order
was not only about detention of Muslims.
The cynical
and sinister intent of othering the Muslims is spreading in other parts of the
country. In Karnataka, the police are reported to have picked up at least 60
Muslims, including nine children, charging them with being undocumented
Bangladeshi immigrants in a raid across three shanties. They had documents,
including UID and voter ID, which were simply declared fake and they were
rounded up, apparently because of their 'Bengali dialects'.
As the
exercise spreads, everyone will be vulnerable to the whims of administrators,
the vagaries of political ambition. India has rebutted the concern of the UN
Special Rapporteur on Minority Issues over
the
escalating statelessness this exercise will produce, and the effect it has on
minorities, but given what is happening on the ground, this is, to put it
mildly, unconvincing. What are the consequences of being found to be an illegal
migrant? Detention: and besides Assam, Maharashtra and Karnataka have begun to
construct detention centres. No law envisages this mass incarceration.
Deportation. Statelessness.
Loss of
citizenship: which
will affect everyone whose citizenship is not recognised, including those whom
the government promises to protect? That is, everyone other than Muslims. But
even government protectees who become victims of this exercise will spend five
years shorn of citizenship privileges, after which, depending on the state of
the law then, they may become citizens.
The
dominant theme that is emerging is not of citizenship, but of reassembling the
population to fit the imagination of those in power today. It is reminiscent of
Bertolt Brecht's poem The Solution (1953). The people, he said, have, forfeited
the confidence of the government and could win it back only by redoubled
efforts.
Would it
not be easier
In that
case for the government
To dissolve
the people
And elect
another?
Usha
Ramanathan works on the jurisprudence of law, poverty and rights
Original
Headline: Who Is (Not) a Citizen
Source: India Today
URL: http://www.newageislam.com/islam-and-politics/usha-ramanathan/citizenship-has-become-a-contested-category,-re-created-and-re-presented-to-accomplish-the-utopia-of-those-in-power/d/120288