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