Under constant siege, weather-beaten and broken, the edifice of India’s constitution has still endured so far. This, despite numerous onslaughts, and mounting rapid-fire especially under the government led by Prime Minister Narendra Modi.
However, with the passage by Parliament of the Constitutional Amendment Bill (CAB), India’s constitutional structure threatens to cave in. The constitution will not need to be rewritten. But with this short piece of legislation, hastily passed without referring it to a parliamentary committee, its soul is being annihilated. A new nation threatens to emerge from its rubble – wrathful, muscular, majoritarian, and inhospitable to its minorities.
This law weighs upon tangled contestations of belonging and rights. Who belongs to India, and on what terms? And indeed, who does India belong to? A young Bengali-origin Assamese poet Kazi Neel lamented, ‘This land is mine. But I am not of this land’: he loves India, but India refuses to own him. Citizenship ultimately is the right to have rights. Who in this country should have rights, and from whom should these be withheld?
The answer to these fraught questions were settled within the humanist and inclusive framework of the Indian constitution. Its iridescent central premise was that religious faith has no bearing on eligibility for Indian citizenship. India belongs equally to its Muslim, Christian and Parsi residents, as much as to its Hindus, Sikhs, Buddhists and Jains. It was questions of belonging and religion as politics which tore India apart. The Muslim League regarded religion as key to citizenship; therefore, India was not one but two nations – Hindu India and Muslim Pakistan. Savarkar concurred. India’s constituent assembly steadfastly rejected this idea that India belonged only to its Hindu majority. Jawaharlal Nehru declared, ‘We accept as Indian anyone who calls himself a citizen of India’.
By introducing the Citizenship Amendment Bill, the Bharatiya Janata Party (BJP)-led government has deliberately reopened old wounds, reviving old fears, anxieties and hatreds of Partition. This Bill in effect endorses the two-nation theory, by creating a hierarchy of citizenship based on religious faith, excluding Muslims from this hierarchy.
The moral fig leaf offered is that this intends to provide refuge to people suffering religious persecution in neighbouring countries, Pakistan, Bangladesh and Afghanistan. If religious persecution was truly to become the yardstick for eligibility for Indian citizenship, then few neighbours are more tormented than the Ahmaddiyas in Pakistan who face even death for even worshipping in a mosque, the Rohingya battling genocide in Myanmar, and the Uighurs held in internment camps in China.
Until 1987, to be eligible for Indian citizenship it was sufficient for a person to be born in India. Then, spurred by populist movements alleging massive illegal migrations from Bangladesh, citizenship laws were first amended to additionally require that at least one parent should be Indian. In 2004 the law was further amended to prescribe not just that one parent be Indian; the other should not be an illegal immigrant.
The unease of the BJP-led governments of India and Assam with the National register of Citizens (NRC) is that a much larger number of Bengali-origin Hindus have been excluded from it than Muslims. If they are judged illegal immigrants, not just they but their offspring would become illegal because of the 2004 amendment. The Citizen Amendment Act (CAA) alone can rescue the BJP from this political conundrum. It will treat Bengali Hindus as refugees, and only Bengali-origin Muslims and all their later generations would become illegal, even if they were born in India and know no other country as their home.
Treating Bengali-origin Hindus excluded from the Assam NRC as persecuted refugees from Bangladesh, however, will require multiple extraordinary leaps of official faith. Not one of these persons would have claimed in any official forum – NRC offices, Foreigners’ Tribunals or police stations – that they are illegal Bangladeshi immigrants. They would have strenuously tried to establish exactly the opposite. But after the CAA, to secure Indian citizenship, they would have to claim to be foreigners to become eligible for Indian citizenship! There will also be questions of evidence. How will they prove that they were citizens of neighbouring countries and that they were persecuted? The truth is that most had not crossed any border, but were unable to produce documents which satisfied officials that they were Indian citizens.
The CAA is the harbinger of a national NRC. By passing the CAA, effectively the government is clearly messaging that if people of any identity except Muslim are unable to produce the required documents, they will be accepted as refugees and given citizenship. This means that the real burden to prove that they are Indian citizens of the national NRC after CAA is only thrust on Muslims, because only they will risk statelessness. Most Indians would find impossible to muster the required documents to prove their citizenship, but only document-less Muslims will face the prospect of detention centres, or being stripped off all citizenship rights.
And then, since this imagination of citizenship is all a vested in documents, which documents will prove my religion? At present, it is only one’s own declaration during the decadal census which is official evidence of one’s religious persuasion. I can be born to a religion, and reject it when I am an adult. I can be born to parents who claim no religion. But if religion becomes the principal fulcrum of whether or not one is a citizen, then which document will the state rely upon to decide if I am a refugee or should be thrown into a detention centre?
For a republic built on guarantees of equality and non-discrimination on the basis of religion, creating thus a class of potentially stateless persons exclusively because of their religious identity would mark decisively the demise of India as a secular republic. The responsibility for this catastrophic collapse of the edifice of our constitution would be shared by a political opposition emptied out of its moral and political convictions.
The CAA-NRC, posing the gravest threat to India’s secular democratic constitution since India became a republic, must be fought with a nation-wide civil disobedience movement. Such a spontaneous movement of civil disobedience is under way across the country.
In the wake of these nationwide protests, Prime Minister Narendra Modi claimed to the people of India in Delhi’s historic Ramlila Grounds that his government had never since 2014 even considered implementing a nation-wide National Indian Register of Citizens (NRIC). But the NRIC was part of the President’s address in Parliament, and had been promised by his Home Minister and closest lieutenant Amit Shah several times in Parliament and outside. It was therefore an obvious flagrant untruth spoken by a person holding the most powerful public office in the republic.
But some took comfort from his brazen fabrication as they saw in it a signal that he was stepping down from this core agenda of his government and its ideological mentor the Rashtriya Swayamsevak Sangh. It appeared that perhaps, unsettled by the largest spontaneous countrywide protests in all corners of the country seen after Independence, the Prime Minister had decided to push the national NRC into the cold storage, at least for the present.
However, within days, it became abundantly clear that his purpose was not to reassure the masses of dissenting Indian people, even less to respect their intense disquiet about a measure that so many saw as divisive and destructive of the constitution. It served two other very different purpose. It gave a fig-leaf – albeit a very flimsy one - to supporters of the government. And more importantly, it was fodder to deliberately build a smokescreen to mislead and further confuse public opinion.
The Home Minister was quick to state on record that the NRC would not be implemented but only, he repeatedly underlined, for the present. Both he and the Prime Minister refused to rule it out. But there was another most unmistakable indicator, again a deliberate signal, that the government remained determined to continue to thrust the country down the dangerous and divisive pathway that it had charted for the republic. This was by holding a highly visible and public cabinet meeting, during the peak of the protests, announcing that the government would begin work on a National Population Register (NPR).
The minister who made the announcement said that the NPR had nothing to do with the NRIC. But public trust in our Prime Minister and his cabinet has never plummeted as low as it is today, because of the calculated official mendacities unleashed regularly on the people around matters as critical as the state of the economy, jobs, growth, and now most dangerously about citizenship, which is the foundational right as it is the right to have rights. Without public debate, without any transparency, a regime is being unleashed in which every citizen will have to establish her citizenship if the executive chooses to doubt it. This is being rammed through processes which are intentionally clouded in official secrecy. The only unambiguous message the union government continues to convey, amplified by the Rashtriya Swayamsevak Sangh (RSS), is that the state seeks to dismantle the citizenship of people of only one kind of religious identity.
Supporters of the ruling establishment argue that, despite the Prime Minister’s announcement, the widespread fears that persist that the implementation of the NPR, alongside the NRIC and the CAA, will lead to mass exclusion of Indians, particularly Muslim citizens, are fanciful, indeed mischievous fear-mongering. The protestors, on the other hand, have a clear insight that the government is attempting to discriminate based on a person’s religious identity, and that this strikes fatally at the core of the constitutional morality of the republic. But by the explicit design of the union government, by its silences and falsehoods and dog-whistles, it may not always be easy for them to see clearly how the three policies tie together, and what they portend.
To understand this, we need to begin first with the Citizenship Amendment 2003, which was introduced by the Vajpayee government, and was what laid the foundations for the process of targeted disenfranchisement which the Modi government has taken forward with such resolve. If the BJP had been returned to power in 2004, it is quite likely that the NRIC-NPR may have been initiated much earlier. The Citizenship Amendment 2003 laid down firstly that a person cannot claim citizenship, even if born and raised in India, if any one of her parents is an “illegal immigrant”. It then prescribed the creation of a NRIC as an instrument to identify “illegal immigrants”. How the NRIC would be executed would be prescribed by Rules under the Act. Rules are not required to be approved by Parliament, because the executive is authorised to make Rules as part of subordinate legislation. It is the Citizenship Rules 2003 which provide that the Central Government, through the Registrar General, can start compiling an NPR “for the purpose of National Register of Indian Citizens.”
Thus, contrary to the disingenuous insistence of senior government functionaries, NPR is integral to the NRIC. Under the rules, the NPR amounts to the “initialization” of NRIC. The Registrar General has already initiated this process through a notification in July 2019.
After the compilation of NPR, local government functionaries are permitted to identify persons whose citizenship is “doubtful”. These powers will lie with junior officials at the level of the Tahsildar upwards. Not only will the officials have completely unguided discretion to classify residents as “doubtful” citizens, they can also demand any person to provide any information or documents.
It is important to underline that this is no ordinary power. It is the power to decide if a resident, any resident, should be required to establish their citizenship through a web of vintage documents which few of us, even those who enjoy a range of privileges, would be able to muster. The consequences of not being able to prove their citizenship with these ephemeral documents can result in a person being declared an “illegal immigrant”, banished for years to detention centres, and stripped of citizenship rights including the right to vote and to own property. In stark words, it is the power to disenfranchise people.
Even more worryingly, the government will then make the draft public, and invite objections against the inclusion of individuals and families. Before finalizing NRIC, local government officials will consider these objections. Again, the rules provide no guidance whatsoever about what nature of objections can be accepted.
This process is obviously open to severe abuse. In fact, it appears to be practically designed for such abuse, to empower the executive to target, without due process, individuals and families of its choosing, to ultimately deprive them of their citizenship rights. The problem is not only that the rules do not specify which documents are required for establishing citizenship. Officials are free to adopt varying standards for different citizens, which can lead to capricious targeting of citizens.
The delegation of such unbridled power to the executive violates the rule of law ideal under the Constitution, which requires the legislature to provide proper guidance and safeguards for the implementation of laws. The Parliament must include clear criteria, standards and principle to the executive to implement the purpose of the legislation. If the powers given to the government are – in the words of the Supreme Court’s Hamdard Dawakhana case (1959) – “uncanalised and uncontrolled”, the legislation is unconstitutional. The vague – and excessive – powers in the NPR-NRIC process clearly violate this principle.
These powers also practically allow the executive to victimize genuine citizens. The stakes of the abuse are high. Citizenship status, as we noted, is foundational because it is the very basis of an individual’s legal personality. It is the right to be eligible for and to exercise other rights. For something so fundamental to be left to the discretion of ordinary administrators is an outrageous and unconscionable violation of due process. In a country where overwhelming masses do not possess legal documents, this executive discretion will potentially make everyone’s citizenship suspect. If the Assam NRC is anything to go by, even the most basic documents may fail to establish citizenship if minor errors creep into them.
Equally disturbing is the element of public objections. The Rules allow for sensitive personal data to be collected and stored by government officials without any data security. This by itself violates the Supreme Court’s ruling in the Aadhaar case (2018) that required anonymity and encryption. In complete disregard, the rules require the government to maintain data at various levels of government and publicize them for objections from the public. This further enhances the possibility of malicious targeting.
Imagine these powers in the hands of the current UP government, the most populous state headed by Chief Minister Adityanath who openly flaunts like a badge of honour his hostility to Muslims. It is not difficult to imagine which people he and his officials would mark as “doubtful citizens”. Imagine the power of ordinary citizens to further question the citizenship of other citizens, used by the well-oiled machine of the RSS and its myriad affiliates. This process realistically could become an instrument of systematic hate targeting of a community by the state executive and their ideological fellow-travellers.
The NPR-NRIC process in these ways will establish a living nightmare of rules, where any individual can be drawn into a maze of legal procedure, to constantly produce documents that may never satisfy the bureaucrats.
The Citizenship Amendment Act fits into, indeed crowns, this legal dystopia. The constitutional objections to the amendment are well known by now. The government claims that the law ameliorates the condition of persecuted minorities from India’s neighbourhood. But, as noted, it is inexplicably limited to Pakistan, Bangladesh and Afghanistan. It overlooks the persecuted migrants from China, Myanmar and Sri Lanka. The government has given no rationale for the special treatment of persecution based on religion, as opposed to other grounds like ethnicity, language, politics or nationality. The amendment excludes Muslims despite the abundant evidence of religious persecution of Muslim sects in the region. It even fails to be a fair refugee policy for Hindu migrants. It arbitrarily excludes migrants after December 2014, even if they may have suffered religious persecution. Each of these violates the constitution’s equal protection clause that guarantees rational, reasonable and non-arbitrary treatment to all Indian residents.
But once the amendment exists alongside NRIC and can be turned into its companion, the impact will not remain limited to regulating the citizenship of migrants. The government is yet to prescribe how non-Muslim migrants will be expected to prove their country of origin, date of migration and proof of persecution under the amendment. But there is a good possibility that the government will push for extremely minimal requirements of evidence, or even simply a presumption. In such a case, even if non-Muslims fail to prove their citizenship during the NPR-NRIC process, they may be able to invoke the amendment. No such respite will be available to Muslims, making the implementation of the law sectarian.
By excluding Muslims, the amendment re-enforces a background assumption that Muslims are less Indian and more likely to be doubtful citizens. This is bound to shape the behaviour of officials operating NPR-NRIC. The amendment will become a weapon against citizens who the government feels are undesirable.
In Uttar Pradesh, we have found uniformed policepersons rampaging Muslim homes, lawlessly destroying their property and beating even children, women and old people with visceral hate like rioters. In many of their homes, the residents told us that the policepersons said that the Muslims would have to leave their homes and leave for Pakistan, because of the new law.
If this is the kind of understanding that the BJP government has disseminated among its supporters and even its officials about what the CAA-NRIC-NPR trinity will accomplish, it is chilling then to think of how unbridled powers to sift citizens from non-citizens and to strip them of their rights and freedom vests with the junior executive, will be exercised and against who.
In summary, far from pushing the NRIC into the backburner, the union government, by announcing an NPR, which includes newly added questions about one’s parents’ details, heralds an NRIC even more dangerous than the Assam NRC. There were many injustices in the way that the NRC was implemented in Assam, and this took an enormous toll of human suffering. But the Assam NRC was not a communal anti-Muslim project. All persons, of all faiths, were equally tasked to prove their citizenship by a list of documents. An NRIC which is built on the NPR will allow the executive to pick and choose whose citizenship it wishes to interrogate. This will succeed in thrusting India’s Muslim people – and a range of other most disadvantaged people, including homeless persons, persons with disability, transgender persons, nomadic and denotified tribes, persons with disability, orphaned and abandoned children, circular migrants and millions of others – into years of dread and uncertainty about if, when and how they might be deprived of their citizenship and sent to detention centres (which again Mr Modi claims, with the same barefaced falsehoods, don’t exist).
The piloting of the NPR has already begun in Karnataka from Jan 1. It is due to commence across the country from 1 April. Unless all non-BJP governments refuse to implement the NPR, they will be collaborating in a process of targeted mass disenfranchisement of the kind that Nazi Germany witnessed in the grim years leading to the Holocaust. History will find it hard to forgive them.
Disclaimer: The views and analysis contained in the publication are those of the author and do not necessarily represent the views of the Heinrich Böll Stiftung.
This article draws partly from Harsh Mander’s article https://indianexpress.com/article/opinion/columns/this-land-is-mine-cit… and https://scroll.in/article/949097/why-the-national-population-register-i… by Harsh Mander and Mohsin Alam Bhat