Dr. Moiz Tundawala is a Leverhulme Early Career Fellow at the Bonavero Institute of Human Rights and Faculty of Law in the University of Oxford. Dr. Tundawala teaches and researches in the areas of public law, constitutional theory, intellectual history and global political thought.
When I teach citizenship in my constitutional law class, I take a detour and speak to students about the political theorist Partha Chatterjee’s riveting reconstruction of the extraordinary case of the sannyasi of Bhawal in late colonial India. The case involved a contest pertaining to the legal identity of the second Kumar or prince of Bhawal, who belonged to a prominent landed family and owned a large zamindari or estate in eastern Bengal. He is believed to have died from syphilis in Darjeeling in 1909, but apparently returned as a half-naked and ash-smeared sannyasi to assert his right over the estate in Dhaka in 1921. Travelling through three courts of law in Dhaka, Calcutta and London, the declaratory suit sought to ascertain whether the sannyasi claiming to be the Kumar of Bhawal was at all the rightful prince, or was he as the colonial government argued, an impostor propped up conspiratorially by parties with vested interests.
Although the alleged impostor was eventually found to be who he was claiming to be, Chatterjee points out that this was a rare decision in cases of imposture, no doubt made possible by the changing tide in favour of nationalism and decolonization. In other contexts, however, a presumed imposture has become a permanent condition of life with the transition from princely rule to a democratic state. Even as the people have taken up the place of the prince following the revolutionary movements of the modern world, the equally entrenched biopolitical mechanisms of discipline and control require them to authenticate their credentials to the satisfaction of governmental authorities. Since modern democracies based on popular sovereignty also depend upon different paraphernalia through which states identify their populations, it is as if ‘we are all princely impostors until we can prove otherwise.’
We see exactly this paradox play out in the working of the citizenship regime in postcolonial India. As the primary form of political identity in the nation-state, citizenship no doubt confers a share in its collective sovereignty to the people. But the status is only available to those whom the legal apparatus recognizes as its own. So before discussing who counts as an Indian under the law of citizenship, it is more appropriate to start with how this question is decided by the administration and judiciary.
Burden of proof in the law of immigration
Consider the Sarbananda Sonowal case of 2005, on the constitutional validity of the Illegal Migrants (Determination by Tribunals) Act, 1983. Enacted in the aftermath of the mass influx into the State of Assam following the Bangladesh War of Liberation in 1971, the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) established tribunals for the identification of illegal immigrants who could then be expelled from India by the Central Government.
By remaining silent on how the burden of proof was to be discharged in these proceedings, the legislation in effect held state authorities responsible for proving that the person being complained against was indeed an illegal immigrant. This was a departure from the Foreigners Act, 1946, which applied to the rest of the country, and placed the onus on the alleged foreigner to prove that they were in fact an Indian citizen. Although the IMDT Act was more in sync with the general principle of evidence law that the burden of proof is on the person who asserts a fact, it was struck down by the Court as unconstitutional on grounds of making the detection and deportation of illegal immigrants ‘virtually impossible’, and thereby hindering the Union’s constitutional duty to protect Assam from ‘external aggression and internal disturbance’.
Positioning itself as the guardian of India’s porous Eastern border, in 2014, the Court responded to a longstanding demand of the indigenous Assamese movement by calling for the updation of the National Register of Citizens in the State, which had last been prepared after the census of 1951. It went on to monitor what was perhaps the largest such exercise in the world, carried out to distinguish genuine Indian citizens from illegal Bangladeshi immigrants residing in the State. The NRC process required applicants who sought inclusion in the register to establish that either they or their ancestors had entered Assam by the cut-off date of 24th March 1971 when the Bangladesh War began, through link and legacy documents accepted by the government. But in a country where stable documentary evidence going back several generations is hard to come by, especially for the most vulnerable and marginalised sections of society, nearly two million people found their names missing from the final register published in 2019 and have since been facing the daunting prospect of being rendered stateless in a land they regard as their own.
Citizens, stateless and the ‘in between’
Nation-states all over the world prefer to engage with people either by granting them citizenship or treating them as stateless. While the contemporary human rights talk covers both liberal individual rights as well as cultural group rights, these rights are themselves conditional upon the availability of a more fundamental ‘right to have rights’, or the right to belong to a political community associated with the status of citizenship. In contrast, stateless persons are objects of brute force and violence both symbolically and physically, as without the right to citizenship, they are also deprived of those very rights they are entitled to by virtue of being human.
The distinction between citizens and the stateless though, does not exhaust the field of political reality in India. In between the two categories, is a liminal population which is neither fully inscribed on the grid of citizenship, nor is it reducible to the bare condition of statelessness. This part of the population does not have access to civil social rights in the same way as the more elite and privileged sections of society. Yet it remains politically active through the right to vote, fervently participating in the electoral process and also staking a claim to state sovereignty. Although bound to unnerve governing classes cutting across the ideological divide, its presence in the public sphere is essential for sustaining the founding myth of Indian democracy as having converted unlettered peasants into sovereign citizens overnight, by breaking open the waiting room of colonial historicism and adopting a republican constitution based on universal adult suffrage.
Citizenship and the Muslim ‘other’
With the takeover of the political landscape by the Hindu nationalist Bharatiya Janata Party, this anxiety inducing gap between citizenship and statelessness is sought to be managed by the proposal of extending the NRC to the whole of India on the one hand, and the introduction of a religious criterion to the definition of citizenship on the other. In the garb of excluding illegal immigrants from the purview of citizenship, the nationwide NRC will rather jeopardise the political status of all Indian residents who do not have proper documents to establish their credentials. But this is to be preceded by the implementation of the Citizenship Amendment Act, 2019, a purportedly inclusive legislation extending national membership to Hindu, Sikh, Buddhist, Jain, Parsi and Christian migrants facing religious persecution in Afghanistan, Bangladesh and Pakistan, and having entered India by 31st December 2014.
So, in effect, those underclasses who are unable to make it to the NRC would be brought back to the fold of citizenship, but only as long as they do not belong to the Muslim religion. Far from working with an easy binary division between the Indian citizen and the foreign outsider, the two moves are meant to isolate and disenfranchise the Muslim ‘other’ within the country as the perpetually threatening internal enemy for Hindu nationalism, despite their substantially diminished political clout after partition. Once Muslim citizenship is put in peril in this manner, they can be reduced to rightless instrumental objects for Hindutva’s collective enjoyment, as is being done in India today with spectacles of mob lynching and bulldozer demolitions.
‘We will not show you the papers’
As the CAA and NRC are amenable to being questioned on the touchstone of non-discrimination and arbitrariness in constitutional and administrative law, they have been challenged in a litigation before the Supreme Court. But if judicial practices in the past indicate anything, there is no guarantee that the Court would offer a favourable decisional outcome in this case. The discourse of constitutionalism aside, it is the argument of national sovereignty which has historically trumped all other considerations, especially in politically contentious matters. More crucially, however, investing too much in any organ of the governmental apparatus for the recognition of political identity, would on the contrary only bolster its authority further to suspect a citizen of being an impostor unless proved otherwise.
It is convenient for a governing regime to draw support from laws requiring the people to establish their citizenly credentials, as this deflects attention from the fundamentally unauthorised status of public offices in a modern state. In a bygone age, gods, monarchs and ruling authorities enunciating the law were also believed to be endowed with the knowledge and reason of its hidden mysteries. But with law having lost its connection to a higher divine or natural justification after the break of modernity, as the French psychoanalyst Jacques Lacan points out, any legislator who comes forward to make up for this lack through superior wisdom or charisma does so as an impostor.
What enables citizenship to become a formal if not substantial marker of political freedom in the modern world, is precisely the absence of a deeper meaning that can ultimately ground it in some eternal truth. When citizenship is dissociated from a life in common shared with ‘others’, and instead anchored in a parochial understanding of ethnicity and religion, it loses all of its emancipatory potential. As India’s rulers back up these changes to citizenship law by invoking the name of a timeless Hindu culture under siege from millennial foreign invasions, it must be said that they are doing so to cover up for their own imposture.
We witnessed spirited protests against the CAA and NRC in late 2019 and early 2020 before they were brought to a halt with the onset of the pandemic. Revolutionary songs were sung, and the constitutional preamble was recited in public throughout the country. But the most captivating sentiment of the protests was articulated in the title of the Hindi lyricist Varun Grover’s poem ‘Hum Kaagaz Nahin Dikhayenge’, or ‘We will not show You the papers’. In continuity with the best traditions of Gandhian civil resistance, this defiant message brought out the radical power of negation, and at the same time expressed collective solidarity with the Muslim ‘other’ in their hour of crisis. If the legal struggle in courts and tribunals is to prove that ‘we are citizens and not impostors’, the political struggle is for something more basic and elemental. It is as if to tell the ruler, that ‘you are the real impostor, and we refuse to cooperate with your lawless laws’.
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