We are all citizen-impostors unless proved otherwise

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.

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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’.

Interview with Professor Anupama Roy

Anupama Roy is a professor at the Centre for Political Studies in the School of Social Sciences in Jawaharlal Nehru University, Delhi. Her research focuses on debates on citizenship, political anthropology of public institutions, constitutionalism, law and democracy, and gender studies. Her most recent publication is ‘Citizenship Regimes, Law and Belonging: the CAA and NRC in India’ published by Oxford University Press, 2022. She is the co-author of the book ‘Election Commission of India: Institutionalising Democratic Uncertainties and author of Mapping Citizenship in India’ (OUP, 2010, 2014), ‘Citizenship in India’ (Oxford short introduction series, 2016) and ‘Gendered Citizenship: Historical and Conceptual Explorations’ (Orient Blackswan, 2005, 2013). She has co-edited ‘Dimensions of Constitutional Democracy’ (Springer 2020) and ‘Poverty, Gender and Migration in South Asia’ (Sage, 2008). Her research articles have appeared in various national and international journals including Asian Studies Review, Australian Feminist Studies, Citizenship Studies, Critical Asian Studies, Contributions to Indian Sociology, Economic and Political Weekly, Seminar, Election Law Journal and Studies in Indian Politics. She was a senior fellow in the Centre for Women’s Development Studies, before she joined the Centre for Political Studies in JNU. She has been a visiting scholar in various universities, including Sydney University, University of Warwick and University of Wurzburg, Germany. She was Sir Ratan Tata post-doctoral Fellow at the Institute of Economic Growth in Delhi and Key Technology Partner Fellow at University of Technology, Sydney, Australia.

This interview was conducted online and has been edited for clarity.

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Introducing Professor Roy’s Work

Rudraksh Lakra: Could you speak a little about how your book Citizenship Regimes, Law, and Belonging: The CAA and the NRC came to be? When did you start working on it? How did you locate this work within the broader trajectory of scholarship vis-a-vis citizenship studies? Lastly, how does this add to the preexisting body of scholarship interrogating India’s citizenship regime?

Professor Roy: Citizenship Regimes, Law, and Belonging (OUP 2022) builds upon my previous work, Mapping Citizenship in India (OUP, 2010). Mapping Citizenship had traced the biography of the citizenship law in India up to the 2003 amendment in the Citizenship Act 1955. Citizenship Regimes (OUP, 2022) examines the contemporary landscape of citizenship, focusing on the NRC and the CAA, and uses the categories ‘regimes’ and ‘belonging’ to make the citizenship-space intelligible. I started working and writing on the NRC, 2015 onwards and extended my inquiry to the CAA since both were coterminous in the citizenship-space in the country. I also found it useful to expand the scope of the study to include the Land Border Agreement Treaty of 2015 pertaining to the enclaves, the exchange of territory and population, and how Section 7 of the Citizenship Act came into play in the constitution of ‘new’ citizens even as the ‘old’ citizens experienced displacement as they moved from the enclaves to camps in Cooch Behar. I place my work within the broad fields of citizenship studies, law, state and politics/social sciences, and legal and constitutional ethnography. There has emerged an urgency in the vast and accumulating scholarship on citizenship to go beyond citizenship as legal status associated with membership in a nation-state to relationships that need to be seen from the anthropological lens.

The emphasis, according to this approach, should be less on legal rules and more on norms, practices, and meanings that make citizenship intelligible to people. In such an understanding, citizenship may not mean the same thing to everyone but would serve as a powerful connecting concept with the capacity to coalesce diverse settings and struggles, even when each setting is distinctive and is expressed as ‘a situated articulation’. Citizenship is presented then as a ‘powerful keyword’ which has the capacity to make sense of relationships – existing or desired – as they are vocalized in different forms – texts and performances – across different sites of varying scales and intensities. This book deploys ‘regimes’ and ‘belonging’ as devices to understand how citizenship is structured, its effects, and the feelings of attachment or estrangement that it spawns. The book, however, retains the focus on law – the citizenship law – to see how law and state can be seen as ‘relational’ categories and as sites where struggles over belonging are waged. These struggles then produce unsettled zones – churnings – which when seen through the anthropological lens, tell us about both – the life of law and the lives it intersects. They also tell us of the blurred zones between law’s distance and proximity, which is important for understanding the relationship between legal rationality and the force of law. In these zones, citizenship becomes entangled with the law’s capacity to destabilize and recode ideas of belonging by simultaneously enforcing and masking the power of the state to elicit obedience from citizens. It is in these zones also that the performative aspects of citizenship and the constituent power of the people is expressed—in the form of ‘creative’, ‘dissident’, and ‘iterative’ citizenship practices that accumulate and become critical for unfettering the emancipatory potential of citizenship. I would see my work as part of and in conversation with a rich repository of citizenship studies in India, which provides important insights into how rights and obligations of citizens in India, were an outcome of a long history of negotiations in the judicial space, claims-making in the terrain of civil society, and recognition in the constitutional architecture. It is, however, its focus on law, and the effort to see law’s relationship with lives that comprises the distinctive contribution of this book to citizenship studies in India.  

First Regime of Citizenship 

Rudraksh Lakra: In your book, you link the first regime of citizenship with the ‘transformative’ moment which was the drafting of the Constitution of India. But there were always tensions within the ‘transformative constitution‘. This moment was contested both historically and politically. There were also forces (often majoritarian) which attempted to undermine this transformative process. Considering this, could you speak about the discourse around the issue of citizenship? Were there voices and ideas with the potential to unravel this first regime of citizenship, something almost universal in nature?

Professor Roy: The book is about fields of contest over citizenship understood in terms of regimes of citizenship. I have identified three consecutive regimes of citizenship, each distinguished by an underlying logic, which makes the regime discrete. Yet there are tendencies that linger on from one regime to the other. The association of the term ‘regime’ with citizenship is crucial for making the argument that law must be seen not only in terms of its bare provisions, but also examined for its political and ideological embeddedness. It enables us to map the field of power that surrounds citizenship, the debates on what is considered authoritative, the legitimation practices that justify the authorial power of the state over law-making, the interface of law with the lives that it intersects, and the notions of belonging that it puts in place. All the three ‘historical’ regimes address the problem of ‘mobility’ of people in contexts of state and nation-making and the cartographic anxieties that accompany the making and enforcing of borders. Integral to each regime is the notion of crisis that immigration and the ‘awkward’ and ‘threatening’ presence of ‘aliens’ and ‘outsiders’ present to the ‘settled’ notions of membership and belonging.  In a sense this work follows Laura Nader, who prompts us to look at law as having a life, which when seen in the anthropologist’s terrain is visible in its mutations as well as through the political effects in generates – especially in the way in which concepts like the rule of law, equality, justice etc., when used repetitively, may have the effect of occluding and silencing the ‘realities’ experienced by people. In a sense, this work is one of constitutional ethnography, focusing on the aspect of ethnography that persuades us to appreciate the historical and political contexts in which constitutional and legal rules are situated, and undertake as Scheppele would argue ‘contextually detailed’ studies where particular questions of law may be seen in all its complexity, in its enduring histories, specific social and cultural meanings, and political effects. 

The contextually detailed and situated articulation of the citizenship law shows that the citizenship regimes constitute ‘assemblages’ which are distinguishable from one another but at the same time are internally uneven and fraught. I associate the first regime with the transformative which characterised the constitutional moment that opened the possibility of a ‘democratic’ notion of government and of rolling back the legacies of past injustices. The ‘transformative’ – a conceptual framework associated with constitutionalism in post-apartheid South Africa – is relevant for understanding the journeys of countries making the transition from colonial rule and authoritarian regimes to democracy. By holding out a powerful affective appeal of individual and collective transition to the camaraderie of equal membership in the political community, the ‘transformative’ held out the promise of a future unburdened from the humiliations of the past. At the same time, however, the past lingered in the lives of the people as ‘the new forms of the old state’ persisted. In an evocative use of the ‘bridge’ as a spatial metaphor in the context of the interim Constitution of South Africa, Pius Langa sees the transformative as a ‘permanent ideal’, as a ‘way of looking at the world’ to explore ‘new’ and ‘democratic’ ways of ‘being’. 

As a deliberative body that was entrusted with the task of making a higher-order law from which governments would draw their authority and legitimacy, the Constituent Assembly represented a space, where questions concerning the future polity, democracy, and citizenship were debated and ‘resolved’. Upendra Baxi sees this process as one of locating the legal sovereign amidst ‘prior [and continuing] histories of power and struggle’. These struggles shaped the project of writing the constitution, the ‘specific modes of governance and production of juridical norms’, and also the relationship between the constitution, law, and the ongoing state formative practices. The Constituent Assembly met in the context of the Partition – a period of extraordinary violence and deep uncertainties about belonging. The minutes of a meeting of the Standing Advisory Committee held in Delhi on 14 November 1949 under the chairpersonship of the Minister for Home Affairs Vallabhbhai Patel, give an insight into the augmentation of the policing activities of the state and the expenditure incurred on it – the passport check posts on the newly installed borders, the employment of extra police officers for the security of the sessions of the Constituent Assembly and additional police for the eviction of persons occupying evacuee property, the recovery of the abducted persons, and the ‘sudden expansion of Delhi and the increase in its population’ due to the migration from Pakistan, to mention a few. Writing about ‘passions’ in the Constituent Assembly which met in the Parliament House ‘a few miles from the refugee camp’ for those displaced due to the Partition, with Nehru’s official house too serving as a refugee shelter, Vatsal Naresh, points towards the sense of ‘foreboding’ that violence produced even among the members of the Assembly. Indeed, the questions of citizenship were being addressed in a variety of situations, in a context, where people were moving across the newly created borders, displaced under conditions of extreme violence. The Constituent Assembly experienced difficulties in framing the ‘legal’ provisions for citizenship because the procedures for identifying citizens in the context of movement of population were fraught with questions pertaining to both who would be a legal citizen of India at the founding moment but also what kind of identity this legal membership would express. The question of identity was particularly fraught with members differing over the identification of Indian citizenship with a Hindu Homeland on the one hand and the emphatic disavowal of this association by those who saw secularism as the principle which would make Indian citizenship inclusive and universal. The debates in the Constituent Assembly from 10 to 12 August 1949 (see here, here, and here), when the final provisions of citizenship were deliberated upon and approved, show deep ‘ideational’ and ‘ideological’ disagreement among the members. These disagreements reflected anxieties around the implications the constitutional framing of citizenship would have on the idea of Indian citizenship. Distributed along the familiar fault-line of whether ‘birth’ or ‘descent’ should be the foundational principle of citizenship, they were concerned with questions of both the source of citizenship and its expression as an identity—attached to ideas of home and belonging. A close reading of the Constituent Assembly Debates shows, however, that the fault lines were unevenly drawn, and no position was absolute. Those who argued for descent as the source of citizenship also sought to make citizenship conditional for ‘returnees’ from Pakistan and were apprehensive of the ‘dual ties’ citizenship would generate when extended to the diaspora community. Similarly, apologists for the principle of birth sought to make it conditional on domicile and combine it with ‘inheritance’ or lineage from Indian parentage. The need to specify the uniqueness of Indian citizenship among countries that subscribed to one or the other forms of citizenship was asserted amidst concerns that the inscription of ‘birth’ as a definitive condition of citizenship would make it ‘cheap’. Anxieties were also expressed that indiscriminate absorption of people migrating across borders would make Indian citizenship precariously flexible and embarrassingly indecisive. 

Significantly, the debates provided the space where secularism as a democratic and republican ideal was discussed and affirmed as the basis of citizenship, even as the relationship between citizenship and religion, the legibility of mobility, questions of loyalty and allegiance, and the centrality of birth or descent as the source of citizenship, remained disputed. Deviating from Ambedkar’s opening statement that Parliament would have the power to make an altogether new law on citizenship embodying new principles, Nehru’s speech towards the end of the debate conveyed that the objective of the deliberations in the Constituent Assembly was to lay down the norms and principles that would define citizenship—and not the details of acquisition and termination of citizenship. While these details should appropriately be in the domain of the law making powers of Parliament, the Constituent Assembly must lay down the principles which would guide future law. Nehru considered a decision that involved ‘the greatest amount of justice’ and served as the most practical solution to the problems of the ‘vast majority of cases’, as a principled decision. Yet, the practicality of a decision would be subservient to the principles which gave the constitution an identity. Troubled by the way opposition to Ambedkar’s proposal was built around the rejection of secularism, Nehru argued that these positions eschewed considerations of equity and justice. Indeed, by choosing to remain secular, India was only doing something which every country, except ‘a few misguided and backward countries in the world’ had done.

Second Regime of Citizenship 

Rudraksh Lakra: Could you introduce the second regime of citizenship, the Assam exception?

Professor Roy: The second regime of citizenship, characterized by the logic of exception, addressed the citizenship question in Assam. Put in place through an amendment in the citizenship law in 1985, the regime installed what one could call a hyphenated citizenship in the state. The citizenship question in Assam today continues to be framed by the two ‘events’ that marked out the ‘Assam exception’ in the 1980s. The first event was the enactment of The Illegal Migrants (Determination by the Tribunals) Act, 1983 (IMDT Act), which was notified only for Assam and became critical in exacerbating the field of contest around citizenship in the state by putting in place a mode of identification of illegal migrants which was different from the rest of the country. The IMDT Act was seen in Assam as an anomalous and unfair exception. The Supreme Court’s judgement repealing the IMDT Act in what is commonly known as the Sarbananda Sonowal case (2005), reflected the criticality that the Act had assumed in festering the anxiety around illegal migration and citizenship. The Supreme Court judgement scrapping the IMDT Act located the citizenship question in Assam within the dominant discourse of ‘national security’ and ‘state sovereignty’, characterizing ‘illegal’ migration as an act of aggression. The general principles which were laid down by the court in removing the law articulated citizenship as a vital aspect of state sovereignty, with the policing of national boundaries critical to its entrenchment.  
The second ‘event’ was the signing of the Assam Accord in 1985, which put in place exceptional provisions for the determination of citizenship in Assam. While the IMDT Act was an expression of how a law could become a political instrument for the resolution of the problem of ‘illegal migration’, the Assam Accord opened up space for a ‘negotiated settlement’ of the issue. In the process the accord prepared the ground for two exceptions in the legal order of citizenship: the establishment through law of a hierarchical order of graded citizenship in Assam and the extension of the chronological boundary of citizenship for Assam to 24 March 1971. The Citizenship Act was amended in December 1985 to implement the accord and Section 6A was inserted to address the special circumstances of Assam. The graded model confirmed a hierarchical ordering of citizenship, in which those who were ‘originally’ resident in Assam were entitled to undisputed citizenship. The rest were ‘residual’ citizens, whose citizenship was rendered ambivalent by their linguistic identity or their religion. This ambivalence was sought to be resolved legally by conferring confirmed or deferred citizenship on some. The rest, that is, those who entered India after 24 March 1971, were aliens, and the (ill)egality of their presence was to be confirmed by the IMDT Act. Since both the Foreigners Act and the IMDT Act applied simultaneously and prescribed different modes of determining citizenship, the residual citizens came to occupy a zone of perpetually indeterminate citizenship and suspect legality. The sanctity of the accord as a ‘public contract’, the dispute over the cut-off date prescribed by it which was different from the rest of the country, the ‘additional load’ that Assam had to subsequently bear, and the long-standing question of Assamese identity, which the accord also promised to protect, lingered on and became critical in the churning in Assam over the NRC and the CAA.

Rudraksh Lakra: I have read the first Sarbananda Sonowal v Union of India (2005) judgment by the Indian Supreme Court (“Indian SC”) in detail and my sense was that under the threat of ‘external aggression’ due to the apparent influx of immigrants in Assam the Court almost created a situation of “legal exceptionalism”. Thus, I found it striking when you wrote about how the presence of the “outsider” and the crisis of immigration threatens to disrupt the ‘settled’ notions of membership and belonging. So how was an “illegal migrant” imagined during the political discourses and in Courts vis-a-vis the Assam exception, and what was the potency and impact of deploying this imagination?

Professor Roy: It is interesting that the Sarbananda Sonowal Judgement (2005) delivered after the enactment of the Citizenship Amendment Act of 2003, reflected the characteristics of the ‘third regime’ of citizenship identified with the national security state and the paradox of de-territorialized citizenship. The latter was reflected in the recognition in law of the category of the Overseas Citizen of India and the simultaneous reinforcement of territoriality under Article 355 of the Constitution which made the protection of the territory from external aggression a function of state sovereignty. The ‘illegal migrant’ came to be understood in such a framing as an ‘aggressor’ whose presence was a threat to national security and was consequently a source of anxiety not just for Assam but for the country as a whole. Sarbananda Sonowal was an influential judgement which echoed in subsequent judgements to provide authoritative ground for other exceptions that were subsequently put in place in Assam to resolve the citizenship imbroglio. It must be kept in mind that the analogy of immigration into Assam as ‘invasion’ by ‘land-hungry’ Muslims has been a persistent trope in the discursive practices that have attributed illegality to the movement of people across the eastern borders. The Supreme Court judgement in the Assam Sanmilita Mahasangha (2014) is the most significant among these, which cited the Assam Accord, the amendment in the Citizenship Act in pursuance of the Accord, and the Sarbananda Sonowal judgement as the developments through which the trajectory of citizenship in Assam had taken shape and went ahead to add to the legacy of Sarbananda Sonowal. The Supreme Court judgment in Assam Sanmilita Mahasangha case charted two distinct and mutually contradictory courses: One of these placed Section 6A of the Citizenship Act before a Constitution Bench, opening up the legal resolution of the citizenship question in Assam following the Assam Accord to judicial scrutiny; the other placed the extent to which the Central government had been able to implement the various components of the Assam Accord before the court for evaluation. The trajectory of the first scrutiny, that is, the examination of the validity of Section 6A has remained desultory. The second, that is, the evaluation of the implementation of the Assam accord, ironically, led to a Supreme Court-monitored preparation of the NRC according to the exceptional procedure laid down in Section 4A of the Citizenship Rules 2003. It may be recalled that while the Assam Accord required the identification and expulsion of foreigners, it did not ask that this should be done by updating the 1951 NRC. Indeed, the preparation of the NRC based on the 2003 rules follows the cut-off dates specified in Section 6A of the Citizenship Act, which was entrusted to the scrutiny of the Constitution Bench in the same judgement. In its administrative guidelines, the Supreme Court followed its decision in Sarbananda Sonowal in construing the ‘influx of illegal migrants into the state of India as external aggression’. At the same time, however, it broadened the notion of security to include ‘internal disturbance’, which involved being alert to and eliminating risks to the people of Assam from outsiders. To this end, it directed the attention of the larger bench of the Supreme Court which would examine the constitutional questions precipitated by the petitions, to consider whether the expression ‘state’ occurring in Article 355, referred only to a territorial region or included also the people living in the state, their culture, and identity.

Third Regime and the CAA 

Rudraksh Lakra: Could you introduce the third regime of citizenship, the 2003 Amendment to the Citizenship Act?’

Professor Roy: The third regime of citizenship was spawned by the amendment in the Citizenship Act in 2003. This amendment became definitive in affirming the tendency towards jus sanguinis that had been put in place by the 1986 amendment in the Citizenship Act which made changes in the provisions concerning citizenship by birth. With this amendment, the category ‘illegal migrant’ which was inserted in the citizenship act to address the specific context of Assam through the 1985 amendment, made its appearance in the provision of citizenship by birth. The amendment, moreover, by further constraining citizenship by birth, decisively ensured citizenship’s association with the principle of blood, as descent from parentage of Indian origin became the defining principle for consideration of citizenship by birth. Alongside constraining citizenship by birth by making it dependent on descent, the 2003 amendment inserted the category of ‘overseas citizen of India’ (OCI). The OCI was an ambivalently articulated category, in so far as it recognized de-territoriality of citizenship by extending the privilege of holding an overseas citizen of India card to persons of Indian origin who had acquired citizenship of another country. Yet, the deterritorialization of citizenship through the OCI was deceptive, since it did not allow dual citizenship. The principle of parentage and blood ties was affirmed through another change that the 2003 amendment brought in the citizenship law, which made ‘lineage’ an integral part of Indian citizenship. The 2003 amendment empowered the Central government to prepare a National Register of Indian Citizens (NRIC) and issue national identity cards to persons identified as Indian citizens. The rules framed for the implementation of this provision lay down an exceptional procedure for Assam, whereby those seeking for a place in the NRIC in the case of Assam would be required to provide documentary evidence showing descent from those who were citizens of India of Assamese origin. The regime of ‘documentary citizenship’ as Kamal Sadiq calls it, to prove citizenship through descent, along with the constraints on citizenship by birth, produced a regime of citizenship founded in the logic of a bounded community, based on ties of belonging to a dominant ‘we’ within a Hindutva imaginary of nation-hood and citizenship. 

Rudraksh Lakra: Could you explain how the two trajectories set by the amendments to the Citizenship Act in 1985 and 2003 (which have conjoined) formed the foundation for the CAA? Could you track this transition?

Professor Roy: The third regime of citizenship is a coalescence of tendencies that have emanated from successive citizenship regimes spawned by the earlier periods of change in the citizenship law. The amendment in 2003 may be considered a hinge point from which the NRC and the CAA 2019 emerged and became an integral part of the ideological landscape of citizenship in contemporary India. Having appeared as discrete tendencies out of the 2003 amendment in the Citizenship Act, the NRC and CAA 2019 have become conjoined to produce a spectre of national citizenship based on the logic of descent as the organizing principle. The 2003 amendment provided that the central government may (not shall) prepare a national register of citizens and lay down a procedure to be followed if an NRC was prepared, with a separate procedure in Assam which was one of ‘updating’ the 1951 NRC, which as we know was prepared exclusively for the state of Assam. The same amendment, as stated earlier, laid down that ‘illegal migrants’, that is those who had entered India without valid papers or had overstayed, were not eligible to apply for citizenship through naturalization or registration and their children even when born in India could not be citizens of India by birth. The CAA 2019 made an exception for specific categories of ‘illegal migrants’ that is, Hindus, Sikhs, Buddhists, Zoroastrians, Jains and Christians, who had fled Pakistan, Bangladesh and Afghanistan, before 31^st December 2014, to escape religious persecution, and allowed them to apply for Indian citizenship. The NRC, as the experience in Assam has shown us, is a legal regime of enumeration of Indian citizens based on evidence that establishes a legacy of inherited belonging, it is simultaneously, and often primarily, presented as a modality of identifying illegal migrants. The CAA 2019 is embedded in the idea of national-majoritarian citizenship with religion as its distinguishing principle. It makes a distinction among illegal migrants to identify those among them who would be considered eligible for Indian citizenship through naturalization and registration. These two principles—of descent as the organizing principle of citizenship and a provision to protect those who have suffered persecution on religious grounds while simultaneously retaining religion to distinguish between those who are eligible for protection — inform the politics of conjointment that characterizes the present regime of citizenship. Indeed, the two disparate tendencies – NRC as a modality of distinguishing citizens from illegal migrants – and CAA 2019 as a protective regime exempting some from this category – have come together to install exclusionary nationhood under the veneer of liberal citizenship. 

Rudraksh Lakra: In your book, you speak about how the Constituent Assembly laid down some principles that were to govern the issue of citizenship. How does the CAA depart from those principles laid down in the first regime?

Professor Roy: The dilemma in the Constituent Assembly (CA) was around what needed to be explicitly stated in the Constitution and what could be left out for future democratic majorities to legislate. The dilemma was expressed in the debates in terms of a fundamental contestation over parliamentary sovereignty and the status of the Constitution as a higher order law embodying popular sovereignty. If the debate in the CA was on what should be the defining principle of citizenship, from which reasonable deviations could take place in future through laws made by Parliament, the debate in Parliament on CAA 2019 was fundamentally about what should have the force of law. In other words, the debates in the Parliament were animated by the question whether the assumption that the Parliament had the power/competence to make laws on a subject should be sufficient or the content of law should be such that it inspired trust among the people. In his opening statement in the Lok Sabha introducing the Citizenship Amendment Bill 2016/2019, the Home Minister called it a ‘historic Bill’ which would free ‘lakhs and crores’ of people from their tormented life [as refugees/illegal migrants] into a life of dignity as citizens. During the debate, the claim that the Bill was ‘historic’ was disputed by those who saw it as a part of the BJP’s political and ideological project to make India a majoritarian-Hindu nation. In the Constituent Assembly Debates, republican citizenship and the recognition of Parliament’s preeminent role in making laws on citizenship were expected to unfold in tandem to remain consonant with the Constitution—after all, it was the Constitution that was the source of Parliament’s law- making powers. These powers were constrained by the essentials that the Constitution had put in place, which could not be subverted by any law made by Parliament. As stated in response to your earlier question, the CA admitted facing difficulties in framing the ‘legal’ provisions for citizenship. While concerns were expressed over admitting ‘returnees’ to citizenship, the way the ‘permit’ system was being operationalized, and the ramifications it would have on evacuee properties, etc., strong sentiments were expressed in the CA regarding the need to identify Indian citizenship with a Homeland for Hindus, in the same way as other religions have a country to call their own. Apprehensions were expressed in the CA that ‘a weak sort of secularism’ that had ‘crept in’, to make an exception to accommodate the returnees, showing ‘an unfair partiality…to those who least deserve it’. As mentioned before, Nehru sought to register his ‘strong protest’ against these arguments to emphasise that the task before the CA was to lay down the principles that would guide future law, in consideration of equity and justice. Secularism was the principle which for Nehru was paramount in guiding such consideration. It was this principle that was vitiated in the process of enactment of the CAA 2019. The CAA 2019 followed the principle articulated in the Joint Parliamentary Committee (JPC) report which reiterated the Sarbananda Sonowal Judgement to argue that ‘misconceived’ notion of secularism should not stand in the way of state sovereignty, made manifest in its function of protecting the national borders against indiscriminate influx of illegal migrants. Indeed, the JPC’s position that religion as the criterion for distinguishing between one and another kind of illegal migrants was not only constitutional it was also moral because it sought to correct a historical wrong – became the dominant argument in Parliament, replacing secular constitutionalism with communitarian majoritarianism. The debate over the legislative powers of Parliament on ‘all matters concerning citizenship’ is also interesting. While the JPC and Parliament considered the powers of Parliament drawing from Article 11 unfettered, a strand within the CA, consisting of those who favoured a religion-based definition of citizenship, were of the firm opinion that any change in the constitutional principles defining citizenship through a law made by Parliament, should be construed an amendment of the Constitution itself.

Popular protest in response to CAA/NRC/NPR and Transformative Constitutionalism

Rudraksh Lakra: The chapter I found most interesting was chapter 4 in which you tracked the popular protest in response to the CAA. What made this movement of resistance popular, how was the constitution linked to the protests and what role did the constitution play in this protest?

Professor Roy: The contemporary landscape of citizenship presents a deep paradox. The anti-CAA protests spanned the breadth of the country, expressing heightened consciousness about citizenship by recalling the constitutional moment. This period has also been one when the salience of the state as the disburser of citizenship was affirmed and reinforced through the CAA 2019. It is significant that the state made its power of disbursement emphatic by charging anti-CAA protesters under sedition provisions and laws such as the UAPA, which come with the objective of curbing terrorist and unlawful activities. As people read out the Preamble of the Constitution and held up its copies in sit-ins and rallies, and displayed posters with the text of the Preamble inscribed on them, the Constitution became the most visible symbol of people’s disquiet and indignation. Two months into the protests, the Constitution also became a ‘bestseller’. A publisher, who earlier sold only a thousand copies of the Bare Act of the Constitution in a month, reported a fivefold increase in sales. Interestingly, the act of ‘reading out’ from the Constitution as performance of citizenship, was also seen in June 2019 in Moscow when Olga Misik, a schoolgirl, read out the constitutional rights of the Russian people listed in the Constitution in a pro-democracy rally. The ‘lone figure’ of Olga Misik sitting cross-legged in front of a heavily armed Russian riot police reading out from the Constitution, became almost as iconic as the figure of the ‘lone man’ facing a line of tanks in the Tiananmen Square in Beijing in the summer of 1989. In protesting against the CAA 2019 through constitutional symbols, the protestors were recalling the principles that were adopted in ‘extraordinary’ moments of intense constitutional participation and deliberation. By lobbing the text of the Constitution into the public domain as a reminder of constitutional politics, a resurgence of citizenship could be seen in different sites, including Shaheen Bagh and Assam, which were assembled in different ways, but all of which expressed anxiety over estrangement and abandonment that the CAA would bring in its wake. Such acts of resurgent citizenship sought speech that called for careful listening and transversal communication, which would make a banal act of reading the Constitution a ‘stirring’ cry for fraternity.

Some observations by court in the orders that came during the protests become important in this regard in so far as they point towards the interactive and iterative spaces that the protests produced. One of these, by the Aurangabad bench of the Bombay High Court, while quashing the ADM’s order denying permission for protests in the Idgah ground in Beed district, looked for reasons in constitutionalism and the rule of law, and the legacy of the freedom movement that made the Republic intelligible to the people. The court considered that in such cases, it was the duty of the Government to talk to the people and convince them. In an order delivered in February 2020, the Supreme Court also emphasized the need for communication with the protestors in Shaheen Bagh and appointed a three member committee to act as ‘interlocutors’ to help lift the impasse. In the Idgah case too, the judges reminded the government of its responsibility to convince the people.  Importantly, however, the judges also felt that it would be wrong to presume that it was ‘only a particular community or religion’ that was interested in opposing the CAA, especially since the ADM’s order had mentioned that ‘persons of all religions’ had started the agitation.  The possibility that ‘many persons of all the communities’ may feel that the law is ‘against the interest of mankind, humanity or the basic human values’, persuaded the judges to locate the sentiment in ‘the history of the constitution’ and a sense of fraternity that ‘the freedom struggle’ had instilled in the journey towards the Republic.

Rudraksh Lakra: I have often seen the majoritarian Hindutva forces using the constitution and the preamble and other such national symbols of unity for political gain. For instance, the recent ‘har ghar tiranga movement’. How do we counteract this co-option and what lessons can be taken from the CAA protests to strengthen popular movements founded on constitutional ideals?

Professor Roy: Both the Constitution and the national flag are evocative symbols that produce strong feelings of attachment to abstract categories such as the nation. The national flag is a symbol of freedom and sacrifice representing the legacy of the national liberation movement, and the Constitution of India is the source of a sovereign citizen identity. Both these symbols embody a space of relationships that capture the distinctiveness and ambiguities in the making of that space. In the Constituent Assembly, the adoption of the national flag invoked powerful sentiments of harmony even as debates around the question of citizenship as legal belonging were fraught with question pertaining to what would be the fundamental principle of membership – ‘blood’ or ‘soil’ – each pointing to a different sentiment of belonging – lineage and land – and expression of citizenship – ‘ethnic’ drawing from attachment to the nation as community with roots in the past, and ‘civic’ – pointing to an attachment to the solidarity of citizens looking towards a constitutional future. The Constitution itself we may remember was laying down norms which were meant not simply to empower or restrain political actors but as Madhav Khosla argues – to serve as a ‘pedagogical tool’— as a mode of imparting political education to build a ‘new civic culture’. It may be remembered that these tools of both restraint and civic education were being developed under conditions of  what Vatsal Naresh calls ‘high passions’ in the Assembly induced by the Partition. 

The ‘national consciousness’ with which the flag was associated when it was adopted in 1947, transitioned with the 42^nd Constitutional Amendment Act (1976) to ‘cherishing’ and ‘respecting’ it as ‘fundamental duty’ – an ‘obligation’ which every citizen owed to the nation.  In 2022, celebrating the 75^th year of independence, the idea of ‘bringing the flag home’ (har ghar tiranga) was sutured into a regime of citizenship that rests on sentiments of conservative populism and majoritarian nationalism. It must be remembered that the domestication of the flag was preceded by a strong citizen movement that resurrected the constitutional moment while protesting the Citizenship Amendment Act 2019. The movement made both the national flag and the Constitution powerful tropes in the expression of indignation and outrage. Citizen outrage, I argue, extricated the national flag and the Constitution from an emotional field marked by collective and individual reverence, and relocated them in a space replete with deeply visceral and somatic relationships, with people expressing both trauma and fear over the redefinition of the terms of belonging. Making citizens through attachment to symbols of belonging was in each of these instances an ‘overwhelming’ sentiment: in its adoption in the Constituent Assembly as a cathartic legacy of collective struggle for national liberation; in the 42^nd amendment, which came during the national emergency – as a moment of rupture in what was construed as an atrophic legacy from a static past; and in contemporary context – as the resurrection of what was largely a submerged legacy from the founding moment that emphasized descent and blood as the ties that bound the nation, interrupted, however, by reclamation of these symbols through ‘acts of citizenship’ recalling the constitutional moment. The protests over the CAA, which began in December 2019 and continued in Indian cities till March 2020, when the Covid-19 pandemic precipitated a national lockdown, recalled constitutional politics in the urban streets that became sites for the elaboration of citizen democracy. The ubiquitous recourse to the Constitution in street protests made it ‘popular’ and ‘familiar’—belonging to the people. Unlike the engagement of the people with the Constitution in Rohit De’s A People’s Constitution, where the Constitution became a tangible experience for the people in ‘situations of mundane everyday life’ (2018) those protesting against the CAA were re-installing the Constitution in a field of morality, to bring the legislative authority of the state to scrutiny. The rules of validation thus invoked referred not to the ‘force’ claimed by law because of its pedigree, but the notion of justice as a legal virtue. While unmasking the law’s violence, the protestors justified civil disobedience as an ethical means of questioning what they considered an unjust law. In doing so they sequestered the ‘state order’ component of the Constitution from its ‘garantiste’ component, bringing the moral order of constitutionalism in popular vocabulary. The inscription of the Constitution in the popular register was significant for installing the infallibility of normative principles and democratic practices associated with constitutionalism. It is through these registers that the co-option of these symbols of republicanism and democracy in the ruling practices of the state can be actively resisted.

Rudraksh Lakra: How did the pandemic impact these protests and how could we generate the momentum for these protests again?

Professor Roy: The Constitution—as a performative text, as a historical legacy of ideas and icons integral to the national imagination, and as a source of consciousness of democratic citizenship—became a powerful idiom of protests that proliferated across the country after the enactment of the CAA in December 2019. The installation of public spaces of protest through reading, ‘postering’, and ‘posting’ of the Constitution, produced a vocabulary of citizenship interlaced with the constitutional ethic, which persisted until Covid-19 became a pandemic. The ‘pandemic effect’ imposed a different order of public life and political practice, as the state acquired ‘necessary’ powers to put the people under a state of lockdown, and the protests folded up into the virtual space of political communication. On 22 March 2020, the Prime Minister of India exhorted citizens to observe a voluntary janata (people’s) curfew. From 24 March, India went into complete lockdown. ‘Social distancing’—the expression used for what was supposed to be physical distancing considered integral to the so called ‘war’ against the Coronavirus—captured the impact the lockdown had on the hitherto teeming public space. The streets in Delhi and other parts of the country had seen continuous sit-ins and demonstrations against the CAA-NRC since the CAA was passed by the Parliament in December 2019. The pandemic had the effect of making the ‘public’ a potentially dangerous space—a source of contagion—where ‘the public’ as a cluster of infected bodies became a risk. The public was folded up and in, as bodies were isolated and quarantined. As an immediate effect, the streets were emptied out of people—protests were lifted or deferred—announcing a period of hiatus till they reconvened. The almost five thousand women of Mumbai Bagh in Mumbai went home in deference to the health emergency and the women of Hauz Rani in Delhi lifted their sit-in with the resolve to continue it online.

It may be worthwhile to see the pandemic as producing conditions with specific attributes which gave coherence to a new set of constraints, challenges, and even possibilities of citizenship. In a sustained environment of fear of getting sick and dying, the fear of contagion ushered in the isolated monad as the best defence in the ‘war on corona’, which worked on the logic of changing people’s behaviour. At the crux of this logic was the belief that the fear of an unbridled and lethal contagion would make people participate in legal/punitive and medical regimes if they believed that it is for their and society’s defence. Ordinary penal laws that facilitated policing of the public were buttressed by special laws that allowed the government to use emergency powers to protect the people against disasters and epidemics. Among the changes that the pandemic regime brought was the reprivatization of home and privatization of work as the home became the world of work. Domestication of the public occurred alongside cloistering of the private space. The decline of the idea of the public as a space of trust, empathy, and reciprocity made way for distance and suspicion—quarantine, isolation, containment zones, contact tracing—became governmental practices and strategies facilitated by tools/apps for tracing and isolating, sifting, and sorting, and policing the public. Ideas of the public based on equality, fraternity, and public conscience were not part of the discursive framework of ‘prevention through policing’. The images of millions of migrant workers making their way home back from the city, which was never home but was mostly hospitable, to return home, became the most emphatic statement of estrangement from citizenship. The estranged bodies of the migrant workers/pandemic refugees, the untouchable, isolated, and stigmatized body of the infected, represented the ways in which they were pushed into the penumbra of citizenship—their bodies were made visible in an absent public. The stigmatized body of the ‘covid-infectee’ became untouchable even as untouchable bodies became frontline warriors, producing a blurred spectrum of precarious lives. 

The abandonment of the citizen by the state corresponded with the accentuation of the vertical relationship between the citizen and the state. In a context where the deliberative spaces within the political apparatus of the state—government and opposition, government and political party, Centre and the states—waned, the policing functions of the state enhanced exponentially. From public order to public health, the Ministry of Home Affairs became more pronounced as it seeped into all spaces vacated by public power. The augmentation of emergency powers of the state through the Epidemic Act 1897 and the protective role of the state through the National Disaster Management Act 2005 devolved enormous responsibility and simultaneously powers onto ‘Home’ in the governmental apparatus. The overdevelopment of Home in the state apparatus has also been evident in the context of anti-CAA protests and sit-in against the CAA/NRC in parts of North-Delhi where communal riots broke out in February 2020. The precariousness of citizenship became manifest under these conditions. While the Home Ministry exercised the extraordinary powers conferred by these laws, Parliament remained suspended due to the lockdown, and its functions of oversight over the executive were deferred. The use of draconian sedition provisions and the Unlawful Activities Prevention Act (UAPA), which since 2004 after the repeal of Prevention of Terrorism Act 2002 has become the foremost central law to deal with terrorism, against students and activists reflect the way in which the CAA has been sutured to the national security architecture. It is also a testimony to both the limits and possibilities of citizenship and the need for a reflexive citizenship practice founded in shared life and a state that has the capacity to empathize and not merely enforce consent. With the rules under the CAA not yet framed, and the question of its constitutionality being scrutinised by the Supreme Court, ‘popular’ protests may not re-emerge, at least not with the intensity which they occurred in the pre-pandemic period.

Rudraksh Lakra: In the context of the CAA, how do we view the role played by Indian Courts and the popular movement in promoting and protecting the values of our constitution in contrast to one another? Given that in recent times the Indian SC has often been deferral to the state and has been described by some as the ‘Executive Court’. Then, how should we envision the role of and relationship between Courts and the demos in promoting constitutionalism?

Professor Roy: The CAA is being scrutinised by the Supreme Court which has received over 140 petitions questioning the law’s constitutionality. The affidavits have, in different ways, pointed that the law is discriminatory and should be more encompassing, asserting the need to take into consideration Article 14 jurisprudence that has been ‘continuously enhanced’ by the Supreme Court itself – going beyond the ‘traditional’ classification and arbitrariness tests to focus on social context to prevent ‘the entrenchment or perpetuation of disadvantage’. Significantly, in its preliminary counter-affidavit, the Central government argued, among other things, that the question of ‘entitlement and conferment of citizenship’ fell ‘within the plenary domain of the competent legislature’ and that the legislature had the power to ‘devise its own legislative policy’ on citizenship, which ‘may not be within the scope of judicial review and may not be justiciable’. Indeed, it argued more specifically that ‘matters concerning the sovereign plenary power of the Parliament’, especially in regard to citizenship, cannot be questioned before the Court by way of a public interest petition. In some senses then the scrutiny of the CAA by the Supreme Court and the averment by the Centre may show how the ‘inner conflict’ in the Constitution between parliamentary sovereignty and judicial power have unfolded. While the judiciary was decisive in the 1980s in extending its power of judicial review to exercise scrutiny over the legislative and constituent powers of Parliament, this trajectory has been uneven. Through much of the 1980s and 1990s, in a manifestation of ‘judicialisation of politics’, the Supreme Court intervened in governance and policy making, becoming a morally superior partner in political engagements between the state and the people. On the other hand, the judiciary legitimised practices of the ‘neo-liberal security state’ by upholding the constitutionality of extraordinary laws (AFSPA and TADA in the 1990s and POTA in 2002) while steering clear of intervening in economic policy matters. 

Indeed, as legal scholars like Gautam Bhatia have pointed out there is a tendency among judges to eschew ‘independence’ in deference to the executive and the government, with the result that the courts, ‘instead of checking and limiting government power’ have become ‘executive courts’, ‘marching in lockstep with the government, and being used to set the seal of its prestige upon more controversial parts of the government’s agenda’. While the petitions questioning the constitutionality of the CAA are still being heard by the Supreme Court, earlier in the course of the protests around the CAA, the courts responded in different ways. In December 2019, for example, while giving bail to Chandrashekhar Azad of the Bhim Army who was arrested by Delhi Police for leading and organizing an ‘unauthorised’ protest at Jama Masjid, in which Azad read out the Preamble of the Constitution, the judge was reported in newspapers as having asked the public prosecutor to show her the law which prohibited someone from protesting outside religious places. In what was construed as a firm indictment of the police, she reportedly asked the public prosecutor, ‘Have you read the constitution?’. A few days before the order in Azad’s bail petition, a Delhi High Court bench of Chief Justice D. N. Patel and Justice C. Hari Shankar had refused a plea which had asked the court to issue directions for the removal of the Shaheen Bagh sit-in to a designated place to alleviate the inconvenience it was causing to large numbers of people. Later, after the lockdown had folded up the protest, a three-judge bench of the Supreme Court in the case of Amit Sahni vs. Commissioner of Police turned their attention to the relationship between dissent and democracy. While starting from the premise that ‘democracy and dissent go hand in hand’, the judges made it clear that dissent must take the form that ‘yields to social interest’. An ‘in-determinable number of people’ could not ‘assemble whenever they choose to protest’. Indeed, stating that the Shaheen Bagh protest was ‘blockage of a public way’ and not even a case of protest in an undesignated space, the judges drew attention to the dangers of social media which had the potential of scaling up ‘leaderless protests’ and create ‘highly polarized environments’. The Aurangabad bench of the Bombay High Court, however, chose to see the protests as located in ‘the history of the constitution’, and the sense of fraternity that ‘the freedom struggle’ had instilled in the journey towards the Republic. The agitators, they stated, could not be called ‘traitors’ and ‘anti-nationals’ for opposing the law. The people’s relationship with the Courts has been explored in different ways. Rohit De for example, has shown how the Constitution became a tangible experience for the people in ‘situations of mundane everyday life’. Others like Upendra Baxi who have seen the extension of judicial power into the domain of the ‘social’ as an attempt to curb state power or to plug its deficiencies, described the judiciary as ‘a people’s ally contributing to social movement for redemocratization’. Baxi termed this ‘judicial populism’, which characterised judiciary’s transformation into the last resort for the suffering people, and allowed it to claim moral authority at a time when institutions were facing a ‘legitimation crisis’. Yet, in its quest for popular legitimacy by becoming the people’s court, the Supreme Court opened itself not only to ‘the dynamics of disenchantment’, as Baxi argued, by promising ‘more than it could deliver’, it also lent itself to a mimetic politics of populism. The relationship between the government and the Supreme Court subsequently became, as Anuj Bhuwania calls it, one of ‘competing populisms’.  Considering that the judiciary is located within the domain of the state, with a constitutionally mandated ‘separate’ and ‘pristine’ domain of power, one could argue that it is in the moments of articulation and entrenchment of constitutional values that the contest between the executive and the judiciary in the institutional space of the state becomes visible. From the first amendment onwards the ‘people’ have figured in this contest in uneven ways.

Interview with Dr Rimple Mehta

Rimple Mehta is a Senior Lecturer at the School of Social Sciences, Western Sydney University. She has previously worked at the School of Social Work, Tata Institute for Social Sciences, Mumbai and School of Women’s Studies, Jadavpur University, Kolkata. Her research and field engagements broadly focus on women in prison, refugee women, and human trafficking. She engages with questions of borders, citizenship and criminology of mobility. Her paper titled “So Many Ways to Love You/Self: Negotiating Love in a Prison” won the 2013 Enloe Award and was published in the International Journal of Feminist Politics. Her monograph titled “Women, Mobility and Incarceration: Love and Recasting of Self across the Bangladesh-India Border” was published by Routledge in 2018. Her latest co-edited volume published by Orient BlackSwan is titled “Women, Incarcerated: Narratives from India”. She has worked with women in prisons/detention in Mumbai, Kolkata, Sydney and The Netherlands.

This interview was conducted over a video-call and has been edited for clarity.

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Shreya UK: Good morning, Dr Mehta. Thank you so much for joining us for an interview with Parichay. I want to start with trying to understand how you ended up studying Bangladeshi women in Indian prisons. What led to this particular book – and scholarship – in the first place?

Rimple Mehta: Thanks, Shreya and thanks also to the Parichay Team for inviting me for this conversation.

Actually my work with Bangladeshi women in prison goes back a long way. I started as a social work student at Tata Institute of Social Sciences. As a part of my field placement, I was placed in an organisation called Prayas, which was working in prisons in Mumbai. I started as a student social worker and started looking at the various issues that confront women in prison – whether it was in terms of health issues, or connecting them to their family members or supporting  them in accessing Legal Aid. So there were a whole range of issues that I was working on.

In between all of this, the Bangladeshi women started coming and speaking with me because I knew Bengali. Initially, it was just in terms of conversation or just spending some time because it was difficult for me to do anything about most of the issues that they came up with, such as connecting them with their families in Bangladesh. They did have legal aid but their cases were slightly more complicated. So initially it was just about spending time and having conversations. And then the issues started emerging through those conversations. There were issues with regard to how they come to India; at what point they are arrested by the police? What happens with regard to their legal cases? How are they sent back to Bangladesh? Do some of them end up coming back to India? 

These questions remained with me, even after I finished my field placement. I went on to pursue them as a part of my PhD, because I just felt there was absolutely no information available, no knowledge around the experiences of these women. And so I decided to work on it. That’s how it started.

SUK: Tell us a bit about the point you mentioned earlier: how and why did these women cross the border in the first place? Secondly, how did their mobility emerge from gendered notions of freedom?

RM: There are a whole range of reasons why people from Bangladesh come to India. There are also a whole range of ways in which they come to India. Because my doctoral work was in prisons in Kolkata, the women I met with were largely women who were single – single in the sense that they travelled across the border alone. They did not come with their families. They were much younger, most of them   were between the ages of 20 to 25. They came for a variety of reasons. Some of them came looking for work. Some of them said that they had been trafficked. And some of them said they wanted to see what India looked like.

In fact, a number of women actually challenged my questions when I said in the conversation – did you come looking for work, for a better life? They said, ‘Rimple, if Bangladesh can feed me till the age of 16,17,18, then they can feed me even after that. We do have aspirations of different kinds. We do want to make a better life, and hence we’ve come here.’ 

But I’ve increasingly seen in the narratives of women who cross borders that gender based violence is really a key factor – a contributing factor to their mobility – which forces them out of their country – whether it’s violence in the natal family, in the marital family, or at the workplace. A number of these women were working in the garments factory in Bangladesh. There is also trafficking within the country, and so many of them would move away to find a more safe place to live in.

Gender based violence, thus, becomes a key factor in making that decision to move across the border. Apart from the fact that some of them said that they had aspirations to make a better life. But we need to see those aspirations in the context of marginalisation and violence that they experience.

SUK: Dr Mehta, you talk about gender based violence and how that often forces [Bangladeshi women] out. But once they cross the border and are eventually arrested, I’m sure they face a very different sort of violence. How do we understand the gendered aspects of immigration and incarceration? Do you think these two processes go hand in hand, especially in the borderlands but also beyond? I’m asking this question in context to something Uma Chakravarti says in the foreword [of Women, Mobility and Incarceration: Love and Recasting of Self Across the Bangladesh-India Border]. She talks about the prison gate as the border. It is in this context, I want to understand – does the border, or the immigration process produce incarceration? Or vice versa? And how do they, if it all, mutually reinforce one another? 

RM: I think most of these women’s lives were along the spectrum of gender based violence, which was furthered by the different institutions, whether it was the family, the state or the prison, and more broadly the criminal justice system. Because the nature of violence that they experienced was closely linked with their gender identity and the position within the gender hierarchy. Whether it was in terms of their expectations as a woman within the family. Whether it was in terms of their national identity, and what they were expected to do because they belonged to a particular nationality. 

I think that the intersection of borders and incarceration had a deep impact on their everyday lived experience. It completely worked as a nexus, which created what I call the ‘incarcerated immobility’ for their everyday life. It gives the notion, you know, that they’re moving, they’re moving across the border, they are crossing but that mobility is constantly juxtaposed or is confronted with different kinds of borders which continue to incarcerate them. So it’s almost like a mirage. It seems like it’s happening, the freedom is there. They keep moving towards this idea of freedom. But at each step there is a border which incarcerates them. 

SUK: How did you get into the field of border studies? Was that something you had in mind when you first started talking and working with Bangladeshi women? And since you do talk about these multiple borders – in your book, you make a distinction between political and social borders. Could you tell us a bit about how [these Bangladeshi women] distinguished them, what is the merit of understanding this distinction as well as the way they are interlinked? 

RM: Actually I had absolutely no inclination or even understanding of borders, or border studies, and that was not something that I thought of when I started working in the prison.

In fact, like I said, while working in the prison, I wasn’t really focused on ‘Bangladeshi women’, or foreign national prisoners. Once I started engaging with them and their narratives in prison, one of the things that I realised is that I will not be able to understand their lived experiences in prison unless I listen to and understand their experiences of the border,  their narratives and understanding of the border. So that’s how the border came into the discussion and that’s how it became a part of my conceptualisation of their experiences. 

When I started speaking with them, most of their narratives actually start with, ‘And when I crossed the border…’, because that was the key point in their life which actually changed the direction of what they were aspiring for and what they thought they were crossing the border for. It’s that moment which led them to being in prison. So unless I understood that moment and that experience of the border, it was not possible for me to understand what their life in prison meant. That’s how the border came into my research.

Not only did it come into the research but also their narratives really expanded my understanding of borders. It was borders at different steps. Just even crossing the border or the boundary of their home and then, crossing the political boundary or the border of the country – they could see the various levels that they had to cross before, what they saw as, aspired freedom. Only to then be incarcerated in another country. So that’s how the notion of social and political borders came up, especially when they were talking about the experiences of gender and gender based violence. These connections between the social and political borders became more pronounced.

But more than that, I think what was really intriguing for me is the way they conceptualised the political border and how they understood the relationship between India and Bangladesh. Some people might read their narratives and refer to them as being naive or say ‘Oh, they are not educated so they don’t understand.’ But actually if one reads through the narratives and the layers within that, what they are doing is challenging the heteronormative idea of the state itself. They’re doing that, not only by crossing its borders and aspiring to have a better life, but they’re also doing it through the way they conceptualise it; through the way they challenge the idea of neatly drawn [on the map] militarised  borders and the ways in which they build relationships across these borders. Thus, indicating to us that there is an idea of fluidity and fuzziness which can be adopted in our understanding of states and borders. When they keep referring to the relationship between India and Bangladesh over a period of time, they’re doing what we could also call, a sort of historical analysis.

So I do see a lot of theorisation within their narratives. They are doing it, both conceptually, as well as through their mobility – they challenge the idea of the state. I think we have a lot to learn and understand. It’s almost like they’re providing us a vision of what a state might look like

SUK: Can you tell us a bit about the legal framework, under which they are detained and how that governs their detention?

RM: Again, there are different states, different circumstances, under which they are arrested. If I were to just speak about the women in Kolkata who I met, most of them were arrested under the Foreigners Act. That was the only act under which they were arrested. But the women I had met in Mumbai often had different cases, along with the Foreigners Act or the Passports Act.

I think this also has to do with the histories of migration for particular groups. So for instance, in Mumbai, a lot of these women had been there with their families, over a period of time. Hence, their narratives were different from the women in Kolkata who, like I said, were much younger, they had moved across the border alone, not along with their families, and had not been in India for a very long period of time. That’s why it’s possible that since the women in Kolkata were arrested soon after their arrival, it was only the Foreigners Act which they were charged under. While the women in Mumbai, who had been there over a period of time with their families, had different charges attached to be names based on vulnerable contexts they might have found themselves in, and then hence became associated with some kinds of crime.

SUK: Can you tell me if this common Bengali identity somehow plays a role in how the experience of women in prisons in Kolkata might be different from those in Mumbai? I’m asking this because I remember reading a paper which analysed why Bengali immigrants in West Bengal are received differently as compared to Assam. I wonder if this Bengali identity somehow surpasses nationality and if so, what are the different ways it affects the experience of navigating these prison systems? 

RM: The experiences of women in prisons in Kolkata and Mumbai were definitely different. But I don’t think that in either of the spaces, even if they are Bangladeshi within West Bengal, that there is no hierarchy. I think we always find a way to create several layers of hierarchies. So even though, in terms of the Bengali identity and linguistic similarity, the women could communicate with the prison staff and other women within the prison, there was still the hierarchy in terms of the national identity. And that was very very clearly demarcated. The other women in prison, who were Indians by citizenship, always saw the Bangladeshi women as what they said ‘nogra’ or dirty. The prison staff would always refer to them as, again, dirty, or sexually very aggressive. They were assumed to be always creating trouble within the prison. So those hierarchies were deeply embedded within that context as well.

While in Mumbai, it was different in the sense that even if they were Bengali women, they would probably come together with the Bangladeshi women because they could speak the same language as opposed to other women in prisons in Mumbai because they’re either speaking in Marathi or Hindi or other languages which the Bengali women did not understand. Even the prison staff in Mumbai cannot speak in Bengali so then the language becomes a way in which the Bengali women and the Bangladeshi women come together. 

And in Mumbai or in other parts of the country, as we now know, the Bengali and the Bangladeshi – especially the Bengali Muslim and the Bangladeshi identity – is constantly converged as if they were one and the same. So that happens within the prison context as well. If one gets into the nuances and the layers of it, one understands the hierarchies that are deeply embedded, but also the points of solidarity which women find in a different context.

SUK: Yes, that’s very interesting. Going back to how we were talking about Bangladeshi women in Kolkata or in Mumbai and how they reimagine the state or the boundaries of the nation states. Can you tell us about how their experiential knowledge conflicts, or perhaps even conflates, with the legal knowledge – if it conflates at all? Secondly, what exactly are these re-imaginations and what do they offer to us when we are trying to understand or study nation state, how they work and how they define themselves? 

RM: In terms of how it’s different from the legal definitions, it’s this idea of fluidity of the border – the border not as this one straight line which one cannot cross. It is the fluidity and the fuzziness which they adopt, which is completely different from our idea of the state right? I won’t say our idea of the state but the legal idea of the state – the political idea of the state. Which is, the need for boundaries – which we also need to acknowledge and recognise goes back to our colonial past and the way colonial borders were drawn in our context. Which, as we know, was drawn on a piece of paper and a line was drawn across it. And so that’s one thing.

But the other ways in which they conceptualise, they really challenged the heteronormative idea of the state. One of the ways in which they do it is by building these relationships of love when they are in prison. And they build those relationships with both men and women who may be Indian by citizenship, knowing fully well that they may have to go back to Bangladesh, and these relationships may not continue. That they may not be able to continue to experience these relationships. They get into them with a certain kind of hope of continuity. I think that’s a really important idea for us because they create this, what I call in the book as, a ‘love nation’. Thereby, putting forth to us how we can look at borders in terms of relationships and affect with the hope of continuing them across what we create as borders – which they, on the other hand, conceptualise as fluid borders.

SUK: Can you tell us a bit about how these conceptions then blur the lines between what we comprehend as illegality or immortality, in context to your frameworks on ‘bhool’ and ‘aporadh’? How do they facilitate, allow or help these women navigate the prison system? 

RM: Like I said, they bring to us this idea of fluidity. The reason why it’s important for them to live with this idea of fluidity and this idea of a fuzzy border or the fuzzy nation state, is because their experiences just do not fit in the definitions of what we have created for sovereignty, for state borders or political borders.

So, the only way to live for them is to live by creating an idea of nation; conceptualising an idea of a nation state for themselves. One of the ways in which they do it is by looking at the spectrum of ‘bhool’ and ‘aporadh’. ‘I can understand that I made a mistake but how does it become a crime?’, they would say. Which again, I think, is questioning the larger idea of this illegality which is emerging all across the world. We see that we have more migrants, refugees and displaced people in the world right now than ever before because of all that is going on- wars, climate change, violence, human rights violations, unsustainable development projects etc. So the context of a lot of these mobilities, is really the context of marginalisation and  of different kinds of vulnerabilities. But when people move, it’s the idea of illegality that they’re confronted with. But in that context these women are  challenging the idea of the crime of moving across borders, given their realities. 

That provides us an important direction to understand that mobility, not just across the India-Bangladesh border, but in different contexts where mobility occurs due to different kinds of vulnerabilities. Different reasons for displacement are constantly addressed by the destination states in terms of illegality or legality – their definitions of legality and illegality.

SUK: So how does this idea of legality or illegality then affect morality – and not just for these women who are in prison but also the prison guards who are working there? How do they understand and navigate the moral grounds of such as immigration-incarceration, or say ‘crimmigration’?

RM: I think this goes back to the gendered idea of the state and the institutions such as the prison, and specifically with respect to the lived experiences of women. So one of the things that the women constantly heard from the prison staff was: why do you come to India? Do you not have food in your own country? Do you not have ‘maan-shonmaan’ (honour)? Why do you come here? And the assumption was that they come here for sex work. So, morality plays a very strong role, especially when you cross borders. That you’re probably just coming here [to India] for sex work. Or you clearly have very low morals and you cross the boundary of your nation. In terms of a gendered analysis for women, this added stigma and taboo with regard to crossing the social and political borders becomes deeply entrenched with the idea of legality and illegality.

SUK: There’s a part in your book where you use the word ‘emotional lives’ of these women. I wanted to understand how different this ‘emotional life’ is from the other aspects of their life, and is there a need to understand this emotional life independently? What is distinct or particular about this emotional life and how does it add to our conceptualisations of not just women in prison but also specifically Bangladeshi women who already exist within a very politicised context?

RM: The reason to highlight emotional lives or embodied experiences is to show people and their narratives from a different positionality, one which is different from this idea of legality and illegality. 

This is because most of the discussions, especially around people moving from Bangladesh to India, centre around whether it’s legal or illegal. Or whether they are taking our jobs. Or how do they impact the security or sovereignty of the Indian nation-state? So what I really want to do is shift our focus and see from the standpoint of pain, the standpoint of emotional experiences of these women, and then does it look different for us? Does the idea of the nation state then look different? Do these people then look different? 

We know the narratives that are created around Bangladeshis in India, right? The word that is largely used for them is ‘infiltrators’. There is a certain narrative that they steal our jobs. That they are terrorists. If it is specifically about women then these women are believed to come in here for sex work or they are only seen as victims who are trafficked. So what I’m trying to do is shift that narrative and see from a different place. What happens if we look at the embodied experiences of these women? What happens when we look at the emotional lives of these women? Do we look at them differently? That’s the idea I’m trying to put forth.

And I think that idea not only enables us to look at these women differently. It also enables us to look at our relationship with our neighbouring countries. It also helps us to look at our idea of sovereignty, and even largely the South Asian identity. What does it mean for that? 

SUK: Do you think these women see themselves the same way? Do they make a distinction between their emotional life versus other things? How do emotions fit into their everyday life in prison as well as before they were imprisoned? How would these women answer this question? 

RM: I’m not sure if they make that clear distinction. It’s more in terms of the way I’m reading and interpreting the narratives.

But the emotional aspect is clearly highlighted in each aspect of their life, whether it’s in terms of what they experienced when they were faced with violence; whether it was in Bangladesh or whether it was in India. Or the context which necessitated this mobility. All of this is being expressed in terms of a lived experience – of an emotional experience. I think reading and understanding and listening to those emotional experiences is extremely important for us.

Like I said, one of the experiences that they highlight the most is the idea of love. How they navigate the idea of love, within the prison, but through the different stages in their life, and make meaning of their experiences of violence through the understanding of love and their experience of love.

SUK: Yes, do tell me a bit more about these conceptions of love. How do they play out? What does this love look like in everyday practices amongst the women? And how does this then go back to your larger theory on the ‘love nation’?

RM: Again love was not one of the things that I was going to look at, or even had anywhere in my realm of conceptualization or understanding when I started working in the prisons. It was the women who challenged me to think and write about it.

One instance that I will never forget and was a really important learning moment for me was when one of the women came back from the Court and told me about this man who’s been professing his love for her in the few times when they met at the meeting area in the court. But that particular day, he apparently tried to hurt himself and banged his head against the wall because she just would not respond to his professions of love for her. By then I was really familiar with them and there was a good rapport between us. So I said, ‘But it’s fine, you don’t have to worry or feel guilty about it because you’re going to go back to Bangladesh, and he will not come after you there.’ There was another woman who was there, sitting around. She turned around and she looked at me. She stared into my eyes and said, ‘Do you really think love stories in prison end in prison?’ 

That was a learning moment because that’s when I realised that actually a whole lot of their narratives were evolving around love, which I hadn’t paid attention to. So when I went back to the recordings, I observed. That’s when I noticed that each time I asked them a question on violence, they would stop me or they would try to divert the conversation and be like, ‘Why do you want to hear those experiences? Let me tell you about my love story. Let me tell you who I love or what I’m doing to attract someone’s attention.’ That was the point when I started thinking about love. And, even listening. I think it’s also important for us as researchers to constantly be tuned into what’s coming up. This also relates to your previous question on why highlight their emotional lives. 

I think it really came from them. As if they were saying, ‘Just don’t keep talking about our experiences of violence. Just don’t represent us as victims. We are here, trying to make meaning of our life. We are engaging in relationships of love, which we believe can continue across the border. Which we don’t think will end once we leave the prison.’ 

That ties to the idea of the ‘love nation’ that I was talking about. That the realities they are in, they are constantly viewed only through the lens of legality and illegality, or the straight lines the borders are assumed to be. They, on the other hand, are creating a conceptualisation of a nation state which is based on the idea of love which continues across the border. I think that’s very important for us to listen to and again, look at from a very different standpoint.

SUK: Considering how a lot of women also left behind their families when they were crossing the border, owing to some form of gendered violence, do you think their narratives somehow blur the binary between violence and love? Do you think there’s a sort of fluidity in which they understand their relationships with their families and people they live with in the prison system? How do they navigate this particular relationship between violence and love? What do they make of it when the two somehow permeate the same space, that is, finding love in the prison system or experiencing violence within the family?

RM: I don’t think that there can be any blurring between their experiences of violence and love. I emphasise on this as well in my writings. Whenever we read resistance – and in this case one of the ways in which we read their experiences of love is resistance to the heteronormative idea of the state, the monotonous life of the prison and a completely asexualized life of the prison – we have to see all of this resistance in the context of their experiences of violence and marginalization. It cannot be seen in a vacuum or understood without this context.

So, I would say that apart from their expressions of love, everything else that they do to resist the idea of the nation state, the normative practices within the prison – all of this resistance has a context of violence. They are resisting but also making meaning of their life where there is very little  to hold on to in terms of any kind of external support.

One of the things that I also talk about is the continuum of violence that they experience. The perpetrators change at different points and stages in their lives. Like I said, it can be the family, the state, within the prison or more broadly the criminal justice system. The perpetrators change but the continuum of violence is what constitutes their experience. It’s in that context that they’re resisting, and it’s their resistance which shows us not only the cracks within our understandings of the nation state, family, the criminal justice system, but it is also showing us different possibilities. It’s showing us where we can move, and what kind of alternative imaginations we may have. 

SUK: Can you tell me about what the scholarship was like in the field of border policing, detention, immigration when you were setting out to do research? When these ideas of love and affect came up, what sort of vacuum were you trying to fill, or if there was a vacuum at all? 

RM: There is, first of all, very, very little engagement within the prison in the Indian context. Very little. There is only a few works available for us to engage with. It was a vacuum. Mahuya Bandyopadhyay’s book, Everyday Life in a Prison was something that was available. It was a starting point for me to think that something like this is even possible. That some work has been done. And of course, Prayas’ work really helped me to contextualise my understanding. 

There was very little research available. And it was, again, only from the understanding of the prison. Since I started working with Bangladeshi women, I had to engage with the idea of the border. I had to look at migration as well as what’s happening in terms of ‘foreign nationals’ and how we are looking at them. There was a complete vacuum. That was one of the reasons why I decided to do this work because there was so little known about it at that point in time. This is when I did my fieldwork as a student of social work in 2008. At that point, we were not discussing the issue of Bangladeshis in India the way we are discussing it now.

So there was support available from the Tata Institute of Social Sciences, within which was Prayas and then Mahuya’s work. That is how I started. What I kept as my focus was the narratives of the women and just taking the lead from there. But the other space which really helped me is the Border Criminologies Network, which was also coming up around that time. It came about around 2013 because next year it’s going to be 10 years. I  got associated with the network almost from its inception. And that’s where it opened up the world for me to look at the interconnections between the prison and the border and the space of criminology of mobility. 

That’s where it started but again, at that point, I almost felt like, within India, I was just speaking to myself. There wasn’t a community that I could really speak to. But in the international space that discussion had started. Now I see that even within the Indian context we are using words like ‘crimmigration’, which has been there for a while, within the network and all the work that the network does. There are a lot of people who have started working in this area in India. When they get in touch with me to know a little bit more or to get a little more context, it’s absolutely fascinating because we really need more work in this area.

But one thing which I really think about and I think it has a lot to say about us as researchers or people who work in the field is: when do we start looking at a particular issue? Is it only when it takes on political attention? Only when it becomes absolutely necessary because legal provisions are being put in place or mechanisms are being put in place or institutions are coming up. Is that when we start looking at marginalised lives?

At different points and different political parties have dealt with the issue of Bangladeshis very differently. None of them have actually been forthcoming about it. This particular group has been used by different political parties for their purposes. But, when did we start looking at it? And why do we always need to wait for that political discussion to erupt and then to start focusing on these issues? If I started this in 2008, I know that this issue existed even before that. It’s just for us to sort of keep looking at spaces of marginalisation, whether they are in political discussion, or not. Whether they are part of election debates or not. Just looking at the amount of work that has come up now makes me wonder how, when and why we focus our attention on particular issues at particular points. And I think it’s really important that we do it beyond the political debates. Of course we need to respond. We need and we should be in that reactionary mode. We also need to be a little more forward thinking in our work, I think. 

SUK: Definitely. That is actually a really interesting point. But that also makes me wonder when we talk about marginality, how can we study or address the concept, as researchers, without necessarily only focusing on those who are being marginalised? And once we ask this question, one realises that power does not really exist in a binary between those who are marginalised and those who are marginalising. So, in a sense, we are always in a hierarchy of marginalisation.

How did you work through this hierarchy when you were studying the prison system? You were not only dealing with the women who were in prison but also the prison guards, people who worked in as well as enabled the prison. How did you navigate this space? How did they interact among themselves? How did they make sense of this fluctuating dynamic between the marginalised and the marginalising? 

RM: I think that there are two questions there. One is how do we understand marginalisation and marginal identities considering that there is a hierarchy within that. But for that I would say that we really look at reality from different standpoints. It’s very important for us to engage with people who are at the receiving end of institutions and power, to say it very broadly. We have to see how it impacts different groups of people. With respect to the Bangladeshi women, through their narratives, we are actually able to see the cracks that exist within our understanding of families, state and institutions within the criminal justice system. So when you look at institutions and structures from a different positionality, it gives a very, very different picture of reality. So I think that’s why it’s important for us, as researchers, to keep looking from different spaces because, again, it goes back to the importance of lived experience. This is what lived experience tells us, that no matter where we look from – anywhere else we look from – it will not be the same. So the first thing is, the importance of lived experience. 

The second part of your question is how do we navigate that when we go in as researchers? I think for the prison space in particular, there is a lot that we need to navigate when we enter that space. That is because you are also under surveillance as a researcher – constantly. And you also have issues around access. You wonder if you will even be able to go and speak to the people because there is so much opacity around these institutions. Access, therefore, becomes a big issue for us. So you navigate that. On top of it, you are also trying to work that out with the women that you’re speaking with. In my case, definitely my identity as an Indian citizen was constantly also coming up in the narratives of these women. It was not only my identity as an Indian citizen but more importantly, my identity as a non prisoner – a person who can keep going out. The women would often say, ‘We’re telling you all this but you can go out of the prison, I can’t. But since you can go out of the prison – you do this for me. You tell me what’s happening in the outside world. You tell me what people are discussing about us.’ In prison work, especially, where there is this binary of a prisoner and a non-prisoner and the non-prisoner researcher can go out of that space at the end of the interview, you can consciously work towards mitigating this hierarchy. But that binary remains at that point in time.

But I think one of the things that you said is really important. Even if this binary exists and we are trying to understand the lived experiences from different positions of marginality, one thing that we really need to be careful about – and do this in a conscious way – is not assume that power impacts only those marginal identities. The idea of the nation-state, the idea of sovereignty, the idea of legality and illegality impacts not only people who are not citizens. It also impacts all of us. It impacts the idea of security. We see that even within the citizens that hierarchy can be created because of this certain idea of state security. So, as long as we understand that we are all actually impacted by this, and not just isolate that one particular person with the idea of saving that particular person. If we move beyond that idea of benevolence and look at the structures and the way power is implicated in these structures, it will help us work through the hierarchies, and not just again victimise certain people in our narratives but try to address it from a structural position.

SUK: How did you address your own positionality as a researcher? I am asking this question in context to the ways you were received in the prison. What did the prison guards think of you coming in and going out? Did they ever ask you questions? How were your interactions with them? How did that make you understand or contextualise how power works within the prison system? Is it really concentrated in one particular group, identity, or rule?

RM: I’ll answer this in the context of the work that I’m doing now in prisons in Sydney, because that’s when I realised that as a researcher your positionality keeps shifting based on where you are working. In prisons in Mumbai, I was still seen as a student social worker, but in Kolkata I was seen as someone who’s pursuing higher education, who’s probably more ‘enlightened’ and hence needs to be respected. So the prison staff did extend that kind of treatment to me. But one of the things that constantly kept confusing them is why someone like me would want to spend so much time in prison. This was a question which came up very often. They would say, ‘You’re from a good family. You can do so many things with your life. Why are you here for almost a year coming every other day to spend so much time in a prison? 

There was that and but I think after a point you also become invisible. You become a part of that space, and then there isn’t that much attention that is given to you. You come and you go. That was my experience in the Indian context. But the moment I started working in a prison in Sydney, I realised that just my positionality as a person of a particular colour makes a whole lot of difference. 

That’s one level. But with the women, again, it’s the context. In the Indian context, the Bangladeshi women were still able to build some solidarity with me but they always saw me as an Indian citizen. But in this context, in Sydney now, the women from the Global South look at me in a particular way, and draw that kind of solidarity. 

For me, as a researcher who knows the privilege that I come with, I think it’s very important to constantly be aware and reflective of what I am doing in the field. How does it impact the women that I’m working with? Where do I sit with them? What time do I go to meet them? Because in an institution, all of this, ultimately impacts them because they continue to live in that space. Do I do it at a time when they’re supposed to be locked in? Will that help them come out at a particular time or will that mean that they will have to be locked in for longer? So, I have to make such calculations around time and space in a way that it doesn’t actually add to their experience of marginalization and discrimination. In that space, that struggle is really constant – even for me, as a researcher – to live with the reality that you are going to be walking out of that space. Then what do you do? 

The other dilemma which all of us as researchers are confronted with is – is this going to provide an immediate resolution or solution to some of the issues that women are facing in the present, right now? Or is it a work in progress that will have broader policy implications, which will then trickle down? These are these challenges that you’re constantly working with. But one thing which constantly helps me navigate the hierarchy between me and the women I work with is to be reflective, and to centre their experiences and their narratives within whatever decisions I’m taking or whatever I’m doing.

SUK: When you set out on this endeavour, what did you think was the utility of this scholarship? Given the ongoing debates on citizenship and immigration, do you think the initial purpose or the concerns you had going into this project has changed or shifted? Is there any difference as compared to when you were starting out? 

RM: Like I said, it’s not a new issue. We have just decided to foreground this in all our work now. But it’s been an ongoing issue. Some of the lived experiences in terms of how they are sent to Bangladesh or the uncertainties of their life within India, have been an ongoing issue for a long period of time. 

I can only imagine that now with all our attention, it’s probably just going to get harder for some of these women. This is because of the discussions around the issue of trafficking, legality and illegality, the citizen, and the foreigner. So these binaries are only getting deeper. It’s really crucial for us to then ask ourselves: where are we looking from? Whose voices are we highlighting? It’s very important that we don’t – again – just speak to the broader narratives and the discussions but that we really centre the lived experiences. 

The voices of people are going to be impacted by these changes that have taken place in the recent past. I definitely think that the uncertainties and the fear of survival is heightened, at this point, because of all the changes that have taken place.

SUK: Have you gone back to the correction homes in Kolkata or the prisons in Bombay after your research was published? You talked about how those women would say, ‘Oh, what do they talk about us?’ Have you told them the sort of things you write? Have they engaged with your work? What have their opinions been on how you write about them and how that work is then received? 

RM: Back when I was still doing fieldwork and I had started analysing and writing, I did take some of the writings back to ask the women, ‘What do you think? I’m writing this,’ and share my ideas. So I was able to do that. But, as you know, it’s really difficult to access the space so it has been difficult, particularly after the release of a film by the BBC, one that included an interview from a person within the prison. After that, a lot of guidelines were put in place for prison researchers as well. 

That’s the other issue that we have in terms of access. When people from outside the context come and research, it has all kinds of implications for our work and the way we can foreground the realities of people. So, access has been difficult but it’s in progress.

SUK: What did they say when you came back with your initial writings? How would they respond? What did they feel about it? Did they feel happy that their stories were being heard? Did that impact your relationship with them or what you represented to them?

RM: The part of the work at that point that I was able to take back to them was again their narratives of love. So when I shared with them that I’m writing this and this is what I’m thinking about, some of them wrote another couplet or they told me the starting sentences of a love letter. They added to it and sometimes they dictated to me, saying, ‘You write this.’

One of the women also said, ‘Oh you’re writing about love, then you also tell them that there are a lot of young Bangladeshi women in prison and winters are approaching. We need a lot of comfort, if you know what I am saying.’ It was the turning point in terms of understanding the emotional lives and central to which was their experiences of love that really shifted our relationship as well. But the tension that ‘you are going to go out and I’m still going to be here’ constantly stays. This tension is also fundamental to our relationship – no matter how much they trust me and no matter how much I try to be aware of the power hierarchies and work through them.

SUK: You also mentioned working within prisons in Sydney. Somewhere in the book, you also talk about studying detention centres in the Netherlands. I was wondering what it was like studying these different places. I wanted to know if you found any similarities or dissimilarities between how crimmigration works in ‘Global North’ versus the ‘Global South’? 

RM: Yeah, this is something that I’ve been thinking about a lot – especially after I’ve just finished the fieldwork for a project I am working on –  that is, just how similar the narratives of women are. I spoke about the challenges that I have as a researcher and how my positionality changes. The positionality of women also changes and different countries have different laws and we can put in different theoretical lenses to understand them. But the core issue of women’s mobility – especially visible mobility that is actually constantly bordered and incarcerated – seems to resonate across these different places that I have worked. That for me is very sad actually at one level. That gender based violence still is one of the major issues because of which women are moving across borders. And as a consequence of that they find themselves in different kinds of vulnerable contexts. Then that paves the pathways to the prison. So, this similarity really tells us a lot about gender and the nation state, and also family.

So much so that when I was making a presentation, based on my previous work [with Bangladeshi women in India], people in the audience actually thought I was talking about my work in Sydney. That for me was really striking because there is so much similarity. That’s why I feel that the strong, powerful voices of the Bangladeshi women really reaffirmed for me that that voice has a lot to offer. Not only for an understanding of the India-Bangladesh border, but for our understanding of border controls, the idea of the nation state, and how we look at mobility across borders. I think it has insights for a much broader context than just the India-Bangladesh border.

SUK: Is there any merit in comparing crimmigration across the ‘Global North’ and the ‘Global South’ – without necessarily assuming them as strict binaries? Secondly, how do we understand this new focus on ‘b/ordering’ in South Asia when its practices have been almost innate to these countries since 1947? 

RM: I definitely think there’s merit in trying to draw from and understand different concepts and theoretical frameworks that have come up, say in the Global North. Like crimmigration. We are borrowing that idea from there. And I myself have done that. Like I said, when I started this work there was a complete vacuum. This field of criminology of mobility opened up for me a really different area to explore, to understand and to engage with discussions. There is merit and value in that. 

But I don’t think we need to keep falling back to that concept. We really need to understand how it applies in our present context, specially because we are actually just on the way to formalising a lot of these processes. That formal link between migration policies and looking at the criminal justice system is still being established. We are seeing that detention centres are coming up. So we are at that stage. So we should start from where we are to understand the directions that we need to take. For which, we need to listen, to borrow ideas, read more, engage with ideas that are coming up in different places – but not just limit ourselves to that or keep only quoting that or falling back on that. I think we have a lot of space to contribute to those ideas and we should utilise that by looking at it from different standpoints.

SUK: I think your research actually does prove that because the women you speak to have such a perceptive idea of India’s border politics, of the way it impacts citizenship as well as the criminal justice system. At one point, one of the women you interviewed asked a question, ‘Why can’t they just send us back? Why are they continuing to feed us and keep us here? If we have done something wrong, why can’t they send us back?’ 

I wanted to understand how these women, first of all, critique or perceive the social, political and economic infrastructure of the prison system? What do their perceptions reveal about the infrastructure? How does it actually work? What sustains it? Why does the government keep them? Why does it not send them back?

RM: I think they are challenging that idea. They are really questioning this state and asking – what is it that you get out of doing this to us? Considering that we committed no other crime – we have not harmed another person – what is your moral ground to keep us here? That is the question they ask. 

But the way I interpret it is that the state is creating the Other. Creating someone as a threat to the idea of the nation state helps you secure your identity as a citizen. To secure your identity as a citizen, you constantly need the ‘Other’. So I think that’s the moral ground on which all nation states actually create the image of the Other. That’s what we’re seeing whether it’s in terms of the representation or discussions around refugees, people seeking asylum, people who were referred to as illegal migrants. All of these discourses, and the way that are represented – even in the media, if you see the words that are used to represent different groups of people who are migrating for different reasons – is creating them as a threat to the idea of the nation state. 

So, when you create the Other as the threat, you put mechanisms in place to constantly feel secure. This actually is also going to impact the citizen. The systems of surveillance and the idea of security, justified by the nation state, are impacting and creating hierarchies within the idea of citizenship as well. It sustains itself by creating the idea of the Other. 

SUK: That’s an excellent point. Going back to something you said in the very beginning of the interview – do these women come back? If they do, how and why? I ask this in context to a particular incident I came across in a book – which also featured in the newspapers years ago – about this one Bangladeshi woman who had been detained in Delhi and sent back to the border. Yet she came back some six-seven times. I wanted to know if you encountered similar stories and what was the reasoning that you were provided? 

RM: So actually one of the reasons why I ended up taking this up for my doctoral studies is a woman that I met again in the prison in Mumbai. It was the same woman I met after a few months of her being sent back. She was back in the prison. That’s when I understood that they are deported, then some of them again find their way across the border and they come into India. It is in pursuit of an idea of freedom.  It’s really looking for a better life, whether it’s in terms of their social life, their economic life, or even their emotional lives. It’s that search for freedom and that idea of freedom that they constantly look for which gets them back to India. And this is, of course, specific to some women but there are instances where women are trafficked across the border as well. Their circumstances are different.

SUK: Have you noticed the use of technology in border practices in the areas you’re working? Have you encountered it during your research or after? And what do you speculate will be the impact of increasing use of technology in crimmigration processes in South Asia? 

RM: One of the research projects that I worked on was looking at child marriages across the India-Bangladesh border. I did a few interviews along the border areas on the Indian side. That is when I observed the use of technology. A number of women when they came here and they were married – they had a child marriage –  were not always aware of the implications of this mobility due to marriage. They did not know the implications of their marriage on their citizenship. That they would not be able to go back to meet the natal family. One of the ways in which they kept connections with their family was through the use of WhatsApp, through internet and social media platforms. I think that helped them sustain the wider kin relationships as well.

So definitely there is a use of technology across the border. Some of the work that I have also been doing is near the Rajasthan-Pakistan border. There too, I have seen the use of technology, just to create that understanding of continued relationships. Even though we know that the context of that border is completely different and it’s much harder for communities on that side to remain connected with each other. India-Bangladesh border is still open in many parts but it’s not the same for the Rajasthan-Pakistan side. 

I was with one community in Barmer speaking about Partition and how their families were separated by the border. Just then someone got a call and they said, ‘Look, he’s my kin and he’s in Pakistan and we are still connected.’ So I think technology has still made that possible. But at the same time, like you said, technology is also being used for surveillance of communities and building evidence for certain communities against certain communities. I think that’s only going to increase, and we again have to be mindful of how it impacts different people. Like I keep emphasising, we need to keep looking from different positionalities to see its implications.

SUK: Dr Mehta we have come to the end of the interview. Is there anything you would want to add or ask?

RM: I think the questions were really really interesting and it helped me think through some of the issues. The only thing I would say is that, as researchers it’s really important for us to be transparent with our methodology and constantly explain and be open about why we do what we do. Where are we looking from? We have to be mindful of the kind of analysis and interpretation that we make, being aware of where our voice comes in, and where there are representations. So, that for me is key in terms of our ethical practice towards research but also the communities that we work with.

SUK: Definitely! Thank you so much for your time. 

Nepal’s Citizenship Amendment Act: A Long-Awaited Yet Short-Sighted Achievement

Deirdre Brennan is PhD candidate at the Peter McMullin Centre on Statelessness, at the University of Melbourne, where she also co-coordinates the Critical Statelessness Studies Project. Her doctoral thesis is concerned with the ‘ethics of care’ in activism against Nepal’s gender discriminatory nationality laws: how do the pervasive, yet unseen, social functions of care, relationships, and emotions, such as joy and rage, shape campaigns to “end statelessness”.

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In Nepal, the governance of formal qualifications for citizenship has a relatively short history. Since 1962 (2019 B.S.), the acquisition and distribution of citizenship has been governed by the country’s constitution alongside a complementary citizenship act.One of the most important acts in this short history is the Citizenship Act of Nepal 1964 (2020 B.S.) . The 1964 act formed the basis of all future provisions on the acquisition of citizenship, including enshrining gender discriminatory nationality laws and increasing the residency requirement for naturalised citizenship from 5 to 15 years. And while the 1964 Act would go on to be amended several times, it was not repealed until 2006 when the Nepal Citizenship Act 2006 (2063 B.S.) came into effect. Importantly, now, the 2006 act became outdated as a consequence of the promulgation the the Constitution of Nepal 2015 (2072 B.S.). This has meant that for the majority of the past seven years, the country has lacked functioning legislation governing citizenship acquisition and distribution. The recent news that the bill to amend the Citizenship Act 2006 had finally been endorsed, by the House of Representatives, should thus be a cause for celebration. Passing of the amendment bill has been delayed for years by political dramas that would rival a soap opera, including numerous dissolutions of parliament, attempted power grabs, a cartographic war with India, and not to mention the repercussions of a global pandemic^[1]. And yet, one glance of Nepali Twitter shows exactly why those who have been fighting for years for women’s citizenship rights, are extremely disappointed with this legislative milestone^[2]. In this blog, I outline some of the major changes introduced by the bill, arguing that while the consequences of a non-functioning citizenship act for Nepali youth will be remedied in some cases, this celebration is tainted by the longer-term consequences for women’s rights, and the inevitable implications on Nepal’s ethnic, gender and sexual minorities. 

In the newly amended Act, a Nepali woman’s ability to pass on her citizenship to her children remains conditional: as it was when the Act was first passed in 2006 and as it is in the present Constitution of Nepal 2015. At first glance, however, the Act and the Constitution appear gender neutral, stating that any person born to a Nepali mother or father shall be deemed a citizen of Nepal by descent. It is upon reading further provisions, in both the newly amended Act and the Constitution, that the restrictive and regressive nature of the laws (and inevitably the attitude of politicians) is revealed. Drawing on interviews conducted as part of my PhD research^[3], I will first demonstrate the consequences of these gender discriminatory laws, and why, despite the hope of last week’s* amendments to the Act, little may change for some of Nepal’s young people. Later, I will highlight what little good can be taken from news of the newly amended Act.

Suraj is the son of a Nepali woman and an Indian father, he’s thirty years old and has lived in Nepal his entire life. Suraj first tried to get citizenship at sixteen years old (as is customary in Nepal), but his application was refused on the basis that his father is Indian. In our interview he noted how, ‘my mother, sometimes she cries and says “Why I gave birth to you people? I did crime by marrying a foreign man.”’ Of course that isn’t true, yet the laws prohibiting her from passing on her citizenship, in her own right and irrespective of who she married, have made her feel like a criminal. Suraj himself sees the contradictions in these laws, noting ‘sometimes [my mother] thinks “because I married a foreign man you can’t get citizenship” but I don’t think like that. It is because of the law: if you are a man and had married an Indian woman you could have got [us our citizenship] easily.’ The crux of the issue here is that women are expected to follow the father of their children, in name, in marriage and in citizenship – an ideology with its roots in France’s Napoleon era. However, the reality, especially nowadays, is that people live multifaceted lives which do not always match the state’s vision for a (nuclear and male-headed) family. This vision is also driven by the state’s longstanding desire to homogenize many aspects of Nepal, especially its cultural and linguistic diversity^[4]. Women, and especially those residing at the Indian border in the Madhes region (where cross-border marriage is commonplace), thus bear the brunt of protecting the state from further ‘dilution’ or an ‘Indianization’ of Nepal by having their right to pass on their nationality restricted.

In an attempt to follow the laws and expectations of the state – which stipulated that Suraj and his siblings could acquire naturalised Nepali citizenship if they provided proof that they had not acquired the citizenship of their father – Suraj’s mother and sister travelled to India. They attempted to achieve the impossible: prove a negative. Suraj recalled how the Indian officials laughed at his mother and sister, and said ‘you are married to our man, he died in your country, he has lived in your country, and you have not come to India so we cannot give you any proof that you are not an Indian… how can we give you proof that you are not an Indian?’. In one breath, the Indian officials proved how out-of-touch Nepal’s citizenship laws really are.

Unsurprisingly, for many years, Suraj and others like him held hope that when the citizenship bill amendment would finally pass, such discriminatory provisions relating to a foreign father would be removed. Milan for example, in his late twenties, is studying hotel management but is unable to travel abroad to complete the required internship, because he doesn’t have citizenship. His father is Indian, and he has faced the same difficulties as Suraj in acquiring citizenship through his mother. Milan was, in fact, promised by his local administration office that he would get citizenship ‘after the citizenship act is passed’. Unfortunately, that promise has not come to light because the old provisions – the necessity to prove one has not acquired the foreign citizenship of one’s father – have been upheld. So long as people shoulder this burden of proof, as Suraj demonstrated is nearly impossible (even when the logistics to acquire evidence, like travelling across the open border with India, are relatively easy compared with those whose fathers are from countries much further afield) there is little to celebrate in the long-awaited passing of the bill. Furthermore, and as before, the power to distribute naturalised citizenship lies solely with the Ministry of Home Affairs. This means naturalised citizenship for the children of Nepali mothers and foreign fathers (which to-date has infamously low distribution rates)^[5] is only handed out in discretionary circumstances and where people have access to, and knowledge of, legal and bureaucratic systems. Not to mention that even if Milan and Suraj are able to meet the requirements for citizenship, the very idea that they should only be entitled to ‘naturalised citizenship’^[6] adds insult to injury. Known colloquially as ‘second-class citizenship’ because of the inherent restrictions of naturalised citizenship, it is discriminatory – to both Nepali women and their children (who have in all likelihood lived in Nepal their whole lives) – to refuse them ‘citizenship by descent’.

One of the other key elements, in terms of women’s rights, that casts a shadow over the much-anticipated passing of this bill, is that the atmosphere toward a woman’s independent right to transmit her nationality has not changed. Much of the debate around a single mother’s right to pass on her citizenship was driven by patriarchal ideologies and laden with misogynistic slurs. For example, in 2019, Jhapat Rawal of the then-ruling Nepal Communist Party stated:

“If a child born out of rape doesn’t have to identify their father, then rape cases will increase…Children will lose their right to know their father’s identity, and this will also lead to women indulging in immoral acts.”^[7]

And so, with the House of Representatives endorsement of the bill last week, so too, came their endorsement of the notion of “untrustworthy” women. In the newly amended Act, a provision has been included which threatens punishment for a woman should she apply to confer citizenship on her child irrespective of who the father is. In cases where the father is unknown or untraceable, a woman may pass citizenship by descent to her child, if the child has resided in Nepal, and, once the mother provides a self-declaration stating the ‘father cannot be identified’. If the father is found to be a foreign citizen, the child’s citizenship is converted to naturalised citizenship, or ‘second class citizenship’. And, should the self-declaration be shown as being false – that is, the father is in fact identifiable – the mother is faced with punitive action.

Finally, as mentioned at the beginning of this essay, it is important to take stock of what good that can be drawn from the passing of the amendment bill. The children of ‘citizens by birth’ have struggled to acquire citizenship since the promulgation of the constitution in 2015. ‘Citizens by birth’ are those who acquired nationality in 2007 during a one-time distribution for people born in Nepal before 1990^[8]. This was especially important for people residing in the Madhes where there is a long history of Indian immigration into the region and, as such, a history of contested citizenship and loyalty^[9]. Owing to the lack of a functioning citizenship act over the past seven years, the children of those ‘citizens by birth’ lacked a functioning pathway to acquire nationality through their parents. This problem will now be remedied with news of the recently amended citizenship act. Vivek, for example, is a nineteen-year-old from Nepal’s Madhesi community, whose father is a Nepali ‘citizen by birth’ and despite his mother being a Nepali ‘citizen by descent’ could not acquire citizenship since he first tried at sixteen. He was studying journalism when we spoke, and looked to his future ominously: 

“I have not been able to apply for better jobs, I don’t own a bank account. I use a bank account, but it is in the name of my mother. I don’t have a voter ID card, I can’t vote. While studying a masters or postgraduate, it is necessary to have citizenship. Then maybe if this issue is not solved then I might face a problem pursuing further studies. I feel terrible, I sometimes feel like I’m born in the wrong country, to be honest.”

The passing of the bill, which addressed Vivek’s issue, will now pave the way for him and tens of thousands like him to acquire citizenship by descent. Certainly, a cause for celebration but tainted nonetheless so long as others, like Suraj, are forced to continue looking ominously into their future. Ultimately, the problem lies with the enshrinement of gender discriminatory nationality laws into the constitution in 2015. The citizenship act was only ever going to compliment the discrimination already laid down in that document. While there are immediate forms of relief for many of Nepal’s stateless youth, the battle to repeal gender discrimination in the constitution’s citizenship provisions is the next great feat for Nepal’s citizenship-equality activists.

*This essay was first drafted on 1 August 2022. Since then, the fate of the amendment bill once again became unclear. Despite endorsement by the House of Representatives, President Bidya Devi Bhandari sent the bill back to the parliament to be reviewed. The bill will only become law once it has been authenticated by the president and this process remains pending.

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^[1] A more detailed timeline and overview of the cause for these delays is available in: Brennan, Deirdre ‘Struggles Towards Nepal’s New Citizenship Act: Living in the Shadows of the Citizenship Amendment Bill 2018 AD/2075 BS’ in Aziz Ismatov, Susan Kneebone, Kaoru Obata, and Dai Yokomizo (eds.) Nationality Struggles in the 21 Century and its Social Costs in Asia, forthcoming.

^[2] The Nepali Sanskrit thread is here and the ‘retweets’ expand on the disappoint with the provisions: https://twitter.com/subinmulmi/status/1551135434910027777

^[3] The interviews in this blog were conducted before the passing of the amendment bill and pseudonyms were used in some cases throughout this blog.

^[4] Pradhan, Rajendra, and Ava Shrestha. “Ethnic and caste diversity: Implications for development.” Asia Development Bank 4 (2005), p. 7.

^[5] As of 2017, Only 13 people had obtained naturalized citizenship certificates in similar circumstances, see, Mulmi, Subin “Feminist Analysis of the Citizenship Law of Nepal”, Nepal Law Review, Year 42, Volume 29, Number 1 and 2, 2020 – 2021, p.439.

^[6] Naturalised citizens cannot hold the posts of President, Vice-President, Prime Minister, Head of the Federal Legislature and Head of the Federal Judiciary, Head of Security Forces, Head or Deputy Head of Federal State.

^[7] Tsering D Gurung, ‘Debate over Nepali women’s right to pass on citizenship to children reignites as House Committee holds discussions on controversial provisions’ The Kathmandu Post (online, 7 March 2019) <https://perma.cc/J6ZS-6BJ8&gt;

^[8] Dannah Dennis and Abha Lal. ‘Controlling National Borders by Controlling Reproduction.’ In Nadine T. Fernandez and Katie Nelson (eds) Gendered Lives: Global Issues (SUNY Press, 2022).

^[9] Krishna Prasad Pandey. “Ethnic Politics, Madheshi Uprisings and the Question of Citizenship in Nepal.” Millennial Asia (2021) 60, 65.

“Utterly Failed To Prove Linkage”: The Discriminatory Barriers To Women’s Citizenship Claims in Assam

Gayatri Gupta is a law graduate from NALSAR University of Law, Hyderabad, India and is currently working at the Supreme Court of India. She has a keen interest in human rights law and refugee and citizenship law. She worked at Parichay Legal Aid Clinic from January 2020 to March 2022. She may be reached at guptagayatri14@gmail.com.

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Introduction

Nivedita Menon has argued that the foundation of citizenship “is primarily based on proof of birth in a heterosexual patriarchal family, an institution that structurally undergirds caste, class, and gender injustice” [emphases mine]. It is this unquestioning acceptance of the heterosexual patriarchal family—based on marriage and the sexual division of labour—that has helped produce and maintain a particular notion of the nation-state and citizen. Menon identifies the familial foundation of citizenship to be the reason why citizenship is exclusionary towards women and is thus an inherently feminist issue. In this article, I examine the legality of the sui generis citizenship determination regime in Assam against the standard of gender equality and anti-discrimination law.^[1] Through a qualitative study of Gauhati High Court (‘Gauhati HC’) cases relating to the Foreigners’ Act, 1946,^[2]I critically analyse the impact of the seemingly ‘neutral’ rule of demanding documentary evidence to prove citizenship on women proceedees.^[3] I conclude that the Foreigners Tribunals (‘FTs’) in Assam operationalise these evidentiary rules to have a discriminatory effect on women litigants.

Understanding indirect discrimination

Articles 14, 15 and 16 of the Indian Constitution form the equality code. The scope of this code is not limited to the formal conception of equality but embodies a substantive notion, whereby existing individual, institutional, and systemic barriers are taken into account to ensure equal protection of the law.Anti-discrimination law, specifically the concept of indirect discrimination, is closely linked to the concept of substative equality [see Nitisha v. UOI, Anuj Garg v. Hotel Association of India, Jeeja Ghosh v. UOI, Vikash Kumar v. UPSC]. Indirect discrimination occurs when a seemingly ‘neutral’ provision, criterion, or practice puts persons belonging to a specific group (having one or more protected characteristics^[4]) at a particular disadvantage by not considering the underlying effects of the provision on that group.

Many Supreme Court decisions have affirmed the existence of indirect discrimination. Justice Chandrachud in Navtej Singh Johar, while assessing the constitutionality of Section 377 of the Indian Penal Code,  observed that what is relevant is the “effect” the impugned provision “has on affected individuals and on their fundamental rights”. Thus, state action which is facially neutral but has a disproportionate impact upon a particular protected class of persons is prohibited by indirect discrimination. Most recently, in  Lt. Colonel Nitisha v. Union of India, indirect discrimination under Articles 14 and 15 was expressly recognized, and the Supreme Court adopted the two-pronged test laid down in Fraser v. Canada for an indirect discrimination enquiry. The first step is to assess whether the impugned rule disproportionately affects a particular group; the second step is to see if this rule has the effect of reinforcing, perpetuating, or exacerbating disadvantage.

Having explained the contours of indirect discrimination law in India, the next section will analyse how apparently neutral procedures, such as those currently employed in Assam’s citizenship determination regime, disproportionately impact women proceedees, and end up excluding them from public participation.

Operation of Foreigners’ Tribunals in Assam

A separate legal regime focused upon ‘kaagaz’ (papers)has been created in Assam to identify ‘foreigners’ and ‘illegal immigrants’. Under the Assamese citizenship determination regime, inserted via Section 6A of The Citizenship Act, 1955 in the aftermath of the Assam Accord, persons of Indian origin who came from Bangladesh before January 1, 1966 and have been ordinarily resident in Assam since then are considered as Indian citizens. Those who came between January 1, 1966 to March 25, 1971 would have to register themselves with the Central Government, and their names would be cut off from electoral rolls for a period of ten years. At the expiry of ten years from their date of registration, they would be considered Indian citizens.

The Foreigners’ (Tribunals) Order, 1964 is a subordinate legislation under the Foreigners’ Act, through which FTs are set up by the Central Government to determine the legal question of whether a person is a foreigner. In 2005, FTs became extremely critical after the Supreme Court struck down the Illegal Migrants (Determination by Tribunals) Act, 1983, and transferred all pending IMDT citizenship cases to FTs. Subject to the limited procedural requirements mentioned in the 1964 FT order, FTs are empowered to regulate their own procedures, raising concerns about due process and rule of law. With the publication of the final NRC list, a case can now come before an FT in three ways: cases referred by the Assam Border Police, ‘doubtful’ voter cases referred by an Election Registration Officer, and the appeals process in the NRC (which is yet to start).

It is important to note that under the Foreigners’ Act, the burden of proof is reversed and placed on the individual to prove that she is not a ‘foreigner’. Due to this reversed burden of proof, an individual is expected to discharge a higher standard of proof by supporting her citizenship claim with a wide variety of documentary evidence. The documents required in FT proceedings can be broadly understood in two categories of legacy and linkage: legacy documents showing the individual or her ancestor’s presence in Assam before March 25, 1971 (such as electoral rolls, land and tenancy records, the 1951 NRC); and linkage documents showing a link between the individual and her ancestors mentioned in the legacy document (such as birth certificates, school leaving certificates, gaonburah certificates).It is this seemingly ‘neutral’ requirement of producing documentary evidence to prove citizenship that is being challenged in this article.

Indirect Discrimination faced by Women in Assam

To test how the ‘neutral’ rule of demanding documentary evidence to prove lineage imposes an onerous burden on women, I analysed a total of 48 Gauhati HC cases from the year 2020. Out of the 48 cases analysed,^[5] 30 cases (i.e. 62.5%) had female litigants. Within these 30, more than half (17 cases i.e. 56%) were argued on evidence,^[6] and the remaining cases were challenges to ex-parte FT orders. I analysed the 17 cases which were argued on evidence, where the women litigants exhibited documents from as few as two to as many as fourteen.  Yet in all the cases except one, the documentary evidence exhibited was held to be ‘insufficient’ and the women were declared foreigners due to a failure in proving linkage. This means that although women litigants were able to exhibit documents showing the presence of their ancestors in Assam before March 25, 1971, they still failed in proving their lineage from these ancestors.

This difficulty in proving lineage is quite understandable considering the socio-economic status of female proceedees. Sexual division of labour and historical public-private divide has identified a  man’s role in the public world of politics and paid employment, and a woman’s role in caring and child-rearing at home.Thus, a man’s access to the public sphere is privileged, whereas barriers are placed on a woman’s entry to this public sphere. Consequently, women’s access to documentation used to prove linkage—such as voter lists with both their names and their parents’ names, birth certificates, school leaving certificates etc.—is abysmal.

Intersectional barriers to the access of documentary evidence

As per the National Family Health Survey-5, Assam is one of the twelve states showing a higher prevalence of child marriage than the national average. This indicates that a substantial number of Assamese women, especially in rural areas, get married and move to their matrimonial houses even before they can vote. This assumes significance because married women litigants struggle to produce any documents which link them to their father, and voter lists are one of the very few options available to litigants for this purpose. However, married women’s voter lists end up becoming worthless, since their names are reflected as ‘wife of’ (their husband) instead of ‘daughter of’ (their father) in the records.  In all the 17 cases I surveyed, the women litigants had been married for decades, with one of the cases specifically mentioning that the woman was married at puberty.

Despite these ground realities, judges still draw adverse inferences from female litigants’ inability to produce electoral rolls with both their and their parents’ names. For instance, Momila Khatun exhibited as many as 11 documents, including voter lists with her grandparents’ and parents’ names since the year 1966, and her own name in the 2017 voter list, written alongside her husband’s name. She specifically pleaded that“due to lack of knowledge and ignorance of the implications of the voting right she has not been able to enroll her name with the parents.”Yet, after twenty two years of her case referral, Momila Khatun was declared a foreigner as she was unable to show any connection with her parents through “cogent, reliable, and admissible” documents. Despite having no control over the documentation of her life and no agency on when and where her name was entered in the electoral rolls, she was heavily penalised for the same.

The discriminatory impact is exacerbated when we consider the status of women living in poverty belonging from marginalized and oppressed communities. According to the 2011 Census, 86% of Assam’s population lives in rural areas, with the female literacy rate in rural areas being 63%. Consequently, poor rural women are forced to drop out of school at a young age, resulting in the absence of their names on crucial documents such as school leaving certificates. Women’s access to such educational board certificates—which generally record the name of the student along with her parents’ names at the time of 10th/12th Standard—becomes very difficult. From the cases analysed, school certificates were exhibited in only 4 of the 17 cases, with women litigants having generally studied till primary school.^[7] In only one case, Shahida Khatun was able to produce her 10th Standard HSLC admit card, showing a link between herself and her father. However, this was still held to be insufficient as the father could not depose to support her case.

For poor, rural, married Assamese women, faced with the impossibility of producing school certificates and voter lists, gaonburah certificates (issued by the village Panchayat Secretary to prove linkage between the daughter and her parents) are commonly presented to prove linkage. However, FTs often impose a higher evidentiary burden on women to produce these documents, and rarely accept them. From the cases surveyed, 12 female litigants exhibited gaonburah certificates and all of them were disregarded. FT members insist that for gaonburah certificates to be admissible (as held by the Supreme Court in Rupajan Begum v. Union of India), their contents must be proved by legal testimonies of the issuing authority i.e. the Panchayat Secretary herself. At this first stage itself, ensuring the presence of the issuing authority to depose becomes an uphill task,^[8] as FTs rarely use their power to summon.^[9] In the selected cases, even when the litigant was able to secure the gaonburah’s presence, their testimonies were held to be unreliable, with FTs citing non-production of contemporaneous records^[10] or insufficiency of knowledge.^[11] This shows how the deck is stacked against women in FT proceedings. The uncertainty around how an FT will consider a piece of evidence creates a ‘design of exclusion‘, heightening the precarious citizenship status of Assamese women.

Complete disregard of oral evidence

Lastly, even when one of the parents or a close relative comes forward to orally testify to prove the fact of linkage, their testimony is disregarded in the absence of any documentary evidence about the relationship. I identified 8 such cases in which either a father, mother, brother, or step sister deposed towards the existence of a relationship.^[12] Dhiljan Nessa was able to show the presence of her father, Kitab Ali, through electoral rolls of 1966 and 1971. To prove linkage, she submitted a gaonburah certificate and her father even deposed as one of the witnesses, but his testimony was rejected. In 7 of the 8 cases, the Court held that oral testimony sans documentary support was not sufficient to prove linkage. Such a disregard of oral evidence of family members, who directly possess knowledge as to the existence of a parental relationship, goes against Indian Evidence Law. Section 50 of the Indian Evidence Act clearly states that oral evidence and conduct of someone who has “special means of knowledge” for proving the existence of a relationship between two persons is relevant and admissible. Thus, when the oral evidence tested on cross-examination is found to be credible and trustworthy, the tribunal should not insist on documentary evidence to corroborate each and every fact spoken. These basic evidentiary rules are being violated by FTs’ uninformed insistence on documentation.

In a series of identical cases challenging the FT orders, the Gauhati HC disregarded the oral testimonies of close relatives which were brought in to prove linkage in the absence of supporting documentary evidence.^[13] However, another two-judge bench of the Gauhati HC insisted that all facts cannot be proved by documentary evidence alone, and that it was essential for FTs to appreciate oral evidence as well. This ratio remained lost in the chaos of FT proceedings until 2021; the bench led by Justice Kotiswar Singh in Haidar Ali v. Union of India held that it is unreasonable to expect people in adverse socio-economic conditions, especially in rural Assam, to have documents like registered birth certificates and in such cases, oral evidence may be led to prove relevant facts for citizenship claims. The bench unequivocally stated that “it is nowhere mandated that he [the litigant] must prove all these facts by documentary evidence only.” [emphases mine] The insistence on considering oral evidence has been reiterated in Md. Sujab Ali v. Union of India and Puspa Khatun v. Union of India.

The Haidar Ali judgment has not been challenged by the State; however, since these contradictory judgments on oral evidence are given by coordinate benches (benches of the same strength), the State can still cherry-pick an older judgment pre-Haidar Ali to argue against litigants. Until the matter is resolved by a full bench (of three Justices) of the Gauhati HC, FTs can continue to devise their own procedures and insist upon documentary evidence, operating in complete darkness from public scrutiny. Thus, documentary evidence has become an elusive piece of the citizenship puzzle, especially for women litigants in Assam.

Conclusion

The case laws reviewed show how the requirement of documentary evidence for proving lineage may appear to be neutral, but when considered in light of historical disadvantages and disenfranchisement faced by women, it places an undue burden upon them. Women are denied the exercise of their right to access justice because of a failure to take into account the pre-existing gender-based disadvantages that they face. When laws do not account for gendered social norms in participation in the public arena, documentation practises, literacy levels, and access to necessary legal processes, the effect of so-called neutral citizenship determination procedures is exclusionary.

The author would like to thank the Editorial Board at Parichay Blog, Arunima Nair, Arushi Gupta, Darshana Mitra, and Rupali Samuel for their suggestions and comments.

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^[1] Also see Ditilekha Sharma, Determination of Citizenship through Lineage in the Assam NRC is inherently exclusionary, Economic & Political Weekly (Vol 54, Issue 14), April, 2019; Amnesty International, Designed to Exclude: How India’s courts are allowing foreigners tribunals to render people stateless in Asssam (2019); Trisha Sabhapandit & Padmini Baruah, ‘Untrustworthy and unbelievable’: Women and the Quest for citizenship in Assam, Statelessness and Citizenship Review (2021); Saika Sabir, Gender Discrimination in the Indian Citizenship Regime, presented at https://law.unimelb.edu.au/news/alc/video-recordings-research-roundtable-on-citizenship-and-statelessness-in-india

^[2] For the case study methodology, the author used the search word “Foreigners Act, 1946” on the SCC database, and narrowed down the results by the court (Gauhati High Court), and the time period (2020). The entire list of 49 cases accessed from SCC can be found here: https://drive.google.com/file/d/1fcSyrRMLNJuigOCjKCedUqiq-vVZS2I6/view?usp=sharing.

^[3] ‘Proceedee’ is a word used commonly in the Foreigners Tribunal proceedings to refer to  the individual who is alleged to be a ‘foreigner’.  Another term that is commonly used is ‘Opposite Party’.

^[4] ‘Protected characteristic’ is a term in equality law that refers to the personal characteristics, defined in the applicable law (such as race, caste, gender, age etc.), that are legally protected from discrimination.

^[5] Serial no. 33 [XXX v. Union of India] has been excluded from the count since it was a suo moto writ petition dealing with decongestion of prisons and detention centres during the pandemic, and did not have any identifiable writ petitioner.

^[6]  The list of 17 cases are as follows: Jarful Khatun v. Union of India, Raina Begum v. Union of India, Dhiljan nessa v. Union of India, Jayeda Begum v. Union of India, Shahida Khatun v. Union of India, Momila Khatun v. Union of India, Tapuran Bibi v. Union of India, Abia Khatun v. Union of India, Jamala Begum v. Union of India, Farida Khatun v. Union of India, Anur Bibi v. Union of India, Jahanara Begum v. Union of India, Surabala Namasudra v. Union of India, Shipa Begum v. Union of India, Amina Khatun v. Union of India, Golap Banu v. Union of India and Mohila Begum v. Union of India. Available at: https://drive.google.com/file/d/1fcSyrRMLNJuigOCjKCedUqiq-vVZS2I6/view?usp=sharing.

^[7] Raina Begum v. Union of India, 2020 SCC Online Gau 4873[Class II]; Fardia Khatun v. Union of India, 2020 5 SCC Online Gau 4735 [“Class I”]; Shahida Khatun v. Union of India, 2020 SCC Online Gau 3097; Shipa Begum v. Union of India, 2020 SCC OnLine Gau 482 .

^[8] Jarful Khatun v. Union of India, 2020 SCC Online Gau 3835; Tapuran Bibi v Union of India, 2020 SCC Online Gau 2977; Abia Khatun v. Union of India, 2020 SCC Online Gau 2774; Anur Bibi  v. Union of India, 2020 SCC Online Gau 1269; Surabala Namasudra v. Union of India, 2020 SCC Online Gau 473.

^[9] Para 4, The Foreigners (Tribunals) Order, 1964. See Jarful Khatun v. Union of India, 2020 SCC Online Gau 3835 wherein the FT rejected the proceedee’s application to summon the Gaonburah.

^[10] Dhiljan Nessa v. Union of India, 2020 SCC Online Gau 3668 [“Gaonburah issued the certificate on verbal request though he never maintained official memo number/reference to issue such type of certificate”];

^[11] Golap Banu v. Union of India, 2020 SCC Online Gau 202 [“He (Gaonburah) issued the Certificate only on the basis of personal knowledge and not from any records. DW-2 stated that he has known the petitioner when she was about 10 years old”]; Jahanara Begum v. Union of India, 2020 SCC Online Gau 1393 [“Gaonburah admitted to the fact that he does not know the father of the petitioner and further that the petitioner is known to him only since 1996, which is much after the cut-off date of 25.03.1971”]; Amina Khatun v. Union of India, 2020 SCC Online Gau 4191.

^[12] Jarful Khatun v. Union of India [brother], Raina Begum v. Union of India [mother], Dhiljan Nessa v. Union of India [Father], Tapuran Bibi v. Union of India [Brother], Jamala Begum v. Union of India [Brother], Farida Khatun v. Union of India [Brother], Jahanara Begum v. Union of India [Brother], Anur Bibi v. Union of India [Step sister].

^[13] Rahima Khatun v. Union of India, 2021 SCC Online Gau `106, ¶6; Jarful Khatun v. Union of India, 2020 SCC OnLine Gau 3835, ¶6; Tapuran Bibi v. Union of India, 2020 SCC OnLine Gau 2977, ¶6; Anur Bibi v. Union of India 2020 SCC OnLine Gau 1269; Jahanara Bibi v. Union of India, 2020 SCC OnLine Gau 1269, ¶6. Two-judge benches led by J. Manojit Bhuyyan.

The CAA and Article 15 – A Thought Experiment

John Sebastian is a Ph.D. candidate at Melbourne Law School and Assistant Professor at Jindal Global Law School. His research interests include constitutional law, criminal law, and legal and political theory. This blog post is a summary of an argument developed in greater detail in an article in the Socio-Legal Review, which can be accessed here.

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Introduction

There is little doubt that the Citizenship (Amendment) Act, 2019 (‘CAA’) makes a classification on the basis of religion—it explicitly mentions that its benefits are for persons ‘belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communit[ies] from Afghanistan, Bangladesh or Pakistan.’ It would prima facie, therefore, seem to breach the requirements of Article 15(1) of the Indian Constitution, which prohibits the State from discriminating on the ground of religion, amongst other grounds such as race, caste, sex, and place of birth. However, this is often countered by the argument that Article 15 specifically applies to citizens i.e., the persons who are eligible for citizenship under the CAA are not currently citizens, and therefore, cannot claim rights based on Article 15. In my article I interrogate this claim, and argue that due to the inherent nature of the CAA as a law which determines the conditions of entry into the political community of citizens, Article 15 should apply to it. In doing so, I also analyse the scope of the anti-discrimination guarantee in Article 15, demonstrating how the application of Article 15 impacts the constitutional analysis (and validity) of the CAA.

Situating the Article 15 Argument

The specification of certain grounds of discrimination as prohibited makes Article 15 a uniquely powerful tool in discrimination law. At the very least, as Khaitan notes, courts are expected to subject laws which classify or distinguish between citizens on any of the grounds mentioned in Article 15 to a higher standard of scrutiny when compared to other classifications. A claim that Article 15 applies to the CAA, hence, implies a more rigorous standard of scrutiny by the court, which in turn raises the justificatory burden on the state.

Of course, Article 15 is only one instantiation of the principles in the equality code within the Indian Constitution, and several other principles of equality—notably Article 14—are not conditional upon citizenship. Hence, it has rightly been argued by many that the CAA breaches the reasonable classification and manifest arbitrariness tests within Article 14. In brief, the state argues that the CAA aims to enable the grant of citizenship to those who have been forced to seek shelter in India due to religious persecution. It justifies its choice of countries—Afghanistan, Bangladesh and Pakistan—on the grounds that these countries are in India’s neighbourhood and have an official state religion (Islam), which leads to the persecuted religious minorities mentioned in the CAA seeking refuge in India. The CAA has, however, been challenged as a violation of Article 14’s guarantee of equality due to its inapplicability to other equally persecuted groups such as (a) other religious minorities within the three countries specified, (b) those persecuted for non-religious reasons, (c) those persecuted in other countries in our neighbourhood, and (d) those who arrive in India after the CAA’s cut-off date of 31 December 2014.

The state, in response to these challenges, has repeatedly claimed that the scope of judicial review over the choice of countries and communities is limited. It further argues that it is up to the legislature to decide whether to enact a law which is all-embracing, or to focus on certain groups alone. The claim is, therefore, that the CAA meets the threshold requirements of Article 14 and that the judiciary’s ability to review the law is limited. Of course, those who challenge the constitutionality of the CAA (correctly) argue that the unequal impact of the law is substantial enough to be a violation of Article 14 even under the reasonable classification test. However, if Article 15 applies, the court will require the state to produce stronger reasons and evidence to explain why it could not include other equally persecuted groups within the ambit of the CAA. The higher scrutiny of Article 15 requires less deference to be shown to ‘legislative wisdom,’ and will require the state to go beyond its bare assertions of ‘foreign policy’ and ‘reasons of state’ in defending the CAA. Essentially, it will enable courts to demand greater justification from the state, failing which the law will be declared unconstitutional.

It has also been argued that, even within Article 14, courts should apply a relatively higher standard of scrutiny to the CAA since the interests involved—the very ‘right to have rights’—are sufficiently serious in nature. Further, it has been strongly argued by Ahmed that the CAA breaches the requirements of Article 15’s ‘anti-subordination’ principle due to its unique signaling value that lowers the status of Muslim citizens in the polity. As a caveat, my arguments do not detract from but rather add to these other arguments about the correct standard of review to be applied to the CAA.

In addition, I limit myself to the argument that Article 15 ought to apply to the CAA, and do not further analyse whether, once Article 15 applies, the CAA would or would not meet its higher threshold of justification. That would be out of the scope of this piece. However, as mentioned above, many have cogently argued that the CAA fails to meet even the relatively lower requirements of Article 14.  These very arguments will apply, even more forcefully, once the CAA is subjected to the higher scrutiny of Article 15.

Article 15 and Conditions of Entry – Nergesh Meerza and Navtej Johar

In Air India v Nergesh Meerza, certain service conditions of Air India, which discriminated between Air Hostesses (who were female) and Assistant Flight Pursers (who were male), were challenged by many Air Hostesses. Among the many grounds of challenge was a claim that the classification, being based on sex, was in violation of Article 15(1). The Supreme Court negated this claim, observing that Air Hostesses and Assistant Flight Pursers constituted two separate classes which were ‘governed by [a] different set of rules, regulations and conditions of service.’ Being separate categories of employment or cadres, they could not be compared (much like apples and oranges, presumably). In addition, the court observed that Article 15(1) could not apply to this case as that prohibited discrimination only on the grounds of sex, whereas this was a classification on the basis of sex and employment cadre (though the Court itself noted that the functions discharged by Air Hostesses and Assistant Flight Pursers were the same). This reasoning, termed the ‘sex-plus’ argument, has been rightly criticised by many.

However, one of the criticisms of Nergesh Meerza throws a sharp light on the perils of ignoring conditions of entry into a group in an analysis of discrimination. In Navtej Singh Johar, Chandrachud J. observes that one of the many flaws in the reasoning of Nergesh Meerza is that the judgment failed to enquire as to whether the ‘initial classification’ itself was based on sex, as women could only become Air Hostesses and not Assistant Flight Pursers i.e. ‘the very constitution of the cadre was based on sex’ [emphasis mine].      

In other words, it might be logically correct to claim that within the classes of Air Hostess and Assistant Flight Pursers, respectively, there is no discrimination on the grounds of sex, since all persons within the category of ‘Air Hostesses’ are being subjected to the same treatment (since, by default, they all are women). However, as correctly observed in Navtej Singh Johar, the condition of entry into the class of Air Hostesses was itself discriminatory, and this, in turn, coloured the entire class with the vice of discrimination, even if, after entry into the class in question, there is no further discrimination. This makes sense—otherwise, Article 15 could be completely subverted by the creation of groups with different entry conditions based on the very grounds it prohibits, as is demonstrated in Nergesh Meerza.

I term this the ‘conditions of entry principle’ (‘COE principle’). The COE principle states that when a law prohibits discrimination on a certain ground within a group, then it also necessarily prohibits discrimination on the same ground in the determination of who can be a member of the group in question. The COE principle is, in many ways, a manifestation of the commonly-accepted principle of the Supreme Court, that ‘the State cannot do indirectly what it cannot do directly.’ If the state is prohibited from discriminating on certain grounds, it cannot subvert this prohibition through indirect means. In the next section, I apply and justify the application of the COE principle to the CAA.

Application to the CAA – A Thought Experiment

The CAA, while not applying to current citizens, is a law which determines who eventually constitutes the class of citizens, since it regulates the conditions of entry for a person who seeks Indian citizenship. Extending the logic of Chandrachud J., I argue that to not apply Article 15 to the CAA would be to repeat the mistakes of the court in the Nergesh Meerza case. It is important to note that Navtej Johar does not formally overrule Nergesh Meerza since the other judgments in Navtej Johar do not mention the case. However, for reasons I explore in greater detail in my full article, I contend that while Nergesh Meerza does not apply to the CAA anyway, Justice Chandrachud’s judgment in Navtej Johar nevertheless demonstrates strong reasons in favour of the applicability of Article 15 to the CAA.    

In order to draw a clearer picture, let us consider an example: imagine that Parliament passes a New Citizenship Act (‘NCA’), which recognises all those who are currently Indian citizens as citizens under the NCA. However, the NCA has a provision which states that only male children born after the commencement of the Act will be entitled to citizenship. As a result, females or persons of other genders born after the commencement of the NCA will not be granted citizenship. Now, I assume that most of us would find such a law to be abhorrent. Here, it is important to interrogate the reasons why we would consider this law as unconscionable, and how it sheds light on the CAA.

In defence of the NCA, it might be argued that this is not a law which discriminates against citizens on the grounds of sex as prohibited under Article 15 of the Constitution, as the persons it covers, i.e. children who have not been born, are clearly not citizens. This law, much like the CAA, deals with persons who are not yet citizens, and more importantly, with the qualifications through which citizenship can be gained. Does this mean that this law will not be subject to the scrutiny of Article 15? Surely not—as the implementation of such a law, over time, would lead to a situation where only males are citizens, rendering nugatory the entire purpose of the prohibition of discrimination on the grounds of sex in Article 15(1). In purely formal terms, of course, this law does not discriminate between persons who currently are citizens on the grounds of sex. In fact, adopting such a line of reasoning will eventually lead to a situation where discrimination on the grounds of sex between citizens will become a logical impossibility since there will be no non-male citizens left after all those in the current generation pass away. But such an interpretation can clearly reduce the guarantee of Article 15(1) to a hollow shell.

The Difference between Grounds of Discrimination and the Subject of Discrimination

It might be argued, to the contrary, that the distinction between the NCA and the CAA is that children in question (in the NCA) will be born to parents who are currently citizens of the country and thereby, discriminates against them. However, the discrimination in question, while being on the grounds of sex, is not on the grounds of the sex of the parents i.e. those who are currently citizens. A single father (a citizen) of a girl child (not a citizen) is not discriminated against because of his sex. Therefore, it could be countered, this again is not discrimination between citizens on the grounds of their sex. It is pertinent to underline that this is not a trivial distinction, and is precisely the distinction advanced by those who support the idea that Article 15 does not apply to the CAA i.e., they do not claim that the CAA does not classify on the grounds of religion (which it obviously does), but rather that it does not classify on the grounds of the religion of those who are currently citizens. In other words, their argument is that Article 15 has two conditions: (a) that the discrimination be on the grounds specified, and (b) that the subject of the discrimination be someone who is currently a citizen, and not someone who potentially can be.

My NCA example clearly brings out the flaws of this reasoning advanced commonly in defence of the CAA. Even though, formally, the NCA (a) does not discriminate between those who are currently citizens on the grounds of sex, and (b) only discriminates between those who can potentially be citizens, its effects could be devastating and undermines the very purpose of Article 15. A purely formal construction of Article 15 would lead to absurd results. Entry conditions are, hence, clearly relevant to Article 15.

Anti-subordination and the Question of Numbers

Let us continue with the NCA example. Another way in which the NCA violates Article 15 is that it does in fact affect current citizens who are women (and those of other non-male genders). Even though their citizenship continues to be recognised, the NCA would send a message to non-male citizens that persons who share their gender are not equally worthy of citizenship as men. The law signals that a fundamental part of the identity of women is not equally worthy of recognition in the future generation. This is precisely the ‘anti-subordination’ argument proposed by Ahmed who argues that Article 15 would accordingly apply to laws like the CAA which determine conditions of entry into the polity. This essay furthers Ahmed’s argument by claiming that the violation of Article 15 stems not just from its impact on current citizens, but also from its ability to change the nature of the body politic itself.

Of course, supporters of the CAA may argue that it only deals with a minor number of persons, and does not substantially change the nature of the polity the same way as my NCA example does i.e. there still will be Muslim citizens in India after the CAA. But any such assertion ignores the fundamental premise of my argument – that Article 15 is relevant to any law which determines who is to be a citizen. We can tweak the example of my NCA so that it now states that, while all males born after its commencement will be citizens, only one in two non-male persons born after its commencement will be citizens. This new version of the NCA (‘NCA 2.0’) clearly also suffers from the same flaws as the first NCA. It cannot be claimed that, just because now there will be some women in the polity, NCA 2.0 need not meet the requirements of Article 15. The nature of the group composed of citizens will still be disproportionately men due to the conditions in NCA 2.0, and not identifying this as discrimination under Article 15 will suffer from the same flaws as in my discussion above.

It is important to note that this interpretation does not reduce the word ‘citizen’ in Article 15 to a nullity. My argument will only apply to a law which lays down the conditions for citizenship and thereby affects the composition of the citizenry as a consequence. As I discuss in my full article, a law which, for example, classifies non-citizens on the grounds mentioned in Article 15 for some other purpose,     while keeping intact their status as non-citizens, would not be affected by my argument. This does not, however, mean that such a law will be valid, as there might be other constitutional principles at play—such as Article 25 and the general principle of secularism—but just that it is outside the scope of this piece. Additionally, my full article also discusses the manner in which my argument would deal with laws which determine citizenship by place of birth. Several examples can easily be constructed to further demonstrate my argument. Imagine a law which specifically grants citizenship to only white persons who immigrate to India. Imagine alternatively if the Citizenship Act, when it was passed in 1955, recognised only upper caste men as citizens. The underlying problem with such laws is the same, which implies that conditions of entry matter to Article 15.

Conclusion

Fundamentally, citizenship is a bundle of many rights including the rights to share in the common resources of a community. If laws based on the grounds prohibited in Article 15 can alter who can share these resources and exercise these rights, without being subjected to its heightened scrutiny, it would deprive that great anti-discrimination safeguard of much of its force. Much like Article 14 has been liberated of the constraints of the formalistic reasonable classification test in recent case law, it is time for us to liberate Article 15 from formalistic arguments which take away from its essence as a safeguard, for both those who are citizens as well as the many who will become citizens in the future.

Interview with Suchitra Vijayan

Suchitra Vijayan is a researcher and author of Midnight’s Borders; A People’s History of Modern India’. In this interview, she speaks on her book, Indian and international refugee policy, and the ethics of representation when documenting the stories of minority communities.

This interview was conducted over an audio call and edited for length and clarity.

Anna Kallivayalil: Starting with the book’s title, ‘Midnight’s Borders’. What was the thought behind the name of the book? Does it bear any similarity with the use of ‘midnight’ featured in Jawaharlal Nehru’s ‘A Tryst with Destiny’?

Suchitra Vijayan: It was a challenging book for us to name. We chose the title from the ‘Tryst with Destiny’ speech. We were also wary that there existed another book, ‘Midnight’s Children’. By giving the book the name ‘midnight’, we did not want to indicate that it was derivative or reflected the same politics as Nehru’s speech or the Rushdian novel.

At the same time, we decided to keep the name to genuinely understand what ‘midnight’ meant and, in some ways, change that meaning. So, yes, the title is undoubtedly derived from Nehru’s speech. But the book is positively critical of the Nehruvian nation-state that has played out into what we see today.

AK: Taking off from that, the Nehruvian (and essentially, the mainland) understanding of the nation-state is that the Partition was a one-day, open and shut case that happened on the midnight of 15^th August 1947. But as you’ve pointed out in the book, people from the border contest this popular belief, proving that they are still reeling from the effects of Partition. Another misconception that you’ve pointed out in the book is the idea that India’s borders are solid, where you’ve written about how porous the borders can be, especially the Indo-Bangladesh border. Could you tell us a little bit more about this observation?

SV: The’ Partition’ was a process that started much before 1947 and continues today. There is a violent history behind the Partition. The date of Partition is decisive of when and how the story gets told. We consistently focus on the date of the Partition itself to think about a historical moment that played out differently for many people.

If you see the patterns of Partition and migration patterns, the patterns of migration start much before 1947 and continue to happen today. I don’t think we understand how those who lived during the Partition saw the sub-continent. When I spoke to people in their 80s and 90s, their idea of a border was not the idea of a border that we have today. They had a completely different view of the sub-continent. For them, the idea of a border was alien. They only understood that there would be two different homelands, a Muslim homeland with the name Pakistan and a more secular homeland named India. Thus, the idea of borders was very different from what they are today. People would not recognise the heavily militarised borders of today. The idea of citizenship and belonging have also changed dramatically.

People had also left during the Partition, hoping to come back after things had settled down. However, some people left their homes due to untenable living conditions. This also sheds light on how people thought about the Partition and its resultant borders.

Thus, Partition is very much ongoing. The protests against the CAA/NRC continued the conversation about India’s citizens. Therefore, we should be mindful of when and where we start writing the history of Partition and its stories.

AK: When the legislature continues to believe that borders are solid, and when laws are built around that assumption, what are the possible ramifications that could arise from such an assumption?

SV: The CAA/NRC undoes the secular idea of citizenship in the founding documents of the Indian Constitution. It is really interesting to think about citizenship and minority rights. For long, the language of minority rights within the legal framework has been framed as the tool to protect vulnerable, marginalised and often historically oppressed groups.

This language arrives through the Convention on the Prevention and Punishment of the Crime of Genocide intended to protect minorities from the threat of annihilation. This language used within the Indian Constitution similarly fails to address equality and liberty adequately. The framework designed to protect a group from persecution itself cannot achieve the ends of equal citizenship. 

Even when you start with ideas of citizenship, it is crucial to understand that the ‘founding fathers’, so to say, had differing ideas of citizenship. The Constituent Assembly Debates show a sense of richness in terms of the word ‘citizenship’. Invariably, all questions revolving around citizenship do not focus on the nation-state. Instead, they focus on what it means for India to be a secular republic. Thus, as it was initially conceptualised in India, citizenship is very closely linked to the idea of secularism. Extending secularism to citizenship makes the Indian Constitution a phenomenal and revolutionary Constitution.

The ‘revolutionary’ Constitution not only created a social world made of contradictions, but it very soon became the tool of suppressing dissent, deployed laws like the Armed Forces Special Powers Act (AFSPA) and Public Safety Act (PSA) in Kashmir. Laws like UAPA and sedition laws are primarily used against the country’s minority and dissenting communities.

While the Constitutional ideas of secularism informed the initial ideas of citizenship, that was not what played out on the ground even back then. The Hindu majority always had an advantage over other communities. Things that the Hindu majority got to take for granted were not things that other communities got to take for granted. Seervai, in his book, ‘Partition of India: Legend and Reality, talks about how Jinnah wanted parity, not Pakistan, first. The idea of parity was not enshrined in the Constitution, even if it enshrined secularism. Implementation issues aside, the Constitution had a secular notion of citizenship in its original form. Citizenship cannot be ethno-nationalist citizenship. The Constitution did not envisage citizenship to be of an ethno-nationalist model. The ethno-nationalist model mandates citizenship to be linked to a shared ethnic identity, or in the case of India, religious identity. Hindu religion is seen as the basis of the republic, making it a Hindu nation and shared political, cultural, historical or even legal histories of belonging no longer matter. Here, Nationalism is inherited through the ancestry of being Hindu.

There is also a very interesting question posed to Nehru, where he was asked, ‘who becomes an Indian citizen?’ Nehru responded that whoever wants to be an Indian citizen can become an Indian citizen. Anybody who wants to belong to this land can become a citizen. This statement reflects a secular idea of citizenship and is very different from the modern idea of citizenship today. The secular model of citizenship never translated on the ground, but it was still theoretically an ideal approach to citizenship. The CAA/NRC and a series of other laws are ways in which the citizenship model has moved from the ideal secular model to the ethno-nationalist model.

It is now unabashedly clear who the state thinks are the real citizens of India. To be a citizen, you need to have specific ethno-nationalist characteristics. One of the ethno-nationalist characteristics is being a Hindu. This is a significant shift from the secularist idea of citizenship to the current ethno-nationalist model.

AK: I’d like to mention here that you had founded the Resettlement Aid Project, Cairo and worked with the project between 2008-2009. As someone who has worked with refugees previously, could you shed some light on Indian and international refugee and statelessness policy as it stands today?

SV: I worked as a legal director with the Resettlement Aid Project, and I worked there between 2008-2009. One of the fundamental things that became clear to me working there was that the refugee policies, the rules, the systems we have in place are deeply flawed. The current refugee laws and procedures were created in response to the Holocaust and World War II crises. Thus, they responded very specifically to a Europeanized Jewish population who had to be freed from near-extinction. So even back then, these laws were profoundly flawed and insufficient to respond to the crisis after the Holocaust. A lot of it felt like a band-aid remedy.

Over the years, we developed systems and institutions. But all these institutions were based on the fundamental belief that people fleeing violence or persecution have to provide footnotes and citations for their oppression. When we were preparing resettlement cases and refugee testimonies, the authorities only wanted to know about the refugee’s life and what forced them to leave. Even preparing that document where we had to tell their story, the footnotes and citations of their oppression that led them to leave, was a profoundly violent and inhuman process.

The violence that leads people to flee is often seen within a context that does not consider history’s deceit. In reality, many refugee crises happen ​because of the Cold War​ politics and posturing, imperial interventions, the ongoing geopolitics of the world. Yet, these crises are not recognised in refugee testimonies. Instead, we outsource these great acts of violence to the refugee’s responsibility. The person fleeing violence has to justify why they are fleeing violence.

Eventually, all this goes back to the question of citizenship and the erosion of citizenship rights within the idea of the nation-state. If you look at the UN Human Rights Charter, it says that every person has the right to a state. This is increasingly flawed because the state then becomes foundational or the source of your freedom. By this understanding, we derive our rights from a contract with the state, and not because ​freedom and dignity ​are inalienable. This is a fundamental flaw with how rights are constructed within the UN​ charter and various rights documents.

Another significant flaw in the Indian and international refugee policy is that it does not deal with the impending climate crisis. Climate change is going to fundamentally remake the borders of the world. We already have at least 20 million climate refugees. The laws as they stand today do not even begin to address those crises. Hence, it is a deeply flawed system. But these flaws come from structural and racial inequalities of the world, and we cannot divorce these structural flaws from the more significant crises.

AK: Coming back to the book, I found it very interesting that you had added pictures along with the writing. There’s a part in the introduction where you’ve explained why you decided to add pictures with the book, do you think the pictures enhance the particular stories in a way?

SV: When I started the book in 2012-2013, it began as a photography project. It was to be a predominantly visual project. That became impossible early on, and I realised that the visual medium would not be enough. I had to come up with a way to tell the stories as I saw them. The book in front of you results from someone trying to make sense of so many things. But the book is also lacking certain things that we could not add. For example, there are no maps in the book. Almost any community I spoke to had their version of the maps, but I could not include these maps in the book for legal reasons. Another critique I’ve heard from people is that we should have included the state maps. The maps that we have included are all pre-independence maps.

For many of these communities, the maps dictated by the state are inherently violent because they do not see themselves reflected in these maps. This is true of communities in Jammu and Kashmir, Manipur, Nagaland, etc. In all these communities, the Indian nation-state depicts itself in its maps is not the way they see themselves.

We also had to remove​ some of the images from the book towards its end because they had the identifying features of the people photographed.

Further, the book was finalised before Ayodhya, the NRC, and the CAA. After these events, many of the people I interviewed no longer wanted to be a part of the book. There is no Gujarat chapter because people did not want to speak. Thus, the book in front of you is not complete. When you claim to write a book about people in the communities, and if they no longer want to be in the book, you should not put them in the book. It is not for us to decide whose stories are included in the book.

The book in front of you with some images, some maps, some poetry, is a reflection of the present. It is a reflection of the world we are in today. The book is not just a record of the stories told; it is also a testimony of untold stories that we couldn’t tell.

AK: Adding to that, in the introduction, you talk about the ethics of representation. You didn’t intend the book to “give voice to the voiceless”. The ethics of representation is a very sticky subject, and there’s a very fine line of difference between telling their stories and appropriating their stories, violating their privacy.

SV: It was not easy writing this book. We need to think about who gets to write about India and its people. I think it has always been the same people who tell the stories of India. It’s a particular kind of upper caste and upper-class men and women who continue to write books and tell the stories of people in India. This group of authors all belong to the same community, and their view of India is very similar. It is the same people who tell their idea of India, over and over again. Even with the growing Dalit representation, it is nowhere close to how the stories are told.

When I started writing the book, I had to be very clear about the privileges I had and where I was placed in the pool of people who get to tell these stories. For example, the fact that someone has a camera creates a certain unbridgeable distance between you and the person being photographed. So the very fact that I can do this puts me in a place of immense privilege.

A few years ago, there was not even this public acknowledgement of privilege. Now, admission of privilege is very performative. Acknowledging privilege does not improve the material realities of people on the ground. Privilege is something that all authors and persons who document others’ stories still need to be sensitive about, even if it is acknowledged.

There are specific improvements in the sense of who gets to tell people’s stories. A decade ago, I would not have been able to write this book. I did not come from a place of privilege, and I am, in some ways, an outsider. I very early on found out what cultural capital meant. If someone like me had to struggle to get the book published, imagine how hard it would be for someone who doesn’t have any of these privileges. The beginning is always acknowledging privilege. There is a considerable disparity between the actual realities on the ground and the social realities as we see written in books of India. Acknowledging privilege means acknowledging your complicity in everything you claim to fight through the book.

I was also very candid about the mistakes I made in the book. I am not infallible. It was essential to have a collaborative form of writing, which meant that I had to send back transcripts to the people I interviewed take out the interviews of people who no longer wished to be in the book. I was also particular about quoting the entire piece of what was said by the interviewee. Therefore, my contribution to the book was just analytical of these pieces of conversation. Another thing I was very particular about was being unabashedly critical of those in power, the structures that have led to such conditions. I would name the beast.

I wanted the book to ask some fundamental questions in a very public way. The ethics of representation is very murky. Power and privilege are always corrupt. How does that power then reflect when you write? A lot of that is introspection, the ability to say when you were wrong, admit to the mistakes made, and correct those mistakes.

AK: Reading your book had opened my eyes to so much that goes unreported in the mainstream media. Would you recommend young people to travel to the borders to learn more about their country or are there other ways in which we can be more aware?

SV: People need to start being more observant of their surroundings. I think that’s a crucial thing that we’ve lost over the years. We are not looking at the real world around us. To young people, I’d say speak to the people around you and make sense of what’s happening. That itself will take you a lot of time. I had spent a significant amount of time reading and trying to understand things around me before deciding that travelling to the border was necessary.

We also need to learn to hold the people in power accountable. It could be the government or any other source of injustice. Finally, be curious about the world in as many ways as possible. Engage with people even if they have a different viewpoint. After all this, we can even begin to start answering questions by travelling to the borders.

Travelling to the borders is a challenging and dangerous task; I find it hard to believe how I came back in one piece. However, travelling the way I did is not the only way to understand more. I think there are other ways, starting in our backyards.

CAA Revisited: A Conversation on Citizenship, Refugee Protection and Migration along India’s Western Borders

On the 27^th of August, Parichay organized a panel discussion on the May 2021 order of the Ministry of Home Affairs, which significantly relaxes the citizenship process for minority communities from Bangladesh, Afghanistan and Pakistan. The panel focused on migration across India’s Western border and the making of the identities of the refugee and citizen, exploring the legal and social journeys of recognition and assimilation, the structural impediments in the legal regime and the possibility of an alternative system. The speakers were Dr. Farhana Ibrahim, Prof. Natasha Raheja and Ms. Darshana Mitra and the panel was moderated by Prof. Mohsin Alam Bhat.

The themes that emerged out of the panel are as follows:

The need to historicize citizenship and migration along the Western border

Dr. Farhana Ibrahim pointed out that there have been several MHA executive orders that have relaxed immigration and long-term visa requirements for Pakistani Hindus and other religious minorities from Pakistan like the 2003 amendment. These changes have happened continuously after 1947. Prof. Natasha Raheja spoke about her research in Rajasthan, and how people have shared histories and connections, and their mobility predates the existence of borders. Speaking about her research in Rajasthan, she pointed out, “our assumptions about people making these journeys are fixed within the logic of the contemporary India- Pakistan border. Until the more recent border fencing in Rajasthan and Sindh in Punjab in the 1990s, there wasn’t the same sense of partition the way we understood it in other parts of South Asia.” The research conducted by the panelists also revealed other reasons why people choose to migrate. Prof. Raheja indicated that in addition to experiences of religious persecution, caste also played a role in the decision to migrate.  Dr. Ibrahim gave the example of migration by the Sodha community to India from the Tharparkar region in Pakistan after 1971, as they were the only remaining upper caste community in Pakistan and endogamous marriage alliances were increasingly difficult.

Legal inclusion and social inclusion

The speakers also spoke about processes of legal inclusion and social inclusion. They emphasized that even when a statute guarantees visas and subsequently citizenship to a category of refugees, the process itself still takes a very long time. Applicants must undergo immigration inquiries and interviews that can be difficult and humiliating. Within these spaces, the position of lower caste applicants is especially precarious. This painful process of interacting with the citizenship regime is what Prof. Raheja calls a selective welcome. She highlights that, “on one hand, there is a welcoming of Hindu migrants from Pakistan but the reality on the ground is that they undergo the undignifying experience of documentation. Some of the statements that I hear from people is that “In Pakistan we may die because of religion but here we die by paperwork.” 

She highlights how Hindu migrants spoke of the “undignifying experience of documentation.” 

Dr. Ibrahim mentioned that legal inclusion is not always followed by social inclusion. She noted that migrants struggle to be accepted into the Hindu community, even if they had caste privilege, and had to struggle for resources and livelihood. Also, they were still identified socially as “pakistan-wallahs”, keeping intact the stigma of migration and forcing them to establish their Hinduness for acceptance. One can only imagine how much more difficult social assimilation is for people belonging to marginalized communities. 

Darshana Mitra then proceeded to emphasize on the existing legal regime for citizenship applicants and discussed possible alternatives and suggestions that could be borrowed from other jurisdictions. 

Legal impediments to citizenship seekers

Darshana Mitra spoke of how Indian law does not recognize or grant refugees a separate legal status, and most refugees fall into the category of illegal migrants under the Citizenship Act 1955. This becomes a significant barrier as illegal migrants are prevented from applying for citizenship and renders them vulnerable to prosecution for immigration offences under the Passports Entry into India Act or the Foreigners Act. This ‘illegal migrant’ tag does not allow people to avail various government schemes, send their kids to school or even avail proper housing. 

Once they have fallen into the criminal justice system as a criminal or an accused, the pathway to citizenship is effectively closed for them because and then if they are convicted under any of these legislations then the state’s response after conviction is detention and deportation. Granting citizenship to a person who has been convicted under an immigration offense is not an option that is exercised by the state.

The state’s response has been the selective easing of processes for certain communities. The May 2021 order is an example of a significantly truncated process for citizenship registration and naturalization procedure for minorities from Afghanistan, Pakistan and Bangladesh. The order creates a single tier process for registration and naturalization current process, which non-Muslim minorities can avail, while Muslim applicants must go through the existing three-tier process. This means that at the very point of entry, Muslim claims of persecution are rejected, and their pathways to citizenship made significantly harder. A proposed alternative was the rigorous scrutiny of all refugee claims, but after a refugee is admitted, they have the same pathway to citizenship as everyone else, determined by a case-by-case assessment. This would be similar to the system of refugee status determination and subsequent pathways to citizenship implemented in the United States. 

The discussion ended with questions on the way forward, and a consensus that the current legal regime, even with amendments and orders that presumably help migrants and refugees obtain citizenship, is discriminatory and arbitrary, and that there is a need to reimagine a legal system that recognizes why and how migrations take place along India’s borders, and one that can adequately respond to people’s lived realities.

Further references:

1. Farhana Ibrahim, “Re-Making a Region: Ritual Inversions and Border Transgressions in Kutch” 34.3 Journal of South Asian Studies 439 (2011) https://www.tandfonline.com/doi/abs/10.1080/00856401.2011.620555

2. Farhana Ibrahim, “Cross-Border Intimacies: Marriage, migration, and citizenship in western India” 52.5 Modern Asian Studies 1664 (2018) https://www.cambridge.org/core/journals/modern-asian-studies/article/crossborder-intimacies-marriage-migration-and-citizenship-in-western-india/72B0E16730FD62F0A18768FF8D919727

3. Farhana Ibrahim, “Defining a Border: Harijan Migrants and the State in Kachchh” 40.16 Economic and Political Weekly 1623 (2005) https://www.jstor.org/stable/4416504?casa_token=6xdhQ_jmPgcAAAAA%3ABlqAjrS7BTDaCMTwOeLVBTGTUrFL8tpM1eaNaIV71MnBGn-4LpOR_M9zD7Fsxz9P341Yxim_MlcNovOo0c51hxiGuy0sobNv9OKXhmYy7Vv8ZdoF6A&seq=1#metadata_info_tab_contents

4. Natasha Raheja, “Neither Here nor There: Pakistani Hindu Refugee Claims at the Interface of the International and South Asian Refugee Regimes” 31.3 Journal of Refugee Studies 334 (2018) https://academic.oup.com/jrs/article-abstract/31/3/334/4922733

5. You can find Parichay’s note on the May 28, 2021 order here.

Parichay Monthly Roundup: July 2021

We, at Parichay, have launched a monthly newsletter to give you updates on citizenship in India and the globe, and highlight some exciting new work that we have been doing. Click here to subscribe!

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Updates from Parichay

• In a provocative essay on the blog, Nivedita Menon, implores us to recognize the feminist issues which lie at the heart of any citizenship discourse. More specifically, in Menon’s words, the essay concerns itself with four questions: 

_{“First, are citizenship and citizenship rights unambiguously empowering? Second, why is citizenship a feminist issue? Third, should we not cast citizenship rights within the frame of place of work, rather than place of birth? Fourth, what about the place of the non-human in a just and ecologically aligned society?”}

• Leah Verghese and Shruthi Naik by analysing 818 orders passed by Foreigners Tribunal No. 4 in Hajo between 16 June 2017 and 30 December 2019, explore the process of adjudication of citizenship in Assam, “in terms of fairness, procedural aspects, and time taken through an analysis of these orders“ and highlight the flawed citizenship process which haunt Assam. 
• ​On 28th May, the Central Government issued a notification which empowered the Collectors in certain districts of Gujarat, Chattisgarh, Rajasthan, Haryana and Punjab, to operate under Sections 5 and 6 of the Citizenship Act, 1955 and grant citizenship to the minority communities (Hindus, Christians, Jains, Parsis and Buddhists) from Afghanistan, Pakistan or Bangladesh. Darshana Mitra and Rupali Francesca Samuel have prepared a brief on the order which sets out the contents of the May 2021 order, and its relation, if any, to the CAA 2019. 

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Developments in India

• In a moving article, Mohammad Iqbal, informs us about the Kafkaesque nightmare which haunts Pakistani Hindus in India – a process which engulfs statelessness and renders lives precarious. Unsurprisingly then, various refugees were seen demanding an expedited Citizenship Process, on the World Refugees Day. 
• In Thamarai v. Union of India, the Madras High Court recently dismissed a plea moved against the deportation of a Sri Lankan national. The Court by suggesting that the law in Maneka Gandhi case cannot be stretched beyond a point, held that:

_{​​“[He] does not have a fundamental right to stay in India and get Indian citizenship. He knows that his stay in India cannot be eternal. He has to leave India one day or the other”}

• Suggesting that India and the UNHCR failed to provide healthcare and vaccination for Chin refugees, Kimi Colney in a compelling piece, offers insight into the varying forms of violence which are perpetuated against vulnerable groups. ​
• Observing the importance of citizenship for a person, the Gauhati High Court recently held that “citizenship being a very important right of a person should ordinarily be decided on merit rather than by default”

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Across Borders: Conversations on Citizenship

• Recently, Germany has passed a new citizenship law for descendants of Nazi Victims – the law makes it easier for descendants of those who fled Nazi persecution to obtain citizenship. Subsequently, if people have been stripped of their citizenship on political, racial or religious grounds can have it restored, and so can their descendants.
• The Bahamas Court of Appeal upheld a historic Supreme Court ruling that children born out of wedlock to foreign women and Bahamian men are entitled to citizenship at birth. 
• Dahlia Scheindlin, informs us of the cruelty which lies at the heart of Israel’s Citizenship Law – a cruelty which for Scheindlin, remains rooted in racist foundations, and arguably, provides a key insight to the violent politics which haunts Israel. ​

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What have we been reading? 

• Articulating a moment in history wherein we are witnessing the “death of asylum itself”, Alison Mountz​‘s recent work, maps out the role of spaces and geographies in allowing the sovereign to place lives in precarious and vulnerable zones. In suggesting that detention spaces are often ‘a global constellation of sites and places where people and places are exploited to carry out exclusion’, Mountz complicates traditional theoretical debates surrounding ‘states of exception’ by highlighting their incomplete-ness. Despite the ominous realisations, Mountz argues that ‘they [activists, migrants, NGOs, etc] are countering the death of asylum with the life of activism’ – a life which we hope to emulate in spaces near us. 

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We look forward to bringing you more updates next month! Until then, feel free to reach out at editorial-team@parichayblog.org for comments or feedback. Subscribe here.

Foreigners’ Tribunals

The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Shuchi Purohit, is part of the clinic’s outcomes.

Foreigners’ Tribunals are quasi-judicial bodies set up by the Central Government to determine whether a person is a foreigner or not under the Foreigners’ (Tribunals) Order, 1964, created under the Foreigners Act, 1946. The Executive appoints judicial members to adjudicate cases before FTs. These tribunals differ from other tribunals or courts of law in India in terms of procedure, selection criteria of judicial members, examination of evidence, absence of an appellate body, etc. Presently, as many as 1.4 lakh cases of suspected foreigners are pending before 300 tribunals functioning in Assam. 

History and Establishment of Foreigners’ Tribunals

The primary aim behind setting up foreigners’ tribunals was to avoid arbitrary deportation. The Foreigners Act was first enacted in 1864, to limit the mobility of groups that the colonial British government saw as “disorderly or alien.” The Foreigner’s Act, 1946, which was adopted by independent India, incorporated this objective as well, in a situation where borders were porous and in flux, especially along the eastern borders. However, the Foreigners Act did not incorporate any mechanism for the identification and detection of foreigners. 

The 1961 Census Report focused on preparing data on irregular immigrants. 2,20,691 ‘infiltrants’ were found in Assam due to migration from East Pakistan. The Border police thereafter misused this data as they started detecting and deporting foreigners without any judicial process. The Ministry of Home Affairs then, through powers granted under Section 3 of the Foreigners Act, passed the Foreigners (Tribunal) Order, 1964, so that no person would be deported without a hearing. 

In 1983, the Government of India passed the Illegal Migrant (Determination by the Tribunal) Act, 1983 (‘IMDT Act’). The objective of this Act was to determine foreigners who entered India after 25 March 1971, according to Section 6A of the Citizenship Amendment Act, 1986. Such individuals were ineligible to obtain Indian citizenship and were detected and deported in accordance with the IMDT Act. The IMDT Act differed significantly from the Foreigners Order in one respect: it placed the burden of proof for demonstrating that the individual is a foreigner upon the state. It also defined the eligibility criteria to be a judicial member of the tribunal. An option of the review was available in case a difference of opinion arose among the judicial members.

However, there was growing turmoil in Assam as the leaders of Assam Agitation believed that the IMDT Act was unsuccessful in detecting and expelling foreigners and the issue of irregular immigration remained unresolved. Hence, in 2005, in Sarbananda Sonowal v. Union of India, the Supreme Court declared the IMDT Act as unconstitutional, as it found the procedure laid down in the Act to be “time-consuming”. The Court cited two reasons for its decision. First, that the Act failed to protect the people of Assam from external aggression by the migrants, which is the prerogative of the central government. Second, that in order to uphold national security, there was a need for identification of these foreigners to expedite their deportation. The Court struck down the IMDT Act as unconstitutional, and reverted to the Tribunal regime established under the Foreigners Act and Order, thus shifting the burden of proof to the individual suspected to be a foreigner. 

How do Foreigners’ Tribunals receive Cases?

There are three modes through which the Foreigners’ Tribunals receive cases: references from the Border Police, the Election Commission of India, and the National Register of Citizens. There are presently 1.9 million people who are excluded from the final draft of the NRC, waiting for their fate to be decided, as the process for their claim to citizenship before FT is yet to be started. 

Almost every district in Assam has Assam Police Border personnel stationed, who identify and investigate alleged foreigners based on their discretion. Cases identified by the Border Police are referred to FTs for final adjudication. However, civil society organisations argue that this power is often abused by the Border Police as they do not follow any investigatory guidelines to identify alleged foreigners, as laid down by the Gauhati High Court. 

Individuals can also be identified as foreigners by the Election Commission. In 1997, the ECI had identified around 2,30,000 voters as ‘doubtful,’ whose cases were then referred to FTs for adjudication. 

Finally, the National Register of Citizens in Assam is an exercise identifying all Indian citizens in the state. Individuals excluded from the list are identified as foreigners, who will have to prove their citizenship before FTs. In 2019, the final NRC list was released, which excluded around 19 lakh people from citizenship. In May 2021, the NRC Coordinator had filed an application before the Supreme Court seeking re-verification of the NRC, stating that some ‘issues of substantive importance’ cropped up while preparing the rejecting slips, thus delaying the process.

Lapses of Foreigners’ Tribunals in India

India is a party to the International Covenant on Civil and Political Rights (ICCPR) and is hence bound by its treaty obligations. Article 14(1) of ICCPR states that every person is entitled to a “fair and public hearing by a competent, independent and impartial tribunal established by law.” The Foreigners Act falls short on each criterion set by ICCPR, as it fails to establish standardised criteria of eligibility for its members. 

Scholars and civil society organisations have raised concerns regarding the independence and impartiality of these tribunals. The appointed members of the Foreigners’ Tribunal do not have any specialized training in law or adjudication. This is evidenced by the Gauhati High Court’s circular seeking to appoint senior civil servants as members of the Foreigners’ Tribunal, as opposed to persons having prior adjudicatory or legal experience. Moreover, membership with the Tribunal is renewed or terminated depending on the conviction rate. Thus, members of the Foreigners’ Tribunal would be incentivised to declare more people as foreigners, to retain their seats. This leads to an inherent conflict of interest, which falls short of the requirement of impartiality.

The Act also fails to state the training a member needs to carry out the judicial duties, thus compromising the requirement of competency. In 2015, the training received by the 63 selected members spanned merely four days. Out of those, only two were former or serving judicial officers. Moreover, the Government of Assam has further lowered the threshold of experience required from 10 years to 7 years. The age limit of induction which was previously 45 years, is now 35.

The tribunals are empowered to regulate their own procedures, as provided by the 1964 Order. Civil society organisations have noted that in practice, this power is abused and the tribunals do not provide documents such as written statements, witness depositions, etc., which are necessary for an individual to fairly contest and appeal their case. More than 60% of cases are decided ex-parte, as most individuals do not receive show-cause notices. The Gauhati High Court had stated that since Foreigners’ Tribunals are not civil but rather quasi-judicial bodies, the principle of res judicata does not apply. However, the Supreme Court in Abdul Kuddus v. Union Of India, later overturned this ratio, finding instead that quasi-judicial orders rendered by Foreigners’ Tribunals have civil consequences. Therefore, the doctrine of res judicata would apply. Further, the orders passed by Foreigners’ Tribunals cannot easily be found in the public realm, making the entire process opaque.

The Foreigners Act and Order do not provide for a right to appeal against the decision of a Foreigners’ Tribunal and set up no appellate body. All appeals have to be made to the High Court and Supreme Court. There are various factors such as litigating costs, locations, the prolonged duration of appeals etc. which act as barriers to individuals approaching appellate courts for a review of their decision. Even if they wish to do so, this right has become judicially restricted through the decision of the State of Assam v. Moslem Mandal. The decision states that the tribunal is the final fact-finding body, post which facts cannot be challenged during the appeal. However, facts are the most important aspect of such cases. Lawyers practising in FTs note an alarming difference between the prescribed methods for fact-finding and how facts are actually obtained by the Border Police. The guidelines laid in Moslem Mandal propounded that the referring authority must forward their observations recording their satisfaction in such a manner that demonstrates their application of mind to the facts and circumstances of the case; however, the fact-collection procedure is largely ignored. 

Conclusion

The objective of the 1946 Act was to deport legitimate foreigners in the Indian territory, rather than to determine the citizenship status of the masses to declare them foreigners. The functioning of these tribunals fails to take into consideration the grave risks associated with statelessness. It forces targeted individuals to live in limbo with constant anxiety over their civil and political rights. 

Suggested readings

1. Amnesty International India, ‘Designed To Exclude: How India’s Courts Are Allowing Foreigner Tribunals To Render People Stateless In Assam,’ (2019) <https://www.amnesty.be/IMG/pdf/rapport_inde.pdf>.
2. Talha Abdul Rahman, ‘Identifying the Outsider: An Assessment of Foreigner Tribunals in the Indian State of Assam’ VOL 2 NO 1 (2020): STATELESSNESS & CITIZENSHIP REVIEW <https://statelessnessandcitizenshipreview.com/index.php/journal/article/view/141>. 
3. Sangeeta Barooah Pisharoty, ‘Explainer: What Do the MHA’s Changes to 1964 Foreigners Tribunals Order Mean?’ (The Wire, 14 June 2019) <https://thewire.in/government/foreigners-tribunals-order-mha-changes> 
4. State of Assam v. Moslem Mandal and Ors. (2013) 3 Gau LR 402.
5. Mohsin Alam Bhat, ‘Twilight Citizenship’ (2020) 729 Seminar <https://www.india-seminar.com/2020/729/729_m_mohsin_alam_bhat.htm>. 
6. Citizens Against Hate, ‘Making Foreigner: Report on NRC Updation in Assam and the Risk of Mass Statelessness’ (2018) <https://citizensagainsthate.org/wp-content/uploads/2019/06/Making-Foreigner.pdf>