Citizens/Non-Citizens: The Constitutive and the Dialogical

Citizens and Persons

Independence for India in August 1947 did not simply bring about a change of status for Indians who were not British subjects governed by the British Nationality Act anymore. Independence from British rule coincided with a constitutional moment in which citizenship would become an expression of a politics for the future unconstrained by the past. The most powerful performance of citizenship was the enactment and adoption of the Constitution, which in an affirmation of popular sovereignty the people gave to themselves. The Constitution of India does not define an Indian citizen. Part II of the Constitution of India (Articles 5 to 11) concerned itself with the complex question of identifying citizens in the context of the large-scale movement of people across borders in the course of Partition. Although the Constitution came into full force only on 26 January 1950, provisions dealing with citizenship became operative on the date of its commencement, that is, 26 November 1949. The distinction between the Indian citizen and the non-citizen (alien) became effective on this date. At this founding moment of the Indian Republic, the crisis precipitated by the Partition was resolved by installing an inclusionary citizenship buttressed by a democratic constitutional order.

It must be noted that the question who would be a citizen of India involved not only identifying who could be a legal citizen of the country but also what kind of rights would be available to citizens and possibly to non-citizens. The response of the Constituent Assembly indicates the manner in which the Assembly located the citizenship question in the realm of constitutional order and morality. On the question who was an Indian citizen, the Assembly adhered to an inclusive principle of jus soli, prioritising territoriality as the foundation of a political relationship between the government and citizens. The Constitution of India embraced as citizens not just those who were found residing in India but also those who migrated to India, displaced persons, and also those who after having left India made the decision to return and make it their home. This principle was given affirmation in the Citizenship Act of 1955, which made citizenship by birth and domicile the basis of legal citizenship in India, whereby persons born in India would be Indian citizens. Citizenship could be acquired under specified conditions through registration and naturalisation. Those born outside India could become citizens by descent, by claiming citizenship parentage if certain conditions were met.

The Constitution of India guarantees a range of fundamental rights to citizens of India, but some rights are enjoyed by all ‘persons’ and not exclusively by citizens. The Indian Constitution provides equality before the law and equal protection of the law (Article 14) and the fundamental right to life and liberty (Article 21) to all persons. The right against discrimination (Article 15), equality of opportunity (Article 16) and the right to various freedoms (Article 19) have been given only to citizens. There does not appear to have been a sustained debate within the Constituent Assembly on why the distinction between ‘persons’ and ‘citizens’ was made in the enumeration of the rights to equality and freedom. Much of the discussion on equality focussed on a different set of distinctions: between the ‘negative’ and ‘positive’ figuration of rights and the nature of obligation they imposed on the state, rights which were justiciable and those which were ‘merely intended as guide and directing objectives to state policy’. Indeed, the distinction between persons and citizens does not seem to have animated the members of the Constituent Assembly as much as the content of rights of minorities within the framework of the right to equality, concerns around due process in the rights to life, personal liberty, and property, and the scope of free speech in the right to freedom.

It was in the course of the discussion on due process that Alladi Krishnaswami Ayyar (in a note on Fundamental Rights submitted on 14 March 1947) brought up the manner in which the Constitution of the United States protected fundamental freedoms in the First Amendment and equality in the Fourteenth Amendment, and the ‘elastic interpretation’ of due process by the US Supreme Court. For Ayyar, the question before the Constituent Assembly of India was whether or not to follow the model of the United States which guaranteed certain human rights to all people for the time ‘resident in or under the protection of the United States’. Whereas certain rights were secured only to citizens (for example, fifteenth and nineteenth amendments pertaining to franchise), most of the rights secured by the first eight amendments, including the fifth amendment, giving protection to life liberty and property, were shared by all persons in the United States (Rao, 1968, p. 68).

It may be said that the Constituent Assembly followed the inclusive model of the United States, by not limiting all fundamental rights to citizens but only those which required a relationship of obligation between citizens and the state. In a note submitted to the Constituent Assembly on 23 December 1946, K. T. Shah argued that over a span of 200 years the standardisation of civil rights had taken place and they had, to different degrees, become part of constitutional texts around the world. Embedded in the notion of justice as a bond among people, these rights could not be achieved without social equality and equality before courts of law. The most important of these rights for Shah were the rights to the liberty of person and to privacy. Both these rights, he argued, belonged to ‘humanity in general’. The right to life, therefore, so far as mere sanctity of life was concerned, would apply to both ‘citizens and strangers’. Those rights, however, which required enabling conditions, such as health, education and entertainment, among others, for people to enjoy the ‘fullness of life’ and ‘opportunities for self-expression and self-realization’ depended on an outlay which would come from taxes paid by citizens. These rights, therefore, could be for all persons, but ‘preferentially’ for citizens. Political rights, on the other hand, required a different kind of obligation, and Shah opined: ‘While the general level of civilization and the amenities of life provided thereunder would be common to citizens and strangers, certain rights of citizens which become the obligation of the state are necessarily confined or at least primarily belong to the citizen’ (Rao, 1968, 42).

Citizens and Outsiders/Migrants

The Constituent Assembly of India preferred to lay down the provision of citizenship only for the date on which the Constitution came into force, finding it inadvisable to define exhaustively conditions for citizenship for all future contexts in the text of Constitution. In the understanding of the Assembly, such an inscription would lead to difficulties of interpretation of laws that would be framed later, especially if they departed from the conditions laid down in the Constitution (Government of India, 1947, pp. 577–578).

Over the years, especially since the 1990s, two trends have emerged in the way in which citizenship has taken form in citizenship laws. On the one hand, amidst global population flows and claims of tansnationality and globality of citizenship, dual citizenship has been recognised in citizenship laws in several countries. On the other hand, the presence of non-citizen aliens and immigrants as a result of transnationally mobile populations has led to anxieties over the dilution of national citizenship. The notion of a ‘crisis’ in citizenship due to destabilisation of national citizenship has led to citizenship regimes which have reinforced nation-state boundaries by restricting the inflow of foreigners, immigrants and refugees. The figure of the migrant has become integral to restrictive citizenship regimes not merely because the migrant is presented as someone who depletes scarce resources but also because he or she changes the demography of the country and its cultural coherence. With the rise of the national security state and the prevalence of the idea of ‘spectral terrorism’ (Eckert, 2008, p. 12), the immigrant is identified with radical religious denominations, a dangerous other, whose presence itself presents a risk to the security of the territory and its people. It is in this context that most countries in the world have made changes in laws which have allowed states to deter and often deprive people of citizenship. Deprivation of citizenship on the ground of security risks has been justified for serving public good. In the pursuit of public good, as has been the case with the changes in the nationality laws in Britain since 2002, the government can deprive its citizens––even if they were born in Britain––of citizenship, for having acted in ways prejudicial to the interests of the United Kingdom, provided they possess a second nationality and would not be rendered stateless. Since 2014, however, a naturalised citizen in Britain could be stripped of citizenship if the government was convinced that he or she was eligible to become the citizen of another country. These restrictions have exacerbated in most countries after the ‘global war against terror’ and later, with the rise of the ISIS.

The changes in the citizenship law in India have in almost all cases addressed the question of migration and citizenship. In the process, the citizenship law has come to represent a tendency towards jus sanguinis. This tendency commenced in 1985, became definitive in 2003 and reached its culmination in the contemporary moment dominated by the Citizenship Amendment Act 2019, the National Register of Citizens and the National Population Register. These years constitute signposts in the life of the citizenship law and are all marked by amendments which concern the category ‘illegal migrant’. In 1985, following the Assam Accord, an amendment in the Citizenship Act 1955 inserted an exceptional provision for Assam by laying down a different regime of citizenship for the state. Through this amendment a graded system of identification of foreigners and illegal migrants was installed in the state. Under such a system any foreigner who had entered Assam from East Pakistan (now Bangladesh) between 1 January 1966 and 24 March 1971 could become a citizen of India, but only after a period of disenfranchisement for ten years from the date of identification under the Foreigners Act 1946. Anyone who entered Assam from Bangladesh after this cut-off date was an illegal migrant who was to be deported under the provisions of the (now repealed) Illegal Migrants Determination by Tribunals Act 1983.

In 2003. ‘illegal migrant’ as a legal category was inserted for the first time in the provisions pertaining to citizenship by birth, registration and naturalisation in the Citizenship Act 1955. The 2003 amendment has in a sense become the node from which the NRC and later the CAA emerged. The home minister and the law minister have clarified that the CAA and the NRC are distinct and must not be conflated. The purpose of the NRC is to enumerate citizens and protect the country against illegal migrants while the CAA protects ‘minority communities’ identified by religion (Hindu, Sikh, Buddhist, Jain, Parsis and Christians) from specified countries (Pakistan, Bangladesh and Afghanistan) which have suffered religious persecution by giving them citizenship of India. Despite their seemingly disparate political imperatives, the CAA and the NRC have become conjoined in their articulation of citizenship in exclusionary ethno-cultural terms. In 2005, while declaring the Illegal Migrants Determination by Tribunals Act, 1983 unconstitutional in the case Sarbananda Sonowal vs. Union of India & Anr, the Supreme Court had termed illegal migration into Assam an act of aggression. The Joint Parliamentary Committee (JPC) Report 2019 which made its recommendation to the Parliament to consider the Citizenship Amendment Bill (CAB) 2016, reiterated the judgement to raise the spectre of threat to security and loss of territory as a consequence of large-scale illegal migration from Bangladesh. This threat was seen as not confined to Assam but encompassing the entire country. Quoting from the judgement, to make a case for a stringent citizenship regime which kept risk producing illegal migrants out and at the same time allowed for the protection of some persecuted minorities, the Report stated: ‘No misconceived and mistaken notions of secularism should be allowed to come in the way of doing so’ (JPC, 2019, 12). By identifying Hindus, Sikhs, Buddhist, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan as exceptions to the general law governing entry into India and in the definition of foreigners and illegal migrants, and by making special provisions for their citizenship on the grounds of religious persecution, CAA has introduced religion as a new principle into the citizenship law. By marking out Muslims as a residual category, the CAA reiterates the narrative of Partition , without however, incorporating the principles of inclusion which were present in both the Constitution of India and the Citizenship Act of 1955 at its inception.

The anxiety that constitutional provisions could become a potential impediment to the CAB becoming an Act, was evident in the JPC’s discussions on whether the law was adequately protected against judicial scrutiny. The concern was that the CAA may be construed as violative of specific provisions of the Constitution, primarily Article 14, which promised equality before the law and equal protection of the law to all ‘persons’ and Article 25 which guaranteed freedom of religion to all citizens. The JPC, however, overrode concerns expressed by constitutional experts and concluded that the CAA was justified in differentiating among persons and citizens if such a differentiation was made on the principle of intelligibility and it had a nexus with the objectives of the Act.

The present contestations over the CAA, the NRC and NPR would show that citizenship as legal membership in the nation-state is inextricably associated with the corresponding figure of the outsider. Indeed, the identification of the outsider has become essential for the definition of those who belong to the political community. Legal citizenship may then be seen as existing alongside the ‘constitutive outsiders’ or the non-citizen others, who are indispensable for affirming the citizen’s identity. In addition, the category of ‘illegal migrant’ has become central to the contemporary citizenship regime which is based on the assumption that it is possible to distinguish citizens from non-citizens on the basis of documents. The criterion for distinguishability is embedded in a notion of citizenship based on ancestry, descent and parentage which can be construed as a fortification of national citizenship based on closures. In such a discursive framework, citizenship has become synonymous with an atavistic idea of membership in a nation based on blood ties and common ancestry––a natural home for all but one religious community––which can then be isolated as an absolute other.

Dialogic Citizenship and the Power of Dissent

The present conjuncture is also one where the constitutional moment of 1950 is being revived through the persuasive power of dissident citizenship (Sparks, 1997) based on civil disobedience and founded in constitutional morality. When Gandhi elaborated the craft of civil resistance, he articulated an ethic of citizenship based on principles of justice and reasonableness. Such an ethic made it immoral to submit to an unjust government. At the same time, the rules of civil resistance were such that involved willing submission to the penalties which followed the breaking of unjust laws. At the core of the duties of citizenship was eternal vigilance. It is often argued that B. R. Ambedkar rejected all forms of civil disobedience in deference to constitutional morality. For Ambedkar, constitutional morality entailed the abandonment of non-cooperation, Satyagraha and civil disobedience only in those conditions where such forms of resistance would be detrimental to constitutional democracy. They could be resorted to only when all other constitutional avenues and means had been exhausted. Indeed, Parts III and IV of the Indian Constitution may be seen as providing an evaluative framework of critical morality constraining actions by governments including declarations of specific or permanent states of emergency as serving ‘compelling’ state interests. Indeed, Ambedkar emphasised that the diffusion of constitutional morality throughout the entire community (especially the dominant minority) was an indispensable condition for ‘fair and peaceable’ government. It can be assumed then that in a community permeated with constitutional morality, the citizens will consider it their duty to ensure fair and peaceable government through constitutional means. When such means are not available, as in an emergency, it is the duty of citizens to display political courage to reinstall conditions of freedom. It is not a simple question of whether or not citizens have the right to protest or whether they should or should not resist restrictions to their fundamental right to freedom of speech, expression and peaceful assembly. These rights are at the core of citizenship and must be guarded against all possible erosion, equally by the courts and by citizens themselves. It is in the ‘public world of appearance’ characterised by freedom and equality, that individuals can become citizens through speech and action (Arendt, 1958). The continual recreation and revitalisation of the public space and its transformation into enduring structures demands the republican virtue of political courage. People displaying political courage by opposing a law which goes against constitutional secularism and the idea of a plural national identity have become the propelling force of a dialogic and transformative citizenship against dominant forms of political conservatism and populist authoritarianism.