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.
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 31st 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 42nd 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 75th 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 42nd 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.