As India’s new citizenship law seeks to create a stratified citizenship based on religion, a large number of Indians opposing it are emerging as a people of one book, the country’s Constitution, which came into force on January 26, 1950.
In the past two weeks, diverse crowds across the country have responded to the discriminatory Citizenship Amendment Act, referred to as the CAA, passed by Prime Minister Narendra Modi’s Hindu nationalist government by chanting the preamble to the Constitution of India, with its promises of social, political and economic justice, freedom of thought, expression and belief, equality and fraternity.
Student protesters being herded into police vans, opposition leaders standing outside the Indian Parliament and ebullient crowds of tens of thousands in Hyderabad, Delhi, Kolkata, Mumbai and Chennai have read aloud the preamble and held aloft copies of the Constitution and portraits of B.R. Ambedkar, its chief draftsman.
Constitution was 'not just dull, lifeless words but living flames intended to give life to a great nation tongues of dynamic fire, potent to mold the future.'
The CAA offers an accelerated pathway to citizenship for Hindu, Sikh, Zoroastrian, Buddhist and Christian migrants from Pakistan, Bangladesh and Afghanistan but excludes Muslims. It effectively creates a hierarchical system of citizenship determined by an individual’s religion, reminiscent of Myanmar’s 1982 Citizenship Law, which privileged citizenship for “indigenous races,” excluded the Rohingya and paved the ground for the genocidal violence against them.
The Indian government’s justification that the CAA offers protection to people facing religious persecution in neighbouring countries is specious. The new citizenship law does not require proof of religious persecution, and it is applied arbitrarily to non-Muslim minorities from three Muslim-majority neighbours.
The law ignores the claims of Muslim minorities in Pakistan, Bangladesh and Afghanistan and excludes persecuted minorities of all faiths from Sri Lanka, China and Myanmar, which have non-Muslim governments.
The new citizenship law must be seen in conjunction with the drive to create a National Register of Citizens [NRC], ostensibly aimed at identifying and removing illegal immigrants. As seen in the state of Assam where the NRC has already been implemented, its requirement of documents to prove citizenship will effectively disqualify millions from that very status.
Amit Shah, the home minister of India, has repeatedly said that the CAA will help everyone except Muslims to reclaim their citizenship if they fail the NRC test.
The citizenship act breaks from the conscious decision of India’s founders not to link citizenship to religion, language or ethnicity. Sardar Patel, India’s first home minister, asserted that a citizenship predicated solely on connection to territory was “enlightened, modern and civilised,” and the mark of all progressive nations.
Following the partition of the Indian subcontinent in 1947, India resisted a total exchange of populations with Pakistan and encouraged Muslims to remain. Millions did. India also enabled those who had left for Pakistan in 1947 to return home.
Clash of political visions
What is taking place in India is a clash between two different political visions. The Indian state is enacting an authoritarian vision in which political rights are conditioned on the privileges of religion and class and on being obedient subjects.
Modi’s government makes this clear in choosing to celebrate the upcoming 70th anniversary of the Constitution of India by focusing on “fundamental duties” of Indian citizens, which include protecting private property, abjuring from violence and striving toward excellence.
An idea borrowed from the Soviet Union, fundamental duties were inserted into the Constitution of India in 1976 by Prime Minister Indira Gandhi, who suspended constitutional rights, jailed opposition leaders and silenced the press between June 1975 and March 1977 — a period known in India as the Emergency.
Indians have responded with a robust declaration of Constitutional rights and values. The numbers on the streets are swelling with the recognition that the government is repurposing colonial-era tactics to repress protests.
An archaic law prohibiting the public assembly of more than four people has been used in several places and the internet has been shut down in five states. The police have killed [at least] 25 people, used tear gas and water canons, caused injuries leading to amputation and blinding, detained minors and attacked hospitals and libraries. Universities have been ordered to monitor the social media activity of students.
Adopted in 1950, the Constitution of India was regarded by some as an elite document drafted in an alien language. Yet in its first decade, ordinary Indians transformed it into a talisman and a resource to advance claims to liberty and livelihood. Distinct groups turned to the Constitution to protect their specific interests. Today’s mobilisation is a broad coalition, which raises a common demand for full political citizenship and all that this implies by way of duties upon the state.
The articulation of constitutional rights and values has also invigorated the federal spirit. While India is constitutionally a federation, its states have enjoyed greater rights during eras of coalition union governments.
The electoral dominance of Modi’s Bharatiya Janata Party since 2014 emboldened his government to erode the autonomy of Indian states, including limitation of fiscal powers, interventionism by federally appointed governors of the states and the revocation of the autonomy of Jammu and Kashmir and its abrupt dissolution as a state.
In the aftermath of the protests against the CAA, the chief ministers of nine Indian states have refused to implement the new citizenship law and the citizens register. Leaders of six political parties, including those allied with the BJP, have voiced concerns about its disenfranchising effects.
Judiciary’s response to protests
In various states, Modi’s government had started building detention centres for people unable to prove themselves as citizens under the new registry. The recently elected chief minister of the state of Maharashtra stopped the construction of the detention centres commissioned by his BJP predecessor. Opposition has been growing as the BJP has been losing elections for state legislatures.
The Indian judiciary’s response to the protests against the CAA and the NRC has been mixed. The Guwahati High Court in Assam responded favourably to litigation seeking to restore internet connectivity in the state. The Delhi High Court postponed the hearings relating to the violence against student protesters by six weeks and was met by cries of “shame!” in the courtroom.
And there have been novel invocations of the Constitution to challenge nationalism and build alliances between disparate groups and regions. From rap to Urdu poetry, TikTok videos to artwork, using the Constitution as a tool for public politics has become the zeitgeist.
In 1951, Justice Vivian Bose, a judge of the Supreme Court of India, wrote that the Constitution was “not just dull, lifeless words but living flames intended to give life to a great nation tongues of dynamic fire, potent to mold the future.”
We are witnessing now a rediscovery of the republic — and of our Constitution as its blazing torch.
— Rohit De is an associate professor of history at Yale and the author of “A People’s Constitution: Law and Everyday Life in the Indian Republic.” Surabhi Ranganathan is a fellow of King’s College and the deputy director of the Lauterpacht Centre for International Law at University of Cambridge.