Citizenship and its amendments: How the CAA filters and institutionalises “doubt”
CITIZENSHIP AND ITS AMENDMENTS: hOW THE CAA FILTERS AND INSTITUTIONALISES “DOUBT”
WRITTEN BY UDAY VIR GARG
27 May 2024
India’s controversial 2019 Citizenship (Amendment) Act (CAA) maintained a relatively low profile between its passage and subsequent protests, and the early months of 2024. However, the recent notification of its rules in the buildup to the upcoming national legislative elections in India has not only raised suspicions about the central government’s intentions but also reignited conversations about its meaning and likely consequences.
The CAA and its salient siblings — the National Register of Citizens (NRC) and the National Population Register (NPR) — have ignited vociferous debates in policy, academic, activist and governmental circles. Opinions on various aspects — why India needs the CAA, how it affects constitutionalism, its potential for human rights violations, and its symbolism for India’s sovereignty in deciding citizenship and engaging with its neighbours — can tend to obscure what it does in favour of unpacking its normative value. The current debates, which foreground the value of non-discrimination, focus squarely on the conspicuous exclusion of Muslims and non-Muslim-majority nations in the subcontinent from those it seeks to offer refuge. However, in addition to its double-sidedness as a seemingly inclusive law with exclusionary effects, the CAA also carries the potential to “manufacture statelessness” — a growing trend, whereby countries around the world are increasingly resorting to disenfranchising citizens through bureaucratic procedures and without actually taking away one’s citizenship.
Liberalising citizenship: India’s suspecting citizenship regime
The Indian government has recently taken great issue with the comments made by the United States envoy about the CAA shortly after its notification. These comments expressed concern regarding the impact of the Act and were seen as attacks on Indian democracy’s credentials and reflecting an ignorance of India’s pluralist traditions. India’s growing tenacity in outward displays of diplomacy notwithstanding, this objection in particular ought to be read as positioning the CAA as a fulcrum around which India’s democratic credentials can be bolstered. This draws from the fact that the CAA is worded as enabling legislation, offering the refuge of citizenship to those who face persecution and seemingly do not enjoy democratic havens in the Indian subcontinent. However, when read along with its administrative counterparts, we start to see how legislation with the intent to absorb outsiders and consolidate liberal citizenship, ends up filtering insiders by irregularising their previously stable sense of belonging. As my research with Tobias Berger finds, the CAA is a contestation and not a consolidation of liberal values of citizenship. However, the way that it is phrased obscures its potential as such.
However, when read along with its administrative counterparts, we start to see how legislation with the intent to absorb outsiders and consolidate liberal citizenship, ends up filtering insiders by irregularising their previously stable sense of belonging.
From the outset of the republic, citizenship in India has been contentious, marked variously by questions of partition-related migration, and what to do with the widespread diaspora at the beginning of the republic. Anupama Roy, who has meticulously documented and analysed the legislative history of the CAA, has also mapped how citizenship regimes in India have historically tended to effectively “mark” out certain populations by categorising their membership as “suspect ”. For example, Muslims who had fled to Pakistan after partition and wished to return to India were suspected of their loyalty, and Bangladeshi immigrants were suspected on the grounds of descent and therefore not considered legitimate. Roy argues that rather than looking at citizenship purely as rules of membership, entire regimes — i.e., laws along with their associated practices and effects — must be viewed as frameworks of changing relationships between the state and different populations. Roy traces the contemporary moment of citizenship to the 2003 amendment to the Citizenship Act, which she calls a “hinge point ” from which to approach the question of contemporary citizenship.
The 2003 amendment, building upon the 1985 amendment in response to the Assam Agitation that began in the 1970s, firmly solidified the “foreigners issue” in India’s citizenship legislation. It catalysed a shift in the tone of India’s citizenship regime from one that sought to grant citizenship, to one that aimed to filter those that did not legitimately belong. The 1986 and 2003 amendments further cemented notions of descent as a determining factor in granting citizenship. The amended Section 3 of the Act now requires at least one parent to already be a citizen for an individual to be considered a citizen. This led to two shifts in citizenship practice. First, an expansion and consolidation of “unsettled citizenship”, ie a greater number of categories of those with uncertain status, and a general acceptance of the norm of unsettling the status of those considered doubtful. Second, a reversal of the burden of proving citizenship, requiring citizens to use documents that may or may not exist, or whose veracity could be disputed by state officials, to prove that one of their parents was Indian. Additionally, the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules of 2003 made it incumbent upon the state to establish a database (NRC) to separate legitimate and “doubtful” citizens (ie individuals whose official membership status is placed under doubt), purportedly to filter non-citizens from the electoral rolls of Assam.
With the Supreme Court of India doubling down on this mandate in 2005, labelling illegal migration as “external aggression”, these Rules and the NRC placed a high documentary burden of proof on citizens by requiring them to prove their descent through documents that were unavailable, lost, or error-ridden. The first NRC, published in 2019, excluded 1.9 million people across religious identities. However, the 2019 CAA, allows non-Muslim religious minorities from India’s Muslim-majority neighbours the option of not being considered “illegal migrants” and undoing the doubt cast on their status, leaving behind Muslim “doubtful” citizens in zones of uncertain citizenship.
Resistance, and the way forward
The CAA’s enactment was met with widespread resistance across the country. While the government issued assurances that the CAA would not take away one’s citizenship, the protests in 2019-20 confronted the potential loss of citizenship and effective statelessness being inflicted on part of the population. As footage of police brutality against largely peaceful protesters emerged, the protest expanded further to also incorporate and make a claim to the right to protest by expressing solidarity through collective recitals and displays of the Preamble to the Constitution of India. Protesting citizens were quick to realise the implications of what Neha Jain has called the bureaucratic manufacturing of statelessness –the unsettling of one’s citizenship status by placing extraordinary documentary burdens of proof that are unlikely to be fulfilled. The protests, among other slogans, also adopted one that performed a refusal to show documents.
While the government is not wrong to say that it does not take away anyone’s citizenship, it nonetheless produces de facto statelessness. A history of poor documentation due to a variety of factors including the South Asian emphasis on orality as opposed to written documentation, colonial legacies, bureaucratic inefficiencies, and corruption, along with ambiguity of procedures, discretionary powers of state officials in examining the veracity of documents, and a plurality of conflicting laws means that doubt becomes easy to produce, and states can disenfranchise individuals by measures such as deactivating Aadhaar cards. Interestingly, the recently notified CAA rules not only continue to ignore these ambiguities but also potentially place similarly high burdens on its beneficiaries by requiring them to prove their origins from countries that they supposedly fled and the dates on which they entered India. Those who fled persecution are highly unlikely to possess such documentation or be able to prove their veracity. And in case they do, no clarity has been provided on what happens to rejected applications. It remains to be seen, thus, what the CAA could potentially achieve beyond furthering a rhetoric of inclusive politics, while actively obscuring in practice the exclusionary effects of its bureaucratic counterpart, the NRC.
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Author biography
Uday Vir Garg is an interdisciplinary researcher based in Berlin. He is currently a doctoral candidate in political science at the Freie Universität Berlin and the Cluster of Excellence “Contestations of the Liberal Script”, where he has been researching the relationship between the performance of citizenship, transparency, accountability, and the right to information. Image credit: Wikimedia Commons/DTM