A cursory glance at recent news reports suggests India is a very different place today than it was a decade ago. There is rampant and extreme violence against those who identify as Muslim, dissenters irrespective of their religion, or who do not sing the national anthem in public.
Vigilantes inflict violence in the name of protecting the cow. Student and faculty are arrested for opinions and scholarship deemed ‘anti-national’. Statements made on social media that criticise the government lead to dismissal from the workplace. Permits for overseas funds for NGOs are taken away, think tanks become targets of investigative agencies, and passports are withheld.
This may sound like a textbook authoritarian theocracy, in which the rule of law, democracy and secularism have been swept aside. Or – given the prevalence of street violence and state-sanctioned vigilantism – perhaps a more precise label would be populist authoritarian theocracy.
If this were the case, then the Indian story would be similar to the rise of authoritarian governments across the world. In India, however, these developments have not been brought about by an erosion of formal legal institutions and a disregard for the Constitution, but rather in many ways facilitated by them.
India’s identity has been shaped by ethno-religious nationalism and aided by ‘constitutional accommodation’ – the inclusion of elements in the text which can be mobilised to create division.
Animating ethno-religious nationalism within the scope of the Indian Constitution is what has led to the erosion of democratic values. A key component in this process can be found in the policy of Indian citizenship.
While some leading constitutional law scholars hold that the Indian Constitution is dying, it is very much alive – but it has been appropriated for political ends, in part through constitutional accommodation. This accommodation of ethno-religious nationalist elements offers legitimacy to the politics of the current government and allows for the construction of a Hindu state that can exist in perpetuity.
The Question Of Citizenship
Two primary elements have facilitated this situation. The first is a ‘notwithstanding’ clause on citizenship inserted into the constitution to allow the legislature to deal with thorny questions of citizenship at the time of the Partition of India in 1947.
While discussions in the Constituent Assembly Debates (CAD) were ongoing, the Indian Independence Act 1947 resulted in the dissolution of the British empire and divided the Union into two separate dominions – India and Pakistan, separated by the Radcliffe Line.
Partition was characterised by raging communal violence. The death toll was more than a million people. There were countless rapes, loss of property, mutilation and disease.
After Partition, the tone and substance of the CAD changed. One area where this change was noticeable was on the question of citizenship. Prior to Partition, citizenship was accepted on jus soli (citizenship by birth) terms, but the discussion increasingly featured an ethnicity-based idea of jus sanguinis citizenship, where one has to prove lineage.
While the text adopted included a citizenship by birth clause and some Partition-specific clauses, there was also an inclusion of a ‘notwithstanding’ clause in Article 11 of the Constitution that deferred questions of citizenship to be settled by ordinary law. This meant that Indian citizenship effectively became a legislative rather than constitutional question.
As one scholar puts it, “What does the Constitution say about citizenship? The answer: nothing”. The absence of constitutional safeguards allowed for the Citizenship Amendment Act, National Register of Citizens, and citizens who needed to prove themselves.
Such deferral could be explained by the belief of the liberal drafters of the Constitution such as Bhimrao Ambedkar that the Partition was provisional (the provisions on citizenship were decided ‘ad hoc for the time being‘), or there was simply too much faith in subsequent governments by the Indian National Congress.
Thus, the process of reaching a consensus while placating ethno-religious nationalists required ‘avoidance of clear decisions’, and using ‘ambivalent, vague legal language’.
In 1971, with the secession of East Pakistan from Pakistan and the formation of Bangladesh, new fears were politically inflamed in the state of Assam on the dilution of an ethnic and linguistic majority.
The solution was the National Register of Citizens (NRC), and the interpretation given by courts drawing on the Foreigners Act 1946 where citizens needed to prove themselves, creating the category of the ‘doubtful voter‘.
The deferral of citizenship to ordinary law without constitutional guidance allowed for the Citizenship Amendment Act (CAA). The CAA, passed by Parliament in December 2019, means that ‘illegal migrants’ of Hindu, Sikh, Jain, Buddhist, Parsi or Christian faith from Afghanistan, Pakistan or Bangladesh who escaped persecution and arrived in India before 2014 can be fast-tracked to citizenship. But not if they are Muslim.
Thus, the notwithstanding clause that was constitutionally accommodated allowed for two key legislative acts on citizenship: the NRC and revival of colonial legislation on the foreigner who needs to prove their citizenship, and the CAA that allows for privileged access of Hindus.
In addition to citizenship, the other significant instance of constitutional accommodation is the textual presence of ethno-religious nationalism through the prohibition against cow slaughter in the Directive Principles of State Policy.
This provision was lobbied for by the All-India Hindu Mahasabha and supported by the heavily funded Anti-Cow Slaughter League during the drafting of the Constitution. Unlike fundamental rights, the Directive Principles are unenforceable in courts. However, as the Constitution requires states to have regard to these principles in law-making, they have the potential to acquire potency during elections.
The provision against cow slaughter was interpreted as a beef ban, and states such as Haryana, Maharashtra and Uttar Pradesh experienced mass agitation. One scholar observes that “embedding cow protection in the Constitution represented the first substantial victory of the nascent Hindu right”.
The prevalence of the Partition, the seepage of colonial legislation into ordinary law via a notwithstanding clause on citizenship and the potency of the Directive Principles are all but ignored in current leading accounts of Indian constitutionalism.
Such accounts present a benign view of the past when the Constitution was drafted, which has been diluted in an aberrant violent present. In contrast, these factors created a context for the CAA and NRC to be put in place, along with its attendant discourse on citizens and non-citizen others.
The constitutional accommodation and mobilisation of communal nationalism in constructing a Hindu state challenges the received wisdom that India’s secular constitution can be contrasted against Pakistan’s religious constitution.
Even the Supreme Court has interpreted secularism as rooted in Hindu scriptures that exemplify an Indic way of life. This explains why there is state interference with school curricula, such as removal of content on the Partition. Rather than denying history, in India there is the rewriting and glorification of an Indic history, a history of the Hindu state.