Citizenship Regimes, Law, and Belonging: The CAA and the NRC

Anupama Roy

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Published: 2022 Online ISBN: 9780191949678 Print ISBN: 9780192859082

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Subject: Indian Politics

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 Citizenship Regimes, Law, and Belonging: The CAA and the NRC
Anupama Roy

https://doi.org/10.1093/oso/9780192859082.001.0001
Published: 2022 Online ISBN: 9780191949678 Print ISBN: 9780192859082

FRONT MATTER

Acknowledgements
Published: May 2022

Subject: Indian Politics

All books are outcomes of not only the e orts of the author but a host of people who contribute in di erent
ways to make their writing possible. In writing this book and preparing it for publication, I was supported by
friends, family, colleagues, and institutions. I am grateful to all of them for being with me in this journey
and making me believe that it was worthwhile. My engagement with citizenship debates, especially in India,
has been an enduring one. The ever-changing and contested eld that citizenship represents has kept me
vigilant—especially towards the rami cations of these changes in the lives of people and for Indian
democracy. I am indebted to those who helped me with my research on the NRC in Assam, especially to
Akhil Ranjan Datta for our conversations on the NRC, and to Banasmita Bora for helping me negotiate the
eld in Guwahati. My eldwork in Cooch Behar was made possible by Abdul Matin and Shreya Ghosh. Shreya
accompanied me into the eld, helping me understand the conversations which were in most cases in
Bangla, and transcribing the interviews. I also acknowledge the eld visit grant under the UPOE-II scheme
of Jawaharlal Nehru University, which funded the research.

I presented my research in universities, colleges, and other independent forums and received important
feedback for which I am deeply thankful. The Political Science Department of Gauhati University, the Kerala
Council for Historical Research (KCHR), Trivandrum, the Department of Political Science, NEHU, the
Krantijyoti Savitribai Phule Women’s Studies Centre of Savitribai Phule University, Pune, the Department of
Political Science, Lady Sri Ram College, University of Delhi, the Jamia Teachers Association, Jamia Millia
Islamia, the School of Law, Governance, and Citizenship, Ambedkar University Delhi, the Institute of
Political and Sociological Studies, in Julius Maximillian University of Wurzburg, Germany, the College
Students Welfare Committee and the Centre for South East Asian Studies, Gauhati University which hosted
p. vi the Golap Borbora annual lecture, the Department of Political Science, Sikkim Central University and
Rajeev Gandhi National Institute for Youth and Development, in Gangtok, Sikkim, Deshbandhu College,
Delhi University, Kirori Mal College, Delhi University, the Department of Humanities and Social Sciences,
IIT Madras, the Department of Political Science, Himachal Pradesh University, Department of Political
Science, Ramanujan College, Parivartan—the Gender Forum at Kirori Mal College, the Department of
Humanities and Social Sciences, IIT Guwahati, and the Centre for Law and Humanities, O. P. Jindal
University, Sonipat—hosted my seminars and lectures—giving me the space to obtain responses from a
diverse audience.

With deep a ection and gratitude, I acknowledge those whose friendship has been a constant source of
strength. I also remember the loss I su ered while writing this book. My mother-in-law, bedridden
throughout the pandemic lockdown, passed away a month after I nalized the manuscript. I dedicate this
book to her and to my mother, who left me ten years back. I also dedicate it to the enduring love of my
family and most particularly to Ujjwal, Anatya, and Suchismita, and my sisters Anamika and Aparna.
 Introduction
Citizenship, Law, and Belonging

Amidst the violence that accompanied partition, the governments of

India and Pakistan, which disagreed with each other on most things,
agreed to exchange their ‘lunatics’. In a powerful story about how this ex-
change unsettled the lives of ‘lunatics’ living in asylums, Saadat Hasan
Manto wrote of Toba Tek Singh—​a ‘place name’ which became synon-
ymous with a person—​and eventually became a trope for forced move-
ment across the freshly crafted borders. The refusal of Bishan Singh or
Toba Tek Singh—​the man who stood on his feet for fifteen years—​to be
transported to India, was not taken seriously by officials on the Wagah
border. No one could unequivocally tell him where his village was—​in
India or Pakistan. He was a harmless old man and confused in mind, they
thought. Bishan Singh died an anguished death in the no-​man’s-​land be-
tween the two countries. Another inmate of the same asylum climbed
atop a tree, completely clear in his mind that he did not want to live in
either country. He was going to make the tree his home. Yet another in-
mate, a person with an engineering degree—​an otherwise pensive man
in the habit of taking long walks by himself—​was so perturbed by the
prospect of being allotted one or the other country that he took off all his
clothes and shorn of all identifying accoutrements, ran into the garden.1
In another August, about forty-​one years before Manto’s Toba Tek
Singh refused to be transported to a country not his home—​Indians
in another colony—​fully conscious of the consequences of their ac-
tion, refused to submit to a law that they considered immoral. The law
in question—​Registration Act of Transvaal 1906—​required all ‘Asiatics’,

1 There are several English translations of ‘TobaTek Singh’, a short story written by Saadat

Hasan Manto in 1955. Among them is one available on www.sacw.net, February 1998 (accessed
on 21 February 2020).

Citizenship Regimes, Law, and Belonging. Anupama Roy, Oxford University Press. © Oxford University Press 2022.
DOI: 10.1093/​oso/​9780192859082.003.0001
2 Citizenship Regimes, Law, and Belonging
including Indians, to register before a designated registrar, submit their
fingerprints, and acquire a registration certificate. This certificate was to
be carried on their person all the time. Failure to do so would have con-
sequences—​a fine, imprisonment, and even deportation. The Indians in
Transvaal considered it humiliating to submit to a discriminatory law
that compelled them to undergo a physical examination for enumera-
tion. In a public meeting in Johannesburg on 11 September 1906, they
resolved not to comply with this law and passed what became popular as
the ‘jail going resolution’. Resolution IV, as the jail going resolution was
called, declared that the Indians gathered in the meeting would prefer
to disobey the law and go to jail, and would continue to do so till the
British government withdrew the ‘tyrannical’ law.2 On 1 July 1907, when
the certificates were being issued, the Indians decided not to cooperate
with the authorities. The few that registered felt ashamed to have capitu-
lated, and several tore up their certificates of registration. Mohandas
Karamchand Gandhi, a lawyer who would transform civil disobedi-
ence into an art, and make it an integral part of the war of positions in
the struggle for national liberation in India, tried out and perfected its
subtle skills and strategies in South Africa. Writing about the jail going
resolution in the Indian Opinion as a ‘game of chess’, Gandhi countered
a cartoon that had appeared in the newspaper Star. The cartoon in Star
depicted the Registration Act of Transvaal as a chess move initiated by
the ‘white knight’ against the ‘black king’, to push it into a vulnerable po-
sition. Gandhi reproduced the Star cartoon in the Indian Opinion along
with his own response to it, in the form of another cartoon. In Gandhi’s
cartoon, a black pawn—​representing the jail going resolution—​was sta-
tioned strategically in a square guarding against any possible move by the
white knight to checkmate the black king.3
Defying the commonly held belief that a ‘lunatic’ asylum is not a place
where an action is determined by ‘reason’, the responses of its inhabit-
ants in Manto’s story open up powerful moments of interruption of the
custodial power of the state. They also tell us, as do the dissidents in
Johannesburg, of the blurred zones that exist between law’s distance and

2 ‘Johannesburg Letter’, 11 September 1907, Collected Works of Mahatma Gandhi (CWMG),

Vol. v, 426.
3 ‘Game of Chess’, 18 May 1907, CWMG, Vol. vi, 483. See for a discussion, Singh (1999, 73–​74).
 Introduction 3
proximity, important for understanding the relationship between legal
rationality and the force of law. In these zones, citizenship becomes en-
tangled with 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, however, in these zones that the constituent
power of the people is also expressed—​in ‘creative insurgencies’ (Kraidy
2016) and ‘dissident’ (Spark 1997) and ‘iterative’ (Benhabib 2007) citizen-
ship practices—​that accumulate and become critical for unfettering the
emancipatory potential of citizenship.
More than seventy years after the termination of ties with the colo-
nial regime and the inscription of ‘We the People’ as the ‘source’ of the
authority of the Constitution, citizenship in India has become deeply
contested.4 While there were contests over citizenship in the past, the
contemporary period is distinctive for the unprecedented display of a
‘heightened consciousness’ (Faulks 2000, Heater 1999) about citizen-
ship, which spans the breadth of the country. This ‘citizenship conscious-
ness’ has become manifest in the deep fault-​lines caused by changes in
the citizenship law, which has produced a citizenship regime inconsistent
with the constitutional imaginary. In the summer of 2016, the Bharatiya
Janata Party (BJP) led National Democratic Alliance (NDA) introduced
the Citizenship Amendment Bill (CAB) in the Parliament which was en-
trusted to a Joint Parliamentary Committee (JPC) for scrutiny. The CAB
was eventually passed in December 2019 when the NDA returned to
power in May 2019 with an overwhelming majority in the Lok Sabha.
In enacting the Citizenship Amendment Act (CAA) 2019, the ruling
NDA invoked the constitutionally mandated power of the Parliament
to legislate on all matters pertaining to citizenship. The CAA 2019 was
brought with the objective of offering citizenship to those Hindus,
Sikhs, Christians, Buddhists, Jains, and Parsis who had fled Pakistan,
Bangladesh, and Afghanistan to escape religious persecution and had
sought refuge in India before 31 December 2014. BJP leaders asserted
that the amendment was essential to correct historical injustices caused
by the partition of the country on the basis of religion, and the failure of

4 This was achieved through Article 395 of the Constitution. Article 395 repealed the Indian

Independence Act of 1947, which required that the Constitution of India be submitted to the
British Crown in Parliament for validation.
4 Citizenship Regimes, Law, and Belonging
Pakistan to protect its minorities—​to which both India and Pakistan had
committed themselves in 1950.5 Through this articulation, the CAA 2019
recognized the right of specified religious communities to return ‘home’,
in the fulfilment of a moral claim to obtain the legal protection of citizen-
ship, whose denial would perpetuate a historical wrong.
The CAA was met with unprecedented opposition across the country
by large numbers of Indians who were of the view that it was morally and
legally indefensible. Quite like the protests by Indians in South Africa in
1907 who defied what they considered an immoral law, and the inmates
in the asylum for whom the world of law was incommensurate with their
familiar world and was, therefore, not just unintelligible but also un-
reasonable, the CAA was received with calls for civil disobedience. The
government responded by declaring that the protests were illegal and
anti-​national: they were illegal for opposing a law that suffered from no
procedural infirmities and was in conformity with the Parliament’s ‘leg-
islative competence’ drawn from the Constitution; and anti-​national
because those who opposed the law were part of a group that wanted to
destabilize the country. The group in question has almost always been ad-
dressed by the present political regime as the ‘tukde tukde gang’ or a gang
that aspires to fragment the country. The epithet tukde tukde gang is used
ubiquitously by ministers in the NDA government and by BJP supporters
to cast suspicion on left-​liberal critics of the NDA government and those
who protest against the policies of the government to justify bringing
them under the purview of sedition and anti-​terror laws.
In this work, I would attempt to bring the CAA to an anthropolog-
ical scrutiny, locating the contemporary form and content of the citizen-
ship law in a ‘matrix . . . of historical experience’ (Guha 1982, 140–​141).
The law of citizenship in India may be seen as located within a realm
of contestation over ideas of who belongs and how. The history of this
contest and its resolution show distinct logics through which grounds of
membership and terms of belonging were laid down in law, entrenching
successive citizenship regimes. The association of the term regime with
citizenship is crucial for making the argument that law must be seen not

5 ‘Citizenship Amendment Bill Atonement for Partition: Modi Vows to Pass law in Assam

Rally Despite Opposition from Allies in State’, Firstpost, 5 January 2019; ‘CAA to Fulfill
Old Promises to Religious Minorities in Neighbouring Countries: Modi’, Times of India, 28
January 2020.
 Introduction 5
only in terms of its bare provisions but also examined for its political and
ideological embeddedness. The ‘bare act’ of citizenship which comes to
us as an accumulation of successive amendments represents the law’s co-
alescent ‘present’. The different temporalities of law are compressed in
the bare act, occluding the historical layers, and flows that have marked
the changes that occurred through successive amendments. In keeping
with the arguments made in my earlier works (Roy 2010; 2016), I pro-
pose that the amendments in the Citizenship Act of 1955 do not follow
a linear trajectory, whereby each amendment constitutes a moment of
transition along a course of universalization. It rather sees successive
amendments in the citizenship law as representing constitutive sites
for citizenship practices that produce the structural effects of the state.
These practices make the state appear as a tangible apparatus that stands
apart from society, ‘represented and reproduced’ through the modality
of law (Mitchell 1991). On the other hand, these practices, which are
embodied in a law that determines membership in the political commu-
nity, produce specific power effects, representing a distinctive political
rationality in which ‘power is organized as an activity designed to pro-
duce effects of rule’ (Scott 1995, 193). Through the exercise of the legal
power of identifying citizens, the state marks both the objects and the
field of its power by delineating the zone in which its functionality can be
operational (Scott 1995).
Earlier in 1950, T. H. Marshall had located the historical develop-
ment of citizenship in the process of structuration of the state through
functional differentiation between the branches of government, making
them distinct instead of fused in a single entity (Marshall 1950). In his
comparative study of the ‘divergent’ cases of citizenship in Europe—​in
France and Germany—​Rogers Brubaker described the ‘origins’, ‘func-
tions’, and ‘effects’ of national citizenship (Bockenforde 2016) as a ‘spe-
cifically modern institution through which every state constitutes and
continually reconstitutes itself as an association of citizens’ (Brubaker
1992). As an instrument of ‘closure’, citizenship excludes those from other
states, and as one of ‘inclusion’, it determines the membership of those
who belong internally. In the exercise of its power of determining citi-
zens and outsiders, the state ‘territorializes’ its authority. In the process of
the ‘standardization’ and ‘intensification’ of its authority over a territory,
membership in the state becomes the only status of ‘politically relevant
6 Citizenship Regimes, Law, and Belonging
affiliation’ and citizenship becomes associated with the ‘formation of the
state as a union of persons’ (Bockenford 2016, 320).
Following from the above, I argue that the Citizenship Act of India
may be seen as unfolding through specific amendments in the form of
three successive regimes, distinguished by an underlying logic that makes
each regime discrete: The enactment of the Citizenship Act of 1955 con-
stituted a regime held together by the logic of ‘transformative’ (Baxi 2013,
Bhatia 2019, Vilhena, Baxi, and Frans Viljoen 2013) that characterized
the transition to constitutional democracy and republican citizenship;
the amendment in the Citizenship Act in 1985 inserted the logic of ‘ex-
ception’ in the citizenship law for the state of Assam to install a regime
of ‘differentiated-​universal’ and simultaneously a system of graded citi-
zenship; the amendment in 2003 put in place a provision empowering
the Central government to prepare a National Register of Indian Citizens
(NRIC) based on the ‘distinguishability assumption’ (Sadiq 2009) to
establish a regime of ‘documentary citizenship’ (Sadiq 2009). The con-
temporary regime of citizenship, I argue, has emerged from the 2003
amendment, which provided the hinge point from which two discrete
trajectories emerged—​leading to the NRC in Assam (2015 onwards) and
the CAA in 2016/​2019. These two trajectories, I argue, have become con-
joined in the contemporary landscape of citizenship in India to entrench
a regime of bounded citizenship with claims to universalism marked by
the majoritarian order of Hindutva.
While successive citizenship regimes displayed distinct political and
ideological configurations, each regime also carried within it a tendency
that sustained across regimes so that cumulatively the regimes appear to
be a system gravitating from jus sanguinis to jus soli (Jayal 2013, Roy 2010,
Rodrigues 2008). Each amendment in the citizenship law and the rules
that accompanied it can, however, also be seen as constituting a space
of ‘assemblage’. Borrowing from Aihwa Ong and Stephen Collier (2005),
assemblage is being used here as a heuristic device for an anthropolog-
ical exploration (Collier and Ong 2005) of citizenship regimes. Such an
exploration would allow the examination of law as a subject of anthro-
pological enquiry (Nader 2002)6 and also its scrutiny for the production

6 Laura Nader refers to law as an anthropological subject suggesting the possibility of a range

or connections while ‘studying law in context’. Nader’s notion of law’s life was informed by the
project of studying law in the terrain of the anthropologist—​that is, non-​western cultures. She
 Introduction 7
of anthropological effect (Supiot 2007).7 Stephen Collier and Aihwa Ong
argue that a range of phenomena that are otherwise referred to as global,
assume form through articulation in specific situations. They call these
situated articulations ‘territorialised assemblages’. Assemblages are sites
of mutations in citizenship, which emerge as a consequence of the con-
vergence of diverse regimes of contemporary lives across a spectrum of
both ‘mobile and excluded populations’ (Ong 2006) where new relation-
ships are continually being reformulated through ‘technological, polit-
ical and ethical reflections and interventions’ (Ong and Collier 2005, 4).
These aggregates of relationships, which are gathered together due to a
convergence of exchanges and flows of population, values, images, and
technologies, open up new landscapes of citizenship, replete with what
Ong calls ‘entangled possibilities’ (Ong 2006, 499). Rather than the terri-
tory of the nation-​state, it is the space of the assemblage, which becomes
the site for new political mobilizations and rights claims, made by a range
of actors, not all of whom are citizens in the sense of membership in the
nation-​state (Ong 2006). This work deploys ‘assemblage’ as the lens to ex-
plore the specific sites of citizenship that get articulated through changes
in the citizenship law. Examining the contemporary regime of citizen-
ship, this work looks at the sites that get generated as a consequence of
the amendments as an ‘aggregate’ of relationships, seeking anthropolog-
ical insights into law’s life (Nader 2002) as well as the lives that law im-
pacts as an effect of its anthropological function (Supiot 2007). Following
Alain Supiot, it evaluates effect in terms of the ‘transformations’ that law
brings—​on the one hand, creating ‘legal subjects’ as a bulwark against
erasures by totalitarian regimes which establish domination by ‘killing’
the ‘juridical person’ (Supiot 2007, x), and on the other hand, the creation
of sovereign individuals competing with each other in a ‘dense web of

addresses the problem of translation and transference of legal categories, as well as the study of
processes of social engineering through law that have continued from the period of industri-
alization and expansion of European colonialism, interrogating interlocking issues pertaining
to power, control, autonomy, colonialism, industrialization and the imposition of Western Law
(Nader 2002, 6–​7, 9).
7 Alain Supiot refers to the anthropological function of law, which he argues transforms ‘each of

us into a homo juridicus’: ‘The law connects our infinite mental universe with our finite physical
existence and in so doing fulfils the anthropological function of instituting us as rational beings’
(Supiot 2007, ix). He argues that this transformation is significant if one recalls one of the lessons
from the experience of totalitarianism, wherein the first essential step ‘on the road of total domi-
nation was to kill the juridical person’ (Supiot 2007, x).
8 Citizenship Regimes, Law, and Belonging
contracts’ they are all part of. In this work, the effect of law in constituting
specific sites of assemblage is enquired in terms of processes of inclusion
and closures which come in various forms and structure people’s rela-
tionship with the citizenship law.
Inherent to this inquiry/​scrutiny is an examination of the ‘iterations’
of law (Singh 2020)—​the manner in which law reproduces itself—​in ‘au-
thoritative’ spaces of interpretation such as the courts (Baxi 2008), in in-
stitutionalized spaces of ‘democratic iterations’ such as the Parliament
(Benhabib 2007),8 and in non-​ ritualized spaces such as the ‘urban
street’ (Sassen 2011) through art and media (Kraidy 2017). These iter-
ations reflect contending questions of national and territorial belonging
(Chowdhory 2018) and the terms on which belonging would be recog-
nized and affirmed—​sutured to categories of birth and descent that struc-
ture the citizenship law. These questions are also imbricated in the field
of contestation and conflict which is produced by the categories them-
selves. In the section that follows I would examine the three regimes of
citizenship in India, explaining their distinctive logics. I would also draw
attention to the enduring tendency towards jus sanguinis through suc-
cessive amendments, which have culminated in the contemporary mo-
ment into a clearly identifiable association of citizenship with descent
and blood ties. This section will end with a discussion of the contempo-
rary landscape of citizenship, which I argue is characterized by the dom-
inant logic of jus sanguinis, marked by ‘blood and belonging’ (Ignatieff
1993). Blood ties are transposed onto the unity of the people as a nation,
making it the most definitive ground of belonging. Yet, this unity is also
polyrhythmous (Barkley-​Brown 1991),9 so that one can see it expressed

8 Benhabib defines democratic iterations as ‘complex processes of public argument, deliber-

ation, and exchange through which universalist rights claims and principles are contested and
contextualized, invoked and revoked, posited and positioned throughout legal and political in-
stitutions, as well as in the associations of civil society’ (2007, 14). The sites at which democratic
iterations can take place are the entrenched and structured political and representative public
institutions like the legislatures, decision making bodies like the executive and the judiciary,
as well as in what she calls the ‘informal’ and ‘weak’ publics of civil society associations and
the media.
9 History, says Elsa Barkley-​Brown, is like everybody talking at once, with multiple rhythms

being played simultaneously (1991, 85). Events and people that get written about, she argues,
‘[did] not occur in isolation but in dialogue with a myriad of other people and events’, so that at
‘any given moment millions of people are all talking at once’ (Barkley-​Brown 1991) The historian
isolates one conversation to explore but puts it in a context to make evident its dialogue with
several other related conversations. The idea is to make the isolated lyric standalone, but at the
same time be in connection with all the other lyrics being sung. The task of studying citizenship
 Introduction 9
in different forms of belonging—​as ‘hyphenated citizenship’ through the
NRC, ‘bounded citizenship’ through the CAA, and ‘liminal citizenship’
through the LBAT (Land Border Agreement Treaty). The last section will
signpost these different rhythms of citizenship as they play out in the con-
temporary context, within the larger frameworks of law, state practices of
rule, and the politics of belonging.

Regimes of Citizenship

A citizenship regime embodies the ways in which a law is enforced, the

source of its validation, and the mystification/​masking of law. The vio-
lence of law or conversely its founding in notions of justice configure and
produce fields of contest around citizenship. The idea of a regime goes
beyond the bare provisions of law, to identify the field of power that sur-
rounds it, 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. It is significant that all the three ‘histor-
ical’ regimes discussed in this section 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 national 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 (Roy 2010). The ‘alien’ or
‘stranger’ produces a ‘crisis in citizenship’ which is sought to be resolved
through a ‘tightening’ of citizenship laws by all countries to reinforce the
‘model’ of citizenship espoused by them, for example, the centrality of
‘social solidarity’ in the republican models achieved through active par-
ticipation in public life, and social integration and equality through freely
chosen individual contracts in liberal models. The immigrant is con-
sidered a disruptive figure in both these models, interrupting both so-
cial solidarity and integration owing to his/​her ambivalent location as a

as polyrhythmous involves a similar craft of extricating the different strands in plural lyrics
of citizenship being sung simultaneously, and at the same time steering them back into their
polyrhythmous location.
10 Citizenship Regimes, Law, and Belonging
resident alien, and his/​her inadequacy in entering into freely chosen re-
lationships with other individuals. The ‘crisis in citizenship’ is expressed
in both models as weakening the bonds of belonging that emerge from
commonality. The articulation of crisis and the modes of its resolution
produce ‘zones of disturbed citizenship’, which become the sites of contes-
tation over appropriate norms, conditions, and terms of belonging (Roy
2010). These contests become exacerbated when illegality is ascribed to
immigration, and the figure of the migrant, when inscribed as illegal, be-
comes also a threat to ‘national security’. The question of belonging from
the perspective of the state is one of assertion of jurisdiction, which has
gravitated from its earlier meaning as a relationship of ‘ligeance’ and ‘true
and faithful obedience’ elicited by the sovereign from its subjects, to a
political relationship which recognizes claims to rights and entitlements
by citizens from their governments (Shachar 2012). In addressing the
problem of those who move by ‘crossing borders’, the state reasserts its
jurisdiction by reinforcing ‘cultural and political borders’ against ‘trans-
gression’, by buttressing its ‘capacity’ to ‘control the status of the border’
(Chowdhory 2018, 17). While for the state, this involves the ‘function’ of
making citizens legible, for citizens it is a ‘sense’ of belonging and identity,
expressed through ‘bonds’, ‘ties’, and ‘attachments’—​to something tan-
gible such as land—​or intangible, such as ties to people and the nation,
which constitutes belonging.

Transformative Citizenship

The legal affirmation of citizenship happened with the enactment of the

Constitution on 26 November 1949, when the Constitution of India was
adopted by the Constituent Assembly. Citizenship provisions, along with
those concerning elections, the provisional parliament and temporary,
and transitional features, became operational on this date; the rest of the
Constitution came into effect on 26 January 1950. The provisions in Part
II of the Constitution addressed the complicated question of who would
be considered Indian citizens in the immediate context of Partition and
the creation of the new nation-​state. If the debates around the CAA
are at present embedded in the politics of Hindutva which serves as an
ideological apparatus to cast citizenship into assertions of territorial
 Introduction 11
sovereignty and totalizing power over people, at the inaugural moment of
republican citizenship in 1949, citizenship was less about territorializing
state power, and more about creating ‘the people’ as the source of state
authority. In his speech to the nation on the eve of independence, Nehru
declared that independence was the redemption of a promise made long
ago by the Indian people. Indeed, independence to Nehru was a ‘rare mo-
ment’ in history, when ‘we step out of the old to the new, when an age
ends, and the soul of a nation, long suppressed finds utterance’. The ‘tryst
with destiny speech’, as this speech is popularly called, was replete with
references to the future that ‘beckoned’ the Indian people—​for which
they would have to strive hard. This future would be one without fear—​
a future of peace, freedom, and democracy—​towards which India, ‘our
much loved motherland, the ancient, the eternal and the ever-​new’, and all
Indians would march collectively to meet their intended destiny as a na-
tion (Nehru 1947, emphasis added).
The ‘transformative’ as the logic which anchored citizenship at the
commencement of the Republic has been invoked in this work to ex-
plain citizenship’s inaugural moment from a cognate framework—​that of
transformative constitutionalism. The idea of constitutionalism as trans-
formative has been put forward by scholars to elaborate on the different
ways in which countries making the transition from colonial rule and au-
thoritarian regimes understood their journeys towards the ‘magnificent
goal of democracy’ (Baxi 2013). This goal became part of the somatic ex-
perience of people, alongside but also separate from what constituent as-
semblies were doing in their closed chambers. By holding out a powerful
affective appeal of individual and collective transition to the camaraderie
of equal membership in the political community, citizenship was posi-
tioned on a temporal register of the present which held out the promise of
a future unburdened and unfettered from the humiliation of the colonial
past. Largely associated with the South African experience, transform-
ative constitutionalism has come to have a broader usage to encompass
constitutions in the Global South—​as a model in which the constitution
was conceived as an emancipatory project. The ‘metaphor of a bridge’
(Langa 2006, 353) in the Preamble of the interim constitution of South
Africa suggests that the journey to a democratic future is a continuous
process and always unfinished. The ‘passage’ opened up by the bridge is
a space ‘between an unstable past and an uncertain future’. The value of
12 Citizenship Regimes, Law, and Belonging
the bridge ‘lies in remaining on it, crossing it over and over to remember,
change and imagine new and better ways of being’ (Langa 2006, 354). In
this perspective, transformation is a ‘permanent ideal’:

as a way of looking at the world that creates a space in which dialogue

and contestation are truly possible, in which new ways of being are con-
stantly explored and created, accepted and rejected and in which change
is unpredictable but the idea of change is constant. (Langa 2006, 354)

As a deliberative body that was entrusted with the task of making the
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’ (Baxi 2008, 93). 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 (Baxi 2008).
The partition ushered in a period of deep uncertainties about be-
longing. The legal procedures to resolve them ranged from devising
ad hoc rules to deal with contingencies and reciprocal arrangements
and agreements between India and Pakistan for the exchange of people
and property to the considerable buttressing of the police force and
the bureaucratic apparatus of the state. 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 secu-
rity of the sessions of the Constituent Assembly and additional police for
the eviction of persons occupying evacuee property, the recovery of ab-
ducted persons,10 and the ‘sudden expansion of Delhi and the increase in

10 Letter dated 29 May 1948 from the Home Secretary to the Chief Commissioner of Delhi

to the Secretary, Ministry of Home Affairs. File no. 16/​44/​48 Police (I), National Archives of
India (NAI).
 Introduction 13
its population’ (due to the migration from Pakistan), to mention a few.11
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 vio-
lence produced even among the members of the Assembly (Naresh 2018).
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. In the
periods of legal hiatus before the constitutional provisions pertaining to
citizenship commenced (26 November 1949), and then again between the
commencement of the constitutional provisions and the passage of the
Citizenship Act of India (1955), conditions of indeterminate citizenship
prevailed for those crossing borders without documents or on different
kinds of travel documents and permits. The files in the Indian Citizenship
Section of the Home Ministry in the 1950s reveal how executive decision-​
making and court decisions became crucial in the absence of precise laws.
The movement of these files across different Departments and Ministries,
including the Ministry of Law and the Ministry of Rehabilitation, and the
Election Commission, depict conversations among institutions, where
issues of relative powers over matters of citizenship were discussed and
resolved.
While admitting the difficulties of framing ‘legal’ provisions for citi-
zenship, the Constituent Assembly discussed the principles that would
govern legal citizenship. The debates in the Constituent Assembly from
10 to 12 August 1949, when the final provisions of citizenship were de-
liberated upon and approved, show deep ‘ideational’ (Lerner 2016) 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’ (the territoriality prin-
ciple; jus soli) or ‘descent’ (the parentage principle; jus sanguinis) should
be the foundational principle of citizenship, they were concerned with
questions of both the source of citizenship and its expression as an

11 Minutes of the Standing Advisory Committee, Ministry of Home Affairs, Government of

India. File no. 16/​31/​49, NAI.

14 Citizenship Regimes, Law, and Belonging
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 de-
scent as the source of citizenship also sought to make citizenship condi-
tional for ‘returnees’ from Pakistan and were apprehensive of the ‘dual
ties’ citizenship would generate when extended to the Diaspora commu-
nity. Similarly, apologists for the principle of birth sought to make it con-
ditional on domicile and combine it with ‘inheritance’ or lineage from
Indian parentage. The need to specify the uniqueness of Indian citizen-
ship among countries that subscribed to one or the other forms of citi-
zenship 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 embar-
rassingly indecisive.
The discussions which ensued show that the Constituent Assembly
constituted itself into a discursive body in which contestations over the
provisions unfolded in a deliberative mode. Among its many strands—​
some of which reverberated in the debates on the CAB in December 2019
in the Parliament—​what prevailed was a prior consensus among the
members of the Constituent Assembly, regardless of their own positions
on specific issues, on their collective commitment to the objectives of the
Constitution. Significantly, the debates provided the space where secu-
larism as a democratic and republican ideal was discussed and affirmed as
the basis of citizenship, even as the relationship between citizenship and
religion, the principles on which mobility could be made legible, ques-
tions of loyalty and allegiance, and the centrality of birth or descent as the
source of citizenship, remained disputed. In what was a deviation from
Ambedkar’s opening statement explaining that the Parliament would
have the power to make ‘altogether a 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
different. The Constituent Assembly was a body that was articulating
policy—​the norms and principles that would define citizenship—​and not
the details of acquisition and termination of citizenship. While these de-
tails should appropriately be in the domain of law for the Parliament to
decide, deliberations in the Constituent Assembly, Nehru declared, must
 Introduction 15
lay down the principles which would guide future law. As the theory of
constitutional moments (Ackerman 1991) tells us, constitution-​making
processes represent ‘extraordinary’ moments of intense participation and
deliberation which are of a different order from the ‘normal politics’ of
deliberations in legislative bodies. Constitutional moments do not pro-
duce merely the text of the constitution, but an inscription of the princi-
ples that would be adopted by ‘We, the people’.

The Assam Exception

From 1979 to 1985, Assam saw an enduring movement against the pres-
ence of foreigners in the state. Assam has a long history of in-​migration
as a consequence of the colonial policy of settlement of peasants from
East Bengal on forest land and tea plantations. The war with Pakistan in
December 1971 and the atrocities in East Pakistan (now Bangladesh)
committed by the military regime in Islamabad led to a huge inflow of
refugees into Assam. While the ‘foreigners question’ in Assam has a com-
plex history,12 even at the risk of simplification, it may be argued that
its contours were framed by anxieties around dilution of cultural iden-
tity, and demographic changes and consequent pressure over land and
other scarce economic resources in the state. These anxieties festered for
a long time and erupted in 1979 in the context of a controversy over elec-
toral rolls in the by-​election in Mangaldai Parliamentary constituency,
which revealed an ‘alarming rise’ in the number of voters.13 A sustained
struggle was launched with a mass rally led by AASU on 6 November
1979, imploring the governments in the Centre and the state to protect
Assam against ‘the harmful effects of continuous immigration’ which had
changed the composition of the electorate and gathered enough strength

12 For the details of the complex ways in which the foreigners question has unfolded in Assam

see Baruah (1999; 2005; 2009), Dutta (2021), Gohain (2019), Hussain (1993), Misra (2000; 2014;
2017), and Pisharoty (2019).
13 In a speech to state-​level election officers before the General Election in 1979, the Chief

Election Commissioner Shakdher referred to the census records of 1971 to report the ‘alarming
situation’ arising out of unprecedented inflation in electoral rolls in Assam (Hussain 1993, 102).
See Weiner (1983, 282–​285) for a discussion on and estimation of the growth in the popula-
tion of the state in Assam, and Baruah (1986) for the difficulty of estimating the number of for-
eigners/​immigrants in Assam (Baruah 1986, 1189–​1190).
16 Citizenship Regimes, Law, and Belonging
to influence political decisions (Barpujari 2006, 3–​4). Supported by sev-
eral regional parties and major literary associations of Assam, the AASU
called for a civil disobedience movement. The period between the launch
of the movement and the signing of the Assam Accord in 1985, as a ne-
gotiated settlement between the leaders of the movement and the central
government, was marked by political instability and deferral of the elec-
toral process, interspersed with violence. Even as the movement waged,
and the question ‘who was entitled to vote’ remained crucial, in what was
considered an ‘illegal election’, the Congress formed government in the
state in 1983. The Congress government of Hiteswar Saikia in Assam and
the Congress government in the Centre sought to wrest control over the
resolution of the citizenship question in Assam. This was manifested in
the enactment of the Illegal Migrants (Determination) by Tribunals Act
(IMDT Act) in 1983 by the Central government. Enacted to enable the
identification of illegal migrants in the entire country, the IMDT Act was
notified only in Assam. Unlike the Foreigners Act 1946, which applies
to the entire country, the IMDT Act installed a parallel regime for the
identification of illegal migrants in Assam and became another source of
discontent in Assam, till it was repealed by the Supreme Court in 2005.14
The citizenship question in Assam today continues to be framed by the
two ‘events’ that marked out the ‘Assam exception’ in the 1980s. An ‘event’,
according to Shahid Amin, may be fixed in time or it may become a met-
aphor gathering significance outside this time frame. It may also become
‘momentous’ having ramifications for other events in future (Amin 1995,
3).15 Events, Veena Das has pointed out, become critical when they ‘insti-
tute a new modality of historical action which was not inscribed in the in-
ventory of that situation’ (Das 1995, 5). Through successive accumulation
and aggregation of practices of signification, an event may acquire criti-
cality in the same or in a different time/​space (Roy 2014). The first event

14 The Preliminary chapter of the IMDT Act 1983 stated that ‘a good number of foreigners

who migrated into India across the borders of the eastern and north-​eastern regions of the
country on and after the 25 day of March [1971] have, by taking advantage of the circumstances
of such migration and their ethnic similarities and other connections with the people of India
and without having in their possession any lawful authority to do so, illegally remained in India’.
15 In his book, Event, Metaphor and Memory: Chauri Chaura 1922–​1992 (1995) Shahid Amin

focuses on ‘Chauri Chaura’ as ‘a momentous event’ in the history of the anti-​colonial movement
in India. In the course of all India non-​violent civil disobedience movement called by Gandhi
against British rule in India, a mob of villagers burnt down a police station in Chauri Chaura,
causing the death of twenty-​three policemen. Gandhi immediately suspended the movement.
 Introduction 17
consisted in the enactment of the IMDT Act in October 1983, which be-
came critical in exacerbating the field of contest around citizenship in
Assam. The perception that the Act was discriminatory in marking out
Assam as an exception festered, and the discontent over it figured in the
Assam Accord and in later negotiations. Almost two decades later, the
Supreme Court repealed the IMDT Act in what is commonly known as
the Sarbananda Sonowal case (2005), reflecting the criticality that the
Act had assumed in the anxiety around illegal migration and citizen-
ship—​an anxiety which the court averred spanned not just Assam but
the entire country. The Supreme Court judgement scrapping the IMDT
Act located the citizenship question in Assam in the dominant discourse
of ‘national security’ and ‘state sovereignty’, characterizing ‘illegal’ mi-
gration as an act of aggression. It may be noted that the IMDT Act lay
down a mode of identification of illegal migrants, which was considered
more ‘protective’ of the interests of the immigrant by shifting the onus
of proving ‘illegality’ onto the ‘prescribed authority’ instead of the mi-
grant him/​herself as was the case with the Foreigners Act. The IMDT
Act was seen in Assam as an anomalous and unfair exception. In the
judgement of 12 July 2005, which came five years after the petition was
made by Sarbananda Sonowal—​former President of AASU, and former
Chief Minister of Assam—​a three-​Judge Supreme Court bench con-
sisting of Chief Justice R. C. Lahoti, Justice G. P. Mathur, and Justice P. K.
Balasubramanyan, declared the IMDT Act unconstitutional on grounds
of legal procedure. But the general principles which were laid down by
the court in removing the discriminatory law, articulated citizenship as a
vital aspect of state sovereignty, with the policing of national boundaries
critical to its entrenchment. Discussing the demographic shifts in Assam
the judgment endorsed the evidence of an increase in the Muslim popu-
lation in the state, presenting the figure of the illegal migrant as both an
alien and an Islamic fundamentalist—​a threat not only to Assam but to
the country as a whole. The court justified the ‘legal regime of suspicion’
of the Foreigners Act, which placed the burden of proof on the person
identified as illegal, on grounds of restoring state sovereignty (which was
diminished by the IMDT Act since it deprived the ‘Union of the right to
expel foreigners who violated the Citizenship Act’); and of restoring to
the Union its constitutional duty of protecting the State from external ag-
gression under Article 355 of the Indian Constitution (which makes it the
18 Citizenship Regimes, Law, and Belonging
duty of the Central government to protect every state against ‘external
aggression and internal disturbance’) (Judgement, Sarbananda Sonowal
vs. Union of India & Anr, 12 July 2005, para. 38).
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. The accord purported to take into consideration the ‘genuine
apprehensions of the people of Assam’ and pledged ‘constitutional, leg-
islative and administrative safeguards . . . to protect, preserve and pro-
mote the cultural, social, linguistic identity and heritage of the Assamese
people’. While binding the Central government to this promise, the ac-
cord effectively affirmed the Central government’s decisive role in mat-
ters concerning citizenship. 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 the 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 estab-
lishment through the 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 amended Act provided for two
categories of ‘immigrants’ who could become citizens on the basis of
the cut-​off dates of their arrival into Assam from ‘a specified territory’
(meaning present Bangladesh). The first category consisted of those per-
sons of Indian origin who had entered Assam before 1 January 1966 and
had been ‘ordinarily’ residents in the state—​who would be considered
Indian citizens. The second category consisted of those who had entered
Assam after 1 January 1966 but before 25 March 1971. These persons, ‘de-
tected’ under the provisions of the Foreigners Act 1946 and Foreigners
(Tribunals) Order 1964, would be considered citizens of India only after
ten years from the date of their detection as a foreigner. This category
would have deferred citizenship since they would enjoy all privileges of
an Indian citizen including the possession of an Indian passport, but their
names would be struck off the electoral rolls and restored only after the
stipulated period of ten years. 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’
 Introduction 19
citizens, whose citizenship was rendered ambivalent by their linguistic
identity or their religion. This ambivalence was sought to be resolved le-
gally by conferring confirmed or deferred citizenship on some. The rest,
that is, those who entered India after 24 March 1971, were aliens, and the
illegality 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 citi-
zens came to occupy a zone of perpetually indeterminate citizenship and
suspect legality. The sanctity of the accord as a ‘public contract’, the dis-
pute 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.

The Hinge Point

The third regime of citizenship was inaugurated 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. The 1986 amendment provided that a
person will be a citizen of India by birth if one of her/​his parents was an
Indian citizen at the time of his/​her birth. This was a change from the
1955 Act under which anyone born in India, with a few exceptions, would
be a citizen of India by birth. The 2003 amendment constrained birth-
right citizenship further to confine it to only those born in India, both
of whose parents were Indian citizens or one was a citizen of India and
the other was not an illegal migrant. 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 ap-
pearance in the provision of citizenship by birth. The amendment, more-
over, by further constraining citizenship by birth, decisively ensured
citizenship’s association with the principle of blood, as descent from par-
entage of Indian origin became the defining principle for consideration
of citizenship by birth. Alongside constraining citizenship by birth by
20 Citizenship Regimes, Law, and Belonging
making it dependent on descent, the 2003 amendment inserted the cat-
egory of ‘overseas citizen of India’ (OCI). The OCI was an ambivalently
articulated category, in so far as it recognized de-​territoriality of citizen-
ship 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 de-​territorialization of citizenship through the OCI was
deceptive, since it did not allow dual citizenship. Even as it created the
possibility of ‘affective belonging’ for those who had lost Indian citizen-
ship after they acquired the citizenship of another country, the OCI con-
tinued the foreclosure for those persons of Indian origin who had opted
out of Indian citizenship in preference for the citizenship of Pakistan at
the time of Partition. Not only did the OCI then sustain the original con-
texts of nation-​state citizenship, it also manifested the dominant polit-
ical and ideological contexts of Hindutva within which the OCI as a legal
category was made effective. While the Indian Diaspora was dispersed
across the world, the High-​Powered Committee on the Indian Diaspora
which recommended the OCI concluded, wherever in the world they
were, their punyabhumi remained India.16 The Committee carefully em-
phasized their common identity: ‘They live in different countries, speak
different languages and are engaged in different pursuits. What gives
them their common identity is their Indian origin, their cultural heritage,
their deep attachment to India’ (Report of the High-​Level Committee on
Indian Diaspora [RHLCID] 2002, v). The 2003 amendment was brought
by the BJP led NDA government and the prioritization of descent over
birth was integral to both—​the amendments in the provisions pertaining
to citizenship by birth and the insertion of the category of the OCI.
The principle of parentage and blood ties was affirmed through an-
other 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 implemen-
tation of this provision lay down an exceptional procedure for Assam,

16 The eagerness to include Non-​Resident Indians (NRIs) and Persons of Indian Origin (PIOs)

residing abroad has been a continuous feature of the Hindu Right and especially the Vishwa
Hindu Parishad (Van der Veer 1996, 126, Deshpande 2003, 80).
 Introduction 21
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 doc-
umentary citizenship (Sadiq 2009) to prove citizenship through descent,
along with the constraints on citizenship by birth, produced a regime of
citizenship based on the logic of a ‘bounded’ community, based on ties
of belonging to a dominant ‘we’ within a Hindutva imaginary of nation-
hood and citizenship.

Blood and Belonging

Citizenship in contemporary India represents 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 cit-
izenship 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. While the NRC,
as the experience in Assam has shown us, is a legal regime of enumera-
tion of Indian citizens based on evidence that establishes a legacy of in-
herited 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 dis-
tinguishing principle. It makes a distinction among illegal migrants to
identify those among them who would be considered eligible for Indian
citizenship through naturalization. These two principles—​of descent as
the organizing principle of citizenship and religion-​based citizenship—​
have coalesced in the ruling practices of the current political regime to
become decisive in determining who belongs to the political community.
The inscription of the ‘Assam exception’ in the Citizenship Act, the
IMDT Act 1983 and its repeal in 2005, and the Assam Accord have re-
verberated in the contemporary landscape of citizenship. Indeed, the
framing of illegality within which immigration from Bangladesh came to
be seen in a national security framework, was reiterated in the Supreme
22 Citizenship Regimes, Law, and Belonging
Court judgement in the Assam Sanmilita Mahasangha case in December
2014, in which the court laid down the framework for updating the
NRC in Assam. Indeed, in an extension of the court’s position in the
Sarbananda Sonowal Case (2005), it made the fortification of territorial
boundaries as well as the protection of population a function of state sov-
ereignty. The persistence of the Sarbananda Sonowal judgement in con-
temporary debates on citizenship is seen in the manner in which the JPC
in recommending the CAB 2016 for the consideration of the Parliament,
quoted the judgement to assert that ‘misconceived’ ideas of secularism
must not come in the way of extending the protection of citizenship to
non-​Muslim religious minorities who faced persecution in Afghanistan,
Bangladesh, and Pakistan.

Law, State, and the Politics of Belonging

The contestation around the CAA 2019 in institutional spaces of the

state such as the legislature and the courts and sustained protests in the
streets calling for a repeal of the law, raise a fundamental question per-
taining to the meaning of law, and further questions concerning legal
obligation, that is, What is it that makes a person obey a law? and, why
must a person obey a law? Article 13 of the Constitution of India defines
a law—​the only place in the Constitution where an attempt has been
made to state what a ‘law’ means—​as ‘laws in force’, referring to its en-
actment by a ‘competent authority’. Article 13 also specifies that all laws,
even if they have been enacted by a competent authority, can be held
void if they are inconsistent with the fundamental rights guaranteed in
Part III of the Constitution of India. In defining law in terms of its en-
forceability and the limits that apply to it, Article 13 captures the debates
that have surrounded the meaning of law with reference to its usage and
the ‘conceptual commitment’ that any ‘usage entails’ (Dworkin 1967,
15). John Austin wrote of law as the command of the sovereign (Austin
1832). The sovereign for Austin is a determinate source of authority, not
in the habit of obeying another person, and obeyed habitually by others
because of the ‘threat’ of consequences that would follow non-​compli-
ance. This ‘simple relationship’ between ‘subjects rendering habitual
obedience and a sovereign who renders habitual obedience to no one’
 Introduction 23
constitutes ‘a vertical structure composed of sovereign and subjects’
(Hart 2011 [1961], 50).
This relationship is, however, complex since there would exist within
a society different orders of command, so that those who obey, do so not
merely because of a threat of coercion but because they are obligated or
bound by a law even in the absence of coercion. A fundamental character-
istic of law that binds a person to obedience is that it has emanated from a
source that has the authority to make laws. The nature of deference to this
form of authority is different from that wielded by ‘a gunman’ who would
force compliance by threatening physical harm. The question of authority
is a normative one and does not simply refer to the ‘physical power’ of
the author of the law (Dworkin 1967, 20). At one level it requires that
the authority to make law must itself come from another higher-​order
law, which would constitute what Hart calls the secondary rules of val-
idation (Hart 2011 [1961]). Such a test of validity is concerned not with
the ‘content’ of laws but ‘with their pedigree or the manner in which they
were adopted or developed’ (Dworkin 1967, 17). Ascertaining pedigree
would serve to distinguish ‘valid legal rules from spurious legal rules’ and
also from ‘other sorts of social rules (generally lumped together as “moral
rules”) that the community follows but does not enforce through public
power’ (Dworkin 1967). The ‘distinguishability test’ is made up of rules of
recognition that require that the validity of a rule may be traced through
a complicated chain of validation to the source of its authority (Hart
2011 [1961]). Unlike the ‘monopoly of power’ constituting the authority
of laws as seen by Austin, Hart traces the authority of laws ‘in the back-
ground of constitutional standards’ that have been accepted as the fun-
damental rule of recognition by the community which they govern. This
background ‘legitimates the decisions of government and gives them the
cast and call of obligation’ (Dworkin 1967, 22). In tracing law’s authority
to constitutional standards, laws may no longer be seen as orders backed
by threats of coercion.
The ‘field’ of law is also imbued with a ‘moral order’ with justice serving
as the link uniting the fields of law and morals (Hart 2011 [1961], 7).
Hart speaks of justice as a virtue that is especially ‘appropriate to law
and the most legal of the virtues’. Yet, the unity of the moral and legal
fields is fractured by a ‘paradox’ which arises when one speaks of ‘jus-
tice according to law’ and often of the ‘justice or injustice of the laws’
24 Citizenship Regimes, Law, and Belonging
(Hart 2011 [1961], 6–​7). Both formulations, which are also articulated
as procedural justice and foundational violence of law (e.g. Mbembe
2001), resonate with Bentham’s formulation in which he claims that
law ‘shows itself in a mask’. Bentham’s claim aims at ‘demystifying’ law
by removing its ‘mask’ (Benaham, cited in Hart 1982, 2). While put-
ting forward the principles of utility as a good reason for framing laws,
Bentham argued that regardless of what form law takes, it is fundamen-
tally structured by the basic imperative of ‘command’ (Hart 1982, 24).
While laws ‘conferring powers’ may not appear to be issuing commands
or prohibitions, ‘the conventional formulation of such laws conceals
their imperative character’ so much so that ‘frequently they appear to
be describing something already existing, not prescribing something to
be done’ (Hart 1982, 23). Differing from what he considered the per-
sistence of a positivist understanding of law in Hart, Dworkin inserted
in his formulation of law and obligation, a standard of validation that
is not dependent on another set of rules. Making a case for looking for
standards that are not in the nature of rules, Dworkin writes of ‘princi-
ples’ as constituting a standard ‘that is to be observed, not because it will
advance or secure an economic, political, or social situation deemed
desirable, but because it is a requirement of justice or fairness or some
other dimension of morality’ (Dworkin 1967, 23). In invoking ‘princi-
ples’ rather than ‘rules’ as a standard of validation, Dworkin goes be-
yond constitutional conformity to introduce morality as consideration
for completing the chain of validation.
The contests around the CAA at one level have been about the validity
of a law on a subject over which the Parliament has the authority to legis-
late. This authority is traced to the legislative powers inscribed in Article
11 of the Constitution and the distribution of legislative powers between
the Centre and the states in the Constitution, in which citizenship is a
subject assigned to the Central government. The argument based on leg-
islative competence has been disputed by those who shift the rules of
recognition to the realm of principles invoking justice as the standard on
which a law must be tested. While the Constitution provides the frame-
work of morality that would serve as the grounds on which the justness
of law could be evaluated, there is a strong strand in this contest that
would like to see the mere presence of a duly enacted law as authoritative,
lending itself to legitimate enforceability.
 Introduction 25
The complex relationship between law, coercion, and morality may
remain unexplained and the validation tests may be inadequate for
our understanding of law, if the ‘idiomatic expression’, that is, the ‘force
of law’, is not explored sufficiently to understand what constitutes ‘en-
forceability’ and the ‘mystical foundation of authority of law’ (Derrida
1992). Derrida tells us that the expression—​force of law—​reminds us that
‘ . . . there is no such thing as law (droit) that does not imply in itself, in
the analytic structure of its concept, the possibility of being “enforced”,
applied by force’ (Derrida 1992, 6). Would the chain of validation and
rules of recognition that Hart talks about and the satisfaction of condi-
tions of morality make a law ‘just’? Examining the relationship between
law and violence, Derrida points towards the problem of distinguishing
between the force of law which can be construed as just and the unjust
violence of law. This problem pertains to the legitimacy of the ‘originary
violence’ of the installation of the legitimating authority itself: ‘How are
we to distinguish between the force of law of a legitimate power and the
supposedly originary violence that must have established this authority
and could not itself have been authorized by any anterior legitimacy, so
that, in this initial moment, it is neither legal nor illegal—​or, others would
quickly say, neither just nor unjust?’ (Derrida 1992). It is this moment of
‘originary violence’ which ‘rips apart the homogenous tissue of history’
that constitutes the ‘founding inauguration, justifying law’ which consists
of ‘a coup de force, of a performative, and therefore interpretive violence
that in itself is neither just nor unjust and that no justice and no previous
law with its founding anterior moment could guarantee or contradict or
invalidate’ (Derrida 1992, 13). Any justification of institutive authority
would then meet a ‘mystical limit’—​‘the mystical foundation of authority
of laws’ (Đokić 1998, 451). It is interesting that while deliberating the
principles that would be appropriate for the legal frameworks of citizen-
ship in India, the Constituent Assembly worked with the determination
of inaugurating a momentous phase for India, with principles of a repub-
lican, and secular order serving as the foundations of Indian citizenship.
This founding moment was expected to substitute the order of command
through which colonial power was constituted as the colonizer’s right to
exercise absolute dominion over the native (Mbembe 2011). Violence
was imbricated in the imaginary of ‘command’ specific to state sover-
eignty in the colonial context. This included foundational violence which
26 Citizenship Regimes, Law, and Belonging
was imbricated in the assumption of a right to conquest, the subsequent
legitimation of violence through narratives of justification expressed as
in terms of a necessity, and finally, its sustenance in everyday practices,
whereby the state claimed a shared life in society. Through these claims,
the colonial state domesticated the colonized, who could challenge it ‘only
at the risk of being declared a savage and an outlaw’ (Mbembe 2001, 6–​7).
The protests over the CAA, which began in December 2019 and con-
tinued 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’ (De 2018, 3), 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 val-
idation 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
law’s violence, the protestors justified civil disobedience as an ethical
means of questioning what they considered an unjust law.

A Map of the Book

This work explores the contemporary regime of citizenship by exam-

ining how it is structured around the amendment in the Citizenship Act
in 2019 and the field of contestation generated by the amendment. Each
chapter focuses on specific features of the regime of citizenship spawned
by the present and past changes in the citizenship law. The following
chapter (Chapter 1) puts forth the argument that the documentary re-
gime instituted by the NRC in Assam, with the requirement to estab-
lish a clear link to Assamese ‘legacy’ generates a form of ‘hyphenated
citizenship’ within Indian citizenship. The responsibility given to the
Central government to establish and maintain a national register of cit-
izens and issue national identity cards through the citizenship amend-
ment act of 2003 and the rules framed under it, required it to carry
 Introduction 27
out ‘house-​to-​house enumeration’ and collect particulars of individuals
and families, including their citizenship status. Making an exception to
this procedure, the NRC in Assam was prepared by inviting applications
from all residents with particulars relating to each family and individual,
including their citizenship status, which was based on NRC 1951, and
the electoral rolls up to the midnight of 24 March 1971. By tracing the
pedigree of Indian citizenship to an Assamese legacy, the citizenship act
opened up the possibility of hyphenated citizenship for Assam, hitherto
alien to the legal vocabulary of citizenship in India. The category ‘hy-
phenated’ helps capture the ‘Assam exception’ in the preparation of the
NRC, especially the invocation of the citizenship identity of an Indian cit-
izen of Assamese origin, which is an innovation in the legal vocabulary of
citizenship in India. The use of the term hyphenated as a prefix to citizen-
ship denotes a variant of citizenship that associates citizenship to an iden-
tity, which gets accommodated within a common national citizenship.
The process of accommodation, as in the case of Assam, was inflected
by competing and contentious articulations of belonging. Hyphenation
served as a tool to alleviate the contest, but it also, as seen in the oppo-
sition to CAA in Assam, presented a challenge to the ‘national order of
citizenship’ (Baruah 2009, 593). The chapter traces the process of accom-
modation and discord through an examination of the institutional, jurid-
ical, and documentary practices associated with the preparation of the
NRC in Assam, the debates on the NRC in the political domain, and the
arduous contests over legal delineation of categories in the Gauhati High
Court and the Supreme Court of India. The experience with the prepara-
tion of the NRC through a Supreme Court-​monitored process shows dis-
parate strands where amidst the desire for closure of a festering issue in
the state, deep uncertainties were generated as people in Assam presented
themselves for registration as citizens to the NRC authorities.
Synchronous with the process of preparation of the NRC in Assam, a
distinctive regime of citizenship was put in place through the CAA. As
seen in the discussion on the three regimes of citizenship in India, the
CAA represents a tendency in the ideological formulation of citizen-
ship that redefines the idea of the political community. If the NRC as it
has unfolded in Assam congealed the relationship between legal status
and blood ties, the CAA has installed exclusionary nationhood under
the veneer of liberal citizenship. The CAA 2019 purports to extend the
28 Citizenship Regimes, Law, and Belonging
protection of citizenship to those facing religious persecution and simul-
taneously puts in place a regime that discriminates on the ground of re-
ligion. Amidst the possibility of a nationwide NRC, the CAA made the
question of ‘documentary citizenship’ (Sadiq 2009) more perplexing.
Chapter 2 in this book focuses on the category of bounded citizenship to
explain the contours of the legal regime of CAA. The concept of bounded
is used in the sense of a ‘boundary condition’ (Walzer 1983), whereby citi-
zenship installs ‘strict walls of separation’ (Sadiq 2009) to distinguish citi-
zens from non-​citizens and establishes the association of citizenship with
‘the idealized notion of a bounded national territory with a clearly de-
fined community of citizens’ (Baruah 2009, 593). The chapter examines
the discursive frameworks surrounding the CAA, the different figuration
of the ‘illegal migrant’ when compared to the NRC, the idea of national
citizenship based on the concept of a homeland, and the assertion of par-
liamentary sovereignty through law-​making powers of the Parliament.
The chapter details, in particular, the two premises on which CAA has
been justified: the invocation of legislative competence of the Parliament,
drawn from Article 11 of the Constitution of India and a higher-​order
normative claim drawn from the Constituent Assembly, which ascribed
this power to the Parliament. Through a detailed examination of the de-
bates in the Constituent Assembly on the question ‘who is an Indian cit-
izen’, and the debates in the Parliament in December 2019 on the CAA,
the chapter discusses the ideological framing of citizenship in the con-
stituent moment and its interpretation in 2019. In doing so, the chapter
also examines ideas of popular sovereignty, the question of the source of
law-​making powers of the Parliament and its limits, along with the no-
tion of power itself as it is elaborated itself in everyday politics driven by
the political rationality of the ruling regime.
The JPC which studied the CAB and recommended it for the consider-
ation of the Parliament invoked the power of the Parliament to make laws
on any matter pertaining to citizenship. However, while invoking the
legislative competence of the Parliament, in an exception to the founda-
tional principles of citizenship, the CAA sought to introduce religion as
a principle in making a distinction among persons—​a principle that had
been discussed and emphatically rejected by the Constituent Assembly
of India. It is significant that both the NRC and CAA are concerned with
the legal category of ‘illegal migrant’ but in different ways. The NRC is
 Introduction 29
a modality of affirming citizenship through the detection and expulsion
of illegal migrants. The CAA paves the way for exemption of specified
groups of illegal migrants identified on the basis of religion from the cate-
gory of illegal migrants to enable them to become citizens. The NRC and
CAA come together in an ideological alignment in so far as both make
citizenship dependent on lineage, spelling out ideas of belonging which
are tied to descent and blood ties.
The idea of liminality—​which could be understood both as a threshold
condition as well as a condition of uncertainty—​becomes important for
understanding the experiences of those impacted by NRC and CAA.
While the process of preparation of NRC generated documentation prac-
tices whereby people made themselves legible by placing themselves
within identification regimes, it also opened up the spectre of stateless-
ness for those who were not ‘detectable’ (Ghosh 2019) by the state. The
CAA has exacerbated the uncertainty since it has come to be perceived
as a citizenship regime responding to closures precipitated by the NRC.
Coincident with the NRC process and initiation of the CAB through ex-
ecutive orders in 2015 and 2016 making changes in the Passport Act and
the Foreigners’ Act, a treaty between India and Bangladesh facilitated the
exchange of territory and population along their borders in West Bengal,
Assam, and Tripura. This exchange did not entail any amendment in
the Citizenship Act of India but offered the possibility of citizenship to
Bangladeshi enclave dwellers to become Indian citizens under Section 7
of the Citizenship Act of 1955. This meant that ‘aliens’, who otherwise ran
the risk of being labelled as illegal migrants and infiltrators, could be ab-
sorbed as Indian citizens along with the territory. While the extension
of citizenship in this context was largely seen as an effective resolution
of a long-​standing border problem, actual experiences of exchange—​
for those who continued to reside in India and became Indian citizens
and those Indian citizens who were ‘displaced’ from what now became
Bangladeshi territory—​were replete with the ambivalence of belonging
and fragmentation of their lifeworld as citizens. Chapter 3 examines the
Land Border Agreement Treaty (LBAT) of 6 June 2015 between India
and Bangladesh as an example of the resolution of ‘illegality’ through an
agreement between the two governments to resolve long-​standing dis-
putes pertaining to the demarcation of the boundary. Till the summer
of 2015, residents of enclaves were citizens of the country to which the
30 Citizenship Regimes, Law, and Belonging
enclave belonged; but governmental machinery had meagre or no ac-
cess to the enclaves since its legal-​juridical sovereignty over the enclaves
was interrupted by the territorial sovereignty of another state. Enclaved
citizens did not reside within the contiguous nation-​state boundaries of
either country, and for all practical purposes they were displaced per-
sons with disputed citizenship, were denied political rights and con-
stitutional protections, and led a precarious life of perpetual liminality
bordering on illegality. The chapter is based on fieldwork conducted at
five sites in Cooch Behar district in West Bengal—​three transit camps for
Indian ‘returnees’ in Dinhata, Mekhliganj, and Haldibari and two chhits
with ‘new citizens’, Balipukhuri, and Dhabalsati Mirgipur. The fieldwork
was conducted in December 2016, more than a year after the LBAT was
signed and the exchange of land and population took place, and about
six months after the state assembly elections in West Bengal in which
both the returnees and the new citizens voted for the first time. The
camps in Dinhata, Mekhliganj, and Haldibari were set up as transit ac-
commodation for two years for Indian citizens ‘returning’ from Indian
enclaves, and Balipukhuri and Dhabalsati Mirgipur were Bangladeshi
enclaves that had become part of the Indian territory inhabited by the
‘new’ Indian citizens. The LBAT 2015 is largely considered a moment
of closure in the history of contests over territory along the border with
Bangladesh by ensuring correspondence/​alignment between territorial
boundaries and political sovereignty. Seen in the context of the prepa-
ration of the NRC in Assam around the same time, this chapter seeks
insights from the field to argue that the exchange of enclaves generated
split-​citizenship among both the returnees and the new citizens, which
was expressed through idioms of loss and betrayal.
The invocation of ‘crisis’ in citizenship generated by the spectre of in-
discriminate immigration and the risks presented by ‘strangers’ among
us (Miller 2016), has become the source for extraordinary legal regimes
of citizenship. These regimes have recalled the sovereign’s power to com-
mand and control the movement of people and prescribe the terms of
belonging. Yet, the moments of crisis are also those of iteration of con-
stitutional moments—​of ‘re-​discovering’ the set of principles that came
to be adopted by ‘We, the people’ (Ackerman 1991, 5)—​that have the
power to ‘break the causal chain of process and launch something un-
precedented’ (Pitkin 1987, 168). These moments embody powerful acts
 Introduction 31
of political courage that have the power to re-​iterate not just a constitu-
tional order but a democratic order as well. A range of innovative pro-
tests against the CAA and NRC sought to re-​claim the constitutional
moment to re-​articulate citizenship as dissidence, recalling the consti-
tutional ethics of fraternity and public conscience. Chapter 4 discusses
the new idioms of constitutional citizenship that were iterated in rallies
and sit-​ins, through street art and theatre, and in institutional practices of
public action litigation (PIL) asking for a democratic conversation about
the Constitution and law and federal processes where states have resisted
an imposition of the ‘national order of things’. The chapter examines the
ethic of citizenship in relationship with constitutional morality, and looks
at the spate of protests against the CAA/​NRC from December 2019 to
March 2020, before the pandemic put in place a different order of public
life. The title ‘recalling citizenship’ refers to what was being recalled in
these movements, that is, the constitutional ethic of citizenship that in-
formed the constituent moment, and the invocation of constitutional
morality which B. R. Ambedkar considered indispensable for the dura-
bility of constitutional democracy. Describing this period as one of en-
hanced consciousness about citizenship, the chapter focuses on specific
sites of protests that became iconic elaborations of dissident citizenship.
It raises the question of why the constitution of India became emblem-
atic of an idiom of politics that was insurgent and democratic at the same
time. The movement can be seen as part of contemporary movements
across the world which seek to restore democracy, for example, Hong
Kong, or resurrect a constitutional politics that has become integral to the
consciousness of being a citizen, for example, ‘Black Lives Matter’ move-
ment in USA. In contexts of dominant politics where citizenship is itself
under siege, dissident citizenship demands, in particular, the restoration
of equality as the non-​negotiable foundational premise of democracy.
Yet, this process of restoration is a fraught one and has to contend with
competing ideas, and indeed, claims to what it means to be a citizen.
With the help of interviews with public officials, accounts by displaced
persons, and ‘new citizens’, government reports, case law, parliamentary
debates, constituent assembly debates, and archival material, this work
builds a narrative of contemporary citizenship that reflects the distinc-
tiveness of the present, with residues of the past lingering on either as re-
minders of what is lost, or as unresolved questions that continue to fester.
32 Citizenship Regimes, Law, and Belonging
The objective is to present a legal-​anthropological account of citizenship
in contemporary India, by examining the changes in law and judicial
interventions as a manifestation of the contests that occur in the domain
of the state. This work also attempts to trace anthropological accounts of
the law through people’s experiences, and the spaces in civil society that
emerge out of dissident citizenship practices which aim at enhancing the
deliberative content of the law.
 1
Hyphenated Citizenship
The National Register of Citizens

In October 2019, Dulal Paul, a 65-​year-​old villager from Alisanga in

Assam, died in Guwahati Medical College Hospital. Paul was declared a
foreigner in 2017 and had since been living in a detention camp in Tezpur.
Paul’s family refused to take his body home unless the government de-
clared that he was an Indian citizen. How could they accept the body of
a Bangladeshi man as their own family? Dulal Paul’s name did not figure
in the final National Register of Citizens (NRC), which was published on
31 August 2019. All his family members, including his son, found a place
in the NRC. His son claimed that despite possessing all documents from
1965 Paul was declared an illegal migrant and remained in detention
until his death.1
The Citizenship Amendment Act of 2003 made it the responsibility of
the Central government to prepare an NRC for the entire country and
issue National Identity Cards to all citizens. The NRC is premised on
the assumption that it is possible to distinguish citizens from aliens on
the basis of documents as evidence of citizenship. While an NRC exer-
cise for the entire country is yet to take place, the process of ‘updating’
the NRC in Assam, which was prepared in 1951 under a different legal
regime, was initiated in 2015. The citizenship regime installed with the
updating of NRC in Assam was marked by another innovation—​that of
legacy. This made the legal status of an Indian citizen in Assam dependent
upon proving lineage with a person whose name figured in the ‘legacy
data’ specific to Assam. From the time the court-​monitored process of
identification of citizens in Assam was set in motion with the Supreme

1 ‘NRC: Family of Dulal Paul, Who Died at Detention Centre, Accepts his Body after CM’s

Intervention’, 23 October 2019, https://​scr​oll.in/​lat​est/​941​454/​nrc-​fam​ily-​of-​dulal-​paul-​

who-​died-​at-​detent​ion-​cen​tre-​acce​pts-​his-​body-​after-​cms-​inter​vent​ion (accessed on 5
December 2019).

Citizenship Regimes, Law, and Belonging. Anupama Roy, Oxford University Press. © Oxford University Press 2022.
DOI: 10.1093/​oso/​9780192859082.003.0002
34 Citizenship Regimes, Law, and Belonging
Court judgement in Assam Sanmilita Mahasangha and Others vs. Union
of India and others (December 2014) to the publication of the final ‘list’ of
citizens in August 2019, the NRC left a trail of confusion or kheli meli in
Assam.2 This kheli meli persisted throughout the preparation of the reg-
ister and beyond, as the uncertainty over the status of 1.9 million (nine-
teen lakh) people whose names were not part of the final NRC remained
unresolved.
Taking the reader along the course of the NRC Kheli Meli in Assam,
this chapter makes the argument that the NRC bears affinity to a model
of citizenship in which the ‘crisis’ generated by immigrants and aliens
is resolved by prescribing ‘a thick and solidarity based model of citizen-
ship’ (Walzer 1983). Under the terms of this model, being an Assamese
was ultimately about developing strong bonds of integration, which
could also absorb migrants. But, the solidarity of citizenship was simul-
taneously driven by the logic of closure. Resembling ‘a boundary condi-
tion’, this solidarity was premised on a circumscribed world comprised
of ‘a group of people [who] commit themselves to dividing, exchanging,
and sharing social goods, first of all among themselves’ (Walzer 1983,
31, emphasis added). The NRC also produced a hyphenated citizenship,
a category hitherto alien to the legal vocabulary of citizenship in India,
by producing an ‘Assam exception’, and subsequently accommodating
it in the ‘order’ of national citizenship. The chapter traces this process
through four sections, by looking in the first section at the production
of the Assam exception through the citizenship law, followed in the
second section by a discussion of the interpretative practices of adju-
dicating citizenship in the courts, the bureaucratic practices of iden-
tification unleashed by the NRC in the third section, and finally, an
exploration of the unsettled zone of citizenship produced by the accu-
mulation of these practices, and the insertion of the CAB/​CAA in the
field of contest 2016 onwards.

2 Parasmita Singh, ‘NRC: This Graphic Novelist Sketches the Citizenship Test that May

Render Millions in Assam Stateless’, Huff Post, 8 January 2018.

 Hyphenated Citizenship 35
The Assam Exception

The citizenship question in Assam has a contentious history which is re-

flected in successive amendments in the citizenship law. Equally, the cit-
izenship law has become a source of continuing conflict over matters of
citizenship in the state. The Citizenship Act of India enacted in 1955 was
amended in 1985 to inscribe an exception in the law in recognition of
the extraordinary conditions prevailing in Assam. The 1985 amendment
came in the wake of the Assam Accord, and pertained to the identification
and sifting out of foreigners and illegal migrants who had entered Assam
and had been residing there. Migration into Assam from Bangladesh has
a long history imbricated in colonialism and state formation after inde-
pendence from colonial rule. It was, however, the year 1971, which has
become a signpost in this history, when several lakhs Hindu and Muslim
refugees fled into Assam to escape being ravaged by the war between
what was then East and West Pakistan. The war ended with the forma-
tion of Bangladesh as a sovereign nation. On 8 February 1972, the Prime
Ministers of India and Bangladesh issued a joint declaration whereby the
Government of India assured ‘all possible assistance to the Government
of Bangladesh in the unprecedented task of resettling the refugees and
displaced persons in Bangladesh’ (Baruah 1999, 119).
The apprehension that a large number of ‘foreigners’ had entered
Assam and continued to do so instilled a sense of unease in the state. The
anxiety over changes in demography, language, and culture, and pres-
sure over resources was expressed with increasing intensity. A powerful
popular movement erupted in the early 1980s, led and steered by the All
Assam Students Movement (AASU) demanding the ouster of foreigners.
The movement lay claims to a distinctive Assamese identity and based on
this—​a differentiated citizenship (Young 1989)—​to overcome what was
considered to be a ‘crisis’ in citizenship. On 15 August 1985, an accord
was reached between the leaders of the Assam movement represented by
the AASU and the All Assam Gana Sangram Parishad (AAGSP), and the
Indian government. Through the accord the Indian government made
a commitment to address ‘the profound sense of apprehensions’ of the
Assamese people ‘regarding the continuing influx of foreign nationals
into Assam and the fear about adverse effects upon the political, social,
cultural and economic life of the State’ (Clause 2, Assam Accord 1985).
36 Citizenship Regimes, Law, and Belonging
Clause 5 of the Accord pertained to the ‘Foreigners Question’ and listed
the measures that the Indian government would undertake to resolve it.
In 1985, an amendment in the Citizenship Act 1955 incorporated
Clause 5 of the Assam Accord putting in place a template of graded
citizenship in Assam. The amendment inserted Section 6A in the
Citizenship Act with ‘special provisions as to citizenship of persons cov-
ered by the Assam Accord’ adding a sixth category of citizenship in India.
Citizenship by birth, descent, registration, naturalization, and by incor-
poration of foreign territory into India were the existing five. This new
category of citizenship applied exclusively to Assam and was expected to
address the problems emerging from the presence of illegal migrants in
the state. The 1985 amendment in the Citizenship Act identified two cut-​
off dates with corresponding regimes of legality and illegality. Section 6A
prescribed 1 January 1966 as the initial cut-​off date for the identification
of citizens in Assam. Accordingly, all persons who had entered Assam
from Bangladesh before 1 January 1966 and had been ‘ordinarily resi-
dent’ in the state would be considered citizens of India if they so wished.
However, persons who had been residing in Assam and had been ‘de-
tected’ under the Foreigners Act 1946 and Foreigners (Tribunals) Order
1964 as foreigners having entered India from Bangladesh ‘on or after 1
January 1966 but before 25 March 1971’, constituted a distinct category.
A foreigner under this category would be considered a citizen of India,
but only after a period of ten years from the date of detection as a for-
eigner. In the intervening period, she or he would enjoy all the privileges
enjoyed by an Indian citizen, including holding an Indian passport, but
would not have the right to vote. All other persons who entered the state
on or after 25 March 1971, upon identification as ‘illegal migrants’ under
the Illegal Migrants (Determination by Tribunals) Act (IMDT Act), 1983,
would be deported.
These changes in the Citizenship Act were in accordance with Clause
5 of the Assam Accord in which 1 January 1966 was agreed upon as the
‘base date and year’ for the ‘detection and deletion of foreigners’. All those
who came before that date, including those whose names figured in the
electoral rolls of the 1967 elections, were to be ‘regularised’ as citizens.
The names of those who came after the base date and year up to 24 March
1971 would be deleted from the electoral rolls for a period of ten years
after detection. These persons would be required to register themselves
 Hyphenated Citizenship 37
with the registration officers in their districts. Persons entering Assam
after the 25 March 1971 deadline would be ‘expelled’.
The Assam Accord installed a hierarchized/​ graded citizenship in
Assam constituted by the ‘universal we’—​the Assamese people—​whose
claim to citizenship was undisputed. The universal ‘we’ was superim-
posed on residual citizens, whose citizenship was rendered ambivalent by
their linguistic and religious identity. The government sought to resolve
this ambivalence through the citizenship law, by conferring deferred cit-
izenship onto some. The rest, that is, those who arrived in India on or
after 25 March 1971, were illegal aliens, to be identified under the (now
repealed) IMDT Act 1983, and deported from India. In actual practice,
both the Foreigners Act and the IMDT Act applied simultaneously till
2005—​the year the IMDT Act was repealed—​and prescribed different
modes of determining citizenship. As a consequence, the residual citizens
continued to occupy a zone of indeterminate citizenship and suspect le-
gality. Unlike the Foreigners Act in which the burden of proving whether
or not a person was a foreigner fell on the person whose citizenship status
was questioned, the IMDT Act was more ‘protective’ of the interests of
the immigrant. It shifted the burden of proof to the ‘prescribed authority’
and demanded a locus standi from those who approached the prescribed
authority with an ‘application’ alleging the presence of an illegal migrant
in their vicinity. Under the Assam Accord, the government of India had
promised to give ‘due consideration’ to the difficulties expressed by the
AASU and AAGSP regarding the implementation of the IMDT Act and
the low rates of identification of illegal migrants under it.
The IMDT Act 1983 was enacted to set up Tribunals for the determi-
nation of whether or not a person was an illegal migrant in the context of
what the objectives of the Act described as the migration of ‘large number
of foreigners across the borders of the eastern and north-​eastern regions
of the country on and after the 25th day of March’, who had ‘taken advan-
tage’ of the ‘the circumstances of such migration and their ethnic similar-
ities and other connections with the people of India and without having
in their possession any lawful authority so to do, illegally remained in
India’. While the Act extended to the whole of India, it was notified only
for the state of Assam, where it became effective on 15 October 1983.
The Supreme Court scrapped the IMDT Act in 2005 removing what
was perceived in Assam to be an anomalous and unfair exception in its
38 Citizenship Regimes, Law, and Belonging
application only to one state. In its judgment, delivered on 12 August
2005, almost five years after a petition seeking its repeal was moved by
Sarbananda Sonowal—​former President of AASU, former MLA of the
AAGSP, presently a BJP member, and the Chief Minister of Assam from
May 2016 to May 2021—​a three-​Judge Supreme Court bench, declared
the IMDT Act unconstitutional. The declaration was premised specifi-
cally in questions of legal procedure, but the general principles articulated
in the process had ramifications for the way in which citizenship has been
defined and interpreted in India. While declaring the IMDT Act uncon-
stitutional, the court described immigration from Bangladesh not simply
as illegal entry, but as an act of aggression, which made the identification
of illegal migrants an essential function of state sovereignty requiring the
fortification of national territorial boundary and protection of its popula-
tion from ‘infiltrators’ who posed a threat to national security.
An amendment to the Citizenship Act in 2003 brought about three
significant changes: Section 7A was inserted in the Act introducing the
category of Overseas Citizens of India (OCI) whereby a person who was
a citizen of another country, but was a citizen of India at the time of, or
after the commencement of the Constitution, or was a descendant of such
a person, could be registered as an OCI. The ‘Statement of Objects and
Reasons’ of the Bill introducing the amendment stated that the High Level
Committee on the Indian Diaspora that had been set up by the Central
government recommended the grant of ‘dual citizenship’ to persons of
Indian origin in specified countries. The OCI was strictly speaking not
a dual citizen—​a citizen of two countries simultaneously—​but enjoyed
certain privileges, including a lifelong visa for visiting India. Section 3
was amended to constrain the conditions under which a person would
be a citizen of India by birth. The process of constraining citizenship by
birth had begun with the 1986 amendment, which had laid down that a
person could be an Indian citizen by birth, only if one of his/​her parents
was an Indian citizen. The 2003 amendment further confined citizenship
by birth to those born in India, both of whose parents were Indian citizens
or one of the parent was an Indian citizen and the other was not an illegal
migrant at the time of his/​her birth.
A new section—​Section 14A—​was inserted in the Act through the
amendment which provided that the Central government ‘may compulso-
rily register every citizen of India and issue a national identity card to him
 Hyphenated Citizenship 39
[sic]’. The Central government was given the responsibility of maintaining
a National Register of Indian Citizens (NRIC) and establishing a National
Registration Authority for that purpose. Under Section 14A (3) of the
Act, the Registrar General of India would act as the National Registration
Authority and function as the Registrar General of Indian Citizen
Registration. Section 14A (5) provided that the procedures to be followed
for ‘compulsory registration of citizen shall be such as may be prescribed’.
The procedures for the ‘preparation’, ‘establishment and maintenance’
of the NRC were prescribed by the Central government through the
Citizenship (Registration of Citizens and the issue of National Identity
Cards) Rules of 2003. Section 4 of these rules made it the responsibility
of the central government to carry out ‘a house-​to house enumeration’
throughout the country to collect ‘specified particulars’, including the
citizenship status, of each family and individual ‘residing in a local area’
for the preparation of the NRIC.3 In November 2009, an amendment to
the Citizenship Rules of 2003 was made through a Government Statutory
Rule (GSR) issued by the Ministry of Home Affairs (Foreigners Division).
This amendment made an exception in the procedure laid down in sec-
tion 4 of the Citizenship Rules 2003 so that nothing in the section was
any longer applicable to the state of Assam. Section 4A and its Schedule,
inserted through this amendment, made ‘special provisions’ for the prep-
aration of the NRC in Assam, different from those prescribed for the rest
of the country.4 A separate procedure was laid down for Assam, which
replaced house to house enumeration with one where applications were
‘invited’ from all residents for the collection of ‘specified particulars of
each family and individual, residing in a local area in the state including
the citizenship status based on National Register of Citizens 1951 and
the electoral rolls up to the midnight of 24th March 1971’ (Section 4A
Citizenship Rules 2003 as amended in 2009).

3 As per section 3(3) of the Citizenship Rules 2003, the National Register of Indian Citizens

would contain the following particulars of every citizen: (i) Name; (ii) Father’s name; (iii)
Mother’s name; (iv) Sex; (u) Date of birth; (vi) Place of birth; (vii) Residential address (present
and permanent); (viii) Marital status—​If every married, name of the spouse; (ix) Visible iden-
tification mark; (x) Date of registration of Citizen; (xi) Serial number of registration; and (xii)
National Identity Number. [emphasis added]
4 As amended by 1. G. S. R. 803(E), dated 9 November 2009 (with effect from 9/​11/​2009.)

2. Ministry of Home Affairs (Office of Registrar General, India), Order No. S.O. 596(E), dated 15
March 2010, published in the Gazette of India, Extra, Part II. No. 504 S.3(ii).
40 Citizenship Regimes, Law, and Belonging
The 1951 NRC was prepared exclusively for Assam. On the directions
of the MHA, the data which was collected for the census of 1951 was used
to prepare the NRC for Assam. The 1951 NRC of Assam was prepared
in the context of the Immigration (Expulsion from Assam) Ordinance
of January 1950, which was replaced in February the same year with
the Immigration (Expulsion from Assam) Act (Pisharoty 2019). The
Immigration Act of 1950 gave the Central government the ‘power to
order expulsion of certain migrants’ whose presence in Assam would be
‘detrimental’ to the ‘interests of the general public of India’ or of any sec-
tion of the people of India or ‘any Scheduled Tribe in Assam’. However, the
Act did not apply to any person who had been ‘displaced’ from Pakistan
‘on account of civil disturbances or the fear of such disturbances’ and
had been subsequently residing in Assam. The protection from expul-
sion to a class of foreigners allowed the influx of large numbers of persons
fleeing persecution into Assam. Communal violence in areas bordering
East Pakistan, including in the Indian states of Assam, West Bengal, and
Tripura led to some immigrants fleeing to East Pakistan. The Liaquat–​
Nehru Pact of 8 April 1950 was signed by the governments of India and
Pakistan which agreed to protect and restore the property of those who
were displaced to facilitate their return. The NRC was prepared in these
circumstances in the form of additional information based on individual,
family, and household data (Dutta 2021, Pisharoty 2019). Sanjay Borbora
(2019) refers to Sanjib Baruah (2018)5 and Matthew Hull (2012) to point
out that the preparation of NRC 1951 took place under conditions where
the government lacked ‘preparedness in conducting such a process’ and
amidst the absence of adequate communication between the government
and the people, unlike the ‘robustness’ of the 2015 NRC, the response of
the people to the NRC was difficult to ascertain in 1951.
In its judgement scrapping the IMDT Act in 2005, the Supreme
Court had directed that all persons whose citizenship was suspect be
brought under the purview of the Foreigners Act 1946. The then Chief
Minister Tarun Gogoi proposed that the NRC prepared in 1951 in the
state be updated to resolve all disputes over the presence of foreigners
in the state, and put to rest the apprehensions of both the AASU and the
Assam United Democratic Front (AUDF). A separate directorate was

5 Sanjib Baruah, ‘Stateless in Assam’, Indian Express, 19 January 2018.

 Hyphenated Citizenship 41
established by the Government of Assam to update the NRC, which,
however, did not make any progress beyond the computation of available
data, partly because the NRC 1951 for all the districts of Assam was not
readily available with the state government.6 In 2007, the Chief Minister
reiterated the desirability of having an updated NRC but also drew at-
tention to the intricacies of the process and the problems accruing from
the fact that a large number of legitimate residents of Assam, such as the
tea garden workers, may not have any documentary evidence to trace
their residence in the state to 1971 or 1951. A pilot project launched in
the assembly constituencies of Barpeta and Chhaygaon in 2010 showed
mixed results.7 A Cabinet sub-​committee was subsequently set up by the
state government to draw up the modalities for the finalization of the pro-
cedure for establishing the link of every person to the electoral rolls of
1971, which could then be connected to the NRC of 1951. In the course of
his deposition in the Gauhati High Court in the case Manowara Bewa @
Manora Bewa vs. Union of India and the State of Assam (WP(Civil)2364 of
2016), the then NRC Coordinator Prateek Hajela informed the court that
the modalities pertaining to updating the NRC and the list of admissible
documents which would serve as evidence were finalized by the Cabinet
Sub Committee. These were forwarded to the Central Government on 5
July 2013, and were subsequently approved.
The process remained desultory till the Supreme Court intervened
and fixed a time frame for its completion. Based on the court’s order, the
Assam government fixed 31 October 2015 as the date for publishing the
draft NRC and 31 January 2016 as the deadline for the final NRC. The
entire process was closely monitored by the Supreme Court of India,
which set up a schedule for the publication of the drafts.8 The process
stretched beyond the prescribed timeline. A ‘part draft’ of the NRC was

6 Samudra Gupta Kashyap, ‘Assam Yet to Update National Register of Citizens’, Indian Express,

6 August 2007.
7 The Chhaygaon NRC was successfully updated but the process at Barpeta was terminated

because of protests by the All Assam Minority Students’ Union (AAMSU). While the AAMSU
believed that there has been no ‘infiltration’ from Bangladesh into Assam, other groups like the
AASU wanted the process to be completed. Samudra Gupta Kashyap, ‘In Assam, an Ongoing
Effort to Detect Illegal Bangladeshi Migrants’, Indian Express, 17 August 2015.
8 As provided under the CAA 2003, the funds were provided by the Central government and

the process was carried out by the state government under the guidance of the Registrar General
of India. Prateek Hajela, a senior IAS officer was appointed as the NRC commissioner and co-
ordinator. Samudra Gupta Kashyap, ‘In Assam, an Ongoing Effort to Detect Illegal Bangladeshi
Migrants’, Indian Express, 17 August 2015.
42 Citizenship Regimes, Law, and Belonging
released on 31 December 2017. The ‘complete draft NRC’ was released
six months later on 30 July 2018. It left out 40 lakhs (4 million) of people
from among those who had applied for inclusion. The ‘final draft’ re-
leased on 31 August 2019 left out 19 Lakhs (1.9 million) of people from
the 39 Lakh (3.9 million) who had applied for insertion after being left
out. Those left out were assured that they could present their claims be-
fore the Foreigners Tribunals, but the process is yet to start.

Adjudicating Citizenship

The Supreme Court’s intervention in the process of updating the NRC

in Assam came in the wake of a cluster of writ petitions. In 2009, Assam
Public Works (APW), a Non-​Governmental Organisation (NGO) ac-
tively involved in spreading, what it calls, ‘social awareness’ in Assam
against terrorism and illegal migration into the state, filed a writ petition
in the Supreme Court questioning the constitutional validity of Section
6A of the Citizenship Act of India. Section 6A, as discussed earlier, was
inserted by the 1985 amendment in the Citizenship Act to lay down ex-
ceptional provisions for Assam. This petition was impleaded with two
separate petitions by Assam Sanmilita Mahasangha (ASM) and the All
Assam Ahom Association (AAAA), filed in 2012 and 2014, respectively.
The ASM is a Guwahati-​based organization that was formed in 2007 at
the Talatal Ghar premises, the Rajdarbar of the Ahom kingdom in the
present Sibsagar district. Matiur Rahman, the working president of ASM
describes the organization as a ‘confederation of 90 indigenous organ-
isations of the state representing diverse ethnic communities living from
time immemorial in the state’, formed to protect the rights of the indig-
enous people living in Assam.9 The AAAA, an organization whose ori-
gins go far back into the early Twentieth Century, has been described as
having a history of participation in the anti-​colonial movement and a

9 Sangeeta Barooah Pisharoty, ‘Interview: August 31st NRC Can’t Be Final Without

Constitutional Bench Verdict’, The Wire, 3 September 2019.

 Hyphenated Citizenship 43
sustained commitment towards ‘the restoration of the rightful place of
the Ahoms in independent India’.10
The three writ petitions by APW, ASM, and AAAA raised a common
concern—​the constitutionality of Section 6A of the Citizenship Act in-
serted by CAA 1985—​which they argued, promoted indiscriminate in-
flux into the state, and put the security of the state and its people at risk.
The petitions focused on that part of section 6A which granted Indian cit-
izenship to Bangladeshis who had entered Assam before 1 January 1966
and between 1 January 1966 and 24 March 1971. This, they argued, gave
a large number of illegal migrants the benefit of Indian citizenship, either
immediately—​for those who had migrated before 1 January 1966 or de-
ferred—​for those who had migrated after this date but before 25 March
1971. The ASM had petitioned the Supreme Court in 2012 with a pri-
mary concern for the protection of the rights of indigenous people and
sought direction from the Supreme Court for the implementation of the
provisions of the UNDRIP (United Nations Declaration on the Rights
of Indigenous People). It also challenged the exclusive citizenship cut-​
off date of 24 March 1971 for being against the Assam Accord in which,
according to it, 1 January 1966 was identified as the ‘base year’ for the
identification of non-​citizens. There was no mention in the Accord that
an enumeration of citizens should be done by updating the 1951 NRC.
Indeed, the NRC was not mentioned as the mechanism to detect and de-
lete the names of foreigners at all. In its writ petition [WP (Civil) No. 562
of 2012] the ASM appealed to the Supreme Court to ‘order’ the Central
government and the government of Assam (henceforth, governments)
not to update the NRC in Assam by taking the electoral rolls till the mid-
night of 24 March 1971 as cut-​off, but treat 1951 as the base year to detect
and deport illegal immigrants from Assam.
The Supreme Court admitted the Writ Petitions by ASM, APW, and
AAAA on the grounds that they represented the interests of an entire
people—​the tribal and non-​tribal population—​of the state of Assam.
These interests, the judges observed, related to the protection of the
Assamese culture, but had larger ramifications for the sovereignty and

10 Romesh Buragohain, The All Assam Ahom Association and Ahom Politics of Surendranath

Buragohain, Proceedings of North East India History Association, Twenty Sixth Session (ed.),
Manorama Sharma, North-​Eastern Hill University, Shillong, 2004, 186.
44 Citizenship Regimes, Law, and Belonging
integrity of the country as a whole. In its judgment delivered on 17
December 2014, Justice Ranjan Gogoi and Justice Rohinton Nariman left
the question of the constitutional validity of section 6A (3) and (4) of the
Citizenship Act, particularly its compatibility with the citizenship provi-
sions in the Constitution, in prescribing for Assam a cut-​off date which
deviated from Article 6 of the Constitution, to be decided by a constitu-
tional bench.11 A substantial part of the text of the judgement focused on
the historical contexts in which the need to protect the interests of Assam
assumed importance. Tracing the different constitutional, political and
legal signposts through which the citizenship question became significant
in Assam, the judgement flagged the ceding of Assam by the Burmese to
the British in 1826 under the treaty of Yandabo—​the point at which the
rule of the Ahoms came to an end and Assam became an administrative
unit of Bengal—​as a critical moment in this history. The judgement cited
the 1931 report of the Census Superintendent C. S. Mullan, to emphasize
the significance of this event:

Probably the most important event in the province during the last
25 years—​an event, moreover, which seems likely to alter permanently
the whole feature of Assam and to destroy the whole structure of Assamese
culture and civilization has been the invasion of a vast horde of land-​
hungry immigrants mostly Muslims, from the districts of East Bengal. . . .
wheresoever the carcass, there the vultures will gathered together.
(Judgement, Assam Sanmilita Mahasangha & Others vs. Union of India
& Others, 17 December 2014, para. 2, emphasis added)

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 dis-
cursive practices that have attributed illegality to the movement of people
across the eastern borders. In this context, while the Foreigners Act 1946
has been the primary law invoked for the detection and expulsion of for-
eigners, it is the Immigrants (Expulsion from Assam) Act 1950, which
has been foregrounded by those stressing the protection of the cultural

11 Judgment delivered by Justice Ranjan Gogoi and R. F. Nariman on 17 December 2014 in the

case Assam Sanmilita Mahasangha and Others vs. Union of India and others [Writ Petition (Civil)
No. 562 of 2012].
 Hyphenated Citizenship 45
identity of Assam. The Foreigners Act is applicable to the entire country
and does not make a distinction on any grounds among ‘foreigners’ for
detection and expulsion. The Immigrants (Expulsion from Assam) Act
1950, comes with the specific objective of protecting the indigenous in-
habitants of Assam from what the statement of objects and reasons of the
Act calls ‘. . . a serious situation [that] had arisen from the immigration of
a very large number of East Bengal residents into Assam. . . disturbing the
economy of the province, besides giving rise to a serious law and order
problem’. The Act empowered the Central government to order the ex-
pulsion of ‘any person or class of persons’ who had been ordinarily the
residents of places outside India but were residing in Assam before or
after the Act came into effect, and their ‘stay’ in Assam was construed
‘detrimental to the interests of the general public of India or of any section
thereof or of any Scheduled Tribe in Assam’. While enabling the govern-
ment to expel such persons, the Act made an important exemption. The
provisions of the Act did not apply to a person ‘displaced’ from ‘any area
now forming part of Pakistan’, who had ‘left his place of residence’ due
to ‘civil disturbance’ and had ‘been subsequently residing in Assam’. The
Assam Accord, the amendment in the Citizenship Act in pursuance of
the Accord, and the Supreme Court judgment in Sarbananda Sonowal
vs. Union of India (2005) were all cited in the judgement as significant
developments through which the trajectory of citizenship in Assam had
taken shape.
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 fol-
lowing 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.12 The second, that is, the evaluation
of the implementation of the Assam accord, ironically, led to a Supreme

12 A five-​judge Bench of the Supreme Court headed by Justice Madan B. Lokur was set up to

examine the constitutionality of Section 6A. The bench held its hearing on 19 April 2017 but
was dissolved when Justice P. C. Pant retired in August 2017. Faizan Mustafa, ‘Who is an Indian
Citizen? How is it Defined? Explained’, Indian Express, 29 September 2019.
46 Citizenship Regimes, Law, and Belonging
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.
The judges referred thirteen questions to the constitution bench, all of
which called for an interpretation of the Constitution. These questions
pertained to the consistency of Section 6A of the Citizenship Act with
specific provisions of the Indian Constitution, especially those pertaining
to citizenship, the fundamental rights of Indian citizens protecting them
against discrimination by the state, and principles of rule of law that con-
strained those actions of the state which were arbitrary or were guided by
political expediency rather than ‘government according to law’. At the root
of these was the fundamental question pertaining to the scope of Articles
10 and 11 of the Constitution of India which empowered the Parliament
to make provisions for the ‘acquisition and termination of citizenship’, and
all other matters pertaining to citizenship, including the continuation of
citizenship under the constitutional provisions laid down in Articles 5 to
9. This question assumed significance, because in the exercise of its legis-
lative powers over matters concerning citizenship as laid down in Article
11 of the Constitution, the Parliament inserted exceptional provisions for
citizenship in Assam to specify a cut-​off date—​24 March 1971—​which
was different from the constitutional deadline for citizenship identified
in Article 6 of the Constitution—​19 July 1948. The legislative competence
of the Parliament over matters of citizenship and the constitutional con-
straints over its law-​making powers under Article 368 were, therefore,
put under scrutiny. Section 6A was subjected to judicial scrutiny also for
possible violations of other Articles of the Constitution: Articles 325 and
326 of the Constitution of India which provided universal adult suffrage
and the right to be placed on the electoral rolls—​for its dilution in the case
of Assam; Article 29(1) of the Constitution which assured cultural rights
to communities residing in any part of territory of India: for the purpose
of this scrutiny the scope of Article 29(1) as well as the meanings of its
content, such as, ‘culture’ and ‘conserve’, were to be ascertained; Article
 Hyphenated Citizenship 47
355 of the Constitution pertaining to the duty of the Union to protect the
states against ‘external aggression’ and ‘internal disturbance’: in this con-
text the judges posed the questions—​whether an influx of illegal migrants
into a state of India constituted ‘external aggression’ and/​or ‘internal dis-
turbance’ and whether the expression ‘state’ occurring in Article 355 re-
ferred to a territorial region or included the people living in the state. If it
was also the people, would the expression then also include their culture
and identity; Article 14 of the Constitution for ‘singling out’ Assam from
other border states, which would comprise a ‘distinct class’ for the ap-
plication of exceptional measures: the question being asked in this case
was—​did the ‘isolation’ of Assam and the prescription of a separate cut-​
off date amount to discrimination; Article 21—​the right to life and per-
sonal liberty of the people of Assam—​and whether this right was affected
by the ‘massive influx of illegal migrants from Bangladesh’ (Judgement,
Assam Sanmilita Mahasangha 2014, para. 33).
While the above questions pertaining to the constitutional validity of
Section 6A of the Citizenship Act began with the acknowledgement by
the court of the presence of large numbers of illegal migrants in Assam,
question eight in the list wondered if there was a possibility of ‘any relief ’
to these ‘large number of migrants from East Pakistan’ who had enjoyed
‘rights as Citizens of India for over 40 years’; Question nine raised the
possibility of Section 6A being contradictory to other provisions of the
citizenship Act and the Constitution of India by conferring dual citizen-
ship to persons who had not lost the citizenship of East Pakistan (now
Bangladesh) by making them ‘deemed Citizens of India’ in violation of
Sections 5(1) and 5(2) of the Citizenship Act, in permitting them to be-
come citizens of India ‘without any reciprocity from Bangladesh and
without taking the oath of allegiance to the Indian Constitution’; the
possibility of the application of Immigrants (Expulsion from Assam)
Act 1950, which was a special law brought for the specific purpose of
curtailing immigration from East Pakistan into Assam, instead of the
Foreigners Act and the Foreigners (Tribunals) Order 1964, which were
applicable to the entire country.
Examining the rest of the petition, the judges decided that the legal
modalities for conferring citizenship to resolve the ‘foreigner’s question’
was only a part of the Assam Accord. The other and equally substantial
components of the accord consisted in securing the international border
48 Citizenship Regimes, Law, and Belonging
against future ‘infiltration’ and the ‘preservation of Assamese culture and
identity’. In October 2006, the government of Assam had constituted a
Committee of Ministers to examine the implementation of the Assam
Accord and the complex task of defining the ‘Assamese people’. The com-
mittee met with political parties, literary bodies, and student groups
to deliberate on an appropriate definition. In July 2011, a Cabinet Sub-​
Committee was constituted by the Central government to examine the
question. Leaving it to the government and the Assamese people to de-
liberate and decide on what constituted Assamese culture, the Supreme
Court concentrated on issuing specific directions to the central and state
governments under Article 142 of the Constitution of India. Article 142
of the Constitution empowers the Supreme Court to pass an order ‘for
doing complete justice in any cause or matter pending before it’ (emphasis
added). Such an order is enforceable throughout the territory of India
in a way that may be laid down by a law of Parliament and in its absence
by a Presidential Order. In the exercise of its powers under Article 142,
the Supreme Court issued three directions to the Central government
and the government of Assam: the fortification and surveillance of the
eastern border including Assam, the reinforcement of the Foreigners
Tribunals in Assam, and the augmentation of the process of identifica-
tion and expulsion of ‘declared illegal migrants’. The fortification of the
India-​Bangladesh border through double-​coil fencing, building roads
along the border, and continuous patrolling, especially in the riverine and
other vulnerable areas, was in line with the Supreme Court judgment in
Sarbananda Sonowal case in 2005 in which illegal entry into Indian ter-
ritory was construed as an act of aggression. This placed a corresponding
responsibility on the state to protect its territory, and the Supreme Court
decided to monitor the progress made in this direction by the govern-
ment, by preparing a roadmap for its completion.13
The court, however, concerned itself also with securing the territory
‘internally’ by expediting the process of sieving out foreigners. To this
end, it asked the Gauhati High Court to hasten the process of selection
of chairpersons and members of the Foreigners Tribunals to ensure that
they became operational. The Chief Justice of the Gauhati High Court

13 In May 2015, the court appointed a court commissioner to visit the border areas to study

and report the progress made.

 Hyphenated Citizenship 49
was to monitor the tribunals by constituting a special bench to oversee
their progress. The Central government was asked to streamline the pro-
cess of deportation of illegal migrants after discussions with the govern-
ment of Bangladesh, and to place the outcome of these discussions before
the court:

While taking note of the existing mechanism/​procedure for deporta-

tion keeping in view the requirements of international protocol, we
direct the Union of India to enter into necessary discussions with the
Government of Bangladesh to streamline the procedure of deporta-
tion. The result of the said exercise be laid before the Court on the next
date fixed. The implementation of the aforesaid directions will be moni-
tored by this Court on the expiry of three months from today. In the
event it becomes so necessary, the Court will entrust such monitoring
to be undertaken by an empowered committee which will be consti-
tuted by this Court, if and when required. (Judgement, Assam Sanmilita
Mahasangha, 2014, para. 47)

Referring specifically to the petition by Assam Public Works (Writ

Petition (C) No. 274/​2009), the judges laid down a time schedule for
updating the NRC by the end of January 2016. Significantly, the pre-
liminary procedures for preparation of the NRC had already been ini-
tiated under an order of the Supreme Court delivered on 27 November
2015. In its administrative guidelines, the Supreme Court followed its
decision in Sarbananda Sonowal (2005) in construing the ‘influx of il-
legal 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
Assamese people from outsiders. To this end, it directed the attention of
the larger bench of the Supreme Court which would examine the consti-
tutional 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. For its part, by prescribing a deadline for updating the NRC,
the court reinforced the responsibility of expulsion of foreigners from
Assam on the Central and state government, by a modality that was not
mentioned in the Accord.
50 Citizenship Regimes, Law, and Belonging
The second set of petitions filed by the NGOs Swajan and Bimalangshu
Roy Foundation in 2012 in the Supreme Court also questioned the con-
stitutional validity of Section 6A. The set of petitions submitted by Swajan
and Bimalangshu Roy Foundation focused, however, on that part of sec-
tion 6A, which treated all Bangladeshi migrants who had entered Assam
after 24 March 1971 as illegal and required that they be deported by the
state. The petitioners lamented the clubbing of all such migrants as illegal
and asked that a distinction be made between illegal migrants and dis-
placed persons, who they identified as Hindu, and other minority groups
fleeing Bangladesh to escape religious persecution. Displaced persons,
they pleaded, must not be bracketed with illegal migrants to be slotted
for deportation. Pointing out the protection given to displaced persons in
Section 2 of the Immigrants (Expulsion from Assam) Act 1950, the peti-
tioners asked that displaced persons should constitute a distinct category
for legal protection, and that Hindus seeking shelter in Assam should be
given citizenship on the same grounds that they were given in Gujarat
and Rajasthan between 2004 and 2007.14 This petition was joined in 2014
by the Joint Action Committee for Bengali Refugees (JACBR). JACBR
sought direction from the Supreme Court to the Central government and
the government of Assam ‘not to expel/​push-​back the displaced persons
belonging to minority communities of Bangladesh, who had been forced
to take shelter in various parts of Assam’ and to ensure that they were ‘not
harassed and enjoyed basic human rights and reasonable living condi-
tions, including access to courts, facility of primary education, of resi-
dence, permission to work and to travel, and also to protect their life and
liberty’. The JACBR had been mobilizing groups around their demand
of full and unconditional citizenship for displaced persons and con-
sidered the CAA 2003 deleterious for their rights. Sukriti Ranjan Biswas,
a Namasudra community leader and president of the JACBR, pointed out
that CAA 2003 turned all refugees into ‘illegal migrants’. By constraining
citizenship by birth it ‘disenfranchised their children born on Indian soil’,
and Section 14(a), inserted by CAA 2003, ‘nationalised the process of
mandatory registration of citizens’ (Chatterjee 2020).

14 ‘Bengali Hindu Refugees: Supreme Court Fixes April 7 for Final Hearing’, The Sentinel, 31

May 2016.
 Hyphenated Citizenship 51
On 5 December 2013, while the petition challenging 6A by ASM,
APW, and AAAA was still being heard, the Ministry of Home Affairs
(MHA) issued a notification on updating the NRC.15 The AAAA, which
was one of the three petitioners, filed another petition on 27 July 2014
in the Supreme Court of India challenging Rule 4A of the Citizenship
Rules 2003 and the notification issued by the MHA under its provisions
(WP(Civil)130 of 2014). This petition, filed about five months before the
Supreme Court delivered its judgement in ASM and others, which dir-
ected the Central government to update the NRC, requested the Supreme
Court to stay the process of updating the NRC in Assam. The AAAA
challenged Rule 4A of the Citizenship Rules and the notification on the
grounds that they went against Articles 14, 21, and 29 of the Constitution
of India. The petitioners submitted that the updated NRC would allow
the registration of large numbers of ‘illegal migrant populations’ from
Bangladesh in the NRC as Indian citizens, making it impossible to re-
move them from Assam in the future. Citizenship would also retrospec-
tively validate their occupation of land and acquisition of property rights
in the state, which were otherwise illegal in their capacity as non-​citizens.
[Filed by Somiran Sharma, advocate for the petitioners on 28 July 2014,
copy with the author.]
Following the Supreme Court decision in the case of Assam Sanmilita
Mahasangha and others, concerns around a legal affirmation of the cit-
izenship of illegal migrants through the NRC took the route of various
petitions. The petition by AAAA discussed earlier was an attempt to halt
the process of preparation of NRC in Assam by seeking a stay on the gov-
ernment notification initiating the process. Another petition was sub-
mitted to the Supreme Court after the process had begun, which raised
the concern that children of illegal migrants who had entered Assam
after 25 March 1971, might become citizens of India by birth (Deepak

15 Following the sub-​rule 3 of the Citizenship Rules 2003 which require that the Registrar

General of Citizen Registration ‘shall notify the period and duration of the enumeration in the of-
ficial gazette’, the notification issued by the MHA stated the following: And Whereas the Central
Government has decided to update the NRC in Assam; Now pursuant to the provisions of sub
rule (3) of rule 4A of the Citizenship (Registration of Indian Citizens and the Issue of National
Identity Cards) Rules 2003, the Registrar General of Citizens Registration hereby notifies that
the enumeration in respect to the State of Assam shall take place from the date of publication of
this notification and shall be completed within a period of three years [F.N.9/​5/​2009-​CRD(NPR)
Vol. V issued by C. Chandramouli, Registrar General of Citizens Registration—​5219/​GI/​2013].
52 Citizenship Regimes, Law, and Belonging
Kumar Nath vs. Union of India, WP (Civil) no. 311/​2015). The peti-
tion contested the constitutionality of section 3 of the Citizenship Act
pertaining to citizenship by birth, as amended in 1986 and 2003. The
petitioner intervened in the Assam Sanmilita Mahasangha and Others
vs. Union of India case before the larger bench of the Supreme Court
which was to decide on the constitutional questions around section
6A of the Citizenship Act. The petitioners premised their plea on what
they presented as an absence of clarification and disregard of ‘inter-
vening facts’ in the notification ordering the ‘updation of the NRC’.
Since this process was being undertaken thirty years after the signing
of the Assam Accord and forty-​four years after the prescribed cut-​off
date in Section 6A of the Citizenship Act 1955, the ‘intervening facts’
regarding the citizenship of the descendants of large numbers of ‘il-
legal migrants’ in the state had, according to the petitioners, become
the single most important issue in the ‘updation’ of NRC: ‘. . . illegal
migrants constituted in the state-around 20% of the state population
and it is the children born to such illegal migrants and their citizen-
ship status on which no clarification is forthcoming’. To support their
argument, the petitioners cited the 17 December 2014 judgment of the
Supreme Court in Assam Sanmilita Mahasangha and Others vs. Union
of India which referred to the presence of 50 lakh illegal migrants in
Assam in 2001:

On 14th July 2004, in response to an unstarred question pertaining to

deportation of illegal Bangladeshi migrants, the Minister of State, Home
Affairs, submitted a statement to Parliament indicating therein that the
estimated number of illegal immigrants into India as on 31st December
was 1.20 crores out of which 50 lakhs were in Assam. (Judgement,
Assam Sanmilita Mahasangha and Others 2014, para. 16)

Noting that the 2001 National Census had placed the population of
Assam at 2.61 crores, 50 Lakhs illegal migrants would comprise 20 per
cent of the population of the state, the petitioners drew a connection
between the increase in state’s population because of an influx of illegal
migrants, the majority of whom were Muslims, and the increase in the
Muslim population in the state:
 Hyphenated Citizenship 53
It is an admitted fact that the number of migrants have since in-
creased due to continued influx and the census figures for 2011 show
that 34.23% of the population in 2011 were Muslims increasing from
30.9% in 2001. The illegal migrants being Muslims, rate of growth of
the Muslim population is benchmark of the rate of extent of the infil-
tration which has been referred to by this honourable court in its earlier
judgments in Sarbanand Sonowal and Assam Sanmilita. . . (Judgement,
Deepak Kumar Nath vs. Union of India WP (Civil) no. 311/​2015)

The petitioners pointed out the inconsistencies within the Citizenship

Act and the ‘curious situation’ that had emerged in Assam as a conse-
quence: Section 6A applicable to Assam granted citizenship to migrants
coming into the state only up to 25 March 1971 but Section 3 which lay
down the citizenship by birth provisions permitted the grant of citizenship
‘unconditionally’ to those born in India between 26 January 1950 to 1 July
1987, and to those born up to 3 December 2003, ‘even if ’ only one of the
parents was an Indian citizen. Arguing that Section 3 cannot be construed
‘to confer a right to citizenship by birth’ to children of illegal migrants,
the applicants referred to the ‘cloud of suspicion’, and ‘a growing tension
in the air’, generated mostly by political parties that children of illegal mi-
grants would be entitled for registration in the NRC under Section 3 of
the Citizenship Act. Appealing to the court to confirm that the expression
‘every person born in India’ in Section 3 refers only to children of Indian
citizens and of foreigners who are not illegal migrants, the petitioners con-
sidered it the statutory duty of the state to ‘detect and deport’ them. To
ensure that the NRC did not include the children of illegal migrants who
would claim citizenship by birth under section 3 of the Citizenship Act, the
petitioners asked that the consolidated list prepared by the Local Registrar
of Citizen Registration after verification should contain the names of per-
sons whose name appeared in any of the electoral rolls prior to the year
1971 or in National Register of Citizens 1951 and their descendants. They
requested that a list of descendants of illegal migrants who had migrated
after 25 March 1971 be prepared separately.
The arguments in the petition assume significance in affirming descent
as a principle of citizenship identity. Yet, the questions being raised in the
petition and the appeal to halt the preparation of NRC are important for
54 Citizenship Regimes, Law, and Belonging
understanding how the process was being understood in the specific con-
text of Assam. Unlike a National Register of Indian Citizens (NRIC) for
the entire country, which would be potentially an exercise in preparing
a register where no such register is in existence, in Assam the prepara-
tion was being referred to as an exercise of ‘updation’—​of building upon
a pre-​existing NRC of 1951. Yet, it was also being argued that the process
of updation was being framed erroneously as one of ‘identifying citizens’
instead of ‘identifying and deporting illegal migrants’ which had been
the understanding in the Assam Accord. It was this displacement of the
objective of ‘updation’ from what was mandated in the Assam Accord,
which made the NRC procedure deviate from the promise of the Accord
under Clause 5.8 which required that all foreigners who came to Assam
on or after 25 March 1971, ‘shall continue to be detected [and] deleted’
and Clause 10 of the Accord which required ‘all land under encroach-
ment to be cleared’.
The Supreme Court resolved the question of citizenship of children
born to illegal migrants on 13 August 2019, a couple of weeks before the
final NRC was published. The inconsistency within the citizenship Act
between citizenship by birth and Assam specific provisions was implicitly
acknowledged by the judges as they prioritized the principle of descent
rather than birth in addressing the question of citizenship of descendants
of illegal migrants in updating the NRC. In an earlier order of 2 July 2018
the Supreme Court had issued directions that the names of both—​per-
sons who had been identified as Doubtful Voters (DVs) or whose cases
were pending before foreigners’ tribunals (PFTs) and their descendants—​
could not to be included in the updated NRC. A report was subsequently
submitted by Prateek Hajela, then NRC Coordinator, to the court on 10
July 2019 with recommendations laying down a framework that took
into consideration the citizenship of the parent from whom legacy was
being traced and the constraints on citizenship by birth inserted through
amendments in 1986 and 2003. Accordingly, the eligibility of the ‘des-
cendants’ would be guided by the following principle, stated in Hajela’s
report:

. . . . while deciding eligibility of descendants, provisions of Section 3(1)

(b) & (c) of the Citizenship Act, 1955 may be important to be taken
into account, though citizenship purely by birth and not by descendance
 Hyphenated Citizenship 55
(Section 3(1)(a)) is not eligible for inclusion in NRC. It is humbly felt that
the substance of Section 3(1)(b) & (c) is that while determining citi-
zenship of any descendant born up to 3 December, 2004, citizenship
eligibility of any one of the parents suffices, while for those descend-
ants born on or after 3 December 2004, citizenship eligibility of both the
parents needs to be taken into account.16

Accordingly, the course of action suggested in the report was as follows:

From a conjoint reading of Hon’ble Supreme Court’s order dated 2

July 2018 and the provisions contained in Section 3(1)(b) & (c) of the
Citizenship Act, 1955, the following appears to be the best course of
action:
a. For any NRC Applications/​Claimants, if parent/​legacy person
through whom eligibility is sought to be established is a DV or DF or
PFT, then such persons will not be included in NRC irrespective of the
status of the other parent.
b. For those persons born before 3 December 2004, if the parent
through whom legacy is drawn is not DV or DF or PFT and is found
eligible for inclusion in NRC, but the other parent from whom legacy
is not drawn is a DV or DF or PFT, then, such descendants may be in-
cluded in NRC.
c. For those persons who are born on or after 3 December 2004, they
will not be included in NRC if any of the parents is DV or DF or PFT
even if the parent from whom legacy is drawn is clear from all angles.17

It must be noted that in the course of monitoring the preparation of the

NRC, a Supreme Court bench consisting of Justice Ranjan Gogoi and
Rohinton Nariman handed out orders regularly to address and resolve
contests over definitions of particular categories. The State Coordinator
of NRC for Assam, Prateek Hajela was often reporting and appearing
before the court. In this instance, the court had ‘ordered’ the NRC co-
ordinator to issue a public notice to invite ‘contests’ to the proposals in

16 Judgement, Assam Public Works vs. Union of India, 13 August 2019 (WP (Civil) No. 274

of 2009).
17 Ibid.
56 Citizenship Regimes, Law, and Belonging
his report by ‘stakeholders’, which would be taken up in the court. The
judges decided to go with the course of action suggested by the NRC co-
ordinator finding it ‘infeasible’ to order new modalities of preparation of
the NRC:

The entire NRC exercise having been performed on the aforesaid basis,
the same cannot be now ordered to be reopened by initiation of a fresh
exercise on certain other parameters that have been suggested on be-
half of the intervenors/​applicants on the strength of the provisions of
Section 3(1)(a) of the Act.18

Hajela’s proposals had been contested by Interlocutory Applications on

the ground that they contradicted the provisions of Section 3(1)(a) of the
Citizenship Act 1955 under which ‘every person’ born in India on or after
26 January 1950 but before 1 July 1987, would be a citizen of India. In its
order, the judges noted that the ‘purport and effect’ of the provisions of
Section 3(1)(a) and (b) was already before the Constitution Bench of the
Supreme Court in Writ Petition (Civil) No. 311 of 2015, where the ex-
pression ‘every person born in India’ was being examined.
The adjudicatory regime of citizenship in Assam can be seen as having
two trajectories. The ‘illegal migrant’ figures centrally in both these trajec-
tories. One of these can be traced to the Sarbananda Sonowal judgement,
which continues to provide the referential frameworks for citizenship
in the state. Not only did the judgement structure the discursive field in
which the illegal migrant figured as a legal category, it provided the im-
perative for an emphatic display of the sovereign power of the state in
buttressing the territory against border transgressions. A second trajec-
tory emerges as a recursive field structured around the Assam Accord so
that the legal framing of the illegal migrant would be validated or found
wanting with reference to the accord. The NRC traversed both trajec-
tories as the Supreme Court in ASM judgment ‘recalled’ its judgement
in Sarbananda Sonowal case to reinforce the logic of the security state.
The NRC as an outcome of the ASM judgement has continually been
tested against the Assam Accord. There has also been, however, an al-
ternative trajectory where the exceptional citizenship provisions for

18 Ibid.
 Hyphenated Citizenship 57
Assam—​reflecting the agreement reached through the Assam Accord—​
have been contested to erase the exceptions for Assam in the citizenship
Act to go back to the 1951 NRC as the source of Assamese legacy.

Documentary Regime

It is the middle of March in 2016. Guwahati is dusty and just about getting
warm. The dates for Assembly polls in Assam have been announced and
the Model Code of Conduct regulating electoral competition is in place.
Speculations around the fate of the ruling Congress party, whose Chief
Minister Tarun Gogoi was seeking re-​election for a fourth term, and the
BJP’s prospects of reversing its fortunes in the state in an alliance with the
AGP, are rife. The election campaign is, however, still tepid. Driving down
the Guwahati–​Shillong Road to the NRC office, a gigantic poster of JNU
Students Union President Kanhaiya Kumar behind bars, painted across
almost the entire front of an abandoned flour mill asks, ‘have achche din
come?’ (Have the good days [as promised by the BJP], come?). The poster
invokes the possibility of a political culture that was grounded in ques-
tions of constitutionalism and rule of law. Yet, quite like the façade of the
abandoned building that it served, the poster occluded the simmering
desire within the state for aspirational citizenship embedded in the con-
tinuum of Assamese identity. This continuum has made itself manifest
along two overlapping axes of political and cultural identities—​with the
resolution being sought in one case through the ‘updation’ of the NRC
and in the other through the establishment of successive committees that
would determine what constitutes an authentic Assamese identity in pur-
suit of the provisions of Clause 6 of the Assam Accord. The foreigner’s
question, which became integral to the Assam movement in the 1980s,
has persisted. Its resolution was, however, no longer being sought in
the violent elimination of the non-​Assamese outsider, but through a
political consensus on identifying those who belong through legal and
bureaucratic intervention. It is towards this end that Assam saw an un-
precedented and exceptional exercise of identifying ‘citizens’ to prepare a
National Register of Citizens for the state of Assam. My visit to Guwahati
took place in March 2016, a few weeks before the State Assembly election
in April, which saw the ouster of the 15 years long Congress rule in the
58 Citizenship Regimes, Law, and Belonging
state, and the installation of a BJP government with Sarbananda Sonowal
as the Chief Minister.
‘It is a register of Indian citizens’, an eminent journalist from Assam,
who has written extensively on the preparation of the NRC, corrects
me, when I ask him about the preparation of the NRC for Assamese cit-
izens. The register being prepared in Assam is indeed of Indian citizens.
But the pedigree of Indian citizenship is traced to an Assamese legacy,
which makes the NRC in Assam a register of Assamese-​Indian citizens or
Indian citizens who have an Assamese origin. The identification of Indian
citizens simultaneously as Assamese recognizes a hyphenated citizen-
ship, hitherto not found in the legal vocabulary of citizenship in India.
Significantly, the harmonization of what was a conflicting relationship
in the 1980s has been achieved by marking out the illegal alien (‘Bengali
speaking, Muslim, Bangladeshi infiltrator’), as the constituent other. The
conceptual apparatus of citizenship summoned by the components of
the hyphenated citizen—​‘Indian’ and ‘Assamese’—​iron out the multiple
layers and corresponding contestations within each.
The auto driver waxes eloquent on the prospects of the BJP in the
coming election. As for the NRC, he felt fortunate for having been able
to muster the documents required to trace his Assamese legacy through
his grandfather to the 1951 NRC, and through his mother’s refugee card
issued in 1962; his son’s birth certificate could be traced to him, and even-
tually to his Assamese legacy—​his grandparents. Three generations and
three identification registers, each testifying to and affirming his pedi-
gree as an Indian citizen in Assam. ‘What do you think—​is the NRC any
good?’, I persist, expecting him to raise a rant against it. He surprises me,
however: ‘It will be very beneficial. NRC is a good thing. It will stop those
coming from outside, and our future generations will live here through
our link. Hindus can also come and stay, but will not get any government
facilities’. Looking forward to the post-​NRC future, he is torn between
reminiscing about the trauma of the 1980s and the mass killing of Bengali
Muslims, and the closure that he now finds in the affirmation of his status
as a citizen, his Assamese legacy traced and confirmed through all pre-
scribed signposts.
The NRC in Assam works on the principle of tracing citizenship to a
legacy of Assamese descent going back to the 1951 NRC and to the next
signpost of 1971—​the ‘additional load’—​as Prateek Hajela called it, in
 Hyphenated Citizenship 59
an interaction with the author during this visit. The cab driver’s relief at
being able to produce the documents for identification and enumeration
in the NRC, was indicative of the promise the process held of bringing
closure to the burden of suspect citizenship Bengali speaking migrants
have carried. On the other hand, it also revealed affinity to a model of
citizenship in which the ‘crisis’ generated by migrants and aliens is re-
solved by prescribing terms of inclusion that are premised in a ‘solidarity
based model of citizenship’. Under these terms, being an Assamese was
ultimately about developing strong bonds of integration, marked by the
logic of closure.
Yet, the NRC was not only about integration and closure, or even the
recognition of an Assamese identity by descent or through the affirm-
ation of legal residence in Assam. It was equally about a humongous
bureaucratic exercise of identification and enumeration, of putting in
place efficient and effective identification regimes, and documentation
practices, often associated with the exercise of state power, and state-​for-
mative practices. A body of scholarship has established that such prac-
tices produce the structural effect of the state, whereby the state appears
to exist through palpable ruling practices. Fixing territorial boundaries
and making its inhabitants legible are important ingredients of state-
craft, which seek to make the citizen a stable and enumerable category,
amenable to specific governmental practices. Identification practices are
mechanisms through which the state builds enduring relationships with
its citizens (Torpey 2000). Passport regimes, for example, have histori-
cally embodied the imperative to monopolize the control over people’s
movements. Documents such as driving licenses, passports, voter ID
cards, ration cards, etc., are commonly used identification documents.
Yet, they are not primarily identity documents, but documents devised
to serve other purposes. Documents such as these, and now the Aadhaar
card, for example, establish identity to enable access to specific rights and
privileges, and also welfare benefits. The regimes of national Identity sys-
tems, enumerating entire populations of nation-​states, make these sys-
tems more comprehensive, and consequential. In recent years, digitalized
and biometric identification systems have made identification regimes
more efficient and more intrusive than the older paper-​based documen-
tation regimes, for their potential for surveillance of citizens. The di-
verse components of surveillance, viz., tools and technologies of survey,
60 Citizenship Regimes, Law, and Belonging
measurement, census, etc., have long been used for marking what lies
within the purview of the state’s powers of extraction and control, enhan-
cing, and entrenching its powers of revenue collection, garnering mili-
tary service, law enforcement, and policing. Over the years these tools
have become more sophisticated, specialized, and differentiated, and in-
creasingly more nebulous, which does not require the constant proximity
between the law enforcers and the people (Singh 2014, 42). It is indeed
possible to see the NRC as part of the continuing legacy of governmental
practices of the state, and its potential for surveillance and control.
Yet, the NRC regime is also a manifestation of citizenship practices
that seek to resolve the crisis in citizenship generated by the difficulties
states face in establishing and reinforcing the separation between citi-
zens and aliens. In his book on how illegal immigrants acquire citizen-
ship in developing countries, Kamal Sadiq posits that the idea that states
can make a separation between citizens and immigrants/​aliens is based
on the ‘distinguishability assumption’ (Sadiq 2009, 7)—​that states can al-
locate, distribute, and manage national citizenship by setting up a wall
between citizens and aliens. This assumption is, he argues, conceptually
blind to the role that documents play in bridging the gap between citi-
zens and foreigners. A more adequate conception for citizenship would
be ‘documentary citizenship’, which ‘emphasises the role that docu-
ments play in acquiring citizenship, whether the documents are legal
or not and whether the newly admitted citizen is a legal immigrant or
not’ (Sadiq 2009, 8). While making this argument, Sadiq challenges the
‘commonsense idea’ that citizenship can be acquired through an ‘orderly
immigration processes based on clear, legally specified criteria’. The idea
of ‘documentary citizenship’ put forward by Sadiq challenges ‘deeply
held beliefs about what citizenship is and how it functions’, and makes
the claims that documentary citizenship is as much a ‘normal path of le-
gally specified immigration’ and ‘provides a more empirically accurate
description of the actual citizenship practices in countries like India,
Pakistan and Malaysia’ (Sadiq 2009).
The documentary regime spawned by the NRC in Assam shows an in-
version in the relationship between documents and citizenship. Instead
of the assumption that one would possess certain documents only be-
cause one was a citizen, the NRC has made it possible to say that one is
a citizen on the authority of the documents one possesses. A citizenship
 Hyphenated Citizenship 61
regime founded on documents as ‘evidence of citizenship’ (Sadiq 2009),
relies on identification practices that activate the bureaucratic apparatus
of the state, which invokes a model of rationality based on efficiency and
procedural certainty, to elicit trust in the integrity of the model. Yet, the
NRC in Assam unleashed a process that produced estrangement and vul-
nerability among large sections of the people who sought insertion in the
register of citizens but were caught up in the legal and adjudicatory im-
broglio over the definition of categories and the uncertainty of outcome.
The political consensus around the NRC ultimately proved to be fragile.
It was fractured by the fraught history of the NRC, its imbrication in past
and contemporary electoral politics, and the overwhelming control of the
Supreme Court on the process of identification, all of which became ex-
acerbated with the introduction of the CAB by the BJP government in
July 2016.

Identification and Bureaucratic Rationality

Elaborating the complex modalities of updating the NRC, Commissioner,

and State Coordinator of NRC, Prateek Hajela foregrounds aspects of
the NRC, which are distinct from the political imperatives of tracing an
Assamese legacy.19 With a degree in Engineering from an Indian Institute
of Technology (IIT), Prateek Hajela professes a bureaucratic rationality,
which is propelled by the logic of efficiency, and driven by the objective
of developing a foolproof mechanism of identifying Indian citizens who
can give evidence of being a ‘legatee’. At the same time, since the efficiency
of the identification system depended on the active and willing participa-
tion of the people of Assam, the technical model had to be made accept-
able and comprehensible to the Assamese people as a whole. The question
of acceptability may be seen as distinct from comprehensibility, although
the two are consonant with each other. To be acceptable, a system needs
to be made familiar, which would, however, be possible only after con-
fidence was built. Indeed, in the sequence communicated by the NRC
Commissioner, generating trust for the NRC was the first essential step
before the actual process of enumeration could begin. Ajupi Baruah,

19 Conversation with Mr Prateek Hajela, NRC Headquarters, Guwahati, 18 March 2016.

62 Citizenship Regimes, Law, and Belonging
Project Manager with the NRC, described the process as akin to invoking
a sentiment—​of creating a frenzy—​which could then be channelled into
winning people’s trust, alleviating their apprehensions, and ensuring
their participation.20 The NRC hoardings and visual promos played in
cinema halls and television channels included Bihu songs and dances
around the NRC theme. Using familiar cultural tropes, these promotional
videos intended to build curiosity and subsequently anticipation, which
would translate into popular acceptance for the NRC, enabling collective
participation in a massive and complex exercise. Traditional dance forms
like the bihu were effective in communicating the message of the NRC
through the trope of a festive dance that is performed collectively. Indeed,
the NRC anthem sung by the popular Assamese singer Zubeen Garg (ac-
tual name, Jibon Borthakur), wove together pleasing visuals of plurality
and cultural diversity, promising the following:

We are the citizens of this country

NRC represents our each and every soul.
We hold each other’s hands
NRC gives courage in our hearts.
Our identity, security, rights,
Peace, progress, and unity together.
Rashtriya nagarik panthi
National Register of Citizens, NRC, NRC

The emotive appeal of the NRC anthem lay in the promise of citizenship
as a collective national political identity, juxtaposed on visuals affirming
an inclusive Assamese identity characterized by cultural plurality.
A leaflet issued by the State Coordinator NRC, Assam, invoked the spirit
of responsible participation, by reminding citizens of their civic role in
‘standing united and making the NRC a success story for us and our fu-
ture generations’.21
Once curiosity had been generated and anticipation built, the second
and more difficult step was to make people familiar with the complex

20 Conversation with Ajupi Baruah, NRC Headquarters, Guwahati, 18 March 2016.

21 ‘Updation of NRC in Assam’, NRC leaflet no. NRC Assam/​Leaflet/​L.D.PUBL-​APPLCN/​
2015. Emphasis added.
 Hyphenated Citizenship 63
procedures of application and verification. A range of strategies were
adopted by the office of the NRC in Assam to make the system compre-
hensible to people. These included educational videos and television
advertisements, newspaper advertisements, leaflets, pamphlets, and pos-
ters with illustrative examples of registration of a fictitious family, public
meetings, community-​level meetings, and gram sabhas, etc., to build,
as the NRC Commissioner expressed it, people’s ‘capacity’ to register
themselves.22
It may be recalled here, that the ASM’s petition before the Supreme
Court questioned the constitutional validity of the 1985 amendment and
consequently Section 6A of the Citizenship Act for being at variance with
Article 6 of the Constitution of India, in setting a chronological deadline
for Assam (24 March 1971) which was different from the constitutional
deadline. The court entrusted the question of validity to the constitu-
tional bench and confined itself to issuing instructions to the state gov-
ernment to expedite the process of updating the NRC for Assam and to
the Gauhati High Court to accelerate the process of identification of for-
eigners and illegal migrants. The entire process of preparation of the NRC
was to be monitored by the Supreme Court. The thumb rule for the iden-
tification of a citizen was to trace his or her pedigree to an ancestor who
had resided in Assam on or before the deadline of 24 March 1971, by re-
ferring to what the NRC called the ‘legacy data’. The data of the 1951 NRC
and the electoral rolls published in Assam up to 24 March 1971 cumula-
tively comprised the legacy data. Finding an ancestor in the legacy data to
whom a person could trace direct descent was the most common mode
of identification for inclusion in the NRC. Before the process of tracing
legacy could begin, the NRC office had to coordinate the compilation of
large and dispersed data of the 1951 NRC and the electoral rolls which
were available at district levels into one consolidated computerized data-
base. The statutory publication of the legacy data was done alongside the
launch of 2500 NRC Seva Kendras (NSKs) on 27 March 2015, marking
the inauguration of the process of updating the NRC. Spread across the
state, in districts, and clusters of villages, the NSKs housed the published
legacy data, provided access to the digital database, and also served as

22 See, Government of Assam, National Register of Citizens, http://​nrcas​sam.nic.in/​faq01.html

accessed on 14 May 2016.

64 Citizenship Regimes, Law, and Belonging
application receiving centres. The legacy data was also available online to
facilitate the search. Having searched an ancestor, the computerized da-
tabase assigned a unique code—​the Unique Legacy Data Code—​to each
record. The Unique Legacy Data Code was an 11 digit number, which
was issued to an applicant, giving a numerical code to link up with an an-
cestor in the legacy data. The applicant quoted the legacy data code at the
time of submission, and while the legacy code became the basis for the
verification of the applicant’s claims, it also linked him or her to others
who would have the same code because of ‘common ancestry’. Apart from
obtaining the legacy trace through the legacy data code, the applicants
furnished a number of prescribed ‘linkage documents’ to establish eligi-
bility for inclusion in the updated NRC. Linkage documents established
connections with the ancestor appearing in the legacy data and included
documents, which carried the names of both the ancestor and applicant.23
Apart from those who could trace their legacy to the 1951 NRC, there
were other categories of persons eligible for inclusion, namely, those
who came to Assam on or after 1 January 1966 but before 25 March
1971, and had registered themselves with the Foreigners Registration
Regional Office (FRRO) and had not been identified as illegal migrants
or foreigners. The ‘original inhabitants’ of Assam and their descendants,
whose citizenship could be ascertained by the registering authority, were
another category. Subsequent Supreme Court orders permitted Indian
citizens and their children and descendants who moved to Assam after
24 March 1971 to apply for inclusion, if they could furnish evidence that
they were resident in any part of the country outside Assam on 24 March
1971. The project officer with the NRC clarified that in the absence of
any proof of residence, and no legacy data code, original inhabitants like
the Karbis could be registered without documents, through the affirm-
ation of their status by what was called a ‘speaking order’. Through such

23 According to the NRC website, the following documents were admissible: birth certificate,

land documents, pan card, board university exam certificate, bank, LIC policy, Post Office docu-
ments, GP Secretary certificate, electoral roll, etc. In case an ancestors name was not found in the
legacy data, application for inclusion could be made for inclusion in the NRC by providing any
of the other admissible documents issued before 24 March 1971 (midnight), namely (i) land and
tenancy records; (ii) citizenship certificate; (iii) permanent residential certificate; (iv) refugee
registration certificate; (v) passport; (vi) LIC policy; (vii) Government-​issued license/​certificate;
(viii) government service/​employment certificate; (ix) Bank/​post office accounts; (x) birth cer-
tificate; (xi) Board/​university educational certificate; (xii) court records/​processes. See http://
nrcas​sam.nic.in (accessed 14 March 2016).
 Hyphenated Citizenship 65
an order, the Local Registrar of Citizen Registration (LRCR) could cer-
tify that even though they possessed no documents, on the basis of their
language, food, clothes etc., it could be assumed that they were ‘original
inhabitants’ of the state.
After the publication of the legacy data and the launch of the NSKs,
the process of actual application began. The forms were distributed to
the public at their houses but could also be downloaded from the web-
site. Photocopies of the forms could be used as well. It was the head of
the family who was expected to apply for the entire family, including the
daughters. All members of the family residing in Assam or outside it, in
any other part of the country or abroad, had to be included in the appli-
cation. In the case of institutional homes, like orphanages, old age homes,
asylums, etc., the head of the institution could apply for the inmates.24
Photocopies of all documents, showing the names of the persons in the
family who figure in the legacy data, and additional linkage documents
showing relationship with the ancestor in the legacy document were sub-
mitted at NSKs designated for particular localities, whose officials would
be responsible for conducting the physical verification of the details by
visiting the addresses mentioned in the form.
At the time of my visit, the process of updating the NRC was at the
stage of verification of 68.33 Lakh application forms which had been re-
ceived, along with the 5 Crore supporting documents.25 Verification
was being done as per the provisions of the Citizenship (Registration of
Citizens and Issue of Identity Cards) Rules 2003, which consisted of two
parts—​office verification and field verification. Office verification en-
tailed the scanned and uploaded copies of all the documents being sent
to the issuing authority to confirm whether the document was in fact is-
sued by it and whether the details in the document corresponded with
the records that existed with the issuing authority. If official verification
was intended to weed out forged documents, field verification consisted
of house-​to-​house visits by the verification team intended to check iden-
tity proof, verify submitted documents for validity and establishment
of the relationship, and collect details of the ‘family tree’ (list of family

24 NRC, Leaflet on application form receipt, filing, and application, 2015 (not numbered).
25 NRC, Leaflet on verification of NRC application forms and family tree detail submission for
an error-​free NRC, Leaflet no. NRC Assam/​leaflet/​verification-​1/​2015.
66 Citizenship Regimes, Law, and Belonging
members) to match the detail with those submitted by various applicants
across Assam. Matching the family tree submitted by applicants with the
one generated by the computer software on the basis of forms received
was designed to detect false claims.26 The family tree was an innovation
where the authenticity of claims to residence and citizenship were ex-
pected to be affirmed through the kinship network. A family tree form
was filled up by the visiting team from the information given by the ap-
plicant in the form and to the visiting team. This ‘manual family tree’ was
checked against the computer software generated family tree carrying the
details of all the persons who had claimed to be children or grandchildren
of the same legacy person.27

Kheli Meli: Estrangement, Documents, and Legacy

‘NRC Ulaigol’, a Bihu video in the music album ‘Taxi Driver Bihu’ pre-
sents a satire on the NRC. Lyrics saying that NRC will make the ‘bidexi’
(foreigners) ‘swadexi’ (nationals), with a visual elaboration of the for-
eigner and the citizen, the video strings together clips showing who
benefited from the NRC and who lost.28 The lyrics translated from the
Assamese are:

NRC emerged, what happened, what happened

O foreigners became nationals;
The kings and emperors smiled
We only had to lose some money. . . Some touts became rich. . .
The village headman’s brother became rich. . .
The photographers have increased their business . . .
When NRC emerged, they came, they came;
The sisters who eloped, they came . . . The brothers who live afar,
they came...
It is very good, very good, that NRC emerged
O friend, the relation between two families remained. . .

26 Ibid.
27 Ibid.
28 The link to this Bihu song video is https://​www.yout​ube.com/​watch?v=​w_​5w​AFty​acc (ac-

cessed on 17 May 2016).

 Hyphenated Citizenship 67
The video captures the social perception of the manner in which the
documentary regime set in motion by the NRC involved middlemen
and the exchange of money in which the people had to spend money
to procure documents. Simultaneously, with the family becoming in-
tegral to proving ‘legacy’, all those who had become strangers or were
estranged ‘returned’ to the fold. As discussed before, the NRC in Assam
was prepared by inviting applications from all residents with documents
that established their Indian citizenship traced to an Assamese legacy.
The list of ‘admissible documents’ were segregated in two. List A con-
sisted of those documents issued before the midnight of 24 March 1971
which provided proof of residence in Assam for ‘self ’ or ‘ancestor’ up to
midnight of 24 March 1971. List B consisted of ‘link documents’ which
would establish lineage with an ‘ancestor’ in List A. List A included
the 1951 NRC and the electoral rolls up to the midnight of 24 March
1971 as well as specific ‘public documents’ issued by the government.
These ‘public documents’ were land or tenancy records, citizenship cer-
tificate, permanent resident certificate, refugee registration certificate,
passport, any license, or certificate issued by the government, govern-
ment service employment certificate, bank/​post office accounts, birth
certificate, board/​university educational certificate, and court records/​
processes. A person possessing any one of these documents with his or
her name on it could establish through them his/​her claim to be part
of the NRC. Two other documents—​Circle Officer/​Gaon Panchayat
(GP) Secretary Certificate in respect of married women migrating after
marriage, which could be of any year before or after 24 March (mid-
night) 1971 and Ration Card issued up to the midnight of 24 March
1971 could be presented as supporting documents. These could be ac-
cepted as evidence only if accompanied by any one of the documents
in List A. In case the name in any of the documents of List A was not of
the applicant himself/​herself but that of an ancestor, the applicant had
to submit a document mentioned in List B to establish a relationship
with an ancestor whose name figured in List A. These documents had
to be ‘legally acceptable’ and ‘clearly prove such a relationship’. Birth
certificate, land document, board/​university certificate, bank/​LIC/​post
office records, circle officer/​GP Secretary certificate in case of mar-
ried women, electoral roll, ration card, and any other legally acceptable
68 Citizenship Regimes, Law, and Belonging
document, were listed under this category.29 The discussion in this sec-
tion shows how the conditions of legal acceptability would become a
matter of dispute in a large number of cases. The ability of a document to
clearly prove a relationship could similarly remain in the domain of ambi-
guity, opening spaces for interlocution, and interpretation by the execu-
tive and judiciary.30
To sum up, the data of the 1951 NRC, the electoral rolls published in
Assam up to 24 March 1971, cumulatively comprised the legacy data.
Finding an ancestor in the legacy data to trace direct descent was made
necessary for inclusion in the NRC for those who were not themselves
its part. The rules devised for the preparation of the NRC gave the 1951
NRC legitimacy by inscribing it in a national identification regime and
installing it as the core around which incremental electoral rolls could
cluster. Applications to be placed in the NRC were made on the basis of
specified documents that alone could prove citizenship. The power of
evidence assumed by documents drew from their capacity to establish
linkage with the legacy data. An eleven digit Unique Legacy Data Code
provided the applicant with a numerical link with the ancestor. The legacy
code embodied a personal claim for verification for the applicant but also
acted as a legacy trace linking the applicant with others who had been al-
lotted the same code because of common ancestry. The legacy trace could
be authenticated only through ‘linkage documents’ carrying the names of
the applicant and the ancestor who was present in the legacy data.
In an inversion of the relationship between documents and citizen-
ship, the evidentiary paradigm invoked in the preparation of the NRC
in Assam listed documents which would, under specified conditions,
become ‘proof of citizenship’ (Sadiq 2009). Under these conditions, the
meaning of documents such as the voter ID card, which are identity
documents that can be obtained only by citizens changed, as they be-
came part of the identification regime spawned by the NRC in Assam.
These documents acquired evidentiary worth only by becoming part of
a serialized link in relationship with other documents. Significantly, all

29 Website of the Office of the State Coordinator of NRC, Government of Assam. http://​nrcas​

sam.nic.in/​admin-​docume​nts.html (accessed on 10 March 2019).

30 See Sahana Ghosh (2019) whose anthropological study of the ‘detectability’ of the ‘illegal

migrant’ by the Foreigners Tribunals refers to modalities of policing in the process of detection
and Akhil Dutta (2018) on the judicial interventions and the NRC process in Assam.
 Hyphenated Citizenship 69
these documents, which were discrete in their origin and purpose, were
connected together to serve another purpose—​to establish the lineage of
the applicant—​which would henceforth constitute the proof of citizen-
ship. Indeed, categories such as ‘legacy’, ‘legacy documents’, ‘legacy data’,
‘legacy trace’, and ‘unique legacy data code’, were innovations that made
documents meaningful or irrelevant for the purposes of NRC.
In this process, documents got re-​inscribed in a register alien to its
original inscription and purpose. When it was being prepared in 1948,
the electoral roll came to be seen as an extraordinary and unprecedented
‘act of faith’. It inserted ‘the people’ into the administrative structures of
the state by linking the abstract text of the Constitution to their everyday
lives as a popular narrative, and prepared the ground for ‘the conceptions
and principles of democratic citizenship’ (Shani 2018, 7). Writing about
the first general election in India in a short story titled ‘The Election
Game’, R. K. Narayan recounts the election fever that had seized the
people participating in what he called a ‘large scale rehearsal for polit-
ical life’. No one, young or old, was left untouched ‘as though a sense of
sovereignty [was] aroused even in the most insignificant of us’ (Narayan
1952). The coincidence of citizenship with voting rights and universal
adult franchise, involved a governmental activity of identification dif-
ferent from any other similar exercise since its objective was not the en-
hancement of the governmental power of the state, but the affirmation of
popular sovereignty and transition to a democratic republic.
As a legacy document, the electoral roll was recalled on a different reg-
ister which changed its authority from a text embodying popular sover-
eignty to a document providing legacy trace, to serve the imperatives of
the identification regime of the state. The worth of the legacy document
depended on the extent to which it strengthened the regime of legibility
and evidentiary framework of which it was now a part. This was evident
in a 2019 Gauhati High Court judgement that rejected a petition by Babul
Islam against a Foreigners Tribunal order pronouncing him a foreigner.
Babul Islam had placed before the court his Electoral Photo Identity Card
(EPIC) as proof of citizenship. While the EPIC is a voter identity card
and not a citizenship card, the fact that only citizens can vote makes for
a stable relationship between the two. The Gauhati High Court refused
to recognize the EPIC as evidence of citizenship on the grounds that it
did not possess the attribute of ‘due’ proof which could make the EPIC
70 Citizenship Regimes, Law, and Belonging
‘admissible’ evidence. The EPIC would be an evidence of citizenship only
if it could be inserted in the chain of validation linking it up with the pre-​
1971 voter list.31
Close on the heels of the judgement in Babul Islam’s case, the same
bench of the Gauhati High Court rejected a petition by Jabeda Khatun,
a 50-​year-​old woman from Guwahari village refusing to consider the
15 documents she had submitted as evidence proving citizenship.32
Jabeda Khatun had petitioned the Gauhati High Court challenging
the Foreigners Tribunal opinion of 31 May 2019, declaring her a for-
eigner ‘of the post-​1971 stream’. Under the procedure laid down in the
Foreigners Act 1946, Jabeda Khatun was issued a notice to appear before
the Foreigners Tribunal in Baksa, Tamulpur, Assam to prove her Indian
citizenship. Maintaining that she was a citizen of India by birth, Jabeda
Khatun filed a written statement before the Tribunal along with docu-
ments to support her claim. In her statement, she claimed to have been
born to Jabed Ali and Jahura Khatun in Bangalpara. Due to river embank-
ment erosion, her father had shifted from Bangalpara to Dongoragaon
and lived there till his death. She was married to Mohammed Rejak Ali
of the same village and her name appeared in the voter lists of 2008. Her
name had figured in the voter list in 1997 too, but she was marked in the
list as a ‘D’ voter. Among the documents submitted by her were land rev-
enue payment receipt, bank passbook, voter lists, and Permanent Account
Number (PAN) Card. The NRC 1951 and voter lists of 1966 and 1970
where the names of her grandparents and parents figured were submitted
by her as proof of her parentage. In addition, Jabeda Khatun had also
submitted certificates by the gaon bura (village headman) which stated
that she was the daughter of Jabed Ali, a permanent resident of village
Dongoragaon, and that she had married Rajek Ali. Jabeda Khatun’s citi-
zenship claims were turned down because of the absence of appropriate
legacy documents. None of the documents she presented before the court
could establish her links with her parents in the legacy documents. The

31 Writ petition (WP(C)7426/​2019 by Babul Islam against an order of the Foreigners Tribunal,

where he was declared as a foreigner of post-​1971 stream. See also, ‘Gauhati High Court Says
Electoral Photo Identity Card Not a Proof of Indian Citizenship’, India Today, 17 February 2020.
32 Writ petition no. WP(C) 7451/​2019 before the Gauhati High Court. Also, ‘Land Revenue

Receipts, PAN Card, Bank Documents No Proof of Citizenship: Gauhati High Court’, The
Hindu, 18 February 2020.
 Hyphenated Citizenship 71
evidentiary weight of gaon bura’s certificate as a linkage document was
limited by its subsidiary status among the admissible documents, where
it was listed as a ‘supporting document’. Court decisions in earlier cases
had interpreted this status to mean that the certificate could only serve as
proof of a woman’s migration to her ‘matrimonial village’ after marriage,
not of her citizenship. Affirming the decision of the Foreigners Tribunal,
the Gauhati High Court decided that Jabeda Khatun was a ‘foreigner’
since she had ‘failed’ to prove her ‘linkage’ to legacy persons through ap-
propriate legacy documents.33
The status of the Panchayat certificate as a document was made ambig-
uous through its listing as a ‘supporting’ document with no independent
standing. While the list of admissible documents clearly says that the
Panchayat certificate could be submitted by women who had migrated
upon marriage, the purpose of such a certificate and its role in proving
citizenship remained contested. The courts deliberated upon the princi-
ples that should guide the evaluation of panchayat certificates as evidence
for the purpose of the NRC. It was in the Gauhati High Court judgement
in February 2017 in the case of Manowara Bewa alias Manora Bewa vs.
Union of India and Others, which was turned down by the Supreme Court
of India in December 2017, that issues under contention were laid out for
judicial scrutiny. On 17 March 2016, Manowara Bewa was declared a for-
eigner by a Foreigners Tribunal in Dhubri in Assam on the ground that
she had ‘failed to discharge her burden under Section 9 of the Foreigners
Act 1946 to prove that she was not a foreigner’. Under the provisions of
the Foreigners Act 1946, if a ‘reference’ has been made against a person
that he or she is a foreigner, the burden of proving citizenship is on the
person himself/​herself, who has to be ‘examined as her own witness’ and
must submit evidence to prove otherwise. Manowara Bewa had sub-
mitted five documents to the Foreigners Tribunal to prove her citizenship.
Among these documents was a certificate issued by the gram panchayat
of Sahebganj, a school certificate issued by the Headmaster of Khagrabari
School, and land documents. Along with these, she submitted the NRC
1951 and the voter list of 1966. Her father’s name appeared in both. The
Tribunal, however, noted discrepancies in the spelling of her father’s

33 Jabeda Begum @ Jabeda Khatun vs. The Union of India and Others, WP(C)7451/​2019, de-

cided by the Gauhati High Court on 12 February 2020.

72 Citizenship Regimes, Law, and Belonging
name in the linkage and legacy documents and concluded that they were
different persons. Based on this, the Tribunal decided that the evidence
submitted by Manowara Bewa was not ‘trustworthy’ and that she had
‘failed miserably to discharge her burden of proof ’, ‘with cogent and reli-
able evidence that she is born through genuine Indian parents’.
The Gauhati High Court found ‘no error or infirmity’ in the Foreigners
Tribunal’s view. It concluded that ‘a cumulative analysis of the evidence
adduced by the petitioner’ presented ‘a bundle of confusing and con-
tradictory statements making the contention of the petitioner of being
an Indian citizen totally unreliable’. The High Court found Manowara
Bewa an unreliable witness because of what it called ‘material discrep-
ancy’ in her written statement and evidence submitted. The court found
the absence of information regarding the date, year, and place of birth,
lack of coherence on significant biographical signposts pertaining to the
place where she was born and went to school and where she migrated
after marriage, and the fact that she obtained the school certificate and
GP certificate only after the enquiry proceedings against her had started,
suspicious. All the documents submitted by her, the court argued, could,
therefore ‘amount to admission of content but not its truth’. In both the
cases—​of Manowara Bewa and Jabeda Khatun—​the court had refused
to accept the testimony of relatives as evidence of relationship with the
legacy person. It rejected the certificate issued by the village panchayat
on the ground that the petitioner failed to establish the authority of the
documents through a corroborating oral testimony of the issuing au-
thority in the court.
What is, however, significant about the Gauhati High Court’s de-
cision in Manowara Bewa case is the long discussion in the judgement
from paragraph 33 to 75, after the dismissal of the petition had been an-
nounced in paragraph 31, and directions to the Deputy Commissioner
of Police, and Superintendent of Police (Border) had been issued in par-
agraph 32. Under the head ‘Larger Issue’, this discussion focused entirely
on the Gram Panchayat (GP) Secretary’s certificate. In the course of its
proceedings, the Gauhati High Court decided to take a ‘closer look’ at
the modalities through which the certificate was obtained, whether is-
suing such a certificate was within the purview of the powers of the vil-
lage panchayats as laid down in the Assam Panchayat Act 1994, and
whether the Panchayat and Rural Development Department were taken
 Hyphenated Citizenship 73
into confidence when a Cabinet-​sub-​committee took the decision to in-
clude the Gram Panchayat certificate as a supporting document. In doing
so, the High Court went beyond the merits of Manowara Bewa’s case to
what it called the ‘larger issue’ of resolving the ambiguity surrounding the
evidentiary value of the GP certificate. It concluded that the GP certifi-
cate issued to women who had migrated to other villages after marriage
or certificates issued by jurisdictional circle officers in urban areas, men-
tioned in the ‘illustrative list of documents admissible’ as a supporting
document was invalid in law and would have ‘no effect in the process of
verification of claims for inclusion in the NRC’.
While invalidating the GP certificate, the High Court found it contra-
dictory that a document issued after 24 March 1971 could be considered
admissible as evidence for inclusion in the NRC. Questioning the eviden-
tiary relevance of a ‘contemporary document’, the only document in the
‘illustrative list’ which was permitted to have a date of issue after the pre-
scribed cut-​off date, the judges argued against the necessity of new docu-
ments to facilitate the registration of migrating married women:

. . . was it really necessary on the part of the State Government to create

new certificates ostensibly for migrating married women to enable
them to show linkage with their parents prior to the cut-​off date of
24.03.1971. Is it really the duty of the State to facilitate such an exercise
when it is for the applicant to justify his claim for inclusion in the updated
NRC by producing necessary documentary evidence? Are the remaining
existing documents not enough? Is it the duty of the State to facilitate cre-
ation of additional new documents, that too in millions, for inclusion
of the certificate holder in updated NRC which would be prima facie
proof of citizenship. . . ? (Judgement, Manowara Bewa, 2017, para. 45,
emphasis added)

Like most other judgements which referred to it to buttress their argu-

ment, in this case too, the judges held that facilitation of documentary
evidence went ‘against the grain’ of the Supreme Court’s judgment in
Sarbananda Sonowal vs. Union of India (2005), which placed the burden
of proof upon the person whose citizenship was disputed. There were
sound reasons to do so, the judges argued, since information about date
and place of birth, names of parents and grandparents—​and their place of
74 Citizenship Regimes, Law, and Belonging
birth—​which were relevant for proving citizenship, lay in the domain of
‘the personal knowledge of the person concerned and not of the authorities
of the State’. Reinforcing the regime of suspicion, the judges considered it
imperative to extract this evidence rather than facilitate it, since ‘Assam
was facing “external aggression” and “internal disturbance” on account
of large-​scale influx of Bangladeshi nationals into the State . . . making the
life of the people of Assam wholly insecure’ (Judgement, Manowara Bewa
2017, para. 47).
The judge rejected the certificate issued by the village panchayat on the
grounds that the petitioner had failed to establish the validity of the docu-
ments through a corroborating oral testimony of the issuing authority in
the court. Following the pattern in Jabeda Begum Case, the court refused
to accept the testimony of relatives as evidence of relationship with the
legacy person. It is significant that even when the information regarding
relationships and blood ties was construed as ‘personal knowledge’, its af-
firmation in the court could only be done through ‘public’ documents.
According to Section 74 of the Indian Evidence Act ‘public documents’
are documents ‘forming acts or records of the act—​(i) of the sovereign
authority, (ii) of official bodies and tribunals, and (iii) of public offi-
cers, legislative, judicial and executive . . . as well as public records kept
in any state of private documents’. Certificates by gaon bura pertaining
to relationships by marriage could not be considered public until they
were ‘heard’ by the court for attestation of their veracity. The High Court
ruled that the certificate of residence issued by the village panchayat
could not be considered a ‘public document’ for a range of reasons. That
the certificate was not issued from a ‘record’ that the Panchayat main-
tained under the provisions of the 1994 Panchayati Raj Act and Rules
was among the most significant. The certificate could, therefore, only be
a ‘private’ document expressing personal knowledge whose ‘truthful-
ness’ had to be attested by the issuing officer in the court, who would
take ‘full responsibility as to the contents of the certificate with all its
attendant consequences’. In case the officer of the Gram Panchayat was
not believed by the High Court, and the certificate holder was indeed a
foreigner, the officer would be considered guilty of ‘harbouring an illegal
migrant’, and guilty of ‘gross misconduct’ exposing him to ‘departmental
action’ besides attracting penal consequences (Judgement, Manowara
Bewa 2017).
 Hyphenated Citizenship 75
The Supreme Court turned down the Gauhati High Court Judgement
in Manowara Bewa case in its order in a petition by Rupajan Begum, on
the grounds that the invalidation of ‘an agreed document’ affected a large
number of claimants.34 The Court observed that ‘the exercise’ undertaken
by the Gauhati High Court in going into the ‘larger issues’ did not arise
out of the ‘proceedings before it’ and the resolution of those issues ‘was
not indispensable for answering the writ petitions’ under its considera-
tion. The GP certificate had been agreed to ‘by all stakeholders’, had the
approval of the Central and state governments, and as part of the list of
illustrative documents had been brought before the Supreme Court in
the course of proceedings: ‘this Court was aware of the nature and ef-
fect of each of the documents mentioned in the list’ (Judgement, Rupajan
Begum 2017, para. 13–​14, 12). The Court observed that while the Gram
Panchayat certificate merely acknowledged the shift of residence of a
married woman and did not by itself establish any claim of citizenship,
it could be used as a ‘supporting document’ for the ‘limited purpose of
providing a linkage’ between the claimant and the legacy person after ‘due
enquiry and verification’.
Apart from ‘married migrated women’ who were identified as a sep-
arate class for whom provisions of a separate supporting document
was made, another category—​that of ‘original inhabitant’ of the state
of Assam—​ became contentious. As discussed earlier, various peti-
tions questioned the applicability of section 3 of the Citizenship Act of
India, which lay down the provisions of citizenship by birth in updating
the NRC in Assam. The Supreme Court agreed the NRC recognized the
claims of citizens not on the fact of their ‘birth’ as Indian citizens but for
being ‘descendants’ of Indian citizens. The exceptional requirements of
the preparation of the NRC in Assam validated the principle of descent to
create a separate category of Assamese-​Indian citizens. Yet, the concern
that this principle could generate within Assam an exceptional, indeed,
a superior class of citizens, was raised with respect to the special proced-
ures laid down in the Schedule to the Citizenship Rules 2003, for ‘origi-
nally inhabitant’ citizens.

34 Judgement dated 5 December 2017 in Rupajan Begum vs. Union of India and Others, Civil

Appeal no. 20858 of 2017 [Arising out of Special Leave Petition (Civil) No. 13256 of 2017].
76 Citizenship Regimes, Law, and Belonging
Clause 3 of the Schedule (Special Provisions as to the Preparation
of the National Register of Citizens in Assam) to the Citizenship Rules
2003 under the head Scrutiny of Applications, elaborates the process of
scrutiny of applications which would be made by ‘comparing the infor-
mation stated in the application form with the official records’. Persons
whose information was found in order would be ‘eligible for inclusion
of their names in the consolidated list’. Clause 3(3), provided that ‘orig-
inally inhabitants of the State of Assam and their children and descend-
ants, who are Citizens of India, shall be included in the consolidated list
if the citizenship of such persons is ascertained beyond reasonable doubt
and to the satisfaction of the registering authority’. In Kamalakhya Dey
Purkayastha and Others v. Union of India and others (WP (Civil) No. 1020
of 2017), with which a clutch of five more writ petitions were attached,
the Supreme Court bench consisting of Justice Ranjan Gogoi and Justice
Rohinton Nariman, was asked to issue directions ‘as to the manner in
which the expression originally inhabitants of the State of Assam’ was to
be ‘understood’ and ‘the procedure’ by which they would be ‘identified’.
Apprehensions, were, however, raised that the special process of identi-
fication of those who claim to be ‘originally inhabitants’ of the state may
lead to the creation of a ‘superior class of citizens’ which may have ramifi-
cations for future claims to entitlement to opportunities of education and
employment. The Judges clarified that Clause 3(3) provided only for a dif-
ferent process of identification, which would be ‘less strict and vigorous’.
A special process did not ‘determine any entitlement for inclusion in the
NRC’ which could only be on the ‘basis of proof of citizenship’. The NRC,
they clarified, was not an exercise for the identification of original inhab-
itants of the state.35 Yet the NRC process had ramifications for creating
different kinds of citizens depending on their access to the modalities of
inclusion, which produced unsettled zones of citizenship within the state.

Unsettled Zones of Citizenship

The NRC marks a continuity with a notion of citizenship that can be

traced to the Assam Accord, the contestations around the amendment

35 All the members of the tea tribes are covered under ‘Original inhabitants of Assam’.
 Hyphenated Citizenship 77
of the citizenship act in 1985, and subsequently the Supreme Court judg-
ment in the Sarbananda Sonowal Case 2005. The petitions by the ASM,
APW, AAAA, Swajan, and Bimalangshu Roy Foundation questioning the
constitutional validity of section 6A of the Citizenship Act, have added
fresh dimensions to the debate, which became significant in the electoral
competition in the state in the 2016 state assembly election. After the BJP
formed the government in the Centre in 2014, leading a coalition of the
NDA, its leaders spoke in rallies in Assam assuring citizenship to Hindus
who had fled to India to escape religious persecution in Bangladesh.
Indeed, the government promised to enact a law for the rehabilitation of
Hindu refugees from Pakistan and Bangladesh, setting up a task force to
expedite pending citizenship requests from refugees, and issuing long-​
term visas of 10–​15 years, wherever citizenship requests were taking
longer to process. At the same time, echoing the campaign speeches of
Prime Minister Narendra Modi in the 2014 Lok Sabha election, Amit
Shah convinced people in Assam that the BJP would get rid of ‘infiltra-
tors’. Indeed, the BJP declared immigration policy a major plank of its
campaign in the Assam Assembly elections in 2016. On 9 April 2016,
speaking in a rally at Sonari, Amit Shah promised to give the Assamese
people a Bangladeshi-​migrants-​free Assam if BJP was voted to power.36
The political consensus on the NRC as a mode of resolution of the
citizenship question in Assam was, however, fractured by contending
strands—​one which saw it as a continuing commitment to the Assam
Accord and its potential to alleviate the crisis in citizenship, and the other
which was suspicious of the Accord’s capacity to resolve the problem. The
petitions in the Supreme Court by organizations contenting that the mo-
dality of preparing the NRC in Assam under the 2003 Rules was at var-
iance with the Assam Accord, and others contesting the constitutional
validity of Section 6A represented these strands in the adjudication of the
citizenship question. In the political domain, while Tarun Gogoi vouched
for the efficiency of the tools developed by the NRC office to update the
NRC, others expressed the fear that it may only legitimize the Bangladeshi
immigrants. In the course of the campaign in state assembly elections,
Himanta Biswa Sarma, who had migrated to the BJP from the Congress

36 Samudragupta Kashyap, ‘BJP will Rid Assam of Bangladeshis: Shah’, Indian Express, 10

April 2016.
 78 Citizenship Regimes, Law, and Belonging
in 2015 and became its chief political strategist and the Chief Minister
of the state in May 2021, declared his disagreement with the continua-
tion of 1971 as the deadline for the NRC. Sarma reiterated the dominant
BJP position that the party was committed to granting citizenship status
to Hindus, who came to Assam after the 24 March 1971 deadline.37 In
addition, claiming that the Assam Accord’s provisions pertaining to cit-
izenship were disputed and had been challenged in the Supreme Court,
Sarma chose to foreground that part of the Accord, which promised that
the original inhabitants of Assam and their culture be protected. In line
with this, Sarma preferred to see the citizenship signpost pushed back to
1951, and those who came to Assam between 1951 and 1971 be given ref-
ugee status and not full citizenship.38
It is important to note that not only had the BJP managed to weaken the
faltering leadership and social base of the Congress Party in Assam with
Sarma emerging as an alternative node of power within the Congress and
later outside, but it also retrieved the ‘foreigners question’ in Assam and
relocated it in a vocabulary of loss and reclamation. An AASU member
in a political meeting in Sarbananda Sonowal’s constituency Majuli com-
municated this as follows: ‘The Tarun Gogoi government has to go. People
will have to come out this time if they want the Axomiya jati (the ethnic
Assamese) to survive. Or else we will become foreigners in our own land.
It wasn’t for nothing that Bhupen Hazarika sang long ago, “Aami axomiya
nohou dukhia buli santona lobhile nohobo” [“It is not enough of a suc-
cour to believe that we Assamese will never be poor in our own land].” ’39
Indeed, the BJP’s electoral campaign and victory in the state assembly
election in May 2016, which ended the fifteen-​year rule of the Congress
Party in the state, was compared by the BJP’s supporters to the battle of
Saraighat in 1671. In this battle, the Ahom army led by the celebrated
general Lachit Borphukan gave a crushing defeat to the Mughal emperor
Aurangzeb’s army, led by the Rajput ruler Ramsingh. The reclamation of
a historical moment of pride for the Ahom people in their emphatic win

37 Nilotpal Bhattacharjee, ‘BJP, AGP in Migrant Divide’, The Telegprah, 6 March 2016.
38 ‘Himanta Biswa Sarma: In this Assam Poll, Bangladeshi Immigrants Want Their Own CM
too’, Indian Express, 15 February 2016.
39 Sangeeta Barooah Piharoty, ‘BJP Pins Its Hopes on Anti-​Immigrant Sentiment in Assam

Polls’, The Wire, 4 April 2016, https://​thew​ire.in/​polit​ics/​bjps-​anti-​immi​grat​ion-​strat​egy-​in-​

upcom​ing-​assam-​polls (accessed on 16 May 2016).
 Hyphenated Citizenship 79
against an invading army to draw correspondence with the landslide vic-
tory of the BJP invoked the familiar vocabulary of insider/​outsider in the
construction of a past and wove it in the narrative of the BJP’s electoral
victory.40
The narrative of change, drawing upon the idiom of past victories over
invading armies, was, however, contingent and dependent upon the du-
rability of the dominant narrative of crisis in citizenship in Assam and
the appeal of the NRC as the mode of resolving it. The narrative of NRC
in Assam soon became deeply conflictual with suspicion over its efficacy
and the form in which it was envisaged mounting from different quarters.
The judiciary provided one site where this conflict played out. The vul-
nerability and marginalization precipitated by the bureaucratic exercise
among different sections of the Assamese people produced a fraught site
where ‘participation’ in the preparation of the NRC and ‘trust’ in the pro-
cess held out different meanings to people. The process was replete with
innumerable stories of difficulties getting the right document (Borbora
2019), disputes over documents and their acceptability (Ghosh 2019),
and the suspicion that the procedure was designed to exclude Muslims.
Fears of disenfranchisement and elimination from the NRC and the angst
against years of discrimination experienced by Bengali speaking Muslims
was given vent in art genres, among them—​‘Miya poetry’. As Poetry of
protest and anger, Miya poetry revived a form that had an earlier origin
but became assertive in the context of the NRC. A movement to claim the
‘Miya’ identity used for long to deride Bengali speaking Muslims as illegal
migrants, the poems ‘threw back’ the derision by an emphatic claim to
‘identity’. The opening stanzas of a poem by Hafiz Ahmed considered to
have pioneered the Miya poetry genre, therefore say, ‘Write Down I Am
A Miya’:

Write
Write Down
I am a Miya
My serial number in the NRC is . . . ..
I have two children
Another is coming

40 See, for example, Sethi and Subhrashtha (2017).

 80 Citizenship Regimes, Law, and Belonging
Next summer.
Will you hate him
As you hate me?41

The road to the publication of the final NRC went through the publication
of successive drafts, leading to anxiety among large numbers of people
over the uncertainty of the final outcome. Before the publication of the
complete draft in August 2019, an ‘additional draft exclusion list’ was
released, which included the names of those whose names had figured
in the earlier drafts, but were now being dropped after ‘re-​verification’.
The preparation of the draft exclusion list was approved by the Supreme
Court under Clause 5 of the Schedule of the Citizenship (Registration
of Citizens and Issue of National Identity Cards) Rules 2003. Some indi-
viduals whose names were dropped were ‘detected’ as ‘foreigners’ while
they were appearing as witnesses in NRC-​related hearings for other ap-
plicants. Others were dropped after they or their descendants were found
to be DF, DVs, or DFTs—​‘categories which are exclusive to Assam’.42
The exclusions prompted civil society members to write a letter to Chief
Justice Ranjan Gogoi about the ‘panicky situation’ created by ‘suspicious
and mischievous’ re-​verification notices served by the NRC authorities.43
Those excluded were pushed yet again into uncertainty. For others, it
was a message that mere inclusion in an earlier list did not mean closure.
This uncertainty had, however, already been precipitated a year back, in
August 2018, when the Assam government ‘revealed’ district-​wise fig-
ures of exclusions in the state assembly. Through this ‘revelation’, the
government raised doubts on the modalities of preparation and the in-
tegrity of the procedure based on the premise that the figures for some
districts could not be relied upon since the percentage of exclusions for
those districts was not, according to it, in correspondence with its demo-
graphic profile. Making a case for re-​verification, the figures of Muslim-​
majority districts bordering Bangladesh—​including Dhubri and South

41 Aletta Andre and Abhimanyu Kumar, ‘Protest Poetry: Assam’s Bengali Muslims Take a

Stand’, Al Jazeera, 23 December 2016.

42 ‘Assam NRC Explained: Add, Delete and What Next?’ The Indian Express, 31 August 2019.
43 ‘NRC Re-​Verification Notices: Civil Society Members Write to CJI on “Panicky Situation” ’,

The Wire, 8 August 2019, https://​thew​ire.in/​rig​hts/​nrc-​re-​verif​i cat​ion-​noti​ces-​panic-​civil-​soci​

ety-​let​ter-​cji-​ran​jan-​gogoi (accessed on 10 August 2019).
 Hyphenated Citizenship 81
Salmara—​with a low percentage of exclusion, and in districts such as
Hajoi—​in Central Assam where ‘indigenous people live . . . where sons of
the soil have been living for ages’, where the exclusion rate was highest at
32.99 per cent, were cited as examples, to corroborate the point.44
On the eve of the publication of the ‘complete’ draft NRC, apprehensive
of any ‘crisis’ that the list would generate, vigorous preventive measures
were put in place along with what the officials termed ‘public confidence
building measures’.45 While the Director General of Police in Guwahati
was confident that Assam would remain peaceful, and that these meas-
ures were routine, ‘prohibitory orders’ were issued in ‘vulnerable areas’
under Section 144 of the CrPC to curb the assembly of more than five
persons in any place and prevent any disturbance of public order. In the
words of the police, ‘foot patrolling, route marches and area domination
patrols’ were conducted in some districts as ‘confidence building’ meas-
ures. Fifty-​five companies of paramilitary force that had only recently
been withdrawn from Assam for deployment in Jammu and Kashmir
were re-​deployed in the state. District authorities were, in addition, in-
structed to enhance ‘citizen contact’ to assure them that mere absence of
their names would not automatically make them foreigners.46 That the
‘post-​NRC scenario’ would be challenging was a dominant concern. To
address the claims of those left out of the final list, the Central govern-
ment contemplated setting up e-​Foreigners Tribunals and also increase
the number of Foreigners Tribunals from 100 to 1000 and appoint law-
yers and retired bureaucrats and judges as members. It appeared that at
this point, the government wanted to convince people that ‘the NRC-​re-
jects’ would not be placed immediately in detention centres and they had
the option of going to the Foreigners Tribunals and the judiciary there-
after. Assam’s Additional Chief Secretary in charge of Home and Political
Departments informed that all those whose names did not figure in the
list could challenge their exclusion before a Foreigners Tribunal within a
period of four months of publication of the list. Yet, the precariousness of

44 Abhishek Saha and Tora Agarwala, ‘Deadline Approaching: What it is to be a Name on NRC

List—​or Off it’, Indian Express, 25 August 2019.

45 Rahul Karmakar, ‘Those Excluded from Final NRC Will Get a Window of 10 Months’, The

Hindu, 29 August 2019.

46 ‘Assam: Security Increased Across the State before Publication of Updated NRC’, The Wire,

30 August 2019.
 82 Citizenship Regimes, Law, and Belonging
those left out of the NRC persisted with six central prisons serving as de-
tention centres and separate detention centres coming up in other parts
of the state. The assurance to the Bangladesh government by the External
Affairs Minister that the NRC was an ‘internal matter’ of India made the
context of identification more complex.47

Conclusion

By the beginning of 2020, the political and popular consensus around the
NRC ruptured as it came to represent a field of contradictions for reasons
which were different from the conflict over categories and procedures.
While the final NRC had been published on 31 August 2019, the rejec-
tion orders had not been served to those excluded, deferring the claims
process. The Assam government was dissatisfied with the outcome of the
NRC, which did not appear to corroborate the claims of large-​scale illegal
presence of Bengali Muslims from Bangladesh and contested the integ-
rity of the procedure. Prateek Hajela was returned to his ‘Home Cadre’
Madhya Pradesh, and replaced by Hitesh Dev Sarma, whose views on
citizenship were perceived to be in affinity with the ruling dispensation.
The passage of the Citizenship Amendment Act (CAA) 2019 exempting
Hindus, Sikhs, Jains, Buddhists, Christians, and Parsis from the category
of ‘illegal migrants’, making it possible for them to apply for citizenship,
further unsettled the field of citizenship. In addition, the announce-
ment by the Home Minister, which was later withdrawn, that a nation-
wide NRC would be prepared alongside the implementation of the CAA
2019, pushed the citizenship question in Assam onto the brink. A spate
of agitations spread across the state. The question of ‘illegal migrants’ and
citizenship regimes remained at the centre of these protests. It is these
contestations precipitated with the announcement of the CAB 2016 that
will be discussed in the Chapter 2.

47 Baruah, Sanjib, ‘A More Precarious Citizenship’, Indian Express, 30 August 2019 https://​

indian​expr​ess.com/​arti​cle/​opin​ion/​colu​mns/​a-​more-​pre​cari​ous-​citi​zens​hip-​assam-​nrc-​list-​
jammu-​kash​mir-​5949​158/​ 8/​11 (accessed on 8 September 2019).
 2
Bounded Citizenship
The Citizenship Amendment Act 2019

On 20 December 2019, a minister in the Government of India handed out

citizenship certificates to seven refugees of the Sodha community from
Pakistan residing in Kutch district in Gujarat. Speaking on the occasion,
the minister said that the Citizenship Amendment Act (CAA) would
provide ‘a new opportunity in life to the minorities who faced religious
persecution in Pakistan, Bangladesh and Afghanistan’.1 Reporting the
event, most newspapers commented on the contrast between widespread
protests against the CAA 2019 (henceforth CAA) and the jubilation
among the refugees in Gujarat upon its passage. The news agency ANI’s
Twitter handle remarked that the refugees gathered at the ceremony ‘wel-
comed’ the CAA for ‘restoring trust and faith in humanity’ and celebrated
‘by distributing sweets, bursting crackers and putting colours on each
other . . . their faces were full of happiness and satisfaction’.2 The Indian
Express report mentioned the ‘violence [that] rocked parts of Vadodara
and Ahmedabad over the new citizenship law’, alongside the minister’s
speech claiming that the CAA would ensure a life of dignity to refugees
of minority communities from Pakistan, Bangladesh, and Afghanistan,
without ‘taking away’ anything from Indian citizens—​an assurance that
was being given consistently by the government.
Nathusinh Sodha, a resident of Bhuj, was a refugee from Tharparkar-​
Mithi district in Pakistan, who came to India in 2007 and acquired
Indian citizenship. Sodha founded the Overseas Hindu Rehabilitation
Committee, an NGO to help Hindus from Pakistan. At the event, he

1 ‘Shri Mansukh Mandaviya Hands Over Citizenship Certificates Issued by the Government

of India to 7 Pakistani Refugees in Kutch, Gujarat Today’, Press Information Bureau, Government
of India, Ministry of Shipping, 20 December 2019.
2 ‘Union Minister Hands Over Indian Citizenship Certificates to 7 Pakistani Hindu Refugees’,

20 December 2019, India.com News Desk, accessed on 10 May 2020.

Citizenship Regimes, Law, and Belonging. Anupama Roy, Oxford University Press. © Oxford University Press 2022.
DOI: 10.1093/​oso/​9780192859082.003.0003
 84 Citizenship Regimes, Law, and Belonging
recalled his trauma as a refugee in India, and thanked Prime Minister
Modi for making the situation ‘easier for refugees’: ‘We wanted to thank
Modi and [therefore] organised this event today’.3 Interestingly, the
Wikipedia entry on CAA erroneously entered 20 December 2019 as the
day when ‘[T]‌he implementation of the CAB began’ stating that the seven
refugees who received citizenship certificates were the first to become cit-
izens under the CAA. The Rules laying down the procedure for giving cit-
izenship under the CAA 2019 have not been framed so far. Under Section
18 of the Citizenship Act, the Central government has the power to make
such rules, which must be placed before the Parliament. All seven persons
of the Sodha community were given citizenship certificates not under the
CAA but under the Standard Operating Procedure (SOP) followed for
‘Pakistan Nationals of minority Hindu community’. The SOP was put in
place through the Citizenship (Amendment) Rules 2004, which came
into effect on 1 March 2004 to empower District Collectors in Rajasthan
and Gujarat to ‘grant citizenship’ to Hindu migrants from Pakistan. The
notification dated 28 February 2004 giving powers to District Collectors
was an exception for the two states to facilitate the acquisition of citizen-
ship by those ‘who were forced to come to India due to persecution on
religious grounds’. In May 2021, thirteen District Collectors in Gujarat,
Chhattisgarh, Rajasthan, Haryana, and Punjab were empowered by the
Central government to grant citizenship certificates to minority commu-
nities from Pakistan, Bangladesh, and Afghanistan.4 The 2004 SOP sup-
plemented the special Long-​Term Visa (LTV) provisions that had been
augmented through instructions issued from time to time by the Ministry
of Home Affairs (MHA) to allow minority communities from Pakistan to
stay in India.5 In January 1986, revisiting India’s policy towards ‘illegal
entrance and settlement in India of minority communities from Pakistan’,

3 ‘Rajkot: Mandaviya Hands Over Citizenship Certificates to Seven Pak Refugees’, The Indian

Express, 21 December 2019.

4 Vijaita Singh, ‘13 More District Collectors Empowered to Grant Citizenship to Applicants

From 3 Countries,’ The Hindu, 29 May 2021. https://​www.thehi​ndu.com/​news/​natio​nal/​13-​

more-​distr​ict-​col​lect​ors-​empowe​red-​to-​grant-​citi​zens​hip-​to-​app​lica​nts-​from-​3-​countr​ies/​arti​
cle3​4674​508.ece (accessed on 4 July 2021).
5 As per the preliminary counter-​affidavit submitted by the government of India, in response

to the IUML’s affidavit in the Supreme Court questioning the constitutionality of the CAA 2019.
According to the counter-​affidavit, it was on the request of Ashok Gehlot, then a Congress MLA
and presently the Chief Minister of Rajasthan that these exceptional procedures for Rajasthan
and Gujarat had been inserted in the citizenship rules. See https://​www.live​law.in/​pdf​_​upl​oad/​
pdf​_u​ pl​oad-​371​370.pdf (accessed 3 July 2020).
 Bounded Citizenship 85
the then Home Secretary had advised the Cabinet Committee on Political
Affairs (CCPA) to make an exception for illegal migrants from the mi-
nority community and consider their request for long-​term stay in India
‘liberally’. In 2011, ‘Christians’ and ‘Buddhists’ were added to the prefer-
ential regime already in place for ‘Hindu’ and ‘Sikh’ communities. These
‘executive instructions’ were drawn from the powers that the Central gov-
ernment has under the Foreigners Act 1946 and the Passport (Entry into
India) Act 1920.6
The Joint Parliamentary Committee (JPC), which recommended that
the CAB be placed for discussion in the Parliament, went for field visits
to Rajasthan, Gujarat, Assam, and Meghalaya to take inputs from ‘stake-
holders’. The refugees in Rajasthan and Gujarat, who had migrated to
India from different parts of Pakistan, narrated their hardships to the JPC
and requested changes in the citizenship law to facilitate the acquisition of
citizenship. They also asked for the alleviation of the social and economic
conditions of those who had already become citizens. The depositions
from Assam and Meghalaya, on the other hand, were averse to the amend-
ment and were apprehensive that the CAB would unsettle the peace that
obtained in the region, especially in Assam after the 1985 Accord. The
tension between the different ‘stakes’ that groups had in the passage or
rejection of the CAB was evident in the debates in the Parliament and
in the protests that occurred in the months before and after its passage
into an Act. In this chapter, the CAB/​CAA is seen as the culmination of a
tendency that emerged out of the 2003 amendment in the citizenship Act
with the NRC and the CAA as its two strands. While the NRC, which was
provided for in the 2003 amendment, represented a citizenship regime
driven by bureaucratic practices of identifying ‘citizens’ through docu-
ments that proved parentage, the CAA manifested consolidation of an
ideological formation of citizenship that redefined the idea of the polit-
ical community. By extending the status of citizenship to persons facing
religious persecution and simultaneously discriminating against other
persons on the ground of religion, the CAA unleashes exclusionary na-
tionhood under the veneer of liberal citizenship. By invoking the idea of
bounded citizenship to explain the contours of the legal regime of CAA,
this chapter argues that citizenship under CAA installs strict ‘walls of

6 Ibid.
86 Citizenship Regimes, Law, and Belonging
separation’ (Sadiq 2009) and associates citizenship with ‘the idealized no-
tion of a bounded national territory with a clearly defined community
of citizens’ (Baruah 2009, 593). The idea of national citizenship in this
formulation gains intensity by marking the national territory as a nat-
ural homeland of Hindus. The first section of the chapter details both
the specific changes in the citizenship law brought by the CAA and the
long-​term tendencies which the contemporary changes represent. The
subsequent sections take the question ‘who is an Indian citizen’ to three
different sites of deliberation on citizenship—​the Constituent Assembly,
the Parliament, and the Joint Parliamentary Committee (JPC). The ideo-
logical framing of citizenship in the constituent moment and the debates
on the CAA in 2016/​2019, reveal the dissonance between the founda-
tional principles of Indian citizenship—​the secular-​constitutionalism of
the Constituent Assembly in 1949—​and the national-​communitarianism
that prevailed in the Indian Parliament in 2019.

CAA 2003: The Hinge Point

The Citizenship Amendments Acts of 1985/​86 and 2003 made emphatic

changes in the citizenship law in India. The 1985 amendment which in-
serted special provisions for Assam was politically significant, having
come as part of the process of resolution of ‘the foreigners’ question’ in
Assam. The 2003 amendment made changes in citizenship by birth and
also introduced the category of the Overseas Citizens of India (OCI).
Both these changes marked the transition in the citizenship law from the
principle of jus soli to jus sanguinis. Neither of these amendments gen-
erated the kind of criticism, political polarization, and popular outrage,
which was seen in the wake of the introduction of the CAB in 2016. Public
protests against the amendments acquired fresh momentum breaking
out of its concentration in the North-​East to span the breadth of the
country after the CAA 2019 was passed by the Parliament. In a triumphal
note after its passage in the Lok Sabha, Home Minister Amit Shah de-
clared that a nationwide NRC would follow soon. In a context where the
NRC had come to be seen as targeting Muslims, the synchronization of
NRC, and the CAA reinforced the perception that the CAA would shield
non-​Muslims, while the NRC would facilitate the exclusion of Muslims
 Bounded Citizenship 87
without affording them the protection of the CAA. The entrenchment of
citizenship within the dominant Hindutva ideology, through a culmina-
tion of a process that had begun in 2003 under the NDA regime, precipi-
tated the ‘fear’ that the NRC would target all Muslims regardless of their
status as citizens.
The CAB 2016 was introduced in Lok Sabha on 19 July 2016, a couple
of months after the conclusion of the State Assembly election in Assam.
In these elections, held two years after the BJP led NDA came to power
in the Centre, BJP leaders, including then party president, Amit Shah,
spoke in rallies assuring a Bangladeshi-​free Assam. Echoing the cam-
paign speeches of Prime Minister Narendra Modi in the 2014 Lok Sabha
election, Shah had been convincing people in Assam that the BJP would
get rid of Bangladeshi ‘infiltrators’. Simultaneously, the party also prom-
ised to protect Hindus who had fled to India to escape religious persecu-
tion in Bangladesh, enact a law for the rehabilitation of Hindu refugees
from Pakistan and Bangladesh, set up a task force to expedite pending cit-
izenship requests from refugees and issue long-​term visas of 10–​15 years,
wherever citizenship requests were taking longer to process.
On 11 August 2016, a motion was passed in the Lok Sabha to en-
trust the CAB 2016 to a JPC, which was agreed to by the Rajya Sabha
the following day. The JPC submitted its report on 7 January 2019, re-
commending that the CAB be discussed in Parliament. Nine members of
the thirty-​member committee submitted notes of dissent, indicating that
there was no consensus on the final recommendation. The Bill was placed
for discussion in the Lok Sabha on 8 January in the budget session, the last
session of the 16th Lok Sabha. It faced opposition in the Lok Sabha but
was passed with the force of the numerical majority of the ruling NDA.
The Bill was placed for discussion in the Rajya Sabha on 9 January, a day
when the proceedings in the house were dominated by the Economically
Weaker Sections (EWS) quota bill, which ended in the adjournment of
the house. With the dissolution of the Lok Sabha by the President in prep-
aration for the next general election, the CAB lapsed. The BJP made CAB
part of the party’s campaign for the 2019 Lok Sabha election. In rallies in
Assam and West Bengal in particular, but also in other states, BJP leaders
made it clear that when the party returned to power, it would ensure the
passage of the CAB into an Act. The manifesto of the Congress Party re-
leased on 2 April 2019 announced its opposition to the CAB.
88 Citizenship Regimes, Law, and Belonging
The CAB 2016/​2019 faced opposition in the North East, with large
numbers of people across the states, taking to the streets in protest. The
protestors raised concerns ranging from cultural estrangement to ec-
onomic deprivation, forcing the chief ministers of the eight states, who
were in all cases either from the ruling BJP or allied to it in a coalition
partnership, on the defensive. These protests were in consonance with the
position taken by civil society groups that had deposed before the JPC to
express their objections to the Bill when JPC members visited Guwahati,
Silchar, and Shillong from 7 to 11 May 2018 as part of their field study. In
Assam, for example, civil society groups expressed outrage at what they
called a violation of the Assam Accord of 1985, which they argued was in
the nature of ‘a public law contract’ between the Indian government and
the people of Assam. Any decision to change this ‘negotiated agreement’
which placed obligations on both the parties, they asserted, must have the
‘informed consent’ of the people of Assam.7 The BJP leaders were at pains
to convince them that any change in the citizenship act would take place
only after a consensus was reached with the people. In the Rajya Sabha,
speaking in defence of the CAB on 9 January 2019, then Minister for
Home Affairs, Rajnath Singh assured the people of Assam that the gov-
ernment would take measures to protect the ‘cultural identity’ of the state.
These measures would be in pursuit of Clause 6 of the Assam Accord
which envisaged constitutional, legislative, and administrative measures
to safeguard, protect, preserve, and promote the cultural, social, linguistic
identity, and heritage of the Assamese people.8 The Home Minister also
enumerated a list of measures that the government would take to ensure
recognition of special status of scheduled tribes in the region.
Following the BJP’s return to power in May 2019, the CAB 2019, was
introduced in the Lok Sabha by Amit Shah, Minister for Home Affairs
in the new Cabinet, on 9 December 2019 with changes from CAB 2016

7 The submission of Forum Against Citizenship Act Amendment Bill to the Chairperson of

the JPC, dated 7 May 2018. (Copy with the author.)

8 A Clause 6 Committee set up in July 2019 under the chairpersonship of Biplab Kumar

Sarma, a retired Gauhati High Court judge, submitted its report to the Assam Chief Minister
in February 2020. Justice Sarma reported that the committee had ‘received over 1200 memo-
randums, took the views of all communities across Assam and noted our observations for
Constitutional safeguards of the indigenous people and for defining the Assamese people.’ The
three representatives of the AASU who were part of the committee but were not present at the
time of submission stated that the Centre seemed to have lost interest in the committee. ‘Assam
Accord Clause 6: Committee Submits Report to Chief Minister’, The Hindu, 25 February 2020.
 Bounded Citizenship 89
giving exemptions to parts of the northeastern states (see Table 2.1). The
CAB was passed with 311 MPs voting in favour and 80 opposing it. It
was debated and passed in the Rajya Sabha on 11 December with 125
MPs voting in its favour and 105 against it. JDU, AIADMK, BJD, TDP,
and YSR Congress, were among the political parties that voted for it. The
President of India gave his assent to the Bill on 12 December, and it came
into force with gazette notification on 10 January 2020.
The Citizenship Amendment Act of 2003 constituted the hinge point,
from which the NRC and the CAA emerged as two distinct modalities of
regulating and determining citizenship. Both these modalities were con-
cerned with addressing the problem of ‘illegal migrants’. In preparing the
NRC, the government was seized with devising ways to identify legiti-
mate citizens and expel illegal migrants. The CAA came with the objec-
tive of ‘exempting’ a class of persons who would otherwise be considered
‘illegal migrants’ and denied access to citizenship under the new provi-
sions inserted by the 2003 amendment. In 2003, the amendment to the
citizenship act brought about two significant changes—​the recognition
in law of the category of overseas citizens of India, and the constraining of
citizenship by birth by confining it to those persons whose parents were
Indian citizens or one of the parents was an Indian citizen and the other
was not an illegal migrant. In addition, by making changes in the provi-
sions pertaining to citizenship by registration, the amendment disallowed
persons from seeking citizenship through registration if they were illegal
migrants. We may recall from the discussion earlier in this chapter that
the provision of LTV that was in place for persons belonging to minority
communities in Pakistan who had entered India with short-​term visit
visas was augmented in 2004 through amendments in the citizenship
rules to give citizenship to persons belonging to specified religious com-
munities from Pakistan who had sought refuge in Rajasthan and Gujarat.
The 2019 amendment made this exception more definitive by extending
it to the entire country and incorporating it within the statutory frame-
works of the Citizenship Act itself.
The CAA exempts six ‘minority communities’, Hindus, Sikhs,
Buddhists, Jains, Parsis, and Christians, from three countries—​
Bangladesh, Pakistan, and Afghanistan—​from the category of ‘illegal mi-
grants’ which was inserted in Section 3 (Citizenship by Birth) and Section
5 (Citizenship by Registration) of the Citizenship Amendment Act 2003.
Table 2.1 Amendments to the Citizenship Act of India

Citizenship Objects and Reasons of the Act Insertion Ramifications

Amendment Act

Citizenship Changes Pursuant to the Assam Section 6A was inserted into the Citizenship The amendment inscribed an
Amendment Act Accord signed as a memorandum Act, 1955, via Act no. 65 of 1985 with exception for Assam in the
1985/​1986 of settlement between the effect from 07.12.1985, which set 1 citizenship law.
Government of India and the January 1966 as the base-​date for the It made way for a graded citizenship
leaders of the Assam Movement. identification of foreigners. Those who in Assam.
The amendment sought to entered Assam from Bangladesh after that The amendment had implications
implement Clause 5 of the Assam date and before 25 March 1971 would for the exceptional NRC regime
Accord pertaining to the detection be considered Indian citizens, following for Assam in 2005 and also
and deletion of foreigners. identification under the Foreigners Act. became the basis for petitions
To make the acquisition of Indian Those who entered after that, as detected in the Supreme Court to declare
citizenship stringent in the context under the IMDT Act, would be deported Section 6A unconstitutional.
of large number of persons of as ‘illegal migrants’ Citizenship by birth constrained
Indian origin entering India from Section 3 of the Citizenship Act 1955 was manifesting the tendency in
the neighbouring and some African amended via Act no. 51 of 1986 to lay the citizenship law towards jus
countries down that a person could be an Indian sanguinis. Any person born in
citizen by birth if one of his/​her parents India after the amendment came
was an Indian citizen at the time of his/​ into effect on 1 July 1987 would be
her birth a citizen by birth only if one of his/​
her parents was an Indian citizen.
Citizenship The Citizenship Act of 1955 was one Amended Section 3 of CAA 1955 The CAA 2003, further constrained
Amendment Act of the 109 laws that were reviewed Citizenship by birth citizenship by birth consolidating
2003 by the Commission on Review of to lay down that every person born in India the tendency towards jus sanguinis.
Administrative Laws constituted on or after the commencement of the CAA, Read with CAA 1986, citizenship by
by the Central government in 2003, would be a citizen by birth only if birth was now of three kinds—​those
1998. The High Level Committee both parents are citizens of India; or one born after the commencement of
on Indian Diaspora constituted of the parents is a citizen of India and the the Constitution and before the
by the Central government also other is not an illegal migrant at the time of CAA 1986 came into effect (1 July
recommended the amendment of his/​her birth. 1987) would be citizens of India by
the 1955 Act. The CAA 2003 had Inserted Section 7A which provided for birth; those born after 1 July 1987
the following objectives: (i) make the ‘registration of Overseas Citizens of but before the commencement
the acquisition of Indian citizenship India (OCI)’ (subject to conditions and of CAA 2003, would be citizens
by registration and naturalization restrictions) of India by birth only if one of the
more stringent; (ii) prevent illegal Section 7B conferred the OCIs with certain parents was an Indian citizen at the
migrants from becoming eligible rights which allowed them, among other time of his/​her birth; those born
for Indian citizenship; (iii) simplify things, the freedom of entry into India. after the commencement of CAA
the procedure to facilitate the re-​ The rights to equality of opportunity in 2003 would be citizens of India
acquisition of Indian citizenship by employment and registration as voters, by birth only if they satisfied the
persons of full age who are children of and to seek election to representative conditions prescribed in CAA 2003.
Indian citizens, and former citizens of bodies at the central and state levels Confirmed the tendency towards
independent India; (iv) provide for the was not conferred. Section 7C provided jus sanguinis or the principle of
grant of overseas citizenship of India the process of renunciation of OCI parentage. The OCI was not dual
to Persons of Indian Origin belonging status, and Section 7D specified the citizenship and while it seemed to
to specified countries, (v) provide for grounds under which the registration reflect a growing trend worldwide
the compulsory registration and issue of a person as OCI could be cancelled towards mobile/​flexible citizenship
of a national identity card to all citizens by the Central government if the in the context of global flows of
of India; (vi) enhance the penalty for registration was obtained by fraud, false population, the OCI manifested
violation of its provisions, as well as the representation or concealment of facts; a tendency towards consolidating
rules framed under it; and (vii) to omit disaffection towards the Constitution of affective ties of belonging to
all provisions recognizing, or relating India; the registration could be cancelled a home country, which was
to Commonwealth citizenship from also if ‘it was necessary so to do in the different from the country of
the Act interest of the sovereignty and integrity of residence and work.
(continued)
D
Table 2.1 Continued

Citizenship Objects and Reasons of the Act Insertion Ramifications

Amendment Act
India, the security of India, friendly relations The entrenchment of the power
of India with any foreign country, or in the of the state to identify and
interests of the general public.’ enumerate citizens. The importance
of documents as evidence of
citizenship was established. The
innovation of legacy as evidence of
citizenship further strengthened
the association of citizenship with
parentage. In a manifestation of
entrenchment of the national
security state, the category of illegal
migrant figures prominently in
the justification for the exercise of
preparing an NPR and NRC.
Inserted Section 14A which lay down that
‘the Central government may compulsorily
register every person of India and
issue national identity card to him’. The
Citizenship (Registration of Citizens and
Issue of National Identity Cards) Rules 2003
provided the procedure for the preparation
of the National Register of Indian Citizens
through house to house enumeration
(Section 4). An amendment to the rules
in 2009, prescribed an exception to the
procedure in the case of Assam.
Citizenship According to the Statement of Objects The Act Amended Section 2 (b) of the The amendment sought to make
Amendment Bill and Reasons of CAB 2016, under the CA 1955 to make an exception in the changes brought in the Passport
2016 existing provisions of the Citizenship interpretation of the category ‘illegal Act 1920 and the Foreigners Act
Act, persons belonging to minority migrant’ [Section 2 CAB 2016], to 1946 part of the citizenship law.
communities, such as Hindus, exclude the categories mentioned in the It inserted for the first time the
Sikhs, Buddhists, Jains, Parsis, objects and reasons. consideration of religion
and Christians from Afghanistan, It amended the Third Schedule of the in decisions pertaining to
Bangladesh, and Pakistan, who Citizenship Act pertaining to the citizenship.
entered India without valid travel requirements for naturalization to reduce Extension of control over the status
documents or the validity of their the aggregate period of stay for ‘persons of the OCI in relation to India, by
documents had expired are considered belonging to minority communities’ making them subject to laws over
illegal migrants and are ineligible to identified in Section 1 CAB 2016 from which the Indian government
apply for Indian citizenship. The Act 11 years to 6 years. [Section 4 CAB 2016] had jurisdiction. This could have
intended to make this category eligible ramifications for the OCI status
for Indian citizenship. of those vocal in their opposition
to political parties and regimes in
power.
Persons belonging to this category Inserted Clause (da) to Section 7D of the
of minority communities as well as Citizenship Act to lay down that the
others of Indian origin who have registration of an Overseas Citizen of
been applying for citizenship under India Cardholder would be cancelled, if he
section 5 of the Act, are not able to or she violated any of the provisions of the
give proof of their Indian origin and Act or provisions of any other law for the
are therefore compelled to apply for time being in force’.
citizenship by naturalization which
requires twelve years of residency,
depriving them of opportunities that
Indian citizens have. The Bill proposed
to make applicants belonging to
minority communities from specific
countries eligible for citizenship by
naturalization in seven years.

(continued)
D
Table 2.1 Continued
Citizenship Objects and Reasons of the Act Insertion Ramifications
Amendment Act
The Bill proposed an amendment
which would enable the Central
government to cancel the registration
of an OCI, who had violated any
Indian law a condition which had
been absent in the 2003 provisions.

Citizenship Same as CAB 2016, that is, ‘removal Amended the Third Schedule of the Same as CAB 2016.
Amendment Act of adverse penal consequences’ for Citizenship of India Act pertaining to the In addition, the accommodation
2019 those belonging to specified minority requirement of minimum period of stay of an exception for some states
communities from Afghanistan, for naturalization–​reduced from 6 years in North-​East India, intended to
Bangladesh and India under the in Section 4 CAB 2016 to 5 years [Section assuage heightened opposition
Passport Act 1920 and Foreigners 6 CAB 2019) to the CAA in the region,
Act 1946, to grant them ‘immunity’ introduced another system of
from any proceedings against them gradation within the universe of
under the two Acts, and reduce the Indian citizenship.
required period of stay for acquiring While this garnered support for
citizenship by naturalization to CAB 2019 in the Parliament,
5 years. opposition to the law in the
region, especially in Assam
continued.
In addition, the Bill made Inserted a new Section 6B (i, ii, ii) [Section A notification issued by the Ministry
modification in the CAB 2016, ‘to 3 CAB 2019] Empowering Central of Home Affairs on 4 March 2021
protect the constitutional guarantee government to issue a certificate of issued under section 7B of the
given to indigenous populations registration or naturalization to persons Citizenship Act which allows the
of North Eastern States covered specified under the CAB who would be Central government to notify the
under the Sixth Schedule of the deemed to be citizens of India from the rights of the OCI, placed constraints
Constitution and the statutory date of entry in India. All proceedings on those rights that had been given to
protection given to areas covered against such persons upon the grant them by the 2003 Amendment Act.
under the ‘Inner Line’ system of certificate of citizenship would be The notification restricts the grant of
of the Bengal Eastern Frontier cancelled. multiple entry lifelong visas to OCI
Regulation’ 1873’. Inserted a new Section 6B (iv) [Section 3 cardholders, by requiring some of
To remove an anomaly in the CAB 2019] them—​those undertaking research,
earlier provisions pertaining to Excluding tribal area of Assam, Meghalaya, missionary, tabligh, or journalistic
the cancelation of registration Mizoram, or Tripura as included in the activities—​to obtain ‘special
of the OCI Cardholder, the Bill Sixth Schedule to the Constitution and permission’ from the ‘competent
sought to provide the OCI with an the area covered under ‘The Inner Line’ authority’ or the Foreigners Regional
opportunity to be heard. notified under the Bengal Eastern Frontier Registration Officer or the Indian
Regulation, 1873, from the purview of the Mission. These changes enhance the
new section 6B. government’s ‘surveillance’ over the
OCI’s activities in India.
Amendment of Section 7D of the While the OCI was never conceived
Citizenship Act 1955 [Section 4 as ‘dual citizenship’ status, the
CAB 2019] change in the definition of the OCI
The provision that the OCI would be given Cardholder in the notification to
a reasonable opportunity of being heard, one where the OCI cardholder is ‘a
before an order of cancelation of OCI foreign national holding passport of
registration is passed was added. a foreign country and not a citizen
of India’ is a distinct move towards
consolidating the state’s control
over those whose activities it would
consider ‘undesirable’.
96 Citizenship Regimes, Law, and Belonging
Under the existing provisions of the Citizenship Act, an ‘illegal migrant’
is someone who has entered India without valid travel documents or has
overstayed, with the result that the validity of his or her documents has
expired. The ‘statement of objects and reasons’ of the Bill introduced by
Home Minister Amit Shah in Lok Sabha in December 2019 declared that
special provisions for these communities were necessitated because they
faced persecution on religious grounds in the three countries. The consti-
tutions of all these countries provided for a state religion, with the result
that the minority communities feared persecution in their ‘day to day life’
and restriction of their right to practice, profess, and propagate their re-
ligion. These persecuted persons, when they entered India without valid
documents or overstayed, faced ‘adverse penal consequences’ under the
Passport Act and the Foreigners Act. As ‘illegal migrants’ they were un-
able to apply for citizenship by registration. The Bill was, therefore, being
brought with the purpose of ‘granting’ them ‘immunity’ from any penal
action and enabling them to apply for Indian citizenship by registration
in cases where they had the documents to show that they were persons of
Indian origin or by naturalization by reducing the minimum period of
stay in India to five years.
By exempting the specified communities from the category of illegal
migrants, the CAA has sought to bring the citizenship law in line with the
executive orders and rules issued by the government in 2015 and 2016.
These orders had laid down exemptions for such ‘migrants’ from the ‘ad-
verse penal consequences’ of the Passport (Entry into India) Act 1920
and Foreigners Act 1946 to ensure that the communities identified in the
CAB 2016/​2019 were not treated as illegal migrants under these Acts. The
gazette notification dated 7 September 2015, which executed these ex-
emptions, introduced the cut-​off date of 31 December 2014. To become
eligible for the exemption, the migrants should have entered India before
this date. A PIL filed by the Assam Sanmilita Mahasangha (ASM) which
is pending before the Supreme Court has contested the deviation in the
cut-​off date set for Assam by the Citizenship Amendment Act 1985, that
is, 24 March 1971, from the date specified in Article 6 of the Constitution
of India. The CAA is applicable to entire India and takes the cut-​off date
forward by several years. In addition to exempting specified minority
communities from the category of illegal migrants, the CAA enables
them to acquire Indian citizenship by naturalization, by reducing the
 Bounded Citizenship 97
minimum period of residence from twelve to five years. For this purpose,
the CAA amended the Third Schedule to the Citizenship Act to make ap-
plicants belonging to minority communities from the specified countries
eligible for citizenship by naturalization if they had stayed in India for an
aggregate period of five years.

Constitutional Assembly Debates and

the Citizenship Question

While justifying the need for the CAA, the JPC cited B. R. Ambedkar’s
statement in the Constituent Assembly in which he expressed difficulty
in laying down permanent provisions for citizenship in the Constitution,
and stressed the need to empower the Parliament to legislate on all fu-
ture matters concerning citizenship. The debates in the CA from 10 to
12 August 1949, when the final provisions of citizenship were deliber-
ated upon and approved, show the complexity that the citizenship ques-
tion had assumed in the context of Partition and large-​scale movement of
people across the newly created borders amidst unprecedented violence
along religious lines. It is evident from a reading of the CAD that the
question ‘Who is an Indian citizen?’ elicited deep ‘ideational disagree-
ment’ (Lerner 2016) and ideological dissonance among members of the
CA and anxieties around the ramifications the constitutional inscription
of citizenship would have on the definition of Indian citizenship. These
disagreements arrayed along the familiar fault-​line of whether ‘birth’ (the
territoriality principle; jus soli) or ‘descent’ (the parentage principle; jus
sanguinis) should be the foundational principle of citizenship. These were
questions pertaining to both the source of citizenship and its expression
as an identity attached to ideas of home and belonging.
A close reading of the debates shows that these lines were unevenly
drawn and the arguments on different sides were framed in such a way
that no position was absolute. Indeed, strong arguments in favour of one
principle showed an irresolute overlapping with the other. Those who
adhered to the constitutive principle of descent as the source of citizen-
ship, for example, sought to make citizenship conditional for ‘returnees’
from Pakistan and were apprehensive of the ‘dual ties’ it would generate
when extended to the diaspora community. Similarly, the apologists for
98 Citizenship Regimes, Law, and Belonging
the principle of birth as the basis of citizenship sought to constrain it by
making it conditional on domicile and in some quarters by combining 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 form of citizenship was asserted amidst concerns that
the inscription of ‘birth’ as a definitive condition of citizenship would
make it ‘cheap’. Anxieties were expressed that indiscriminate absorption
of people migrating across borders would make Indian citizenship pre-
cariously flexible and embarrassingly indecisive. Those concerned with
‘cheapness’ of citizenship desired that birth should be aligned with de-
scent. Flexibility of citizenship with respect to migrants was sought to be
curbed by aligning citizenship with religious belonging, an alignment
which remains fraught to this day.
Scholars have pointed at ‘innovations’ (Lerner 2016) by the CA as strat-
egies of decision making and the ‘original contributions’ that it made in
the modes of deliberation to reach those decisions (Austin [1966] 2010).
‘Innovations’ were prompted by the ‘deep disagreements’ that existed
within the CA over the ‘vision of the State’, compelling its members to
‘refrain from making unequivocal choices’ and take recourse to ‘constitu-
tional incrementalism’ based on ‘creative use of constitutional language’
(Lerner 2016, 61). Deferral of controversial decisions was among the
strategies of ‘constitutional incrementalism’, which was deployed—​as in
the dispute over national language—​to allow for ‘the gradual emergence
of a broader consensus’ (Lerner 2016). For Granville Austin, the mo-
dalities through which decisions were reached in the CA constituted its
‘original contribution’. Austin described these modalities as follows: de-
cision making by consensus which gave emphasis to the process through
which a decision was reached rather than the decision itself and the
principle of accommodation whereby the CA displayed the ability to har-
monize differences over categories, without changing the content of the
categories themselves (Austin [1966] 2010, 311–​318). In his later work,
Austin focused his attention on the ‘conflicts’ in the ‘seamless web’ of the
constitutional edifice which emerged in the working of the Constitution.9
Apart from examining the ‘inner conflicts’ in the Constitution (Mehta

9 These conflicts unsettled the harmony among the ‘democracy’, ‘social revolution’, and ‘na-

tional unity and integrity’ strands of the constitutional web (Austin 2002).
 Bounded Citizenship 99
2002), scholars have reconsidered the idea that the Constitution was
the result of a consensus pushed by nationalism (Elangovan 2018) and
see it as a ‘series of conflicts’, of which several remained unresolved (De
2016). Constitutions often present the identity of a constitutional subject
through narratives of ‘sameness and selfhood’ (Rosenfeld 2009, cited in
Tushnet 2010, 673) or through a constitutional worldview that offers dif-
ferent possibilities of pinning an identity. Constitutions may also acquire
salient features which give them a ‘discernable identity’ (Jacobsohn 2010,
3). Most constitution may, however, carry ‘conflicting’ and ‘radically in-
consistent’ ideas (Tribe 1987, 173, cited in Jacobsohn 2010) with a poten-
tial for ‘constitutional disharmony’, which Jacobsohn considers ‘critical’
for the development of constitutional identity (Jacobsohn 2010, 4). More
recently, Madhav Khosla has described the ‘founding orientation’ to-
wards ‘written constitutionalism’ in the Indian context as a modality of
creating ‘common meanings’ and ‘explicating norms’ that ‘other societies
could take for granted’. The text of the Constitution was devised, argues
Khosla, not simply to empower or restrain political actors but as a ‘ped-
agogical tool’—​as an ‘instrument of political education’ to build a ‘new
civic culture’ (Khosla 2020, 23).

Deferral and Interlocutory Spaces

The Constitution giving processes in the CA embodied the moment when

a constitutional identity was being consciously crafted. The debates on cit-
izenship in the CA show how integral the delineation of citizenship was for
expressing both—​the identity of the Constitution and that of the constitu-
tional subject. In the course of the final reading of the draft Constitution,
on 10 August 1949, B. R. Ambedkar proposed the citizenship articles im-
mediately after the provisions pertaining to financial relations between the
Union and the States and the establishment of a Finance Commission had
been considered and passed. The two Articles, 5 and 6, dealing with citi-
zenship, were presented for deliberation as a ‘consolidated amendment’,
along with what Rajendra Prasad—​President of the CA—​termed a ‘ver-
itable jungle’ of 130 to 140 amendments. These amendments—​some of
which were moved in the CA and voted upon—​manifested the disso-
nance within the CA on the foundational principles of citizenship, even
100 Citizenship Regimes, Law, and Belonging
among those from the Congress Party, who would later become members
of Nehru’s first Cabinet. The introduction of the provisions immediately
prompted a procedural question. Naziruddin Ahmed, elected from West
Bengal on a reserved Muslim seat, queried how the consolidation of the
amendments had been done by the drafting committee, and whether sub-
stantial departures from the original draft had taken place, which he ar-
gued, would amount to an amendment of the Constitution itself (CAD,
10 August 1949, 345). Representing West Bengal, Ahmed was a persistent
and ‘vocal critic of the draft Constitution’, ‘fuelled by an inward suspi-
cion of the Drafting Committee itself ’ (Rathore 2020).10 His angst at what
he considered a daily departure from the draft constitution was reflective
of both—​the role that the various sub-​committees and the drafting com-
mittee played in determining the final form of the Constitution and the
concern this prompted within the CA over the loss of control over the
draft and their reduction to simply a deliberative and approving body.
It may be recalled that the drafting committee, chaired by B. R.
Ambedkar, was appointed by the CA on 29 August 1947. The committee
prepared the initial draft of the Constitution in six months, which was
discussed in the CA for almost a year, in the course of which amendments
were discussed, voted, incorporated, or rejected. Several articles were en-
trusted back to the drafting committee or held in abeyance for a longer
period to facilitate a consensus. Often the members of the drafting com-
mittee were not in agreement with each other and expressed their differ-
ences when these articles were brought back to the CA for deliberation
and voting (Singh 1990, Austin 1966 [2010]). The citizenship provisions
fell in this category of articles which required attenuation of disagree-
ment. They were entrusted to the drafting committee, which received
over 130 proposals for amendment. It subsequently presented a modified
draft as its own amendment, for which it sought approval from the CA.
The amended draft Articles 5 and 6 concerning citizenship, which would
become Articles 5 to 11 in the Constitution of India, were proposed by
B. R. Ambedkar.

10 Ahmad believed that the drafting committee, led by Dr Ambedkar, had engaged in a

drafting process that lacked transparency, making changes to the draft Constitution without the
knowledge or consent of the Constituent Assembly (Rathore 2020).
 Bounded Citizenship 101
The discussions which ensued show that the CA constituted itself into
a discursive body in which contestations over the provisions unfolded
in a deliberative mode.11 The decision on citizenship was, however, not
reached through a deliberative consensus. The positions taken in the
CA on citizenship were strongly agonistic, expressed along plural, and
intersecting axes of dissonance rather than parallel binaries. ‘Plural’ ago-
nism paved the way for accommodation of the consensus that had been
reached in the drafting committee. The grounds for accommodation had,
however, been prepared through a prior agreement on procedures. It
was in deference to this prior consensus that the CA agreed to the draft
prepared by the drafting committee and proposed by Ambedkar.12 The
debate in the CA over a period of three days become important, how-
ever, for giving insights into the fraught nature of the citizenship ques-
tion generated by uncertainties about the present and anxieties around
the ramifications any resolution of the present problems would have for
the future. The debate on citizenship in the CA tells us that among its
many strands—​some of which reverberated in the debates on the CAB
2019 in the Parliament—​what prevailed was a prior consensus among the
members of the CA, regardless of their own positions on specific issues,
on their commitment collectively to the objectives of the Constitution.
Thus, while what was discussed in the CA was the legal framework of
becoming a citizen, it was elsewhere, during the debates on the various
fundamental rights that the relationship between the state and citizens
was elaborated. Yet, the debate on citizenship saw substantive questions
concerning the nature of the political community being raised, with im-
plications for both citizenship identity and belonging. Significantly, the
debates provided the space where secularism as a democratic and repub-
lican ideal was discussed and affirmed as the basis of citizenship, even as
the relationship between citizenship and religion, the principles on which
mobility could be made legible, questions of loyalty and allegiance, and
the centrality of birth or descent as the source of citizenship, remained
disputed.

11 Following Jon Elster’s study of Constituent Assemblies, Udit Bhatia makes a distinction be-

tween discursive, political, and institutional features of the debates in Constituent Assemblies
(Bhatia 2018).
12 See Knops (2007) on the relationship between agonism as deliberation and Chantal Mouffe’s

theory of democracy.
102 Citizenship Regimes, Law, and Belonging
In his opening speech inaugurating the debate on citizenship, B. R.
Ambedkar stated that he was not proposing a permanent law of citizen-
ship for the country:

Now, Sir, this article refers to citizenship not in any general sense but
to citizenship on the date of the commencement of this Constitution.
It is not the object of this particular article to lay down a permanent
law of citizenship for this country. The business of laying down a per-
manent law of citizenship has been left to Parliament, and as Members
will see from the wording of article 6 as I have moved the entire matter
regarding citizenship has been left to Parliament to determine by any
law that it may deem fit (Ambedkar, CAD, 10 August 1949, p. 347–​348).

Article 6 in Ambedkar’s proposal which was incorporated in the

Constitution of India as Article 11, lay down that nothing in the pro-
visions pertaining to citizenship would ‘derogate from the power of
Parliament to make any provision with respect to the acquisition and
termination of citizenship and all other matters relating to citizenship’.
While presenting the proposal in the CA, Ambedkar explained the scope
of the Article, which would later be cited by the JPC to draw support
for CAA:

The effect of article 6 is this, that Parliament may not only take away
citizenship from those who are declared to be citizens on the date of the
commencement of this Constitution by the provisions of article 5 and
those that follow, but Parliament may make altogether a new law em-
bodying new principles. That is the first proposition that has to be borne
in mind by those who will participate in the debate on these articles. They
must not understand that the provisions that we are making for citizen-
ship on the date of the commencement of this Constitution are going to be
permanent or unalterable. All that we are doing is to decide ad hoc for the
time being. (Ambedkar, CAD, 10 August 1949, 347, emphasis added)

Both Ambedkar and Prasad admitted that the committee had found it
extremely difficult to frame an appropriate draft. Their concerns were,
however, alleviated by the understanding that the citizenship provi-
sions were being proposed only ‘for the time being’. In the manifestation
 Bounded Citizenship 103
of constitutional incrementalism (Lerner 2016), the CA kept the future
course of citizenship open for the Parliament to determine through the
legislative route. It was, however, in the space created by deferral that
agonistic expression of difference and deference to a prior procedural
consensus became possible. Yet, deferral was not complete nor was it un-
equivocal. In what was a deviation from Ambedkar’s opening statement
explaining that the Parliament would have the power to make ‘altogether
a new law’ on citizenship ‘embodying new principles’, Nehru’s speech to-
wards the end of the debate conveyed that the objective of the deliber-
ations in the CA was different. The CA was a body that was articulating
policy—​the norms and principles—​that would define citizenship, and not
the details of acquisition and termination of citizenship. While these de-
tails should appropriately be in the domain of law making and for the
Parliament to decide, the deliberations in the CA, Nehru declared, must
lay down the principles which would guide future law. Nehru’s declaration
was inconsistent with the premise on which Ambedkar initiated the dis-
cussion—​of the impermanence of the constitutional provisions on citi-
zenship—​and the power of the Parliament, if it wished, to change their
content, and even redefine the principles, on which consensus was being
sought from the CA.
Ambedkar’s proposal may, however, be seen as keeping open the possi-
bility of ‘interlocutory spaces’ in the constitution giving process—​spaces
that served as a conduit between the past and the future, generating over-
lapping visions of a future society. The Constitution, as Upendra Baxi
(2008, 93) puts it, was the culmination of ‘prior [and continuing] his-
tories of power and struggle’, which shaped the specific project of writing
a constitution and also the production of the legal ensemble which gener-
ated specific modes of governance and juridical norms. Yet, as the theory
of constitutional moments which draws upon history to understand and
explain constitutional practice (Ackerman 1991) tells us, constitutional
moments are ‘extraordinary’ moments of intense constitutional partici-
pation and deliberation, which produce not simply the text of the consti-
tution, but consist in the inscription of the set of principles that would be
adopted by ‘We, the people’ (Ackerman 1991, 5).
104 Citizenship Regimes, Law, and Belonging
Birth, Descent, and Secularism

While setting down the procedures to be followed in the debate, Rajendra

Prasad asked the CA members to ‘confine’ themselves to ‘the limited
question of laying down the qualifications for citizenship on the day the
Constitution comes into force’ (Prasad, CAD, 11 August 1949, 351). The
Drafting Committee identified the following ‘classes of people’ who would
become citizens of India from the commencement of the Constitution,
under specified ‘terms and conditions’:

(1) Persons domiciled in India and born in India who constituted the
bulk of the population of India (Article 5(a) in the proposal);
(2) ‘Indians abroad’ or persons ordinarily residing outside India but
whose grandparents or parents were born in India as defined in the
Government of India Act, 1935. This class of persons, on an appli-
cation to the Consular Officer or to the Diplomatic Representative
of the Government of India in a prescribed form, could be reg-
istered as citizens before the commencement of the Constitution
(Article 5(b) in the proposal);
(2) ‘Persons domiciled but not born in India’, who had resided in India
for at least five years before the commencement of the Constitution
(Article 5(c) in the proposal);13
(3) ‘Migrants’ into India from Pakistan, who were residents of ‘the ter-
ritory now Pakistan’ and had ‘migrated to the territory of India’,
would be considered Indian citizens if they or either of their
parents or any of their grandparents was born in India as defined
in the Government of India Act, 1935. The drafting committee lay
down different modalities for those coming to India from Pakistan
before and after 19 July 1948—​the date on which a permit system
regulating movement between the two countries became effective.
Those who migrated before 19 July 1948 and had been ‘ordinarily’
resident in India since migration would be considered Indian cit-
izens automatically; those who migrated after 19 July 1948 would

13 Under this provision subject of the Portuguese Settlements in India or the French

Settlements in India like Chandernagore, Pondicherry, or the Iranians who had come from
Persia and although not born here, had resided for a long time with the intention of becoming
the citizens of India, could become Indian citizens.
 Bounded Citizenship 105
be able to enter India on the basis of a permit issued to them for
‘resettling or permanent return’. A person to whom such a permit
had been issued would be entitled to ‘register’ as a citizen of India
by ‘an officer appointed in this behalf by the Government of the
Dominion of India on an application made by him therefore to
such officer before the date of commencement of this Constitution
in the form prescribed for the purpose by that Government’.
A person applying for registration should have resided in the ter-
ritory of India for at least six months before the date of application
(Article 5A of the proposal).
(4) ‘Returnees’ to India from Pakistan: Exceptions were made for
persons who were residents of India but migrated to the territory
which subsequently became Pakistan after 1 March 1947, when the
communal violence and movement across borders began. These
person could become citizens of India if, ‘having so migrated to
the territory now included in Pakistan, they returned to the ter-
ritory of India under a permit for resettlement or permanent re-
turn issued by or under the authority of any law and every such
person shall for the purposes of clause (b) of article 5-​A of this
Constitution be deemed to have migrated to the territory of India
after the nineteenth day of July 1948’ (Article 5AA). It was the pro-
vision of citizenship for this class—​of ‘returnees’ from Pakistan—
which became the site of most contentious debates in the CA.

The first amendment to the provisions proposed by Ambedkar was

moved by P. S. Deshmukh, a farmer’s rights activist and satyagrahi
against untouchability, who would later serve in Nehru’s first cabinet.14
Objecting to Ambedkar’s proposal which he believed would make Indian
citizenship ‘the cheapest on earth’, Deshmukh proposed the principle of
parentage and descent for delineating Indian citizenship. The amend-
ments proposed by Deshmukh to make Indian citizenship both special

14 P. S. Deshmukh was a farmers’ rights activist who established the Central Provinces and

Berar Farmers’ Association in the course of the independence movement, and participated in
satyagraha against the practice of untouchability in Amba Temple in Amaravati. He was elected
to the CA from Central Provinces and Berar and served in Nehru’s Cabinet after independence
as the Union Minister of Agriculture and later as the Union Minister of Cooperation. He was a
member of the Lok Sabha from 1952 to 1962. https://​www.cons​titu​tion​ofin​dia.net/​const​itue​nt_​
a​ssem​bly_​memb​ers/​ps_​d​eshm​ukh.
106 Citizenship Regimes, Law, and Belonging
and stringent was as follows: insertion of ‘born of Indian parents’ as an ad-
ditional condition for citizenship for those born in the territory of India,
the enhancement of the period for which a person has been ‘ordinarily
resident’ in the territory of India immediately before the commencement
of the Constitution to become eligible for citizenship from 5 years to 12,
and the removal of the provision that allowed anyone who had migrated
to Pakistan from India after the first day of March 1947 to become a cit-
izen of India. In what would be among the first emphatic statements in the
CA of a religious identification of citizenship, Deshmukh suggested that
Article 5 proposed by Ambedkar should be modified to include: ‘every
person who is a Hindu or a Sikh by religion and is not a citizen of any
other State, wherever he resides shall be entitled to be a citizen of India
(Deshmukh, CAD, 11 August 1949, 352).
Deshmukh’s proposals represented a strand within the CA which
would have preferred to make citizenship a matter of inheritance, delin-
eating a ‘community of descent’ (Brubaker 1992). This was aligned with
the idea of a ‘homeland’ as the primary and inextricable unit of belonging
and source of identity, to which one remained tethered and could even-
tually return. The question—​who belongs—​was central to this formu-
lation, paving the way for making citizenship an instrument of closure,
exclusion, and demarcation. Deshmukh’s position presents the centrality
of citizenship as an institution through which the modern state ‘con-
stitutes and continually reconstitutes itself as an association of citizens’
(Brubaker 1992). As an instrument of ‘closure’ citizenship served to es-
tablish the sovereignty of the state in demarcating membership—​inter-
nally and externally—​which was not ‘freely disposable’ (Bockenforde
1995, in Kuenkler and Stein 2016, 319). Yet citizenship was also about
‘the standardisation and intensification of state authority internally’, so
that the state could disempower other competing loci of power to terri-
torialize its authority. Simultaneously, while establishing its authority, the
state installed itself as the only ‘politically relevant affiliation’ for people,
affirming citizenship as an organizational principle of the state, and the
state as a union of persons (Bockenforde 1995).
Deshmukh made a case for religion as a consideration to spell out the
terms of belonging and the criterion for membership. It was in this con-
text that he also argued strongly against ‘throwing open’ our citizenship
‘so indiscriminately’, and saw no ground for doing so, unless it was, as he
 Bounded Citizenship 107
put it, ‘the specious, oft-​repeated and nauseating principle of secularity of
the State’. Such a principle could, however, only be sustained at the cost of
‘wiping out our own people’:

Does it mean that we must wipe out our own people; that we must wipe
them out in order to prove our secularity; that we must wipe out Hindus
and Sikhs under the name of secularity, that we must undermine eve-
rything that is sacred and dear to the Indians to prove that we are sec-
ular? I do not think that that is the meaning of secularity and if that is
the meaning which people want to attach to that word “a secular state”.
I am sure the popularity of those who take that view will not last long in
India. (Deshmukh, CAD, Vol. IX, 11 August 1949, 354)

In a manifestation of mimetic longing Deshmukh pinned citizenship

to an idea of a Hindu/​Sikh homeland, espousing an idea of citizenship
which would resonate seventy years later in the justification for the CAA:

[E]very person who is a Hindu or a Sikh and is not a citizen of any other
State shall be entitled to be a citizen of India. We have seen the forma-
tion and establishment of Pakistan. Why was it established? It was es-
tablished because the Muslims claimed that they must have a home of
their own and a country of their own. Here we are an entire nation with
a history of thousands of years and we are going to discard it, in spite
of the fact that neither the Hindu nor the Sikh has any other place in
the wide world to go to. . . . But we are a secular State and do not want
to recognise the fact that every Hindu or Sikh in any part of the world
should have a home of his own. If the Muslims want an exclusive place
for themselves called Pakistan, why should not Hindus and Sikhs have
India as their home? We are not debarring others from getting citizen-
ship here. We merely say that we have no other country to look to for
acquiring citizenship rights and therefore we the Hindus and the Sikhs,
so long as we follow the respective religions, should have the right of
citizenship in India and should be entitled to retain such citizenship so
long as we acquire no other. I do not think this claim is in any way non-​
secular or sectarian or communal. If anybody says so, he is, to say the
least, mistaken. (Deshmukh, CAD, 11 August 1949, 355–​356)
108 Citizenship Regimes, Law, and Belonging
Later in the course of the debate, K. T. Shah too lent his weight to
Deshmukh, cautioning that being secular must not make them afraid of
stating the facts:

Hindus and Sikhs have no other home but India, and I do not see how
we can include everyone in this category unless we say it bluntly in this
form. We should not be ashamed in saying that every person who is a
Hindu or a Sikh by religion and is not a citizen of another State shall
be entitled to citizenship of India. That will cover every class whom we
want to cover and will be comprehensive. The phrase ‘Secular’ should
not frighten us in saying what is a fact and reality must be faced. (Shah,
CAD, 11 August 1949, 376)

Interestingly, however, Deshmukh was averse to giving the Parliament

unbridled powers to regulate citizenship by law. Objecting to Ambedkar’s
proposal of giving unfettered authority to the Parliament, Deshmukh
wanted the CA to lay down precise provisions for citizenship which
would be difficult to change later. Making a distinction between the
Constitution as a higher-​order law, and a law enacted by Parliament, he
averred: ‘And then, this [i.e., the citizenship provision] is not a definition
in an Act of Parliament that is easily changeable. So, if by the Constitution
you are going to give this right of citizenship in the way proposed in this
article, you cannot change it later on and this will go against the interests
of the Indian nation’ (Deshmukh, CAD, 11 August 1949, 355–​356).
Naziruddin Ahmed raised a procedural issue yet again, pointing out
that the power of the Parliament in Article 6, would amount to an amend-
ment of the Constitution itself through the Parliament’s law-​making func-
tion. To avoid a law made by Parliament having the ‘effect of amending
the Constitution itself ’, the provision should mention that any change
would not be seen as a constitutional amendment (Ahmed, 11 August
1949, 359–​360). Jaspat Roy Kapoor representing Uttar Pradesh15 com-
municated his disagreement with the Parliament’s law-​making powers
under Article 6: ‘A definite article conferring the right of citizenship

15 Jaspat Roy Kapoor had a degree in law. A member of the provisional parliament from 1950

to 1952, Kapoor served as a member of the Rajya Sabha for two consecutive terms from May
1952 to May 1962. Rajya Sabha Members Biographical Sketches, 1952–​2003.
 Bounded Citizenship 109
under the Constitution cannot, I think, be tampered with by any subse-
quent law made by Parliament’ (Roy Kapoor, CAD, 11 August 1949, 362).

Migrants and Returnees

After the commencement of the Constitution, the Parliament enacted a

law on citizenship in 1955. There existed a period of legal vacuum be-
tween 26 November 1949, when the citizenship provisions came into
force, and 1955 when the Citizenship Act became effective. Similar hi-
atus in law existed before the constitutional provisions came into force.
In these periods of hiatus, citizenship of those moving across the bor-
ders between India and Pakistan remained liminal and indeterminate.
Within the CA, a debate ensued over two ‘classes’ of people who were to
become citizens at the commencement of the Constitution: (a) ‘Migrants’
into India from Pakistan, among whom a distinction was made between
those who came to India before 19 July 1948, when the permit system
came into force, and those who came after that, and (b) ‘Returnees’ to
India from Pakistan for whom exceptions were made to enable them to
become Indian citizens after following specific procedures. The first cate-
gory, which was more likely to be Hindus and Sikhs migrating to India, as
a matter of choice and/​or to flee violence against them in Pakistan, were
according to Jaspat Roy Kapoor, at par with those who were residing in
the Indian territory. They were ‘citizens of India as of right’ and not by
‘way of grace’, he argued. They ‘took all the trouble’ and experienced the
‘misery and agony’ of migrating from Pakistan to ‘this dear and sacred
land of theirs’:

All the while that they were on their way to this land, they were thinking
of this beloved country of theirs, pining and praying to reach our bor-
ders, and immediately on reaching those borders, with a great sense of
relief they cried out ‘Jai Hind’, a cry which touched every one of us. They
had such tremendous loyalty and affection for this country. (Roy Kapoor,
CAD, 11 August 1949, 364, emphasis added)

While arguing for the removal of what he considered an ‘inconsiderate’

and unbecoming distinction between those ‘migrating’ into citizenship
110 Citizenship Regimes, Law, and Belonging
and those ‘found living’ in India, he went on to urge the CA to specify the
precise reasons for their migration in the provision itself, that is, ‘civil dis-
turbances or fear of such disturbances’. While putting this condition, Kapur
sought to bring the provision in line with laws pertaining to evacuee
property in force in the country—​the Evacuee Property Ordinance—​in
which an evacuee was defined as a person ‘who has left a territory because
of civil disturbances or because of fear of such disturbances’ and also to
communicate that it was not the intention of the CA to ‘confer the right of
citizenship on anybody who wanted to migrate to this country’. The right
could be conferred only on those persons who ‘found it difficult to stay in
the place of their original domicile’. (Roy Kapoor, CAD, 11 August 1949,
364–​365) While the suggestion was not incorporated in the final provi-
sion, in January 1950 the interim Parliament promulgated an Ordinance,
followed by an Act a month later—​the Immigration (Expulsion from
Assam) Act 1950—​to contain the influx of refugees from the eastern bor-
ders into Assam and the eruption of communal tensions in the border
districts of Cachar, Goalpara, and Kamrup. Under the Act the govern-
ment could direct a person to ‘remove’ himself from Assam and India,
if the ‘presence’ of that person was ‘found to be detrimental to the inter-
ests of the general public’. The Act, however, made an exception ‘aimed
at protecting mainly the Bengali Hindus fleeing in from East Pakistan’
(Pisharoty 2019, 50), by providing that a person who had entered India
on account of civil disturbance or fear of such disturbance and had been
residing in Assam, could not be removed (Pisharoty 2019).
Objecting strongly to allowing ‘returnees’ (that is those who migrated
to Pakistan after 19 July 1948 and returned to India with permits from
the Indian Embassy) to become citizens, Kapoor brought considerations
of ‘loyalty’ and ‘allegiance’, into the debate. Calling this provision ‘obnox-
ious’, he argued:

It is a serious matter of principle. Once a person has migrated to

Pakistan and transferred his loyalty from India to Pakistan, his mi-
gration is complete. He has definitely made up his mind at that time to
kick this country and let it go to its own fate, and he went away to the
newly created Pakistan, where he would put in his best efforts to make
it a free, progressive and prosperous state. We have no grudge against
them . . . (Roy Kapoor, CAD, 11 August 1949, 366)
 Bounded Citizenship 111
Responding to Brajeshwar Prasad’s interjection whether all those persons
who fled to Pakistan ‘did so with the intention of permanently settling
down there’ and because they owed ‘allegiance to that State?’ or they too,
like those escaping to India ‘fled in panic?’, Kapoor insisted:

. . . To our misfortune, only a handful of nationalist Muslims were op-

posed to the idea of Pakistan. The vast majority of the Muslims and
most certainly those of them who went away to Pakistan immediately
after Partition had certainly the intention of permanently residing in
Pakistan . . . They gave up their loyalty to this country and they gave their
allegiance to the new country of Pakistan. Their migration was therefore
complete and absolute and, therefore, the right of citizenship which they
had before their migration is eliminated altogether. . . Now if they want to
come back to India to settle down here permanently, we may welcome
them as we would welcome any other foreigner . . . You can come back
again and settle permanently here if you like; but please do not think
it is for the reason that you kicked this country once. . . (Roy Kapoor,
CAD, 11 August 1949, 366–​367, emphasis added)

The ‘returnees’ could be allowed to come back on a permit but could be-
come citizens like any foreigner, after showing their eligibility under a law
made by the Parliament. Alerting the Assembly to the possibility of the
returnees reclaiming the property they had left behind, worth hundreds
of crores, and now under the management and regulatory control of the
Custodian of Evacuee Property, Roy Kapoor wondered if the costs of re-
moving the anomaly between a person being simultaneously a citizen
and an evacuee was not too high (Roy Kapoor, CAD, 11 August 1949).
The argument that the constitutional provisions must make a distinc-
tion between ‘returnees’ and ‘citizens’ was reinforced by K. T. Shah, who
sought an uneasy alliance between the republican ideal of citizenship as a
‘proud privilege’—​recalling its usage in the Roman Republic, where every
Roman citizen could ‘regard himself as equal to any King’—​with the prin-
ciple of citizenship as ‘inheritance’. The ‘pride’ in being an Indian citizen
flowed from the transition it symbolized from subjecthood, which Shah
hoped, like Roman citizenship, would become emphatic: ‘I hope the time
is coming when the same proud boast may justly be made by Indians,
when the citizenship of India will not be merely regarded as a burden of
112 Citizenship Regimes, Law, and Belonging
our “nativity”—​for we were used to be called “natives” in the dead and
buried past—​but it would be regarded as something to which the rest of
the world will look up with respect’ (Shah, CAD, 11 August 1949, 366–​
370). Yet, the privilege of citizenship was to accrue unequally—​on the
ground of ‘birth’ but combined with ‘inheritance’—​from the paternal
side. Shah professed to be a believer in ‘the equality of men and women’,
but recommended a paternal lineage for citizenship—​‘because of the
many complexities and difficulties involved in this tracing of inheritance
from the maternal side, not the least of which is the problem of proof ’
(Shah, CAD, 11 August 1949, 370). The principle of inheritance would
not, however, work for the ‘returnees’—​who had, Shah believed, ‘indi-
cated by every act in their power that they would have nothing to do
with this country, that they belong to a different nation, that they are dif-
ferent in race, language, culture and religion, or whatever the reason that
inspired then in, we would be justified in presuming that they have re-
nounced their birthright’ (Shah, CAD, 11 August 1949, 370). Even if the
CA would consider giving them citizenship, it could not be on the basis
of ‘inheritance’ but the requirement of ‘sufficient evidence documentary
or otherwise, not only to their right by descent but also to show their
intention to permanently reside in this country, and be its loyal citizens’
(Shah, CAD, 370–​371).
Making a distinction between refugees and returnees, Thakur Das
Bhargava too made a case against giving citizenship to ‘those who were
desirous to become the citizens of Pakistan on the 15 August 1947 or
who left this country to become citizens of Pakistan with open eyes and
with the song on their lips: “Hanske liya Pakistan Ladke lenge Hindustan”’
(Bhargava, CAD, 11 August 1949, 380). In a striking similarity with the
debates on ‘illegal migrants’ in Assam, even though the category is not
used anywhere in the CAD, Bhargava draws attention to the problem
of giving citizenship to persons on the mere fulfilment of residential re-
quirements. Shah preferred the insertion of ‘civil disturbance’ as a reason
for seeking refuge in India, particularly to make a distinction between
Muslims who had come to Assam to make it a Muslim majority state for
election purposes and those who came on account of disturbances in
Pakistan or fear of disturbances: ‘. . . If any nationalist Mussalman who is
afraid of the Muslims of East Pakistan or West Pakistan comes to India he
certainly should be welcomed. It is our duty to see that he is protected. We
 Bounded Citizenship 113
will treat him as our brother and a bona fide national of India’ (Bhargava,
CAD, 11 August 1949, 380–​386).
Like the previous speakers, Bhargava too was sceptical about giving
citizenship to the returnees. Holding the position that ‘a person who has
once migrated from this country has migrated for all time’ and aban-
doned his domicile, he argued: ‘There is no question of partial abandon-
ment’. Blaming the government for having allowed ‘thousands of people’
from Pakistan into India on permits of resettlement, Bhargava declared:

Perhaps you are not conscious as to what difficult questions of pro-

perty and propriety are agitating the minds of the refugees in this con-
nection. . . . Though bona fide refugees have not yet been rehabilitated,
the houses in Delhi etc., were reserved for those who had yet to arrive
from Pakistan and many of such returned people have got their houses
back. . . .apart from rights to property which may run to crores, I for
one do not understand how, according to law and equity, we can hold
to a proposition that if any person gets a permit for resettlement in
India, proprio vigro he becomes a citizen of India. It means that the High
Commissioner at Karachi has got the power of making any person he
likes a citizen of India. It virtually comes to that. . . . . When the Act re-
lating to these permits was placed in the House, we did not know that
they would acquire this force. . . . My submission is that any further issue
of these permits would not be just and would not be conducive to the
solidarity of this country. (Bhargava, CAD, 11 August 1949, 380–​386)

Bhupinder Singh Maan too made a distinction between ‘refugees’ and

‘returnees’ and blamed ‘a weak sort of secularism’ that had ‘crept in’, to
make the provisions of Article 5AA an exception to accommodate the
returnees, showing ‘an unfair partiality . . . to those who least deserve
it’. Speaking as someone who was a refugee himself, Maan argued that
this partiality had worked to the detriment of the refugees because of the
claims the returnees could make to evacuee property:

. . . The Indian Government is already short of property as it is and it is

unable to solve the rehabilitation problem. The difference of property
left by Indian nationals in Pakistan and the one left behind by Muslims,
in India—​this difference of property cannot be bridged. . . .The securing
114 Citizenship Regimes, Law, and Belonging
of a chance permit from the Deputy High Commissioner’s office or any
other authority should not carry with it such a prize thing as citizenship
of India, or that the holders be considered to be sons of Bharat Mata. . . .I
certainly grudge this right and concession being given to those people
who had flagrantly violated and dishonoured the integrity of India.
(Maan, CAD, 12 August 1949, 393–​394)

Mahboob Ali Baig Sahib appealed to the CA to consider the matter calmly
before making a distinction between a person who went to Pakistan and
those who were compelled to migrate to India, ‘under the same and sim-
ilar circumstances’: ‘. . . what happened was that after the transfer of power
there was a holocaust, there were disturbances, there were tragedies
which compelled persons to migrate’ (Baig Sahib, 12 August 1949, 397).
Baig asked the CA to remember Gandhi’s exhortation to those [Muslims]
who had gone to Pakistan to ‘return to their homeland’. Surprised that
those returning were being considered ‘traitors’, he reminded the CA
that the invitation to return in Gandhi’s framework was open to all (Baig,
CAD, 12 August 1949, 397–​398). Maulana Mohammed Hifzur Rehman
placed faith in the local government and officials who would be required
to conduct an enquiry to satisfy themselves of their eligibility under the
prevalent laws. For Maulana Rehman it was not a problem of what should
be the threshold of admissibility, but ‘the difficulties which they have to
face as Indian citizens’ (Rehman, 12 August 1949, 408–​409).
Citizenship provisions were seen as integral to the identity of a
Republican constitution. Alluding to citizenship as an expression of con-
stitutional identity, Alladi Krishnaswamy Aiyyar directed the discussion
towards the relevance of citizenship provisions and their necessity for set-
ting in motion the processes of establishing a representative and consti-
tutional democracy. Aiyyar asserted the importance of procedures for
democratic institutions: ‘Otherwise, there will be difficulties connected
with the holding of particular offices, and even in the starting of repre-
sentative institutions in the country under the republican constitution’
(Ayyar, CAD, 12 August 1949, 402). The idea of a ‘permanent home’ for
Aiyyar was associated with domicile, different from what was posited in
the speeches of earlier speakers as ‘homeland’. At the commencement
of the Constitution, the problem—​who wanted to make India their per-
manent home—​assumed primacy. It was in this context that birth and
 Bounded Citizenship 115
domicile became important considerations, to accommodate not only
those living in tracts like Goa where people had settled down to make
India their permanent home, and ‘contributed to the richness of the life
of the country’ as well as ‘all cases of mass migration’ from Pakistan into
India who too had made India their home. Apart from the obligation
to extend the protection of citizenship to those who return, Aiyyar re-
minded the members that the CA ‘was pledged to upholding the princi-
ples of a secular state’:

We may make a distinction between people who have voluntarily and

deliberately chosen another country as their home and those who want
to retain their connection with this country. But we cannot on any racial
or religious or other grounds make a distinction between one kind of
persons and another, or one sect of persons and another sect of persons,
having regard to our commitments and the formulation of our policy
on various occasions. (Aiyyar, CAD, 12 August, 404)

The commitment of the CA to Gandhian principles of non-​discrim-

ination was repeated by Brajeshwar Prasad, who described the proviso
in 5AA as ‘a tribute to the memory of the great Mahatma who worked
for the establishment of good relations between Hindus and Muslims’
(Prasad, CAD, 12 August, 404). In an argument against the identification
of India with a Hindu homeland, Prasad described the proviso as an in-
vitation to all the Muslims ‘who had left this country, to come back and
settle in this country’. Making a case for ‘common citizenship’ for India
and Pakistan as a first step towards a common citizenship of the Asian
people as the basis of peace and progress in the region, Prasad warned
against ‘the mischief of partition’ being ‘allowed to spread beyond the
legal fact of partition’. Disagreeing with the assertion that partition was
responsible for mass migration, Prasad, argued that India never agreed to
Jinnah’s principle of exchange of population. It was a logical implication
of ‘our’ rejection of the partition based on an exchange of population [on
the ground of religion] that ‘the fact of partition would have no bearing
on the question of loyalty of Muslims of this country. Partition or no par-
tition, the Muhammadan will remain loyal to this country. That was the
meaning of the rejection of the demand of Mr Jinnah. And how can we
say that the fact of partition was responsible for mass migration? It must
116 Citizenship Regimes, Law, and Belonging
be realised that it was the riots and the disturbances in certain parts of the
country which were responsible for mass migration’ (Prasad, CAD, 12
August, 404–​405).
Hriday Nath Kunzru described Articles 5A and 5AA as ‘extraordi-
nary provisions’, ‘arising out of the present extra-​ordinary circumstances,
created by the partition of India’, with no ‘counterpart’ to them in the
Constitution of any other country. To Kunzru, the criticism of 5A on the
ground of being ‘undesirably wide’ throwing open ‘the door of citizen-
ship to people who have no moral right to be regarded as Indian citizens’,
was not justified. Asking the Assembly to consider the position of those
‘who had to leave Pakistan for some reason or other after the partition of
India or about that time’, Kunzru spoke of the representatives of refugees
who wanted to be regarded as Indian citizens ‘unconditionally’. In an in-
teresting intervention, which would resonate with the debates later on
the CAA 2019, he referred to Thakur Das Bhargava’s plea to include ‘civil
disturbances or the fear of such disturbances’, as the reason to allow ab-
sorption into citizenship. To Kunzru, ‘it would be very strange if such a
condition is laid down’, which would be difficult for a person to prove and
for an officer to ascertain. In particular, people who migrated from East
Bengal to West Bengal, who would find it difficult to prove that they have
left their homes in Eastern Pakistan because of civil disturbances or fear
of such disturbances, ‘when millions of non-​Muslims were still living in
Eastern Pakistan’ (Kunzru, CAD, 12 August 1949, 410–​411).
Claiming to speak for ‘Assamese Hindus’ and on behalf of the
‘tribal people’ and ‘Bengali Scheduled Castes of Assam’, Rohini Kumar
Chowdhury only wished to state what he called ‘some plain facts without
any fear’. Drawing clear boundaries between who should and who should
not be considered for citizenship of India from the experience of Assam,
Chowdhury clarified:

I want to make it perfectly clear that I want citizenship rights for those
people of East Bengal who had gone over to West Bengal or Assam
out of fear of disturbance in the future or from a sense of insecurity
and—​also for those people who have come over from Sylhet, who at the
time of coming had no fear of disturbance or anything of that kind, but
who, on account of fear of disturbances now have decided to live here.
(Chowdhury, CAD, 12 August 1949, 413)
 Bounded Citizenship 117
Arguing that a sense of insecurity was pervasive among persons from
East Bengal who had crossed over to West Bengal or Assam, a ‘fear’ which
was ‘latent in the mind of everybody’, Chowdhury did not consider it de-
sirable to demand a proof of this fear. Chowdhury represented a strand in
the CA debates which expressed the anxieties of the border regions. Thus,
while asking that those who entered Assam in the course of Partition or
those who had come earlier and made Assam their home be considered
citizens, Chowdhury wanted the exclusion of persons who came to the
state ‘surreptitiously’ before Partition, ‘mixed themselves with their own
brethren’ and now desired citizenship not because of any sense of inse-
curity but ‘with a desire to exploit’ Assam. These persons had ‘set up the
struggle for Pakistan’, ‘compelling the politicians of India to agree for par-
tition’—​and were now ‘living peacefully’ on property purchased cheaply
which rightfully belonged to ‘the minority’ who came to Assam ‘out of
fear’ (Chowdhury, CAD, 12 August 1949, 413–​414). Chowdhury claimed
to have the backing of all communities, including Muslims who ‘belong
to Assam’, who had ‘made Assam their home’. Even at the risk of being
labelled a person who was ‘against the entry of Bengalee Hindus into
Assam’, Chowdhury considered this important in order not to ‘expose’
the ‘frontier’ and through it the ‘province’, which would potentially be-
come a source of danger to the country:

Already I have been to Cachar, and I have seen in that district, from
which crossing the Barak river you come into India, there is trouble;
and if this amendment of Dr Ambedkar is accepted, this district of
Cachar will be entirely one district of Pakistan, and who will be respon-
sible for giving one district which should have been kept in our prov-
ince and which was retained after a good deal of fight but which will be
sent to Pakistan? It will be this amendment moved by Dr Ambedkar.
(Chowdhury, CAD, 12 August 1949, 416–​417)

The identification of citizenship as a legal status and a source of identity

animated the members of the CA. The dilemma around what needed to
be explicitly stated in the constitutional text and what could be left for
future democratic majorities to legislate was expressed in terms of a fun-
damental contestation over parliamentary sovereignty and the status of
the Constitution as a higher-​order law embodying popular sovereignty.
118 Citizenship Regimes, Law, and Belonging
In his speech in the CA, Nehru mounted his defence of Ambedkar’s pro-
posal by expressing the impossibility of drafting anything, with ‘whatever
meticulous care’, which could address the ‘difficult and complicated’ situ-
ation precipitated by the Partition. Emphasizing yet again the importance
of principles, Nehru considered a decision that involved ‘the greatest
amount of justice’ and served as the most practical solution to the prob-
lems of the ‘vast majority of cases’, as a principled decision. Yet, the practi-
cality of a decision would be subservient to the principles which gave the
Constitution an identity. Troubled by the manner in which opposition to
Ambedkar’s proposal was built around the rejection of secularism—​as an
‘appeasement to Pakistan’—​Nehru sought to register his ‘strong protest’
arguing that these positions eschewed considerations of equity and jus-
tice. To those denigrating secularism, Nehru responded:

Another word is thrown up a good deal, this secular State business. May
I beg with all humility those gentlemen who use this word often to con-
sult some dictionary before they use it? It is brought in at every con-
ceivable step and at every conceivable stage. I just do not understand
it. It has a great deal of importance, no doubt. But, it is brought in all
contexts, as if by saying that we are a secular State we have done some-
thing amazingly generous, given something out of our pocket to the rest
of the world, something which we ought not to have done, so on and
so forth. We have only done something which every country does ex-
cept a very few misguided and backward countries in the world. Let us
not refer to that word in the sense that we have done something very
mighty. (Nehru, CAD, 12 August 1949, 398)

Nehru defended the ‘permit system’ on grounds of justice: ‘to argue

against the proposal was “to argue definitely for injustice, definitely for
discrimination, for not doing something which after full enquiry has
been found to be rightly done” ’ (Nehru, CAD, 12 August 1949, 401).
Questions pertaining to the underlying basis of citizenship—​descent/​
parentage or birth/​territory—​in other words subscription to a model of
citizenship which envisaged a community of descent, prioritizing blood
as a bond that linked up the political community with an inherited com-
munity of ancestors or a model based on the principle of territoriality
offering a political relationship with the state for successive generations
 Bounded Citizenship 119
born on its land—​were expressed as alternatives. The principle of jus soli,
which prevailed through the amendment brought by the drafting com-
mittee, was seen by Nehru to be addressing the contexts of Partition in
a just manner, and also as laying down non-​discrimination and secu-
larism as enduring principles of citizenship. Those in the CA who op-
posed Ambedkar’s proposal advocated parentage as a principle, not only
to prevent returnees from acquiring Indian citizenship but also to present
citizenship as an identity emerging from distinctive nationhood. These
strands in the CAD resurfaced in the debates around the CAA 2019.
The JPC set up to examine the CAB 2016 presented the debates in the
Constituent Assembly to reiterate the position that the contemporary
predicament over citizenship had their roots in the flawed resolution of
the citizenship question during Partition. It was in this context that the
debates in the CAD on the Parliament’s legislative powers over citizen-
ship and the idea of ‘national’ citizenship associated with a ‘Hindu home-
land’ assumed significance.

The JPC and the Spectre of National Citizenship

The CAB 2016 was introduced in the Lok Sabha on 19 July 2016 and
entrusted immediately to the consideration of a JPC. The committee
system had been installed in 1993 to enable Parliamentary oversight
over the government through ad hoc and permanent committees con-
sisting of Members of Parliament (MP). As an ad hoc committee set up
to scrutinize specific issues which in the consideration of the Parliament
required more detailed scrutiny, a JPC draws its members from both
the Lok Sabha and the Rajya Sabha. It deploys a range of modalities in-
cluding consultation with experts, reaching out to and receiving memo-
randa from those likely to be impacted by the government’s decision and
also talking to those in the ministries and the bureaucracy responsible
for matters under the perusal of the JPC. The proposal to refer the CAB
2016 to a JPC was made in the Lok Sabha by Bhartruhari Mahtab of the
Biju Janata Dal (BJD) and was supported by Jyotiraditya Scindia (then
in the Indian National Congress, presently with BJP), Mohammed Salim
of the Communist Party of India (CPI) and Sudip Bandyopadhyay of
the All India Trinamool Congress (AITMC or TMC) on the ground that
120 Citizenship Regimes, Law, and Belonging
citizenship was a matter which required careful and focused attention.
Interestingly, at this point in the life of the CAB, no member expressed
any apprehension beyond indicating its sensitive nature, especially in re-
lation to Assam.
Headed by Rajendra Agrawal from the BJP, the JPC was expected to
submit its report by the last week of the Winter Session of 2016. In its
425-​page report, submitted on 7 January 2019, the JPC stated its mandate
and modus operandi, and included the minutes of its meetings and the
dissenting notes of nine members, apart from its recommendations on
the final Bill. The Committee undertook three ‘study visits’—​to Jodhpur
from 18 to 20 December 2016, to Ahmedabad and Rajkot from 18 to 20
April 2017 and to Guwahati, Silchar, and Shillong from 7 to 11 May 2018,
held discussions and received depositions from ‘stakeholders’ at the local
level. In addition, it received ‘evidence’ in the form of written replies,
clarifications, and documents from different state governments (Assam,
Bihar, Gujarat, Jharkhand, Maharashtra, and West Bengal) and various
ministries including the Ministry of Home Affairs, Ministry of Law,
and Justice (Department of Legal Affairs and Legislative Department),
and Ministry of External Affairs. ‘Representatives’ of these ministries
were present in all sittings of the JPC and gave ‘oral evidence’ to the JPC.
Oral evidence was also obtained from the Intelligence Bureau and the
Research and Analysis Wing (RAW). Non-​official ‘witnesses’ were also
heard in the course of sittings. The categories invoked in the report refer
to the nature of consultation attributed to different entities. Reading the
report, one can identify two premises on which change in the citizenship
law was justified: legislative competence and bounded citizenship.

Legislative Competence

The JPC invoked ‘legislative competence’ of the Parliament on all mat-

ters concerning citizenship, drawn from Article 11 of the Constitution
of India, as the fundamental premise to justify the CAB. The assertion
of legislative competence and authority was buttressed by the JPC by re-
ferring to a higher-​order normative claim, drawn from the CA. While
claiming authority from the constitutional text and the deliberative pro-
cesses in the CA, the JPC prepared the ground for exceeding the scope
 Bounded Citizenship 121
of Article 11, justifying the fundamental changes that were being sought
through the CAB in the ‘principles’ underlying citizenship in India. In
the process, the JPC took recourse to a self-​referential process, abrogating
upon itself the responsibility of offering administrative and legal support
for violation of constitutional norms. The reference to Article 11 of the
Constitution as the source of legislative authority over all matters per-
taining to citizenship, including its ‘acquisition and termination’, was pre-
sented in the report as an unfettered power of the Parliament to regulate
the ‘right to citizenship by law’.
The attribution of unrestrained legislative powers to the Parliament
on matters concerning citizenship was derived from the expression
‘nothing in the forgoing provisions of this Part of the Constitution shall
derogate from the power of Parliament’ in Article 11.16 This position was
buttressed with reference to the debate on the citizenship provisions in
the CA, where Ambedkar, among other members, reported ‘hardships’
in drafting Article 5 of the Constitution of India. Ambedkar’s state-
ment that the citizenship provisions referred only to citizenship on the
‘date of commencement’ of the Constitution and did not intend to ‘lay
down a permanent law of citizenship for the country’ which would be
drafted by the Parliament in future, was cited by the JPC to affirm that
the Parliament could, in the exercise of these powers make ‘altogether a
new law embodying new principles’ (Report 2019, 9). While doing so,
the JPC disregarded the fact that the Parliament’s powers of regulating
citizenship by law were not restrained by anything laid down in Part II of
the Constitution on citizenship, but Article 11 did not exclude the con-
straints that other parts of the Constitution would continue to apply on
the law-​making powers of the Parliament, including, but not confined to,
the Preamble and Fundamental Rights provisions.

Bounded Citizenship

While gravitating towards ‘natural’ citizenship congealing the relation-

ship between legal status and blood ties, the JPC interpolated an idea of
‘national’ citizenship tied with what is called the ‘right to vote’ and ‘run

16 This refers to Articles 5 to 11 in Part II of the Constitution of India concerning citizenship.

122 Citizenship Regimes, Law, and Belonging
for office’. These rights, it argued, are ‘consequential’ to the status of cit-
izenship, since it allows for participation in the ‘democratic process at
the national level’. ‘Eventual integration’ of immigrants into the host so-
ciety was seen by the JPC as a significant part of the ‘resolution’ of ‘dem-
ographic problems’, not only for a robust electoral democracy but also
for ‘the disbursement of welfare benefits’ etc. This is where, the JPC, ar-
gued, liberal democracies balanced their commitment to ‘the universal
language’ of ‘fundamental human rights’ along with ‘the free association
and participation of the people’, with the enforcement of ‘clear and en-
forceable boundaries’, ‘both in terms of territory and political member-
ship’. The JPC termed this as the ‘paradox’ of ‘liberal democracies’ which
are ‘internally inclusive while remaining externally exclusive’.
The articulation of ‘national’ citizenship by the JPC expressed affinity
to a bounded notion of citizenship. In this framework, the CAB was pre-
sented as an essential measure to resolve the ‘crisis’ generated by migrants
and aliens by prescribing the terms on which migrants could be absorbed.
The terms of absorption were premised in ‘a thick and solidarity based
model of citizenship’, simultaneously marked by the logic of closure.
Underlying this logic was the belief that it is desirable for states to ‘allo-
cate, distribute and manage national citizenship by setting up a wall be-
tween citizens and aliens’ (Sadiq 2009, 7) to preserve national belonging
and security. The CAB installed the wall of separation by identifying the
solidarity of citizenship on the grounds of religion. At the same time, if
the JPC report is an indication, the CAB served to bring in exclusionary
nationhood hiding behind the veneer of liberal citizenship.

Protecting the Law from the Constitution

The JPC spoke to ‘experts’ from different ministries including law and
home, apart from ‘stakeholders’ from different states. It is clear that the
JPC was conscious that the CAB, when enacted into law, could face the
charge of discrimination and judicial scrutiny could render the Act un-
constitutional on the ground that it violated Articles 14 and 25 of the
Constitution. The JPC considered the charge of a potential violation of
Article 25 surmountable since the CAB in its opinion was not violating
the right to freedom of religion. It devoted its efforts, therefore, towards
 Bounded Citizenship 123
preparing a defence against the charge of violation of Article 14, that is,
equality before the law and equal protection of the law, guaranteed by the
Constitution to all ‘persons’—​citizens and aliens. In this context, the JPC
considered the suggestion given to it by constitutional experts that the
category ‘persecuted minorities’ could be used in the Bill instead of iden-
tifying communities based on religion. It must be pointed out here that
the category ‘religious minorities’ does not occur anywhere in the CAA.
The text of the Act only refers to the Notifications dated 7 September 2015
and 18 July 2016 which mention the term ‘religious persecution’. The text
of the CAA uses the category ‘minority communities’ and proceeds to
identify them on the ground of religion. The category ‘persecuted minor-
ities’ was proposed by constitutional experts to deflect the charge that the
word minority mentioned in the Bill was intended to be ‘religious’ mi-
nority only, and a further charge that it excluded some minorities in pref-
erence to others.
The JPC rejected this suggestion by constitutional experts in deference
to the wishes of the ‘legislative department’, which advised it against the
incorporation of a wider category of persecuted minorities, by arguing
that this would ‘negate the objectives of the Bill’, and ‘lose sight of ’ reli-
gious persecution as the primary objective of the amendment.17 Indeed,
the Department of Legal Affairs convinced the JPC that the CAB was suf-
ficiently fortified against judicial scrutiny for violation of constitutional
norms because it did not discriminate against persons on the ground of
religion. Indeed, it was making distinction among persons on the ground
of religion for the purpose of meeting the primary objective of the Bill,
which was to extend the protection of citizenship to minority commu-
nities facing religious persecution in specified countries. The consid-
eration of religious persecution for making distinction among persons
for extending the protection of citizenship could not, in its opinion, be
construed discriminatory, because the distinction was being made on the
grounds of both ‘intelligible’ differentiation and ‘reasonable’ classification.

17 Emphasis added. The JPC noted that the Ministry of Home Affairs had informed them that

‘migrants’ who entered India due to persecution on account of race, religion, sex, nationality,
ethnic identity, membership of a particular social group or political opinion, were treated under
a Standard Operating Procedure (SOP) that had been in operation since 2011. This information
convinced that JPC of the justification for ‘specifying the six religious minorities in the proposed
amendment’.
124 Citizenship Regimes, Law, and Belonging
The JPC took recourse to these two standards of evaluation—​of intelligi-
bility and reasonableness—​drawing from the Supreme Court judgment in
1952 in the case State of West Bengal vs. Anwar Ali Sarkar:

The Legislative Department have clarified that the proposed

Amendment Bill will not violate the spirit of Article 14 as it upholds the
test of reasonable classification as propounded by a seven Judge Bench
of the Supreme Court in the State of West Bengal vrs. Anwar Ali Sarkar
case (AIR 1952 SC-​75). The Department of Legal Affairs have submitted
that differential treatment does not per se constitute violation of Article
14 of the Constitution. It has been very lucidly explained that any leg-
islation may withstand challenge on the ground of discrimination and
violation of Article 14 of the Constitution, in case the classification cre-
ated by it is founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the
group, and that differentia has a rational relation to the object sought
to be achieved by the statute in question. The Department have fur-
ther clarified that the positive concept of equality does not postulate
equal treatment of all persons without distinction but rather stresses
on equality of treatment in equal circumstances as to similarly situated
persons and the Bill appears to have the object of facilitating all such
members of minority communities without any discrimination. . . ..
Moreover, citing various Supreme Court judgements, the Department
have emphasised that the Legislature is competent to exercise its dis-
cretion and make reasonable classification. In view of the above sub-
missions and assurances of various arms of the Government including
the Department of Legal Affairs, the Committee are convinced that
mentioning the names of the six religious minority communities will
not violate the spirit of Article 14 and Article 25 of the Constitution and
the Bill will stand the scrutiny of Judiciary and vires of the Constitution.
(JPC Report 2019, 50–​51)

The Supreme Court judgment referred to by the JPC in the case West
Bengal vs. Anwar Ali Sarkar (1952) had resulted in the dismissal of an
appeal by the West Bengal government against a Calcutta High court
judgment. The case involved the trial of Anwar Ali Sarkar under the
West Bengal Special Courts Act (X of 1950). The objective of the West
 Bounded Citizenship 125
Bengal Special Courts Act as declared in its preamble, was ‘to provide for
speedier trial’ for certain ‘cases’ or ‘offences’ or ‘classes of cases’ or ‘classes
of offences’ and to empower the state government to constitute special
courts with procedures for trial, which were different from those laid
down in the Criminal Procedure Code. The Court established the prin-
ciples of ‘intelligible differentia’ and ‘reasonable classification’ as the only
ground on which distinction could be made among ‘classes of cases’.
Convincing itself that the CAB could be buttressed against consti-
tutional scrutiny, the JPC relied selectively on that part of the Supreme
Court judgement in Anwar Ali Sarkar case in which intelligibility of ‘cases’
or ‘offences’ selected for exception required that they must be clearly
identifiable and distinguishable as a ‘class’ for exceptional treatment; rea-
sonableness was satisfied by the fulfilment of the condition that the reason
for making the distinction among cases corresponded to the ‘object’ of
the Act. The JPC drew support from the Supreme Court judgement to
argue that the classification of persons on the ground of religion in CAB
would not constitute discrimination under Article 14 since these persons
constituted a distinct group or class of persons requiring the protection of
citizenship to escape religious persecution. The inability to get speedy ad-
mission into citizenship made their condition precarious, especially since
they were likely to be slotted as illegal migrants. The CAB attempted to
correct that anomaly, by inserting exemptions in the citizenship law. In
the JPCs view, this constituted both—​an intelligible differentia and rea-
sonable classification. In other words, for the JPC, the test of reasonable-
ness was primarily procedural, merely requiring correspondence between
classification and the objectives of the law, which made different rather
than equal treatment imperative.
In its judgement in Anwar Ali Sarkar case, however, the Supreme
Court had gone beyond procedural requirements to lay down substantive
conditions for fulfilling the criterion of reasonableness. The court did this
by locating reasonableness in the stringent requirement of conformity to
the equality provisions in Article 14 of the Constitution of India. This is
evident in the explanation given by the Supreme Court for dismissing the
appeal by the West Bengal government, stating emphatically that the West
Bengal Special Courts Act violated Article 14 of the Constitution of India
on two grounds: (i) for failing the test of ‘equality before law’ by discrim-
inating among persons while conducting a trial, and; (ii) for removing
126 Citizenship Regimes, Law, and Belonging
the guarantee of ‘equal protection of law’ against the arbitrary power of
the state. The dissenting judge Patanjali Shatri as well as CJI Harries who
wrote the lead judgement agreed that the state had the power to distin-
guish and classify persons ‘to be subjected to particular laws’. They also
agreed that while the state government had discretionary powers which
were plenary in nature, these powers could not be arbitrary. Thus, the cri-
teria of intelligibility of the differentia and the reasonableness of classi-
fication foregrounded by the JPC as protection against judicial scrutiny
could still be prised open for constitutional validation, to ask whether
they satisfied both grounds of protection guaranteed by Article 14, that is,
protection against discrimination (equality before the law) and protection
against the arbitrary exercise of state power (equal protection of the law).
In 2009, the Delhi High Court judgement in Naz Foundation vs.
Government of NCT of Delhi referred to the ‘scope, content and meaning
of Article 14’ as elaborated in what it called ‘a catena of decisions’. These
decisions, the judgement stated, lay down that Article 14, while forbid-
ding ‘class legislation’, allowed ‘reasonable’ classification for the purpose
of legislation. The test of reasonableness and therefore ‘permissible’ clas-
sification required the fulfilment of two conditions:

. . . (i) that the classification must be founded on an intelligible differ-

entia which distinguishes persons or things that are grouped together
from those that are left out of the group; and (ii) that the differentia
must have a rational relation to the objective sought to be achieved by
the statute in question. The classification may be founded on differen-
tial basis according to objects sought to be achieved but what is implicit
in it is that there ought to be a nexus, i.e., causal connection between
the basis of classification and object of the statute under consideration.
(Budhan Choudhry v. State of Bihar, AIR 1955 SC 191, cited in Naz
Foundation vs. Government of NCT 2009, para. 88, 52)

The Naz Foundation judgment (2009), however, recommended a further

test of reasonableness, requiring that the objective for such classification in
the law must also be subjected to judicial scrutiny: ‘If the objective be il-
logical, unfair and unjust, necessarily the classification will have to be held
as unreasonable’ (Deepak Sibal vs. Punjab University (1989) 2 SCC 145,
cited in Naz Foundation 2009). Citing the judgement in Maneka Gandhi
 Bounded Citizenship 127
case, the Naz Foundation judgment augmented protection against state
arbitrariness by stressing that the law should ‘eschew arbitrariness in any
form’ since arbitrariness was antithetical to equality (E. P. Royappa vs.
State of Tamil Nadu (1974) 4 SCC 3, cited in Naz Foundation, 2009), both
according to political logic and constitutional law (Ajay Hasia vs. Khalid
Mujib Sehravardi (1981) 1 SCC 722 cited in Naz Foundation, 2009).
While providing a test for reasonableness, the Naz Foundation judge-
ment went beyond the procedural test of correspondence between an
intelligible differentia and the objectives of law, by subjecting the object-
ives themselves to scrutiny. The judgement provided a substantive test for
protection against exercise of arbitrary power by the state, to say that any
violation of Article 14 is in fact a violation of equality provisions in the
Constitution. The restraint on state arbitrariness was to come from con-
stitutional morality, which as B. R. Ambedkar declared in the Constituent
Assembly, was the responsibility of the state to protect (Naz Foundation
Judgement 2009, 47). Upendra Baxi has read the Naz foundation judge-
ment as a ‘dignity plus’ for enhancing the idea of constitutional mo-
rality through its ‘scrupulous extension’ by taking Parts IV and IV-​A
of the Constitution as constituting ‘a nearly complete code of constitu-
tional morality’ (Baxi 2011, 235). Both these parts constitute for Baxi the
‘thresholds of critical morality by which some actually existing standards
of positive morality ought to be judged and where necessary further con-
stitutionally displaced’ (Baxi 2011). In this understanding ‘constitutional
morality must outweigh the argument of public morality, even if it be the
majoritarian view’ (Naz Judgement, para. 86, cited in Baxi 2011).
It may be argued then, that the Anwar Ali Sarkar judgement, the Naz
Foundation judgement, and a series of judgements cited in the latter
have built, incrementally and cumulatively, a set of substantive condi-
tions that need to be satisfied to meet the test of reasonableness. While
protection against the arbitrary power of the state is drawn directly from
Article 14, the tests of equality and dignity are traced to the code of con-
stitutional morality, which is to be found running through the constitu-
tion generally, but more specifically in the Preamble and Chapters III, IV,
and IV-​A of the Constitution relating to Fundamental Rights, Directive
Principles of State Policy, and Fundamental Duties. The code of constitu-
tional morality constitutes critical morality by putting in place evaluative
frameworks for substituting those standards which may be acceptable
128 Citizenship Regimes, Law, and Belonging
to the ‘majoritarian’ public, but are against the norms of constitutional
democracy.
The diffusion of constitutional morality, according to Ambedkar, was
essential for the peaceful working and sustenance of a democratic con-
stitution. Referring to constitutional morality as ‘paramount reverence
to the form of the Constitution’, Ambedkar argued that there was a close
connection between the form of the Constitution and the form of admin-
istration and emphasized that ‘the form of the administration must be
appropriate to and in the same sense as the form of the Constitution’.18
He also warned that it was, ‘perfectly possible to pervert the Constitution,
without changing its form by merely changing the form of the adminis-
tration and to make it inconsistent and opposed to the spirit of the consti-
tution’.19 Ambedkar’s call for a firm adherence to constitutional morality
reflected his apprehensions about the uncertainty of executive decisions
and mistrust of legislative power, which could change the form of admin-
istration making it inconsonant with the spirit of the Constitution. Over
the years judicial scrutiny of both has come to be seen as a legitimate
component of judicial power. Successive decisions by the Supreme Court
have enhanced judicial power to bring the legislative as well as constituent
powers of the Parliament within the purview of judicial review, which is
to say, they can both be tested for consistency with the Constitution.
In its attempt to ‘protect’ the CAB and buttress it against a possible
charge of inconsistency with the Constitution, the JPC took recourse to
precedent established through case law. Precedents articulate legal prin-
ciples which are deployed by the courts in deciding later cases; but the
authority of a precedent and the transferability of principles articulated
in one case to another, depend on whether or not the issues and facts of
the cases are consonant with each other. Writing on India’s legal system,
especially the possibilities and modalities of ‘saving’ it, Fali Nariman had
lamented that the ‘legal ethic of certainty’ had become burdened by the
‘rule of judicial precedent’, the ‘excessive burden of case law’, and ‘the lack
of case law management’ (Nariman 2006, 138–​140).20 It may be argued

18 Speech in the Constituent Assembly, 4 November 1948, CAD, Vol. VII, Book no. 2, p. 38.
19 Ibid.
20 Nariman suggests a system akin to that in the United States. The relevance of specific case

law and its retention for future usage as precedent for general applicability is decided in the
United States periodically by body of ‘learned’ and ‘wise’ lawyers’ who wade through the cases
 Bounded Citizenship 129
that amidst the burden of (a messy) rule of judicial precedent, the legal
ethic of certainty can be upheld by the judges themselves by exercising
critical morality drawing from the Constitution. The deployment of crit-
ical morality provides the grounds for the substitution of public morality
by constitutional morality, drawing from principles of equality laid down
explicitly in the Constitution.
Constitutions embody popular sovereignty and affirm the principle
that power in democracies lies with the people. As the source of law and
the rules of recognition for all laws including statutes, case law, and cus-
tomary law, constitutions ensure that power is not exercised arbitrarily
and is bound by higher-​order rules, norms, and principles. It is this re-
straint on power that protects democracy from the mercurial character
of everyday politics driven by the political rationality of the ruling class,
persuaded by the logic of maximization of power. The manner in which
the NRC and later CAB/​CAA were catapulted into the electoral domain
through three elections in which the BJP successfully steered and con-
solidated its agenda of Hindutva, bolsters the argument that the CAA was
propelled by the desire of larger electoral payoff as a strategy of political
rationality. More specifically, the CAA ruptured the political consensus
on the NRC in the Northeast, especially in Assam. The two tendencies
that emerged out of the 2003 amendment as the hinge point—​hyphen-
ated citizenship associated with the NRC, which made citizenship con-
tingent on conditions of descent, and national citizenship associated with
the CAA, which made religion a principle of distinguishability in the cre-
ation of bounded citizenship—​were subjected to debate in the Parliament
in December 2019.

Constitutional and Normal Politics: CAB

in the Parliament

CAB became an Act passing through significant signposts and critical

intervals. The installation of the JPC in 2016 can be seen as a signpost
which inserted a deferral in the life of the law, while tantalizing promises

reported in all decisions across United States and give a ‘restatement of law’ on all possible topics
(2006, 144).
130 Citizenship Regimes, Law, and Belonging
of elimination of ‘infiltrators’ and protection of those who had sought
refuge in India were made in election campaigns in Assam preceding the
introduction of the CAB in Lok Sabha. The JPC provided a critical ‘in-
terval’ from August 2016 when it was set up to January 2019 when it sub-
mitted its report—​a few months before Parliamentary elections were to
take place. The JPC report on the CAB was a textual expression of the
dominant ideological formation and political contestations which con-
stitute the landscape of citizenship in contemporary India. The debates
in the Lok Sabha in January 2019 before the Parliamentary election and
then again in the Lok Sabha and Rajya Sabha in December 2019, each
time towards the end of the Parliament session, served as decisive mo-
ments, opening up for debate the issues that the JPC report had brought
to a resolution through a majority recommendation. Interestingly, the
changes which were inserted in CAB 2019 exempting the 6th Schedule
and Inner Line Permit states from CAA, to assuage the concerns raised
by the states in North-​East India, were independent of the recommenda-
tions made by the JPC. The debates in the Parliament revealed deep
fault-​lines along two mutually conflicting ideas of Indian citizenship: one
which traced its pedigree to the founding moment of the Constitution
and republican citizenship, and the other which situated itself in the idea
of a Hindu nation that was interrupted by Partition. While the former
found sustenance in an idea of a political community characterized by a
constitutional identity embedded in equality and secularism, the latter
dissociated itself from the constitutional moment to claim a pre-​political
identity of citizenship, embedded in an atavistic idea of the Indian nation.
The Parliamentary debates and their outcome served as another sign-
post, which assumed criticality. The resolution of the debate over the
CAB in Parliament through a division in which the majority view pre-
vailed became critical for its potential for instituting a new modality of
political action. The constraint of parliamentary majorities under which
the Bill was passed in Parliament and was subsequently approved by the
President did not bring a closure to the questions that had been raised
about the Bill in the Parliament. They found voice in two distinct sites.
The ‘urban street’ became a powerful site where an unprecedented out-
rage against the CAA, perceived as a law against constitutional ethics
and morality, was expressed in peaceful sit-​ins and demonstrations. The
Supreme Court of India was the other site where, in a manifestation of
 Bounded Citizenship 131
iterative practices in institutional spaces, 140 petitions were filed ques-
tioning the constitutional validity of the CAA.
Debates on the CAB in the Parliament were located in what Bruce
Ackerman would call ‘normal politics’. Ackerman makes a distinction
between constitutional politics—​characterized as politics of the highest
order, which appeals to the common good, and makes itself manifest
‘during rare periods of heightened political consciousness’—​and normal
politics, an inferior form of politics marked by narrow individual interests
(Ackerman 1988, 162–​163). Normal politics is sutured to the adversarial
dimensions of electoral trials through which democracies take institu-
tional form. The representative institutions of democracy become spaces
for presenting competitive claims to speaking for the people. These claims
are projected onto the realm of law making, where the authority to legis-
late for the people is drawn from electoral outcomes. Often lawmakers
assume this function as an exercise of the sovereign power of the state, le-
gitimated by discourses of securing the nation—​its territory and people.
The principle of ‘rule of law’ associated with liberal constitutionalism
defines and limits state authority by bringing up the question of legiti-
mate authority. The questions—​who gives the law (a question of pedi-
gree or source of law), why should people obey laws (a question of both
source and content of law), and what are the means through which con-
formity to law may legitimately be achieved—​become significant while
responding to it. It is important that law-​making functions be under-
stood in relation to the Parliament’s role and functions in a constitutional
democracy. While Parliament enjoys enormous law-​making powers, this
power is coeval with other equally important roles that it performs—​of
representation and deliberation—​and eliciting accountability from the
executive. Indeed, its law-​making function can be performed effectively
only in tandem with its roles as a deliberative body and an institution of
accountability. As a deliberative body, the Parliament can represent and
encompass the diversity of interests, especially of the most vulnerable,
and not only those of the majority. It is only through an effective perfor-
mance of both these functions can it hold the executive accountable. Only
when it reflects the synchronous performance of all these functions by
the Parliament, can a law be truly democratic.
An examination of the debates on CAB 2019 in the Lok Sabha on
9 December and Rajya Sabha on 11 December 2019 show complex
132 Citizenship Regimes, Law, and Belonging
contestations surrounding the idea of the Indian nation and citizenship.
Deep fissures were displayed on these fundamental questions along party
lines. Significantly, the ‘competence’ of the Parliament to legislate on a
subject within the purview of its law-​making powers, was questioned by
large sections of the legislators on moral grounds. It is significant that
in his intervention in the debate in the Rajya Sabha to oppose the CAB,
P. Chidambaram, who had served as a minister in the United Progressive
Alliance (UPA) led by the Congress Party, warned against the pattern
that had emerged in law-​making ‘in recent times’, when laws made by
the Parliament were invariably ending up before the Supreme Court. The
reason for this, he averred, was the disregard shown by the Parliament
while legislating, to its own role of being the judges in ‘the first instance’,
of the constitutionality of the laws that were being passed:

Sir, we have a Citizenship Act in this country. It recognizes citizenship

by birth, citizenship by descent, citizenship by registration, citizenship
by naturalization and citizenship by incorporation of territory . . . Now,
this Government is introducing a new category called ‘citizenship by
arbitrary executive fiat’ and asking this Parliament to support the
Government in passing what is patently an unconstitutional law. . . .We
are elected representatives of the people. The Constitution has asked us,
in the first instance, to judge the constitutionality of a Bill. We cannot pro-
nounce on the constitutionality. But, we have a responsibility to pass what
is constitutional. Not all of us are lawyers. In fact, not all of us should be
lawyers. We should be from every walk of life. And, from every walk of
life, we must bring our collective wisdom and commonsense to say is
this constitutional or not. What are we doing in this House? What we
did in the other House and what we are doing in this House is abdicating
our primary responsibility in favour of another of the three entities/​
organs of the Constitution. What we are doing is: You are pushing the
issue to the lap of the Judges. Do you think it will stop here? It will not
stop here. It will eventually go before the Judges. And, the Judges are re-
spectable people. But, they are unelected Judges. Unelected Judges and
unelected lawyers will ultimately decide what we do is constitutional or
not! . . . Knowing this is unconstitutional, I am afraid, this Government
is ramming through this Bill in order to advance its Hindutva agenda.
This is a sad day. Thankfully, we are not amending the Constitution; we
 Bounded Citizenship 133
are only making a law. And I am absolutely confident and I am abso-
lutely clear in my mind that this law will be struck off. (Rajya Sabha
Debates, 11 December 2019, 127, emphasis added)

Paradoxically, both the detractors and supporters of the CAB, referred

to the Constitution of India, the Preamble as a statement of its founda-
tional principles, and secularism as its core value, for sustaining their
arguments. While facts were contested and evidence questioned on
both sides, legitimacy was drawn from claims to speaking for the ‘vul-
nerable’ people. In the course of the debate the legal category of ‘illegal
migrant’, which was central to the CAB, became a fragmented category
comprising the sharanarthi (refugee) and the ghuspaithaiya (infiltrator).
The sharnarthi—​the ‘persecuted minority’—​who the CAB sifted out for
protection, became a figure burdened by antagonistic discursive formula-
tions which made it simultaneously an object to be rescued and a threat to
cultural identity and economic stability of the country. The ghuspaithiya
was antithetical to the sharanarthi, a residual category—​filtered out after
the sharananarthi was brought within the purview of state protection—​to
be extracted and expelled since it constituted a threat to national security.

‘Destroying the Soul of India’: People, Political Leadership,

and Constitutionalism Secularism

The CAB 2019 was introduced in the Lok Sabha on 9 December 2019 by
the Home Minister (HM) Amit Shah. Several members of the Lok Sabha
opposed the introduction of the CAB under Rule 72(1) of the rules of
legislative procedure on the ground that the provisions of the Bill were
unconstitutional. The HM resisted the objections saying that members
could oppose the Bill at the stage of introduction, only if it was on a matter
outside the ‘competence’ of the House—​an interpretation which Saugata
Roy of the TMC, among others, pointed out, was erroneous. ‘He is giving
a wrong interpretation to the rule—​maybe, he is new to this House’, as-
serted Roy. A brief discussion ensued on the Bill and the motion to intro-
duce it was submitted to a vote. The tone and tenor of the debate on the
Bill, which took place later in the afternoon that day was, however, set.
134 Citizenship Regimes, Law, and Belonging
If the debate in the CA was on what should explicitly be stated in the
Constitution as the organizing principle of citizenship, from which rea-
sonable deviations could take place by future Parliaments, the debate in
Parliament 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 the law
should be such that it inspired trust among the people.21 In his opening
statement in the Lok Sabha introducing the CAB, the HM called it a ‘his-
toric Bill’ which would free ‘lakhs and crores’ of people from their tor-
mented life [as refugees/​illegal migrants] into a life of dignity as citizens.
In the course of the debate, the claim that the Bill was ‘historic’ was dis-
puted by those who saw it as a part of the BJP’s political and ideological
agenda to make India a Hindu nation. The Bill to them was no more than
a continuation of the anti-​Muslim agenda of the BJP, which had made it-
self manifest in various ways but especially in the Triple Talaq Act and the
revocation of Article 370 of the Indian Constitution.
The HM, however, sought legitimacy for the Bill in the BJP’s re-
sounding victory in the recently concluded general election. The electoral
verdict, he argued, was an endorsement of the BJP’s manifesto in which
the CAB figured prominently. Speaking in the Rajya Sabha later, Shah
said that his party was committed to meeting its electoral promises and in
bringing the Bill the government was only fulfilling the mandate (janmat)
it had received in the election for its manifesto (ghoshnapatra). All par-
ties and their candidates, he suggested must place their manifestoes be-
fore the people to mobilize a mandate—​it was a constitutional process
(samvaidhanik prakriya)—​to contest elections on the basis of ideology
and a manifesto which reflected the sentiments (samvedna) of the people
(jansamvedana) (Rajya Sabha Debates, 11 December 2019, 25–​26).
Research on election manifestoes and electoral mandates has found
that the relationship between party manifestoes and electoral victories
is ambiguous and not conclusive. Party manifestoes are often presented
as policies that are submitted for the approval of the people in ‘electoral
trials’ (Urbinati 2000). They are important for political parties to em-
phasize the distinctive elements of their party programmes and in ideal

21 https://​eparlib.nic.in/​bitstream/​123456789/​788219/​1/​lsd_​17_​02_​09-​12-​2019.pdf
 Bounded Citizenship 135
conditions of political communication should serve as sites where the de-
liberative content of elections play out. Studies on policy-​making by po-
litical parties that form governments after electoral victories have shown
that ‘partisan influence on policy’ depends on both—​‘the capacity’ of the
office-​holders for implementing policies evoked during their electoral
campaigns and on the ‘governing party’s incentives to implement elec-
toral promises’ (Brouard et al. 2018, 1). It may be argued that ‘frank and
explicit declarations of principle’ of government and a detailed official
statement before elections covering economic policy, home and public
affairs, and foreign relations elicit confidence for electoral candidates and
political parties. It is believed that the party winning an election has a
democratic mandate to implement the policies stated in its manifesto ‘be-
cause they are assumed to have secured the imprimatur of democratic
legitimacy’ and an obligation to do so since their election was secured on
the basis of the manifesto. This would serve as the standard against which
the party can be held accountable in the next election (Quinn 2014, 6).
The mandate theory of manifestoes, however, rests upon several conten-
tious assumptions, argues Quinn (2014). The mandate theory assumes
that most voters read the manifesto or are familiar with the main prom-
ises of the parties, even if they have not read it. A more powerful criticism
of the theory refers to the disproportional effects of the FPTP electoral
system in which parties that win parliamentary majorities often do so,
on a plurality of the vote, and form governments without securing the
majority of the votes. In a manifestation of what is called ‘paradox of the
platform’, even those who vote for the party elected to power, do not vote
for all the promises that are made in the manifesto. Yet, ‘winning parties
claim mandates to implement their entire manifestos’ (Quinn 2014, 9).
It is not surprising then, that in the debate on the CAA the opposition
reminded the HM that his government was formed by securing less than
40 per cent of the votes cast. This would imply that the majority of voters
rejected the manifesto of the party. Speaking in the Lok Sabha TMC
MP Abhishek Banerjee declared: ‘65% of the country has voted for the
Opposition and you should rightly know that the House belongs to the
Opposition’ (Lok Sabha Debates, 9 December 2019, 334).
In his statement in the Parliament, the HM described the government’s
efforts to legislate on citizenship ‘constitutional’, and not part of a political
agenda. He drew a careful distinction between what is done merely for
136 Citizenship Regimes, Law, and Belonging
electoral gains and what emanated from a democratic mandate emerging
from the electoral process. Members of the opposition refused to see a ma-
joritarian electoral victory as the ground on which the government could
claim constitutionality for the Bill or as a mandate of ‘the people’ for CAB.
Indeed, the government was constantly reminded of the disgruntlement
in Assam and other states in the North–​East. Exhortations in the name
of the people abounded on both sides—​the government and the opposi-
tion—​but took different forms. In what may be seen as the deployment of
populism as a political strategy, distinct from its invocation as emancipa-
tory politics, those who spoke in favour of the CAB from the BJP and the
parties allied to it placed faith in Prime Minister (PM) Narendra Modi.
The PM, they maintained, had ‘authorised’ the Bill in order to emanci-
pate ‘lakhs and crores’ of people from their sufferings. The installation
of the PM as the absolute referent for CAB was established by alluding
to the extraordinariness of what CAB would accomplish, and related to
this, a remarkable feat that only he could have achieved. The ascription
of extraordinariness—​in achieving what was described as historical and
unprecedented and the unique prowess of the PM in accomplishing it—​
resonated the BJP’s slogan in the 2019 Parliamentary elections: ‘Modi hai
to mumkin hai’ (If Modi is there, anything is possible). Meenakshi Lekhi,
BJP’s Lok Sabha MP from New Delhi, took recourse to Ramdhari Singh
Dinkar’s celebrated poem ‘Kisko Naman Karun Main?’ (translated liter-
ally as, ‘Who Should I Bow my Head to?’), in which the poet invokes the
figure of the braveheart as one who is steadfast in his service to truth,
and selflessly gives up his life to ensure justice for others. For Dinkar, the
braveheart was the only worthy subject of his devotion. Lekhi raises the
same question to identify the PM and HM as the worthy subjects for her
‘naman’ (devotion)—​for showing the capacity to recognize the truth—​of
ghuspaith (infiltration)—​‘ . . . migration without persecution is called a
silent invasion and that is what is happening in this country . . .. This is an
Act which is giving citizenship to those people who have been living in
this country, just making their life a little easier, the ones who are perse-
cuted’ (Lok Sabha Debates, 9 December 2019, 384).
The authority to speak and act in the name of a ‘vulnerable’ and ab-
ject population was carefully crafted in a narrative where it was only the
BJP which appeared to be speaking for, and on their behalf. In this narra-
tive, the opposition, especially the Congress was doubly discredited—​for
 Bounded Citizenship 137
their duplicity in going back on a commitment that they had made to
the minorities left behind in Pakistan—​and for being pro-​Pakistan and
anti-​Hindu for refusing citizenship to Hindu refugees who had suffered
religious persecution in Pakistan. Rajendra Agrawal of the BJP, who
was the chairperson of the JPC, blamed the Congress for being ‘selec-
tively sensitive’—​for being sensitive when ‘Batla Kand’22 happens but
being apathetic when persecution of minorities took place in Pakistan
and Bangladesh. The Congress Party, Agrawal believed, suffered from a
‘flawed perspective’ which was manifest in the positions they had taken
on the NRC, Article 370, Ram Janma Bhoomi, surgical strike, Jawaharlal
Nehru University, and the like (Lok Sabha Debates, 9 December 2019,
443). Agrawal cited the former Prime Minister Manmohan Singh’s appeal
to Lal Krishna Advani in 2003 when the NDA government amended the
citizenship act to make provisions for persons of Indian origin, who were
citizens of another country, to acquire ‘overseas citizenship of India’, as
evidence of Congress’s duplicity. Manmohan Singh, he said, had asked
Advani to think about offering protection and citizenship to minorities
who suffered after Partition due to persecution and sought refuge in
India. Mocking the Congress for following ‘vote bank ki rajneeti’ (politics
of the vote bank) which had long become redundant and given way to the
BJP’s ‘vikas ki rajneeti’ (politics based on development), he advised the
party to correct its ‘drishti-​dosh’ (flawed perspective).
Contrary to the repeated averments by MPs from the ruling NDA, no
MP speaking against the Bill actually made a case for denying the pro-
tection of citizenship to the minority communities identified in the Bill
who had suffered religious persecution. Almost all members opposing
the Bill suggested modifications to make the ambit of protection inclu-
sive. They also implored the government to evaluate the impact of the Bill
on the demography and economic resources in the North-​East, asking for
adequate measures to protect indigenous people and their lifeworlds. In
line with the submissions received by the JPC, opposition to the Bill came
from a position of constitutional secularism grounded in the principle of
equality. Making a case for the extension of citizenship to all persecuted

22 Batla kand refers to the ‘encounter’ between police and suspected members of the extremist

organization Indian Mujahiddin (IM), in Delhi in September 2008. The encounter resulted in
the death of two members of the IM and an Inspector of the Delhi Police.
138 Citizenship Regimes, Law, and Belonging
minorities so that religious identity did not constitute the principle for
differentiation among persons or extend it to persons of all religions if per-
secution based on religion was to be retained as the principle for differ-
entiation, the opposition parties referred repeatedly to the Constitution,
especially the Preamble and Articles 14, 15, 21, and 25 in the chapter
on Fundamental Rights. Reference to the Preamble and specific funda-
mental rights was made to affirm that principles of equality and non-​dis-
crimination were intrinsic to constitutional democracy and democratic
citizenship. The reference to the Preamble with secularism as its invio-
lable component alluded to a constitutional identity that gave the Indian
Constitution a distinctive character.
The literature on comparative constitutionalism speaks of the idea
that constitutions have distinguishable salient features which give them
a ‘discernable identity’ (Jacobsohn 2010, 3). Indeed, when the HM ex-
plained to the House, why only Pakistan, Bangladesh, and Afghanistan
were specifically identified in the Bill—​because all of them had a state
religion and their constitutions declared them to be Islamic states—​he
inadvertently made a distinction between constitutions that professed a
religion for the state and those like India which did not. The invocation
of secularism by those who opposed the Bill drew attention to the inher-
ently discriminatory nature of the Bill, which made it incommensurate
with its stated objectives and the principles of sarva dharma sambhava
(equal respect for all religions) which characterized Indian secularism.
The various amendments that were proposed by those opposing the Bill
in the Lok Sabha, some of which were put to vote and rejected, asked for
the inclusion of Muslims among the communities identified for protec-
tion, the deployment of a more capacious category of persecuted minor-
ities, and/​or broadening the geographical ambit of the Bill to include all
neighbouring countries including Sri Lanka from where large number
of Tamil refugees had fled into India. Even though the BJP’s allies in the
NDA, including the Biju Janata Dal (BJD) and the Shiromani Akali Dal
(SAD), voted for the CAB, they advised the HM to make the Bill inclu-
sive. Sharmishtha Sethi, BJD MP from Jaipur in Odisha, for example,
began her speech in the Lok Sabha confirming her party and her Chief
Minister Naveen Patnaik’s commitment to secularism. Her suggestions
included adding Sri Lanka among the countries identified in the Bill, de-​
linking the CAB from NRC, and a prayer to the government to dispel
 Bounded Citizenship 139
apprehensions regarding the CAB among Muslims. BJD member Sasmit
Patra spoke in the Rajya Sabha, reiterating his colleagues points and ex-
pressing the hope that the government would be ready to discuss the NRC
in future. Sukhbir Singh Badal from the SAD spoke ‘as a Sikh’—​a commu-
nity especially impacted by the Partition—​and welcomed the inclusion of
Afghanistan, but also wondered why Muslims could not be added among
the persecuted minorities mentioned in CAB. Members of the opposition
exhorted members of the Janata Dal (United) (JD(U))—​an NDA ally—​to
vote on the side of morality which lay with the Constitution.
The debate on the CAB so far as it referred to the relationship
between religion and constitutionalism presents a moment of ‘constitu-
tional disharmony’. Such moments throw up challenges compelling the
elaboration of the substance of the Constitution and are considered ‘crit-
ical’ for the development of constitutional identity (Jacobsohn 2010, 4).
Ironically, even though the amendments suggested by opposition mem-
bers were outvoted, the debates on CAB produced a site of contesta-
tion where secularism was reinforced as a distinguishing feature of the
Indian Constitution. This was perhaps stated most forcefully by Javed Ali
Khan from the Samjawadi Party (SP) who wanted an assurance from the
Chairman of the Rajya Sabha that any advocacy by a political party, or-
ganization, or individual, to make India a ‘dharmashasit rashtra’ (a na-
tion ruled by religion), whether Islamic, Khalistani, or Hindu, would be
strongly rejected by the House. Javed Khan’s appeal was flowing logically
from the premise on which the CAB was based—​that nations governed
by religious laws—​were likely to oppress religious minorities. Khan ex-
horted the BJP to openly declare that the House/​nation will not endorse
any kind of religious doctrine of the state and would actively thwart it
(Rajya Sabha Debates, 11 December 2019, 84). He asserted the right of
Muslims to protest against the CAB as ‘citizens’, rejecting the argument
that the Muslim had nothing to do with the Bill and should therefore stay
at home [and not protest in the streets]. In an emphatic statement of what
would constitute a citizen’s duty, he argued: ‘if the Preamble was under
attack and the secular foundation of the Constitution was being eroded
then a Muslim could not sit at home’ (Rajya Sabha Debates, 11 December
2019, 89).
140 Citizenship Regimes, Law, and Belonging
Constitutionality of the CAB and Parliamentary
Democracy

We have seen earlier that citizenship was a site of contestation in the

Constituent Assembly (CA) where two diametrically different positions
jostled for primacy. We also saw that the field of the debate was organ-
ized around a prior consensus on both norms and procedures. This made
an agonistic expression of opposite positions possible and also enhanced
the space for deliberative consensus not dependent on a decision through
division/​voting. The debates in the CA—​a body agonistically arrayed in
deliberating over a framework of citizenship appropriate for the context
of Partition—​worked towards a deliberative consensus. While this con-
sensus was internally complex, it established two principles that were
to serve as the foundation for the legal edifice of citizenship in India—​
Republican citizenship and the recognition of Parliament’s preeminent
role in making laws on citizenship. These principles were expected to
unfold in tandem to remain consonant with the Constitution—​after
all, it was the Constitution that was the source of the 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.
An integral aspect of the transition to constitutional democracy in
India was the affirmation of popular sovereignty embodied in the ‘people’
who had agreed to live in the constitutional order that they had given to
themselves. A constitutional order that obtains in a country can be un-
derstood best ‘by reflecting on the course of its historical development’
(Ackerman 1991). In this understanding, the ‘real constitution’ is not
simply the constitutional text or its interpretation by judges but ‘redis-
covering’ the set of principles that were adopted in ‘extraordinary’ mo-
ments of intense constitutional participation and deliberation, ‘with or
without changes in the constitutional text’ (Ackerman 1991, 5). It is these
extraordinary moments of creation and communication of constitu-
tional symbols that install not just a constitutional order but a democratic
order as well. Yet the relationship between a constitutional order and de-
mocracy is a fraught one. At the crux of this conflict is the irreconcila-
bility between the institutional forms of democracy that claim to speak
for the ‘people’—​and its sovereign form—​‘We the People’, embodied
 Bounded Citizenship 141
in the Constitution. The debate in the Parliament on the constitution-
ality of CAB shows that the deliberative space of the Parliament was
re-​configured by majoritarian politics which supplanted democratic rep-
resentation. In its substance, the debate in the Parliament on the consti-
tutionality of CAB rehearsed the concerns that had already been raised
and resolved by the JPC. The contours of the debate were, however, struc-
tured by the performance of contradictory narratives of citizenship that
claimed reflexivity but were influenced by the logic of transaction intrinsic
to the competitive party political-​institutional space of the Parliament.
Suggestions for deferral of the debate to allow for deliberation under con-
ditions of repose were abandoned. The proposal for a more thorough
discussion of the Bill in a Select Committee was moved and voted out in
the Rajya Sabha, prompting questions on ‘undue haste’, while ‘truth state-
ments’ were made, which were high on rhetoric and low on both fact and
logic. BJP member of Rajya Sabha, Saroj Pandey claimed that the Bill was
correcting the violence against Hindus during partition, which she ar-
gued was commensurate with the BJP government’s commitment to ‘har-
monise’ (Samet kar) India’s culture, by bringing both—​the culture of India
and its Constitution—​under its ‘protection’ (sanrakshan). Claiming that
no one had the courage to speak when the breasts of thousands of Hindu
women were cut off in the course of Partition; it was only now that a gov-
ernment had tried honestly to ensure that a person who is truly an Indian
citizen, who was born in India, and is a Hindu—​should be protected. It
is for this reason, she argued, that CAB 2019 had been introduced by the
government, for which the PM and HM must be welcomed and lauded
(Rajya Sabha Debates, 9 December 2019, 177–​178).
In a shift from the preoccupation with law as discourse or ideology,
works on law have shown its relationship with affect and how different
kinds of emotions are imbricated in law (Bandes 1999, Olson 2016,
Naresh 2018). Emotionality in law is made palpable in different sites—​
in courtrooms, in police thanas, in detention centres, in the streets,
etc. As the authoritative site of law making, the Parliament constitutes
a space where passions flow from its structure as a differentiated space.
The government and its opposition constitute this space of hierarchical
and differential accumulation of power along party lines. Writing about
constitution-​making and emotions, Vatsal Naresh has noted that consti-
tutions, more often than not are written during ‘tumultuous times’. The
142 Citizenship Regimes, Law, and Belonging
Indian CA, for example, held its meetings amidst communal violence,
rapes, and murders, where hundreds of thousands of people lost their
lives and millions were displaced:

In addition, the fate of princely states, which constitute a significant

portion of British India’s population, was still unknown; and India
and Pakistan became engaged in a war in Kashmir starting in October
1947; Gandhi’s assassination in early 1948 only added to the tumult.
Amid all this the Constituent Assembly met publicly in the British built
Parliament House in central Delhi, a few miles from the refugee camps
for those who had fled violence in Punjab and other parts of North
India. The interim government declared curfew in Delhi on several oc-
casions while the Assembly was in session. Members were given curfew
passes, and some members asked for police protection. The events that
shook the city also impacted the lives of the framers. Jawaharlal Nehru’s
official residence served as a makeshift refugee camp . . . Muslim mem-
bers of the government, and of the Assembly, felt a more immediate
sense of danger. Mohd. Saadulla repeated his fear of rioters after his re-
quest for police protection was granted. (Naresh 2018, 64)

Amidst and despite this turmoil, the CA decided to make citizenship

inclusionary based on the democratic principle of birth and decided to
absorb all those who migrated to India to make it their home, as citi-
zens, regardless of their religion. Indeed, religion was explicitly rejected
as having any basis for Indian citizenship. Vatsal argues that ‘hot emo-
tions’ like anger, fear and enthusiasm were mitigated by the CA through
‘institutional arrangements’ such as ‘time delays’ in discussion of drafts,
further deliberations in committees, and the separation of legislative and
executive powers (Naresh 2018). In 2019, while debating the CAB in the
Parliament, a majoritarian view prevailed and was affirmed through a
majority vote. Under these conditions where decision was to take place
through a vote with the BJP/​NDA having an overwhelming majority in
the Lok Sabha and numerical advantage in the Rajya Sabha, it was clear
that the Bill would become an Act through the force of numbers with the
government.
Since its last appearance and passage in the sixteenth Lok Sabha before
it lapsed in the beginning of 2019, the government had buttressed the Bill
 Bounded Citizenship 143
with special provisions pertaining to the North-​East. In the course of the
debate in both the Houses, regional identities were on display, with emo-
tive evocation of literary icons, and accounts of heroic martyrdom. The
representatives of various parties from the north-​eastern states feared
that their interests had been abandoned and pledged to take the struggle
to the streets. Conflicting accounts of how many people the CAB was
going to emancipate were communicated in exaggerated claims of lakhs
and crores of persons, even as the naturalization of Adnan Sami, a case
unrelated to the category the CAB was concerned with, was flagged as
an example of how Muslims, even from Pakistan, could become citizens
of India. In the Rajya Sabha, Ripun Bora, a Congress MP from Assam,
spoke of the impact the passage of the CAB would have on Assam and the
North-​East:

The whole country knows that Assam is burning, the North-​Eastern

Region is burning and lakhs of people are on the streets for days to-
gether. You have already finished Assam; you have finished the North-​
Eastern Region, but you have not learnt the lesson. Now, you are going
to finish the entire country by the Citizenship (Amendment) Bill. It is
not a question of Hindus. Are we not Hindus? Are the very people, who
are agitating in Assam, not Hindus? They are all Hindus. It is a ques-
tion of future and security of our country. (Rajya Sabha Debates, 11
December 2019, 204)

Bora’s declamation in the Rajya Sabha was a pointer to the distinct prem-
ises on which Assam and the North–​East were subsequently going to op-
pose the Act in the streets and the Supreme Court of India. It was not a
question of religion alone, but the big price that was going to be paid by
the country for those about whose numbers, despite its claims, the gov-
ernment was not clear. To substantiate this Bora referred to the series of
questions he had posed to ministers since 2017:

I want to draw your attention to my Question No. 2432, dated 23rd

March, 2017, replied by the then External Affairs Minister in Rajya
Sabha. I asked, “Whether it is a fact that there is a report of religious
persecution taking place in Afghanistan and Pakistan after 1947 and in
Bangladesh after 1971.” What is the reply of the Government? The reply
144 Citizenship Regimes, Law, and Belonging
is, “There are no authoritative statistics in this matter.” Not only that,
through my Question No. 875, dated 23rd November, 2016, I asked,
“How many Hindus infiltrated from Bangladesh and Pakistan up to
31st December, 2014.” What is the reply of the hon. Home Minister?
He replied, “No record is maintained.” The hon. Home Minister, in his
introductory speech, said that crores and crores religiously persecuted
people have come and are living in India, but they have not been given
citizenship under the Citizenship Act, 1955 because there is no such
provision in the Act and that is why this Amendment Bill is brought.
In my Question No. 885, dated 25th July, 2018, I asked, “How many
religiously persecuted people have applied for Indian citizenship?”
What is the reply? Hon. Home Minister said, “Only 4044 applications
are with the Government.” . . . when I asked about the country-​wise de-
tail, he replied, “687 from Afghanistan; 84 from Bangladesh and 2508
from Pakistan.” And, when I asked the religion-​wise break-​up, he re-
plied that religion-​wise break-​up is not maintained. If you do not have
information and if you do not have data, on what basis are you going
to give citizenship to these people? . . . In my another question, I asked,
post 1971 and pre-​1971, how many people, how many Hindus migrated
to Assam from Bangladesh? And, what is the reply? The Government
said that there is no authentic figure available. (Rajya Sabha Debates, 11
December 2019, 205)

Raising the contentious issue of the relationship between the NRC and
the CAA, which was at different points in time, either endorsed or re-
jected by the HM, Bora drew the attention of the House to the ramifica-
tions of CAA in Assam:

. . . . in NRC, Assam, names of 19.6 lakh people have been dropped.

Now, the Home Minister is saying that these people will be given cit-
izenship under CAB. But, how is it possible? These people are living
in Assam for years together. They have been exercising their voting
rights. They are doing Government jobs. They are holding lands. They
are Indian citizens. In NRC applications, they have given documents
as Indian citizens. And, in NRC hearing, they have given documents
as Indian citizens. Now, how these people will say that they have come
from Afghanistan; that they have come from Pakistan; that they have
 Bounded Citizenship 145
come from Bangladesh? That means by this CAB, you are going to force
our Indians, our Hindu people to tell them as foreigners. You are going
to do this. Not only that, you will be surprised to know in the Joint
Parliamentary Committee meeting,—​it is in para 2.14 of page no. 18
of the Report—​, what the Director, IB submitted. The Director, IB said
that it is not possible to verify that these persons have come due to re-
ligious persecution. . . . .. Not only that, Director, IB further said that
those who have submitted any affidavit, those who have submitted any
documents that they have come on religious persecution, that will have
to be proved by Foreigners’ Regional Registration Office. (Rajya Sabha
Debates, 11 December 2019, 205–​208)

The uncertainty about numbers pointed out by Bora was counterpointed

by repeated assertions in both houses of Parliament by the HM and
other members in favour of the Bill of the pervasive nature of repression
of minorities in all three countries specified in the Bill—​Afghanistan,
Bangladesh, and Pakistan—​which had reduced their numbers by 20 per
cent in Pakistan and Bangladesh. What happened to them? Shah asks.
They were either eliminated, or they converted, or they managed to flee,
and seek shelter in India as refugees to save their dignity (Rajya Sabha
Debates, 11 December 2019, 24).
The parliamentary debates were embedded in ‘normal politics’, distinct
from ‘constitutional politics’, as the outcome of the vote on CAB rolled
back the constitutional principles of citizenship that had prevailed at the
constituent moment of the Republic. In this context, the ghuspaithiya
or the infiltrator, a category extracted from the files of the Intelligence
Bureau, became a ubiquitous label for justifying exclusion with religious
belonging as an additional attribute of illegality. Locket Chatterjee, a BJP
MP in the Lok Sabha from Hooghly, West Bengal, for example, stressed
the urgency for the amendment to provide a ‘lifeline’ to ‘thousands and
thousands’ of refugees coming to India from Islamic countries. The parti-
tion of India by Nehru, Chatterjee argued, had snatched large swathes of
land away from Bengal overnight. This was compounded in contempo-
rary India with West Bengal becoming averse to giving shelter to Hindus,
while welcoming (Muslim) Rohingyas into the state, giving them land to
settle, and voter ID cards—​‘indeed, West Bengal had 70 lakh ghuspaithiya
votes and 120 seats which were entirely in their control. . . . They (MPs
146 Citizenship Regimes, Law, and Belonging
from the opposition) are talking about NRC, when we are discussing the
CAB’ (Lok Sabha Debates, 9 December 2019, 428).
Reference to the NRC was made by most speakers, sometimes with an
appeal to the HM to make the distinction clear to dispel apprehensions
among the Muslims, but more often than not, to say that the two were
related and any discussion on CAB could not be done without also dis-
cussing the NRC. Abhishek Banerjee, a TMC MP speaking in the Lok
Sabha asserted: ‘any decision on the Citizenship (Amendment) Bill cannot
be had without understanding the context of NRC, and any attempt by
the Government to make us believe that NRC and CAB are two different
exercises is absolutely unconvincing. NRC was a trap and CAB which has
been introduced today and considered for passing is even a bigger trap’
(Lok Sabha Debates, 9 December 2019, 334). Calling the NRC a ‘botched
up exercise’, Banerjee lamented that the government wanted to implement
the NRC in the entire country. That the NRC and CAB had become the
core points of contest between the TMC and the BJP, which locked horns
in the political battleground of West Bengal, a state approaching assembly
elections in April 2021, was evident in the Parliament. TMC leader and
West Bengal Chief Minister Mamata Banerjee vowed not to implement
the NRC in West Bengal. After the passage of the CAA, Banerjee led huge
protests against the Act in the streets across the state, declaring that the
CAA could be implemented in West Bengal only ‘over her dead body’.23
Playing upon the requirement of documents to prove citizenship under
NRC, TMC MP Abhishek Banerjee informed the Lok Sabha that he had
‘documented a list of people who lost their lives because of the ordeal of
NRC and the panic caused because of NRC’. Claiming that the Bill was
against the whole Bengali and Hindu community, which would rip apart
the soul of Bengal, Banerjee reminded the House of the legacy of Bengal,
which had experienced the pain of Partition:

You did not heed our warning. You did not take our advice. Now, look
where you have ended up. Out of 19 lakh people excluded from NRC,
11 lakh are Bengali Hindus, four lakh are Hindus from different States
like Odisha, Bihar, Uttar Pradesh and Rajasthan, one lakh are Gorkhas,

23 ‘Over my Dead Body: Mamata Banerjee Leads Mega Rally Against Citizenship Bill’,

Hindustan Times, 16 December 2019.

 Bounded Citizenship 147
and three lakh plus are Bengali Muslims; most importantly, each one of
them, is an Indian citizen. The situation at the detention camp is even
worse. It is a painful story. Estimates reveal that 60 per cent to 70 per
cent of those held in detention camps are all Bengali Hindus. In our
State of West Bengal, you would be happy to know, the refugees have
all been given legal rights. We have regularised all refugees. . . . They are
all proud Indian citizens, deemed citizens. . . . (Interruptions) . . . You
do not understand the sentiments of ten crore Bengalis. . . . Sir, that we
will fight to the last drop of our blood but will not allow NRC in Bengal.
There will not be NRC in Bengal, not at any cost. Bengaly NRC Hobe na!
Jai Hind! Vande Mataram! Joy Bengali. (Lok Sabha Debates, 9 December
2020, 345)

Gaurav Gogoi, Congress MP from Kaliabor in Assam, spoke in the Lok

Sabha as ‘as an Assamese’, ‘as a person from the North-​East India’, and as
‘an Indian’ to vehemently oppose the CAB. The CAB, he argued, was di-
rectly connected with the NRC and ‘the politics of NRC which the BJP
was doing in the country’. Indeed, he argued, it was to hide the failure of
the NRC in Assam that the CAB was being brought by the party. Gogoi
asked the HM to apologize to those who had been left out of the NRC in
Assam—​the Gurkhas, the migrants in Assam from Uttar Pradesh, Bihar,
and Rajasthan—​who suffered humiliation in being labelled ‘infiltrators’
(ghuspaithiyas) (Lok Sabha Debates, 9 December 2019, 412). Exhorting
the government to address the real problems of the north-​east, and re-
frain from scraping and opening up old wounds to disturb the peace in
the region, Gogoi claimed a moral high ground in opposing the Bill: ‘The
North East opposes this Bill because we are not slaves. We will not slav-
ishly agree to any Bill that you would choose to bring before the House.
You may pass a Bill with the force of numbers, but we will fight from the
streets’ (Lok Sabha Debates, 9 December 2019, 412–​416, translated from
Hindi). Gogoi appealed to all ‘North East regional parties’ to vote with
their ‘conscience’:‘stand with your people and not vote with any polit-
ical compulsions’ (Lok Sabha Debates, 9 December 2019, 416). Yet, the
North-​East spoke in different voices. Speaking ‘for’ Sikkim, Indra Hang
Subba, a member of the Sikkim Krantikari Morcha Party, regretted that
Sikkim had somehow been ‘left out’ of the discussions on CAB and the
North-​Eastern Region, and did not figure in the ‘exemptions’ in CAB
148 Citizenship Regimes, Law, and Belonging
2019. Opposing the Bill ‘strongly’, Subba recalled the different route that
Sikkim had taken to citizenship:

Sikkim was not there when India got its Independence. Sikkim merged
into the Indian Union in 1975 with a special provision under Article
371 of the Constitution. Article 371(k) protects all the old laws of
Sikkim. The citizenship of the Sikkimese Indians is defined by the
Sikkim Subjects Regulation 1961. When the Citizenship Act, 1955 was
enforced in Sikkim with Sikkim (Citizenship) Order, 1975, it is clearly
specified that every person who immediately before 26th April, 1975
was a Sikkim subject under Sikkim Subjects Regulation 1961 shall be
deemed to have become a citizen of India on that day. This means that
the citizenship of Sikkimese Indians has been defined according to the
Sikkim Subjects Regulation 1961. This brings up the point that Sikkim
should be exempted from the Citizenship (Amendment) Bill which
is under discussion today. (Lok Sabha Debates, 9 December 2019,
441–​442)

The representative from Nagaland Tokheho Yepthomi, member of the

National Democratic Progressive Party, part of the NDA alliance, re-
ferred to the discussions the government had with representatives of
state governments, and civil society in supporting the Bill. Happy that
Nagaland was kept out of the purview of the CAB, he felt optimistic that
under the leadership of Narendra Modi as PM, the ‘insurgency’ prob-
lems in Nagaland would soon be solved. Yepthomi was happy that the
army was stationed on the border with Myanmar to stall any conflict,
and the Disturbed Areas Act which applied in Nagaland would not be
required once the ‘Naga solution’ is reached in ‘a few months time’ (Lok
Sabha Debates, 9 December 2019, 442–​443) C. Lalrosanga of the Mizo
National Front (MNF), part of the NDA, the ‘lone representative’ from
Mizoram in the Lok Sabha, like Yepthomi was thankful to the HM for
‘having listened to [their] fears and apprehensions’ regarding the CAB,
which was a major issue during the elections and threatened to disturb
the peace that prevailed in the state. While appreciating that the fears
of Mizoram had been alleviated, and protection had been promised
to Manipur as well, he urged the Central and state governments to en-
sure that there would be no religious persecution in the country as it
 Bounded Citizenship 149
prepared to rehabilitate those who had suffered persecution abroad (Lok
Sabha Debates, 9 December 2019, 444–​445). Lorho S. Pfoze, member of
the Naga People’s Front, representing Outer Manipur in Lok Sabha, too
expressed the ‘fear and apprehension’ experienced in Manipur since CAB
was introduced. Like the speakers from Nagaland and Mizoram before
him, Pfoze thanked the PM and HM for ‘considering the points of peril
in the State of Manipur’, especially the impact on ‘its demography after
the implementation of this Bill. But since Manipur has now been brought
within the purview of Inner Line Permit, I am sure the people of the State
can now rest assured’ (446–​447). Agatha Sangma from the National
People’s Party from Meghalaya, spoke in support of the Bill, following
the assurances that had emerged through the ‘extensive consultation’ on
the Bill before it was tabled and all ‘major issues’ confronting the North-​
Eastern States had been put to rest. While her own state was exempted
from the CAB, she hoped that similar protection would be given to the
entire North-​East ‘and not just the Sixth Schedule areas and not just the
ILP areas’ (Lok Sabha Debates, 9 December 2019, 450–​451). What must
also be noted that in the course of the debate on the CAB one region that
went unrepresented was Kashmir, with it MPs including Omar Abdullah
and Farooq Abdullah detained under the Public Safety Act (PSA) fol-
lowing the dissolution of Article 370 of the Constitution in August 2019,
which gave special status to Jammu & Kashmir.

Disputed Histories and Fragmented Citizenship

Citizenship in India was inextricably associated with the process of tran-

sition from colonial rule to a constitutional democracy founded on the
premise of equality. The process of transition was marked by two different
modalities and logics of transformation of power: the ‘relocation’ of power
from the colonial state to the ‘national’ state and the cartographic ‘recon-
figuration’ of power by crafting borders to carve out two nation-​states
out of a territory governed by the sovereign power of the colonial state
and paramount power in the case of princely states (Dhabhai 2020); re-
gardless of the legal frameworks that were inscribed in the constitutional
text, in the historical moment of transformative constitutionalism (Baxi
2013), power came to reside in a sovereign people who would roll back
150 Citizenship Regimes, Law, and Belonging
colonial legacies of domestication (Mbembe 2001) and historical injust-
ices (Bhatia 2019) that had an older pedigree, to craft a future consonant
with the constitutional order. While the ‘self definition’ of the people as a
nation was integral to anti-​colonial movements and inspired the ‘ideal of
independence’ (Smith 1983, 171), it was sovereignty implying freedom
from external interference to frame one’s own rules and set up institu-
tions commensurate with one’s needs and ‘character’ (Smith 1983) that
became the basis of citizenship. The promise of constitutionalism in so-
cieties that were making this transition was one of self-​rule—​the ‘democ-
ratisation’ of power—​through the installation of democratic government
which derived its powers from the people, constrained by rule of law.
The constituent moment was often also, as in the case of India, tied to the
nation-​building project, and the institution of republican citizenship and
constitutional patriotism. While national liberation movements led to
the installation of constitutional democracies, nationalism has not been
seen as integral to constitutionalism. Even though nationalism performs
the task of achieving the pre-​political integration of the demos, there are
other forms of solidarity, including constitutional patriotism, that have
sustained democratic citizenship (Becker 2020).
The debates in Parliament show that three different trajectories of
citizenship’s troubled present were being traced. Each of these trajectories
framed the present through an understanding of the past that was dis-
puted by the other. For convenience, one could term the dominant frame
which came from the ruling political formation of the BJP led NDA, and
presented the CAA as a historical necessity because of the Partition—​
‘communitarian majoritarianism’. A second strand represented by the
Congress and other opposition parties which opposed the CAB on the
basis of constitutional secularism foregrounding the constitutional mo-
ment while making a case for national citizenship may be termed ‘de-
liberative constitutionalism’. A third strand was found dispersed among
different opposition parties which found comparisons for the present, in
laws of citizenship in the totalitarian and authoritarian pasts of contem-
porary democracies. Since they also called for resistance outside institu-
tional spaces, this strand may be called ‘citizen activist’. In a manifestation
of the powerlessness produced by the manner in which the deliberative
space of the Parliament is structured, they recalled plural idioms of dissi-
dence, all of which lay claims to a higher ethics of political action—​drawn
 Bounded Citizenship 151
from the different vocabularies of anti-​national liberation struggle—​civil
disobedience of Gandhi and revolutionary patriotism of Bagha Jatin.
When Locket Chatterjee declared that Nehru partitioned India, she
was only reiterating what the BJP’s top leadership had professed inside
and outside the Parliament. The JPC had concluded, citing different
members of the CA including Nehru, and on other occasions, Gandhi
and Shyama Prasad Mukherjee, that the sufferings of those who could
not become part of independent India should be remembered and their
return to India facilitated. In the BJP’s formulation, however, the neces-
sity of the CAA emerged from Nehru’s ‘mistake’. In his response to the
speakers in the Rajya Sabha, Amit Shah pointed out that the biggest mis-
take had been Partition—​not just Partition—​but Partition on the basis of
religion. Had there been no Partition, there would have been no need for
an amendment in the Citizenship Act. The CAB had become necessary to
address the conditions that emerged after Partition. Had subsequent gov-
ernments solved these problems, he (HM) would not have had to bring a
Bill to do so. The task of running a government demanded locking horns
with problems (do-​do haath), not just governance (sarkar chalana) but
also reforming the nation, which is what the Narendra Modi government
was doing. The government could have, like others before it, simply en-
joyed power (satta ka sukh) but the CAB was not for political mileage or
electoral gains, but for resolving problems. Shah asked those who were
opposing the Bill to sit in their rooms in the dark of the night, and have a
dialogue with their inner voice (antaratma)—​had the Bill been brought
fifty years back, the situation would not have been so serious. To those
who traced the idea of Partition to Savarkar, Shah drew attention to the
Liaquat–​Nehru Pact of 1950, where an agreement had been made that
both countries would extend equality to their minority communities and
protect their freedom to practice any profession, faith, and worship. These
promises were not kept by Pakistan and the percentage of minorities in
that country came down from 22 per cent to 7 per cent. If those from the
minority communities in these countries were now coming to India to
protect the honour of their women, their religion, and their families, they
must be protected. Where will they go now? Will we not give them citi-
zenship, he asked (Rajya Sabha Debates, 11 December 2019, 275–​276).
Meenakshi Lekhi had earlier in the Lok Sabha appealed to the mem-
bers to ‘know’ the history of the nation 1930s onwards before citing
152 Citizenship Regimes, Law, and Belonging
Rabindranath Tagore, who belonged to ‘a different nation’. The story of
post-​1930s nation was the story of persons like Jogendra Nath Mandal,
an Ambedkarite from the SC community who chose to stay in Pakistan,
whose history of religious oppression has remained hidden. The CAB was
for people like Mandal who had no other place to go to escape oppressive
regimes. Muslims could flee to 46 countries that professed to be Muslim,
Christians to 40 countries which professed their faith, but for Hindus,
there was none (Lok Sabha Debates, 9 December 2019). Speaking in the
Rajya Sabha, Anand Sharma lamented that the present regime was at-
tempting to disparage leaders who had spent years in prisons and sac-
rificed their lives for India’s independence. Dispelling the charge that
Nehru and the Congress were responsible for Partition, Sharma drew
attention to the movement for constitutional citizenship and its inher-
ently inclusionary nature: ‘If this regime wants to deny that then it will
be injustice and humiliation of history (itihas ka apmaan)’. Regimes that
have tried to change history have not succeeded, he cautioned—​when
truth is sought to be erased, it re-​emerges in a more vigorous (prachand)
form. The idea of two nations based on religion was endorsed in 1937
by the Hindu Mahasabha in its meeting in Ahmedabad which was pre-
sided by Savarkar. A year later, the Muslim League too adopted a reso-
lution for partition. When the Congress leadership was incarcerated
during the Second World War, following the Quit India movement, it was
Hindu Mahasabha and the Muslim League that committed to forming
provincial governments which would be loyal to the British government
(Rajya Sabha Debates, 11 December 2019, 44–​45, translated from Hindi).
Sharma promised to place authenticated copies of Savarkar’s statement
that he had no problem with Jinnah’s proposal of two-​nation theory be-
fore the House. Kapil Sibal reinforced Sharma’s position and challenged
the HM’s contention that had the Congress not partitioned India on the
basis of religion, the Bill would not have been required:

I don’t understand which history books the learned Home Minister has
read and which authors he has consulted. But I would like to remind
him of what Savarkar said. The two nation theory was not our theory.
You are going to fulfil it today by passing this Bill if it is passed. Savarkar
said and I quote, ‘As it is, there are two antagonistic nations living side
by side in India. Several infantile politicians commit the serious mistake
 Bounded Citizenship 153
in supposing that India is already welded into a harmonious nation, or
that it could be welded thus for the mere wish to do so. These, our well-​
meaning but unthinking friends, take their dreams for realities. That
is why they are impatient of communal tangles and attribute them to
communal organisations’. . . And this is what Ambedkar said. He said,
‘Strange as it may appear, Mr. Savarkar and Mr. Jinnah, instead of being
opposed to each other on the one nation versus two nations issue, are in
complete agreement about it. Both agree, not only agree, but insist that
there are two nations in India—​one the Muslim nation and the other
the Hindu nation’. I request the Home Minister to withdraw the allega-
tion because we in the Congress believe in that one-​nation theory. You
don’t believe in it. (Rajya Sabha Debates, 11 December 2019, 165–​166)

The third strand looked for different sources of citizenship in regional

traditions of martyrdom and in non-​institutional spaces. Speaking in the
Rajya Sabha, Derek O’Brien, who had earlier referred to his Irish roots
and the dispersal of his family across the border and abroad, spoke first
in Bengali and then switched to English. Asking the government not to
teach patriotism to a Bengali, he traced the Bengali identity—​the ‘Bengali
faith’—​to its cultural legacy, reform movements, and revolutionary
struggle for freedom:

My Ishwar is Vidyasagar, my Thakur is Rabindranath, my Ram is

Rammohan, my Qazi is Nazrul, my Fakir is Lalon. Only a Bengali knows
and follows a Bengali’s faith. Sir, why am I saying this today? Because
December is an auspicious month for the Bengalis. On 3rd December,
Shahid Khudiram Bose was born. On 8th December, another aus-
picious day, the brave revolutionary Bagha Jotin was born. And who
doesn’t know about 8th December, 1930? Benoy-​Badal-​Dinesh, as you
all know, attacked Writers’ Building without caring about their own
lives. This chapter of history is our pride. And what did the government
do at a solemn time like this? They have brought in today an anti-​Indian,
anti-​Bengali Bill. (Rajya Sabha Debates, 11 December 2019, 63–​64)

Locating the CAB in the trajectory of India’s transition to dictatorship,

O’Brien drew correspondence between developments in citizenship laws
in Germany under Hitler’s Nazi regime eighty-​four years back, and found
154 Citizenship Regimes, Law, and Belonging
‘an eerie similarity’ between them and what the Parliament was likely to
‘pass today’:

Basically, what I am trying to prove in the next three minutes or four

minutes is how we, or the people who have drafted this Bill, have drawn
from the Nazi Copybook. One, 1933—​concentration camps; 2018—​
detention camps. By the way, sixty per cent of the people in those deten-
tion camps are Bengali Hindus. Two, 1935—​the Reich Citizenship Law
that protected those with German blood; . . . Third, 1935—​the focus
back to the Nazis—​you needed an identity to prove your lineage. So,
what did you have? You were given an ancestral past. What is it today,
in 2019? You rely on a piece of paper to prove your Indian citizenship,
forget about deemed citizens. 1945 is very interesting. There was a plan
to deport the Jews. What did they call it? They called it the Madagascar
Plan. What do we have today? We have a Mahaplan, also known as the
NRC. Number five, the Germans called it the große Lüge. It was a term
coined by Hitler. And, in English, it meant ‘big lie’. This is very inter-
esting. This is very interesting, Sir, because if we keep saying lie, lie, lie,
it will sound like a truth. What is the lie today? India is under threat. . . .
The sixth similarity, it was called the Lügenpresse. The Lügenpresse was
lies and propaganda being pushed against the Jews. And, today, equiv-
alent of the Lügenpresse is the fake news and media being pressurised
to push the fake agenda. And, the last one, in the German Copybook
they referred to a very interesting word ‘Jews’ as ‘rats’. . . . What are we
talking about today—​termites, cockroaches, vermin . . .these words
are being used by the Prime Minister and sometimes by the Home
Minister. . . . (Rajya Sabha Debates, 11 December 2019, 66–​67)

Significantly, O’Brien referred simultaneously to the possibility of judi-

cial scrutiny and the certainty of popular resistance—​both essential to
democracy: ‘There is a view that the Bill from here will go 3.7 kms down
to another domed building i.e., the Supreme Court. But, in between, we
have a different view. In between, there will be people’s movement. There
will be sangram. . . . Before it goes to Supreme Court—​we respect it a
lot—​there will be people’s movement against this’ (Rajya Sabha Debates,
11 December 2019, 65). The faith in democratic forces and civil resistance
was expressed by Assaduddin Owaisi who spoke earlier in the Lok Sabha.
 Bounded Citizenship 155
Owaisi gave a strident critique of the Bill as discriminatory towards
Muslims, but more specifically, for going against the commitment that
was made in the Constitution towards equality of all religions. Owaisi
lamented the decline in the democratic culture of the country, recalling
H. V. Kamath’s proposal that the Preamble should begin with the invo-
cation of God, which was opposed by Rajendra Prasad, put to vote and
rejected by the CA. It was this spirit of the constitutional moment which
Owaisi claimed should be cherished, since it represented the rejection of
‘Jinnah’s paigam’ (Jinnah’s message) by his ancestors. Yet, the CAB was
‘being brought for the five lakh forty thousand Hindus who had been left
out of the NRC in Assam. The Bill was a conspiracy to make Muslims
stateless . . . You are putting your feet on their chest and saying that you
are not an honourable citizen of this country. Indeed, you are without a
country. Which is why I am saying that this country is going through an-
other partition . . .’. (Lok Sabha Debates, 9 December 2019, 494) Making
a plea for democratic collective action, Owaisi exhorted the House to
condemn the manner in which they had been consigned to a boat driven
with communal and other divisions and resolve to democratically steer
this boat to the shore and hold the irresponsible boatman to account (Lok
Sabha Debates, 9 December 2019, 496). Owaisi made a call for civil dis-
obedience to restore the dignity of the Constitution and those who had
struggled for independence. While making this call, Owaisi placed the
‘1947 ki jange-​Aazaadi’ (1947 war of independence) at par with the civil
disobedience movement launched by Gandhi in South Africa: ‘Mahatma
Gandhi Mahatma kaise bane? . . . Unhone South Africa ke national reg-
ister card to phad diya tha, jala diya tha . . . [How did Gandhi become a
Mahatma?... He had torn the national register card of South Africa, burnt
it’.] (Lok Sabha Debates, 9 December 2019).
Vinay Sahasrabuddhe, BJP MP in the Rajya Sabha, claimed the op-
posite, declaring emphatically that the opposition was wrong in saying
that the Muslims of India were unhappy. ‘Why should they be unhappy?’,
he asked. ‘They are nationalist Muslims (Musalmaan Rashtrabhakt
Musalmaan hai)’. Inverting the arguments by those opposing the Bill and
blaming them for being suspicious of Muslims, Sahasrabuddhe stated: ‘. .
. the Muslims in India are nationalist Muslims, and they did not express
any reaction when we revoked Article 370, when the triple talaq Act was
passed, when we took a position on the Ram Mandir in the Supreme
156 Citizenship Regimes, Law, and Belonging
Court—​kya Muslim Samaj me uska asantosh nirman hua? Kahi nahi
hua . . . kya kahin Muslim samaj vichalit hua? Bilkul nahi hua. Musalman
rashtrabhakt hai. Aapke mun me unke bare me sandeh hai, isliye aap ye
rajneeti kar rahe hain. Aap unko vote bank ka khilona banate ho. [Was the
Muslim society disturbed by that? Not at all. The Muslim is nationalist.
It is you [the Congress and other opposition parties] who harbour sus-
picion against them which is why you are engaging in this kind of poli-
tics. You treat them like toys in your vote bank’ (Rajya Sabha Debates, 11
December 2019, 231–​232).

Conclusion

While both the NRC and the CAA are part of the ideological landscape
of citizenship in contemporary India, they emerged as specific tenden-
cies out of the 2003 amendment in the Citizenship Act. The insertion of
the category ‘illegal migrant’ through an amendment in 2003 became a
hinge point in the trajectory of the law. Both the NRC and the CAA—​one
through the judicial route and the other through the legislative route—​
offered two distinct ways of identifying Indian citizens. Following the
rules laid down in the Citizenship Act as amended in 2003, the NRC pro-
vides the modalities for the preparation of a register of Indian citizens
through practices of identification and enumeration. In the case of Assam
the procedures evolved under the direction of the Supreme Court by the
NRC Commissioner for Assam, made citizenship contingent on condi-
tions of descent, affirmed through papers that were considered valid by
the state. Ironically, in the case of Assam the NRC became a register of cit-
izens of Assamese origin, invoking a category of hyphenated citizenship,
not part of the legal vocabulary of citizenship in India. At the same time,
the process became one where the purpose of the NRC became one of
sifting out ‘illegal migrants’—​an unfinished agenda in the promise made
by the Assam Accord—​rather than preparation of a register of citizens.
Indeed, the discursive frameworks surrounding the NRC, the vocabu-
lary of the debate around it, and the petitions before the Supreme Court
in the course of its preparation in Assam, focused on the most effective
way of identification of illegal migrants by strengthening the Foreigners
Tribunals, and addressing the conundrum of putting those who were
 Bounded Citizenship 157
identified as such in detention camps. The NRC was thus simultaneously
about affirming citizenship through descent and eliminating illegal mi-
grants. The CAB is embedded in the idea of national citizenship with reli-
gion as the principle for making a distinction between those from among
illegal migrants who could be exempted from penal action and made eli-
gible for Indian citizenship through naturalization. These two principles
defining citizenship have become conjoined in the contemporary con-
text, in the citizenship practices of the BJP, which draws its provenance
from the ideology of Hindutva.
Despite assertions by MPs supporting the CAB in the Parliament
that the NRC and CAB were distinct, and statements by Ravi Shankar
Prasad, Minister for Law and Justice that the NRC and CAB should
not be conflated,24on several occasions—​ in April–​
May 2019 in his
election campaigns in West Bengal, and in October–​November 2019
before the CAB was discussed in Parliament—​the HM spoke emphati-
cally of the relationship between the two. He spoke of both in the same
breath, sometimes as the same law, at other times as linked to each other
in an indispensable chronological sequence. Indeed, ‘aap chronology
samajhiye’ (You must understand the chronology), became a pop-
ular theme for irreverent memes on Twitter during the protests against
the CAA. On 11 April 2019 speaking in an election rally in Raigang in
West Bengal, Shah promised his audience that he would ensure the im-
plementation of the NRC in West Bengal and expel all illegal migrants
from Bangladesh—​who he called ‘termites’—​after coming to power.
He assured, however, that citizenship would be granted to Hindu and
Buddhist refugees. A tweet on the BJP handle the same day, quoted Amit
Shah as saying that the BJP would ensure the implementation of the NRC
in the entire country ‘to remove every single infiltrator, except Buddha
[sic], Hindus and Sikhs’.25 In a YouTube video uploaded by the BJP’s of-
ficial channel on 23 April 2019, Shah explained the ‘chronology’ to the
people: ‘First the CAB will come. All refugees will get citizenship. Then
NRC will come. This is why refugees should not worry, but infiltrators

24 https://​w ww.ind​iato​day.in/​india/​story/​no-​quest​ion-​of-​link​ing-​caa-​to-​nrc-​union-​minis​

ter-​ravi-​shan​kar-​pra​sad-​1629​020-​2019-​12-​17 (accessed 19 June 2020).

25 https://​indian​expr​ess.com/​electi​ons/​will-​rem​ove-​every-​sin​gle-​infi​ltra​tor-​exc​ept-​buddhi​

sts-​hin​dus-​and-​sikhs-​amit-​shah/​ (accessed 19 June 2020).

 158 Citizenship Regimes, Law, and Belonging
should. Understand the chronology’.26 On 1 May in an election rally in
Bongaon, in West Bengal, home to large number of Matua refugees who
had fled to India from Bangladesh in 1950 to escape religious persecution,
he explained the chronology once again: ‘It is our commitment to imple-
ment National Register of Citizens (NRC) across the country to weed out
the infiltrators. First, we will bring the Citizenship (Amendment) Bill to
ensure that eligible refugees get citizenship, and then we will introduce
NRC to throw out the infiltrators’.27 ‘They are termites, they are eating
into the country’s resources’, he asserted.28
A speech uploaded on the BJP’s official Twitter handle, apparently
given in 24 Parganas, was replete with eloquent claims to the same ef-
fect—​drawing applause from the audience. In an interview with ABP
news channel telecast on 2 October 2019, Shah blamed the TMC for de-
ceiving the people on the NRC by saying that the BJP wanted to remove
Bengalis from Bengal by compelling them to show papers. To dispel the
apprehensions of the people he emphasized that the ‘imagination’ of NRC
was linked to the CAB: ‘No Bengali will have to fear. They will not be
asked to show papers’.29
On 20 November 2019, in the course of responding to a series of ques-
tions on the NRC, Shah confirmed that faith-​differentiated citizenship
in the CAB had been approved by the JPC, and passed by the earlier
Lok Sabha. He was responding to a question by Syed Nasir Hussain on
the confusion that Shah’s speech in West Bengal that non-​Muslims had
nothing to fear from the NRC, had raised among Muslims: ‘I just want to
ask the Government and the Home Minister whether the NRC can give
citizenship to any immigrant belonging to these communities, leaving
out Muslims alone’ (Rajya Sabha, 20 November 2019, 59). Swapan
Dasgupta asked the HM whether the gazette notification of 7 September
2015 under which exemptions to illegal migrants had been provided, was

26 https://​w ww.yout​ube.com/​watch?time_​c​onti​nue=​18&v=​Z_​_​6​E5hP​bHg&feat​ure=​emb_​

ti​tle; also https://​scr​oll.in/​arti​cle/​947​436/​who-​is-​link​ing-​citi​zens​hip-​act-​to-​nrc-​here-​are-​five-​

times-​amit-​shah-​did-​so (accessed 19 June 2020).
27 https://​w ww.ndtv.com/​india-​news/​lok-​s abha-​electi​ons-​2019-​amit-​shah-​s ays-​mam​ata-​

baner​jee-​extend​ing-​supp​ort-​to-​those-​who-​wish-​to-​divid-​2031​385 (accessed 19 June 2020).

28 https://​w ww.deccanchronicle.com/​nation/​p olitics/​010519/​mamata-​supporting-​t hose-​

who-​wish-​to-​divide-​country-​amit-​shah.html
29 Intruders Will Be Shown The Door: Amit Shah | Exclusive Interview | ABP News, 2 October

2019, https://​www.yout​ube.com/​watch?v=​k8-​R4DOz​e_​g (accessed 19 June 2020).

 Bounded Citizenship 159
applicable to the whole of India and whether the NRC in Assam made a
‘fundamental distinction between those who are illegal immigrants and
those who are non-​citizens’. ‘Has that distinction actually been made?’, he
asked, and ‘if it has been made, why various people, who are categorized
in the notification, are being incarcerated?’ (Rajya Sabha, 20 November
2019, 60). Shah responded that the NRC in Assam was prepared under the
directions of the Supreme Court under a separate Act. When he referred
to a separate Act, Shah was probably alluding to the exception laid down
in 2009 to the Citizenship Rules of 2003, laying down a separate proce-
dure for the preparation of the NRC in Assam. Shah further explained
that a nationwide NRC, whenever that is conducted, would most likely
also cover Assam. Agreeing with Dasgupta that a distinction needs to be
made between illegal migrants (probably ghuspaithiya) and non-​citi-
zens (foreigners, also those exempted from the category of illegal migrant
under the Gazzette notification): ‘But, this is true and the government
acknowledges that Hindu refugees, Buddhist, Jain, Sikh, Christian, Parsi
refugees should get citizenship, and this is exactly why we have brought
the Citizenship Amendment Bill’ (Rajya Sabha, 20 November 2019, 60).
Dominating the landscape of citizenship in India, the CAB and
NRC induced tensions in what Baruah has called ‘non-​national spaces’
(Baruah 2009) and precipitated anxieties regarding the changes that were
being sought in the ‘national order of citizenship’ (Baruah 2009). Unlike
Baruah’s argument that the tensions between the ‘national order of things’
and the realities of ‘non-​national spaces’ (Baruah 2009) would adversely
affect governmental legitimacy, the NRC and CAB converged in their ar-
ticulation of exclusionary citizenship, to help the BJP reap electoral ad-
vantage in successive elections. The convergence is not only because of
the shared anxiety for preserving historical legacies of culture, and access
to land, livelihood, and resources, but a larger spectre of (in)security—​of
the territory and the people—​that both the NRC and the CAB claim to
be addressing. Indeed, considering that the most vociferous opposition
to the CAB came from the northeastern states of India, it is ironic that
the JPC raised concerns of security associated with the fear of loss of ter-
ritory in lower Assam due to ‘indiscriminate influx of illegal migrants’
from Bangladesh. Citing from the judgement in Sarbananda Sonowal vs
Union of India & Anr (2005), the JPC warned against the ‘dangerous con-
sequences of large-​scale illegal migration’ from Bangladesh for people
160 Citizenship Regimes, Law, and Belonging
of Assam and the nation as a whole. Arguing against ‘misconceived and
mistaken notions of secularism’ coming in the way of stopping this in-
flux, the JPC raised the spectre of the indigenous people of Assam being
‘reduced to a minority’, rendering ‘their cultural survival’ in jeopardy,
weakening their political control, and undermining employment oppor-
tunities (JPC Report 2019, 12).
In his remarks as the leader of the opposition in the Rajya Sabha,
Ghulam Nabi Azaad referred to the exaggerated numbers being pre-
sented by the government in whose name the Bill was being brought
and the small numbers who had actually applied for citizenship. While
the government had no figures for persons who would actually benefit
from the law, large numbers of people were protesting against the Bill in
the country, he argued. Citing the army’s flag march in Dibrugarh while
the Bill was being discussed in Parliament, to quell mobilization against
the CAB, and the use of lathis, tear gas, and rubber bullets against pro-
testers on the national highway in Dibrugarh, protests in Arunachal
Pradesh, Manipur, Meghalya, in Tinsukiya, and Guwahati in Assam,
Azaad sought to dispel the notion that there was a public consensus on
the CAB. Supriya Sule of the NCP had earlier pointed out in the Lok
Sabha that several members of the JPC had dissented against its recom-
mendation. In an attempt to assuage the north-​eastern states, the CAB
2019 provided special exemptions for the ILP states and Sixth Schedule
regions. To specifically address the turmoil in Assam, the Clause 6
Committee was expected to communicate to the Assamese people that
the government was serious about protecting their cultural identity. Yet,
in the months after the passage of the CAA 2019, unprecedented protests
were witnessed across the country, and not just in Assam. The protests
were peaceful and socially diverse. In some pockets the protesters were
predominantly Muslim, but in most cases, they were young college and
university students, a large number of them were women, all of whom
believed that they were defending the Constitution by resisting the im-
plementation of the CAA with NRC. The apprehension that the NRC was
an exercise intended to deprive poor Muslims, who may not be able to
show appropriate papers, and ran the risk of being labelled illegal, pro-
pelled the mobilization. The government attempted to alleviate these ap-
prehensions with the PM taking the lead to say that there were no plans
 Bounded Citizenship 161
for initiating the preparation of a nation-​wide NRC.30 Yet, towards the
end of December, a day after the PM gave the assurance, the government
announced the approval of 3900 Crores Rupees to fund the preparation
of a National Population Register (NPR). The government presented the
NPR as a routine and, therefore, an innocuous exercise, to be carried out
along with the census household enumeration, beginning from 1 April
2020, and as the continuation of an exercise that had been underway
since 2010 when the UPA was in power. It is, however, difficult to sep-
arate the NPR from NRC and several states, including Kerala, Punjab,
and West Bengal passed resolutions in their assemblies that they would
not participate in the preparation of the NPR, for asking questions per-
taining to the date and place of birth of parents.31 It must be noted that
Section 14A of the CAA empowers the Central government to prepare
the NRC and issue national identity cards to Indian citizens. Sections 3
and 4 of the Citizenship (Registration of Citizens and Issue of National
Identity Cards) Rules 2003, lay down the procedure for the preparation
of NRC. The NPR is listed as an initial and indispensable step in Rule
3(4) and Rule 4(3) under which the Central government issues an order
regarding the date by which the population register would be prepared by
collecting information of persons residing within the jurisdiction of local
registrar; Rule 4(3) empowers the local registrar to verify and scrutinize
the particulars collected of every family and individual in the Population
Register; Rule 4(4) states that ‘particulars of such individuals whose
Citizenship is doubtful, shall be entered by the Local Registrar with an ap-
propriate remark in the Population Register for further enquiry’. Gautam
Bhatia argues that it is here that the NPR and the NRC processes blur into
each other: ‘the Citizenship Rules essentially give local government of-
ficials the power to ascertain if a person is a ‘Doubtful Citizen’, based on
information they glean during the NPR process. As was evident during
the NRC process in Assam, lakhs of these ‘doubtful’ citizens were forced
to ‘prove’ their citizenship to hard-​nosed and often unsympathetic gov-
ernment officials’.32 It was this uncertainty that the NRC had spun and

30 https://​ w ww.ind ​ i ato ​ d ay.in/ ​ i ndia/ ​ story/ ​ no- ​ t alks- ​ on- ​ n at ​ i onw ​ i de- ​ n rc- ​ now- ​ amit- ​ shah-​

interv​iew-​1631​224-​2019-​12-​24 (accessed 20 June 2020).

31 Deeptiman Tiwari, ‘At Meeting on NPR, Opposition States Object to Question on Place and

Birth of Parents’, The Indian Express 18 January 2020.

32 Gautam Bhatia, ‘NPR, NRC: 2 Sides of the Same Coin’, Mumbai Mirror 27 December 2019.
162 Citizenship Regimes, Law, and Belonging
CAB only appeared to confirm that large numbers of Indian citizens were
protesting by invoking the Constitution. The portraits of two icons of the
national and constitutional movements—​Gandhi and Ambedkar—​pep-
pered the spaces of protests as powerful reminders of the constituent mo-
ment of the transformative.
 3
Liminal Citizenship
The ‘Returnees’ and ‘New’ Citizens

On 6 June 2015, the governments of India and Bangladesh entered into

an agreement to resolve long-​standing disputes pertaining to demar-
cation of boundary and the exchange of enclaves, and land in adverse
possession of the two countries along the border states of West Bengal,
Assam, and Tripura. The agreement was a culmination of previous ef-
forts by the governments of the two countries, which included a Land
Border Agreement Treaty (LBAT) signed in 1974 a few years after the
creation of Bangladesh, followed by the signing of a Protocol in 2011.
The 1974 LBAT proposed exchange of territory and land held in adverse
possession. Consultations with enclave residents suggested the need
for a more flexible understanding of exchange to prevent displacement
of people. The 2011 Protocol showed deference to the wishes of those
who wanted to continue living on the land they had inhabited for gen-
erations. Signed between the prime ministers of India and Bangladesh,
the Protocol reflected the need to maintain the status quo as far as land
held in adverse possession was concerned. It was agreed that India would
receive 2777.038 acres of land from Bangladesh and transfer 2267.682
acres of land to it. The protocol could not be implemented due to oppo-
sition by some political parties including the BJP, which saw it as a loss
of territory for India. Till the summer of 2015, when another LBAT was
signed, this time by a BJP led government, residents of enclaves were cit-
izens of the country to which the enclave belonged, but governmental
machinery had meagre or no access to the enclaves since its legal-​jurid-
ical sovereignty over them was interrupted by the territorial sovereignty
of another state. Enclaved citizens did not reside within the contiguous

Citizenship Regimes, Law, and Belonging. Anupama Roy, Oxford University Press. © Oxford University Press 2022.
DOI: 10.1093/​oso/​9780192859082.003.0004
164 Citizenship Regimes, Law, and Belonging
nation-​state boundaries of either country, and for all practical purposes
they were displaced persons with ambivalent citizenship. Denied polit-
ical rights and constitutional protections, they led a precarious life of per-
petual liminality.
This chapter is based on fieldwork conducted at five sites in Cooch
Behar district in West Bengal—​in three transit camps for Indian ‘re-
turnees’ in Dinhata, Mekhliganj, and Haldibari, and two chhits with ‘new
citizens’, Balipukhuri and Dhabalsati Mirgipur. Unlike the category ‘re-
turnees’ in the Constituent Assembly Debates and the citizenship pro-
visions in the Constitution of India, where it connoted persons who
left India in the course of Partition and subsequently decided to return
on permits issued by the government of India, the enclave dwellers were
Indian citizens under the Indian Constitution because they were ‘found
living’ in Indian territory. With the exchange of territory in 2015, they
were pushed into a position to make the decision, quite like the ‘Partition
returnees’, to move to India from what had now become ‘foreign’ territory
or stay on and become citizens of Bangladesh. In making the decision to
move to India, the enclave dwellers would displace themselves from their
land, to continue being Indian citizens. The fieldwork was conducted in
December 2016, more than a year after the LBAT 2015 was signed and the
exchange of land and population had taken place, and about six months
after the state assembly elections were held in West Bengal, in which both
the returnees and the new citizens voted for the first time. The camps in
Dinhata, Mekhliganj, and Haldibari were set up as transit accommoda-
tion for two years for Indian citizens ‘returning’ from Indian enclaves.
Balipukhuri and Dhabalsati Mirgipur were Bangladeshi enclaves that had
become part of the Indian territory. All its inhabitants consequently be-
came ‘new’ Indian citizens. The LBAT 2015 is largely considered a mo-
ment of closure in the history of contests over territory along the border
with Bangladesh by ensuring correspondence/​alignment between terri-
torial boundaries and political sovereignty. In the context of the prepa-
ration of the National Register of Citizens (NRC) in Assam around the
same time and subsequently the CAA, this chapter examines the ‘land’
exchange as a political resolution of a festering conflict over territorial
borders and citizenship. This chapter seeks insights from the field to
argue that the administrative measures of relocation and rehabilitation
generated experiences of split-​citizenship among both the returnees and
 Liminal Citizenship 165
the new citizens, which they expressed through idioms of loss and be-
trayal. The purpose of this chapter is to explore the polyrhythms of cit-
izenship by relocating the contemporary debate on citizenship in India
into an anthropological terrain. By invoking ‘polyrhythms’ (Barkley-​
Brown 1991) as an analytical lens, one can see the contemporary land-
scape of citizenship as one which is composed of multiple, dispersed,
disparate, and often dissonant rhythms. The idea is to ‘isolate’ specific
rhythms or strands to see how they stand apart, and at the same time are
shaped in conversation with others.
Enclaves are pockets of land located inside the territory of another
nation-​state. They are islands of sovereignty surrounded by the sover-
eign territorial jurisdiction of another state. Often located deep inside
the territory of an alien state, the residents of enclaves remain ambiva-
lent citizens. Distanced from effective citizenship of their country, as
‘nowhere people’ (Philipose 2009), they are perilously on the verge of be-
coming stateless and illegal aliens. Until 6 June 2015, when an agreement
to exchange enclaves was reached between the governments of India
and Bangladesh, there were 111 Indian enclaves in Bangladesh and 51
Bangladeshi enclaves in India, accounting for 17,160.60 acres and 7110.02
acres of land, respectively.1 According to kimvadanti (folklore) enclaves
or chhitmahals—​as the enclave dwellers call them in local Bangla—​
were created as chhits or stakes which the Raja of Cooch Behar and the
Maharaja of Rangpur lost to each other in a game of chess. The haphazard
distribution of the enclaves along the border region, in this rendition, dis-
plays the randomness of the stakes lost and won. The chhits may also be
seen as a product of the manner in which the ‘national’ boundaries were
drawn in straight lines along areas where land was intersected by a web
of water bodies on the eastern borders, and as a peculiar legacy of state
accession in the context of Partition of India. While Rangpur assimilated
with East Pakistan, the Maharajah of Cooch Behar—​a native state—​exer-
cised the option of merging with India.
The ‘haphazard’ border produced contests that played out in two dif-
ferent ways corresponding to the manner in which the association

1 See Annexure I and II of the publication ‘Land Border Agreement Treaty between India and

Bangladesh’, published by Ministry of External Affairs for maps of the region. https://​mea.gov.
in/​Uploads/​PublicationDocs/​24529_​LBA_​MEA_​Booklet_​final.pdf
166 Citizenship Regimes, Law, and Belonging
between territoriality and state sovereignty unfolded. On the one hand,
land was construed as territory over which the nation could affirm ex-
clusive sovereignty through proprietary control, and on the other hand,
land needed to be abandoned to ensure the integrity of national terri-
torial borders. Underlying both was the concern over the dissociation
between cartography and territory and the dilution of state sovereignty
because of territorial fragmentation. These concerns manifested them-
selves at different points of time in the relationship between India and
Pakistan and between India and Bangladesh from 1971. Citizenship
correspondingly vacillated between its association with territory as the
source of national and political identity, and territory becoming aligned
with livelihood practices and lifeworld. In its association with livelihood,
territory invoked a sense of belonging to the geographically contiguous
area of the other nation-​state, which then became a source of effective
identity, substituting the physically distant mother country as the source
of affective belonging and political identity. Between the two, the people
residing in the enclaves experienced fragmented citizenship, where the
quest for belonging led to an aporetic existence, alternating between il-
legality, displacement, and legal citizenship. To leave the enclave and
enter Bangladeshi territory, for example, the resident of an Indian en-
clave needed a passport and visa issued from mainland India—​and that
required crossing Bangladeshi territory. A news report described their
predicament as follows:

Indian citizens in Bangladesh are often forced to provide false informa-

tion to Bangladeshi officials to conduct business, send their children
to school or receive medical care nearby, said Mizanur Rahman, a 34-​
year-​old farmer from Dashiar Chara and a father of two. Duplicity is at
the core of an enclave-​dweller’s existence, he said.2

The LBAT 2015 marked the moment when not just territory but also the
citizenship of those inhabiting the exchanged territory had to be ‘fixed’.
The LBAT recognized the right of more than 50000 enclave dwellers in

2 Bangladesh: ‘Enclave’ residents campaign for citizenship, IRIN News, https://​www.the​newh​

uman​itar​ian.org/​feat​ure/​2011/​11/​23/​encl​ave-​reside​nts-​campa​ign-​citi​zens​hip (accessed 15
June 2019).
 Liminal Citizenship 167
India and Bangladesh to choose their citizenship. Only about 990 of those
residing in Indian enclaves in Bangladesh decided to leave their homes
to retain their Indian citizenship. These persons were, as the Standing
Committee on External Affairs termed it—​ returning to India—​ and
should be welcomed. The rest stayed back on the land they had inhabited
for generations and became citizens of Bangladesh. On 16 November
2015, The Hindu reported that the ‘new Indians’ who made their passage
to India from the Indian enclaves in Bangladesh reported to be ‘torn be-
tween their love for their land in Bangladesh and the promise of a new be-
ginning in India’.3 As far as those who resided in the Bangladeshi enclaves
in India were concerned, no one left for Bangladesh and continued to live
on the land of their forefathers. Forty-​year-​old Jyotsnarani Barman had
been living in one such enclave in India after her marriage twenty years
ago: ‘They signed on a paper, and my country changed’, she said, ‘Never
knew I could weep so much for Bangladesh’. The chhits, it was reported,
were ‘filled with grief ’ as dwellers thought of their separation from their
motherland, which they would need a passport to visit. These too were
‘new citizens’, but unlike the returnees, these erstwhile Bangladeshi chhit
dwellers would become Indian citizens under Section 7 of the Citizenship
Act of India 1955, which permits the conferment of citizenship on those
people who become part of the India through acquisition of foreign
territory.
The redrawing of boundaries between the two countries had ramifi-
cations for those residing in the enclaves who experienced the change
in political jurisdiction which occurred with the exchange of land, with
an offer/​opportunity to choose their citizenship. Choosing one’s citizen-
ship was, however, a fraught process. Bangladeshi citizens residing in
enclaves in Indian territory had the choice to keep their land and home
but lose their identification with a homeland to become Indian citizens—​
a choice precipitated by the absorption of their enclave in the political
boundaries of India. Indian citizens residing in enclaves in Bangladesh
could retain their citizenship only by leaving their land and homes as
‘displaced persons’ to reside in camps in Cooch Behar awaiting ‘reha-
bilitation’. Both groups experienced liminality marked by distinctive

3 Suvojit Bagchi, ‘990 “new Indians” to Make Their Passage from Enclaves’, The Hindu, 16

November 2015, 13.

168 Citizenship Regimes, Law, and Belonging
experiences of precarity, generated by their association or dissociation
with land in a condition of what I call split citizenship. I use the word split
in two senses: as a way of pulling apart or breaking asunder, suggesting a
spatial separation which is implicitly violent; and, as a division or sepa-
ration of a whole into its constituent parts, which co-​exist in a disorderly
fashion as they seek to congeal together in a hyphenated relationship.
I argue that while the transition to a legally stable citizenship through
the swapping of territory brought closure to the ambivalence and often
illegality of enclave dwellers, it ruptured their relationship with ‘land’
and ‘homeland’ in peculiar ways, depending on whether or not they ‘mi-
grated’. The experience of rupture was tied to experiences of ‘mobility’
and ‘immobility’ in relationship to land and was at variance with the
governmental process of demarcation of boundaries which identified
land with territory.

Borders, Territory, and Citizenship

The conflict over demarcation of territorial boundaries and competing

cartographic claims that unfolded through distinctive signposts along
India’s eastern borders was propelled by the imperative of installing
uninterrupted political and territorial sovereignty. Enclaves emerged
worldwide when the sovereign state political system was implemented
or reorganized in a particular region (Jones 2009). Cartographic preci-
sion was integral to the emergence of ‘fully demarcated territorial states’
(Akerman 1984). In the course of decolonization, the process of mapping
created morphological models for states that imparted cultural attributes
to spatial structures such as core regions and frontiers. Paula Banerjee has
argued that these models provided the ‘basis for theorisation for both the
morphology of states and the spatial processes connected with it’, leading
also to the redefinition of territoriality as the means to achieve material
survival and political control (Banerjee 2010, xxxi). The acquisition of
political control over mapped territories has been seen variously as ‘jus-
tification for claims against occupation’ (Sack 1980) as well as the ruling
elite’s desire to establish their domination over a bounded geographical
space and beyond (Parker 1988, Saco 1991). In the context of transition
to sovereignty from colonial rule, the process of ‘negotiation’ of and over
 Liminal Citizenship 169
borders shows the complex ways in which the phenomenon of state sov-
ereignty itself unfolded. Integral to state formation, borders both but-
tress, and circumscribe sovereignty. They also reflect the transition from
frontiers in the colonial context to border regions, which are subject to
special forms of administrative control. Mapping of border lines across
these regions becomes imbricated in the histories of contestations over
the division and control of power over territory. While much of this his-
tory is traced to the state formative practices that accompanied decol-
onization and the political contexts in which the parcelling of territory
occurred in the wake of the Partition, the histories of borders are also
‘continuing histories’ that remain live through conflict. The history of the
enclaves may be seen in contemporary border making and border man-
aging practices but can also be traced to the ways in which political power
was organized historically amidst war-​making in the region.4
The contemporary history of this contest traversed two distinct phases,
with the creation of Bangladesh in 1971 as the point of demarcation. The
first phase was marked by the Nehru-​Noon agreement over the ‘disputed’
territory of the Berubari Union and the exchange of enclaves, and the
Supreme Court decision turning it down. Beruberi Union No. 12 was
an area of 8.75 square miles in the Jalpaiguri district. The dispute over
Berubari Union arose because of the discrepancy in the award made by
the Radcliff Commission entrusted with the responsibility of demar-
cating the boundary between the two newly created provinces of West
and East Bengal. In the narrative text of the award, the Commission de-
scribed Berubari Union as part of West Bengal. But the map annexed to
the narrative text, showed it as part of East Bengal. In 1958, the govern-
ments of India and Pakistan signed an agreement to resolve boundary
disputes. According to the Nehru-​Noon agreement, as it was called, the
government of India would cede the southern part of the Beruberi Union

4 The treaty of 1713 by which the Maharaja of Cooch Behar and the Mughuls agreed on ces-

sation of conflict resulted in the practices of revenue collection and taxation whereby Cooch
Behar and Rangapur obtained the right to collect taxes from people conquered by the respec-
tive armies. When the Mughals ceded power to the British, the system of tax collection in the
enclaves was left intact (Jones 2009). The boundary commission set up after partition did not
concern itself with the enclaves which were not directly under British control and the princely
states were given the option of joining either of the new sovereign states. On 20 August 1949, the
Maharaja of Cooch Behar opted to join India marking the date of the official creation of enclaves
(Jones 2009).
170 Citizenship Regimes, Law, and Belonging
to East Pakistan and exchange all the enclaves created by the Radcliff line,
whereby both the countries would acquire the enclaves located in their
territory. The agreement thus sought to alleviate cartographic anxieties
of the new nation-​states and ensure the correspondence between territo-
rial borders and territorial sovereignty. The agreement precipitated out-
rage in West Bengal and elsewhere in India over what was seen as loss
of territory for India, and compelled the President of India to seek a ref-
erence from the Supreme Court to ascertain the constitutional validity
of the agreement. On 14 March 1968, an eight-​member bench of the
Supreme Court decided that the agreement did not amount to mere de-
termination of boundaries which was within the purview of the powers
of the government, but involved cessation or alienation of a part of India’s
territory. The power to cede territory, the judges concluded, rested only
with the Parliament, and could become effective only through a constitu-
tional amendment which required political consensus. The Constitution
(Ninth Amendment) Act (December 1960) was subsequently passed to
amend the First Schedule of the Constitution to give effect to the transfer
of territories.
The legal wrangles and political turmoil, which followed prevented
immediate transfer. It was ultimately in 1974, following the creation
of Bangladesh in 1971, that an accord was signed between the prime
ministers of the two countries, Indira Gandhi and Mujib-​ur-​Rehman.
The two countries agreed that Berubari would remain with India in ex-
change for the Bangladeshi enclave of Dahagram and Angarpota, with
access to a tract of land, the Tinbigha Corridor, providing the link to
mainland Bangladesh. The accord also repeated the earlier agreement on
the exchange of all enclaves, with ramifications for the states of Assam,
West Bengal, Meghalaya, and Tripura, in which the enclaves existed. The
agreement remained unimplemented, however.
The Constitution 119th Amendment Act, 2015 sought to give closure
to the long-standing dispute. Amidst the long-​drawn process of settle-
ment of dispute over territory, the effectively stateless residents of the en-
claves had for an equally long period remained in a state of ambivalent
citizenship. In 2011, when then Indian Prime Minister Manmohan Singh
visited Bangladesh to sign a protocol, the residents of Indian enclaves kept
their homes in darkness to press their demand for Bangladeshi citizen-
ship, which would entitle them to welfare programmes and employment
 Liminal Citizenship 171
opportunities. One such resident of an Indian enclave, Biplob Hossain,
whose father had fought for Bangladesh’s liberation in 1971, was an
Indian citizen in an enclave inside Bangladesh. The exchange of enclaves,
Hossain believed, would allow him to spend his remaining days as a
Bangladeshi citizen. Hossain lived in Garholjorha-​2 enclave, also known
as Elengbarhi enclave, in Kurhigram with his wife and three children
(Niloy 2015).
The LBAT 2015 promised that the exchange of enclaves would not involve
displacement of population and that the territories of the enclaves would be
absorbed by the two countries along with their residents, who would hence-
forth become legal citizens of the country of absorption, with the assurance
that they could exercise choice in citizenship. The question, how those who
left their enclaves of residence and chose the citizenship of the country to
which the enclave originally belonged would be rehabilitated as citizens, re-
mained contentious. The removal of ‘border anomalies’ became yet again a
process of aligning national cartographies and citizenship.

‘We were Bharat Panthi, pro-​India’

The precise figures of those who came to India following the exchange of
enclaves and those who were absorbed along with the Bangladeshi en-
claves in the Indian territory is difficult to ascertain. In her report on the
LBAT, Prachi Lohia (2019) points out that in the first census of the en-
claves conducted in July 2011, the total number of persons residing in
enclaves in both countries was placed at 51,549 with 37,334 Indian resi-
dents in Bangladeshi enclaves and 14,215 Bangladeshi residents in Indian
enclaves.5 Following the LBAT in 2015, a second survey was conducted
which was, as the Ministry of External Affairs was to report in response to
a question in the Parliament, ‘an option taking survey’, ‘conducted solely
to record the number of persons who wanted either Indian or Bangladeshi
citizenship; the number of persons who wanted to stay on their land and
renounce their former citizenship; and the ones who wanted to relocate

5 Ministry of External Affairs, Government of India, ‘India and Bangladesh Land Boundary

Agreement’, Public Diplomacy Division, 18, https://​www.mea.gov.in/​Uploads/​PublicationDocs/​

24529_​LBA_​MEA_​Booklet_​final.pdf
172 Citizenship Regimes, Law, and Belonging
to their home country’.6 Lohia notes that in this survey 979 Indians who
were residing in Indian enclaves in Bangladesh chose to return to India,
while all the Bangladeshi residents in Bangladeshi enclaves in India chose
to stay on. Significantly, the option taking survey was done only among
those whose names were part of the 2011 survey. Both the surveys—​2011
and 2015—​had discrepancies, owing to the manner in which the head-
count was done: ‘The most banal and yet important fact to note here is
that the number of persons—​in Indian enclaves, in Bangladeshi enclaves
and the ones who decided to relocate—​has not remained constant in any
of the documents, including the data provided by the Government itself ’
(Lohia 2019, 24).7 Tables 3.1 and 3.2 below, show the statistics available
with the Office of the District Magistrate of Cooch Behar, as collated by
Banerjee et al. The Camp dwellers, however, reported their own estimates
of the numbers to me when I visited the camps.
In Dinhata camp, Abdul Rehman,8 assumes the role of a leader, giving
information, and guiding us through the different lanes along which the
camp dwellings had been set up.9 A cluster of people accompany us, par-
ticipating in the conversation, when instructed by Rehman but often also
on their own. Rehman informs us that the Dinhata Camp provides transit
dwellings to 222 people from 58 families who came from two Indian
enclaves—​Phulbari/​Dasiachara and Gurungabari in three batches on
22 November, 24 November, and 29 November 2015—​198 came from
Phulbari enclave and 24 from Gurungabari enclave. Two of those who
came died and 6 children were born in the camp. Four members were
added through marriage. While all the 24 who came from Gurungabari

6 As answered in the Lok Sabha by the Ministry of External Affairs on May 4, 2016. http://​lok​

sabh​aph.nic.in/​Questi​ons/​QResul​t15.aspx?qref=​34008&lsno=​16, cited in Lohia (2019, 24).

7 Lohia notes that the LBAT text shows the Bangladeshi residents in Indian enclaves to be

14,215 while the MHA notification places the number of Bangladeshis who were given citi-
zenship at 14,864. Similarly, the number of Indian citizens who came back to India have also
varied: It was 979 in an answer in the Lok Sabha, 989 in a Press Release by the MEA on 20
November 2015 (https://​www.mea.gov.in/​press-​relea​ses.htm?dtl/​26048/​Excha​nge+​of+​encla​
ves+​betw​een+​India+​and+​Ban​glad​esh) and 922 in a RTI response from the District Magistrate
of Cooch Behar on 5 June 2017 (2019, 23).
8 All names have been changed to protect the identities of the people we met. A pseudonym

has been allocated to each person in accordance with regional and religion-​specific naming
conventions.
9 The field visit was conducted with the help of funds provided by JNU under the UPOE-​

II scheme. I was assisted in the field by Shreya Ghosh who also helped with transcribing the
interviews.
 Liminal Citizenship 173
Table 3.1 New Entrants by Religion from Indian Enclaves in Bangladesh

Religious Communities
Entry Point Hindus Muslims Christians

Sahebganj-​Bagbandar 159 146 -​

Changrabandha-​Burimari 191 4 1
Haldibari-​Chilahati 466 - 21
Total 816 150 21

Source: Banerjee (2017, 8). Report on Entry and Settlement of People from erstwhile Indian
Enclave, Government of West Bengal, Office of the District Magistrate of Cooch Behar, West
Bengal.

Table 3.2 Transit Camps in Cooch Behar

Persons Children
Camp Family Male Female Total Male Female Total Children
Below 5
Years

Dinhata 58 127 118 245 12 16 28 28

Mekhliganj 47 97 100 197 29 39 68 18
Haldibari 96 247 231 478 64 73 137 58
Total 201 471 449 920 105 128 233 104

Source: Banerjee (2017, 17). Report on Entry and Settlement of People from erstwhile Indian
Enclave, Government of West Bengal, Office of the District Magistrate of Cooch Behar, West
Bengal.

enclave were Bhatia Muslims, about fifty per cent of those who came from
Phulbari enclave were Hindus.
The conversations with Rehman and other camp dwellers gave us in-
sights into their perceptions and experience of the processes of ‘exchange’,
in particular how ‘India’ and ‘Bangladesh’ figured in the transition as
competing sources of belonging and allegiance. Rehman’s account of the
process suggests a rift between those who wanted to retain both—​their
land and Indian citizenship—​and those who wanted the exchange, which
would involve giving up their land to ‘migrate’ to ‘India’. Almost all of
the nine thousand residents in Dasiachara enclave did not want an ex-
change of territory and wanted a corridor to be built from Dasiachara to
174 Citizenship Regimes, Law, and Belonging
Kushirhaat, Shaoti border, where the fencing was—​a distance of about
one and a half kilometres. They had made this proposal during the first
survey conducted in 2011 jointly by India and Bangladesh. The Vinimaya
Committee (exchange committee) set up by Bangladesh was, according
to Rehman, ‘complicit’ with the Bangladeshi administration and misin-
formed the Indian officials that the corridor they were proposing would
be twenty kilometres long. There were others in the enclave working in
tandem with the exchange committee and the Bangladeshi administra-
tion: ‘We were, however, “pro India” ’, clarified Rehman.
Dasiachara was under Phulbari thana, but the residents of Dasiachara
enclave had their own local committee and lived separately. All the nine
thousand enclave dwellers had constituted a panchayat and possessed
identity cards that enabled them to travel to India and back, through a
gate in the fence which was installed in 1991. They used the travel cards
till 2007 after which ‘few people from Bangladesh and India, some self-​
interested vested people formed a committee—​ the vinimaya com-
mittee. Bangladesh’s Jamaat Shibir, along with Jatiyo Party and the BNP
(Bangladesh Nationalist Party), formed an organization, and contacted
some people from this (Indian) side, who went there and hoisted the
Bangladeshi flag. The flag was hosted in Dasiachara enclave, in front of
the Chhitmahal United Council office. They hosted Bangladesh flag in
an Indian enclave, where we always hoisted the Indian flag. Our group
decided to hoist the Indian flag in response. A conflict broke out’. The
Chhitmahal United Council (CUC) was a central committee that con-
sisted of representatives of committees that existed in each enclave.
Rehman represented his committee in the CUC. Competitive claims to
the enclave and disagreements around the process of exchange were ex-
pressed through commemorative events and observation of ‘national’
days. The hoisting of national flag became a ‘movement’—​not only to
mark ‘independence day’—​but events such as cricket matches were or-
ganized as occasions when the flag could be hoisted: ‘Whatever used to
happen, we hoisted the Indian flag’:

We celebrated 15th August in 2014. They wanted to observe the death

anniversary of Sheikh Mujibur Rahman [which falls on the same day].
Our people were also ready. We raised the Indian flag in front of our
office. They raised the Bangladeshi flag next to it. We called a meeting
 Liminal Citizenship 175
on September 14th. They came with lathis, with some Bangladeshis—​
members of the Bangladesh Vinimaya Committee and Bangladesh
prashasan [administration]. My younger brother was injured in the vi-
olence. We could not go to Bangladesh from the enclaves for treatment,
so we came to border gate no. 22 on the fencing and spoke to the Cooch
Behar district administration. BSF gave medical aid to the injured.
After crossing six rivers, we got the injured to Assam border and kept
them there for 15–​20 days for medical treatment. Then on 21 February,
they again hoisted Bangladesh flag and disrupted things. Till then there
was no exchange. We raised the Indian flag and went around singing
our national anthem. They said we were campaigning around jana gana
mana. The Bangladesh Police came and stopped everyone from singing.
After few days, Bangladesh-​India bilateral talks reached its final stages.
The Indian Chief Minister and Prime Minister went to Dhaka and it
was announced that there would be an exchange of enclaves.10

The announcement of exchange, according to Rehman exacerbated

the differences between the Bharat panthis and Bangladeshis and the
Bangladeshi government started using coercion to stop people from
listing themselves to leave for India. Rehman himself was framed in ‘false
cases’, making it difficult for him to move out of his house. Amidst this,
it was declared that the headcount and enrolment of names by the joint
survey committee would take place from 6 to 16 July 2015. Rehman re-
calls: ‘After receiving this news, around 1500–​2000 people from various
enclaves came to my house. It was good news, and we welcomed the ini-
tiative’. But on 6 July—​the day the enrolment began—​the Daroga and the
Phulbari thana Station Officer came to his house where about 200 people
were present discussing the exchange: ‘Bangladesh Vinimaya committee
had informed them that if people were not stopped, then 3000 people
would leave for India immediately. It is then that the police and admin-
istration came and directly threatened me saying, if within one minute
everyone does not disperse from here, your skin will be ripped off and
if anyone goes and enrols his/​her name in the Indian list, we will bury
you under seven layers of soil’.11 Rehman recounts contacting authorities

10 Conversation with Abdul Rehman, Dinhata Camp, Cooch Behar, 15 December 2016.
11 Ibid.
176 Citizenship Regimes, Law, and Belonging
in India including Debababrata Chaki, the Councillor of Chhitmahal
units in Cooch Behar, Member of Parliament—​Renuka Sinha, the BSF,
and the District Magistrate’s office in Cooch Behar. The people who had
gathered in Rehman’s house had fled and no one could enrol on the first
day as the Vinimaya Committee patrolled the entire area on bikes: ‘15–​
20 bikes—​their bike bahini was everywhere’. Rehman alleged that the
Indian members of the Vinimaya Committee too did not want them to
go to India: ‘They got favours from Bangladesh. The bike bahini of the
Vinimaya Committee intimidated the enclave dwellers to prevent them
from speaking to the survey team that came from India. The Indian team
went to the house of those from the Vinimaya Committee and made the
lists there. The counting was done in this manner’. This was the experi-
ence, he said, in other Chhitmahals too. Earlier in November 2014 mem-
bers of the CUC, representing six chhitmahals including Lalmonirhaat,
Baskatha chhitmahal, and Enclave number 10, Desiachara, where
Rehman resided, attempted to give a ‘prayer’ to Mamata Banerjee, the
Chief Minister of West Bengal. Rehman remembers these representa-
tives having gathered in his house the night before, but when the news
spread, on the morning of 4 November Bangladesh Rifles (BDR) per-
sonnel blocked all the border exits to stop the delegation. Unable to meet
the Chief Minister, the representatives left for their respective villages but
on their way back, when they crossed Phulbari, the police beat them up
and ‘parceled them to the Bangladesh thana jail accusing them of being
members of the Jamaat Shibir’. When the exchange process started, and
they were not able to enrol due to intimidation by the bike bahini, they
tried contacting ministers from the TMC and BJP. On 8 July, an ‘observer’
arrived from Delhi, who was, however, put up in the house of Altaf,
Sabhapati (Chairperson) of the Vinimaya Committee, who was a resident
of the Indian enclave but had procured papers of Bangladesh and had
been working for the Bangladesh administration. This was the reason, ac-
cording to Rehman that he was made part of the Exchange Committee.
Encouraged by the presence of the observer, Rehman and about 200–​250
other enclave dwellers decided to go to the Sabhapati’s house and get their
names enroled:

On 8th, when we got to know that an Observer has come, we decided,

that we all would definitely go and enrol our names now, not thinking
 Liminal Citizenship 177
anymore whether we will end up beaten up, thrashed or dead. Two hun-
dred people went to Altaf ’s house where the observer was staying. When
we reached the house, we found at the least a hundred Bangladeshi po-
licemen there. We went and spoke to the observer and told him about
the situation. People from the Bangladesh administration, who were
also there, threatened us in front of the observer. An officer of Phulbari
Thana, equivalent to the rank of the Sub Divisional Officer (SDO) in
India, directly threatened us there itself, saying why do we need to write
your name. Earlier, the Sabhapati threatened to chop off the legs of an
elderly enclave dweller, it he registered to go to India. Yet he did not
listen and went and spoke to the observer.12

Sajid Ali and eighteen members of his family wanted to go to India. Ali
was among those who went and spoke to the observer. The observer
asked members of the Vinimaya Committee to remain silent so that he
could listen to the people who had come to meet him and assured them
that they would begin listing the names the next morning. As a result
of the intervention of the observer, three additional booths were set up.
The existing booths were in the houses of the members of the Vinimaya
Committee, which deterred people from approaching them. The addi-
tional booths were set up in the schoolteacher, Mahanand Master’s house
and in the Mosque next to Sajid Ali’s house enabling eighty-​eight people
to enrol. Since intimidation was not possible anymore, people were per-
suaded not to get enroled:

They started going to all houses and started asking us not to go. They
said that if you go to India, your wives will be taken away and men in
India will put sindoor (vermillion) on the foreheads of Muslim women.
Yet some people still got enrolled. From our enclave, Dashiyachora, 305
people could register their names.13

Rehman explains why of the 9000 residents in the enclave only a small
number ‘returned’ to India: ‘They wanted to enrol. If you come with me
to the border today, I can call up people. If an announcement for fresh

12 Ibid.
13 Conversation with Sajid Ali, Dinhata Camp, 15 December 2016.
178 Citizenship Regimes, Law, and Belonging
enrolment is made with the assurance that there will be no police inter-
ference, I can guarantee that five hundred people will enrol themselves
within three hours. It was the intimidation by the police which prevented
the enrolment of many people, in the Indian list as well as the Bangladeshi
list’. A week after the enrolment, 20 names were withdrawn: ‘For instance,
there was this old lady, the day we were coming, she caught hold of us
on the road and held our feet asking that we take her family too. It was
the Bangladesh administration which forced her to withdraw their names
promising her this and that if she stayed’.14
Several residents in the camp, when they were residents of Indian en-
claves in Bangladesh, had been travelling to India for work on the basis of
an enclave dweller’s card. These residents had come back to their homes
in the enclaves during the 2015 survey to enrol their names but were
not able to do so. Moinuddin, a resident in the transit camp, had been
working in Delhi for 18 years and his four children were born in Delhi. It
took Three Thousand Rupees for one person to cross the border to go to
Delhi and then return to the enclave. Moinuddin did not have the money
for the entire family to travel. He, therefore, travelled from Delhi alone,
assuming that he could enter his as well as the names of his family mem-
bers in the list. Upon reaching the enclave, he found that his name was
listed under the column ‘BD’ (Bangladesh) and not ‘IN’ (India):

I do not know how to read, they forcefully got my name in the ‘BD’
column. I knew that I wanted to go to India, and I thought I had enroled
for the exchange to India. Later I got to know that my name was in the
‘BD’ list. I came to know about it around two days after I enroled. My
name and thumb sign was in the ‘BD’ column. I was enroled in the ‘BD’
list.15

A BBC journalist interviewed Moinuddin. The interview was circu-

lated widely. As a consequence the bike bahini started looking for him.
Rehman took Moinuddin to the border and intimated the DC office
Cooch Behar about the threat to Moinuddin’s life. Newspapers and news

14 Conversation with Abdul Rehman, Dinhata Camp, 15 December 2016.

15 Conversation with Moinuddin, Dinhata Camp, 15 December 2016.
 Liminal Citizenship 179
channels in India also covered his story. Moinuddin narrated his experi-
ence of enrolment as follows:

For two months, we were running around. I was travelling constantly

between Delhi and Cooch Behar. Then, sir [DM Cooch Behar] called
me and said that my travel card is ready and I came here. The DM told
me the BSF car is there and my family and I could go and collect my
travel card from Rajshahi, Bangladesh. But the cost of travelling to
Rajshahi with family, staying in a hotel, food etc, could take around 10–​
15 thousand and more. This was very expensive. I was then told that the
High Commissioner had announced that those who have still not got
their travel card would get it soon, so there was no need to spend money.
Around 2nd November, I got my card. Before that, those conspirators,
who favoured the Bangladesh administration, followed me. But I spoke
to everyone and I got a lot of attention. The High Commissioner as-
sured me that there was no need for tension, the officials are working
and would call you. You can come and take the card. Before this, the
Bangladeshi side was giving my son such allurements: “We will give you
cycle, food etc., call your father”. I was asked to give a statement that
I was being bribed to go to India. The SDO there himself called me and
said this. I told them that why 20 lakh, even if you give me 20 crore, I will
not unnecessarily take anyone’s name like that. As it is my family was in
Delhi, my children were born in Delhi, my home was in the Indian en-
clave, and my name was written in Bangladesh list by force. Whether
we go to India or Bangladesh, it is my wish. They were saying sindoor
will be put on the forehead of the wife, they will give you house along
the rail-​tracks in the desert, they will beat you. I have been living in
India for 18 years. Am I mad? Will I not know what happens and what
does not? I was given documents the day 20 delegates from India and
20 from Bangladesh were there, in the presence of Renuka Sinha and
Sheikh Hasina. My family lives in India and works in India. Why will
I not opt for India? How did my name happen to be in the Bangladesh
list? It was done by force. I proved it alone to everyone.16

16 Ibid.
180 Citizenship Regimes, Law, and Belonging
One of the residents of the Dinhata camp suggested that had the BSF
and the Indian administration gone to the Indian enclaves, more people
would have felt emboldened to register. The officials who did go from the
Indian side in 2011 and 2015 to do the survey, they claimed, were corrupt:

Between all the 111 enclaves, only 2000 might have stayed back. It was
the fault of the Indian government. Those who went there to do the
survey in 2011, and later the 11 people who went there, most of them
were corrupt, which is why most of our people could not enrol their
names and could not come. These 11 people went on the 6th, why did
they go? To enrol the names of all those who wanted to come, right. The
idea was that everyone would exercise their choice, but our 11 people
did not do anything towards it, they agreed to all that Bangladesh said.
The representatives from Bangladesh constantly asked every person
why they wanted to go. What was the need? When the people from the
enclaves asked the Indian representatives what would happen [when
they reached India], the Indian representatives responded saying they
did not know anything. Bangladeshi representatives seemed to know
a lot. They would constantly say, don’t go, no one should go. The Police
was constantly patrolling, the SDO, when I was standing to enrol my
name, had personally held my hand and asked—​tell me what you re-
quire, I will ensure that you are provided for; he said to me, just spell it
out, and I will arrange for it, do not enrol your name.17

Indeed, it appeared that the persuasion continued even after the transfer
of people from the enclaves had taken place. The residents of Dinhata
camp claimed that on 27 January 2016, a member of Jamaat Shibir came to
the camp: ‘He roamed around the entire camp, and told people that if they
wanted to go back to Bangladesh, he could help us’. The camp dwellers re-
ported him to the police for engaging in ‘anti-​India activities’. Before that
they locked the gates of the camp. Rehman, who appeared to have been
active in this episode, claimed that the member of Jamaat Shibir filed a
case of harassment against him and two other camp residents:

17 Conversation with Imtiaz, Dinhata Camp, 15 December 2016.

 Liminal Citizenship 181
I am still fighting this false case. As a result my passport is also stuck and
I am not able to travel across the border. Otherwise I would have at least
gone and done something about my land there. There were some en-
claves from which people could not come at all. For example, in enclave
number 121, no head count was done in 2011, and no one came to India
from it. They went especially to the Muslim households—​went door to
door and convinced them to not to go to India. I was always an Indian
follower, bharat panthi. If I had refused to come, no Muslim would have
come from my enclave. As it is very few Muslim families came, they had
intimidated them so much.

Rehman’s enclave Dasaichara, according to him, was the only enclave

from which Muslim families came because he was able to persuade
them to resist intimidation. Only two Muslim families came from other
enclaves, who were now residing in Mekhliganj camp. Dinhata camp
residents believed that several more would have come to India had
the promised central team from Delhi had gone to the enclaves. Like
Moinuddin, there were others who were issued travel cards by the gov-
ernment but could not travel to the enclaves from Delhi and other parts
of India where they were working to enrol themselves. There could be
several such people in India who were Indian citizens but not enroled as
‘returnees’.

‘Caged Like Birds’

Arrangements were made by the Indian High Commission in Bangladesh

to transport the ‘returnees’ to settlement camps in India in buses under
security. They were provided with temporary travel cards and identity
cards and were welcomed with ‘much fanfare’ at each entry point by MPs,
MLAs, the DM, and SP, Cooch Behar, who received the new entrants
(Banerjee et al. 2017, 13). For the new entrants into the Indian territory,
their reasons for choosing to migrate were many. Mrs Burman, who
left half her family in Bangladesh to move to West Bengal, was happy to
be moving closer to her daughter in Siliguri. Osman Gani was hopeful
of finding new opportunities for work in ‘fresh’ brick kilns. For a large
number of those who migrated, of whom 20 per cent were Muslims,
182 Citizenship Regimes, Law, and Belonging
moving out of their ‘homeland’, was expected to ‘end routine crossing of
the border for work’. For others like Jayaprakash Roy, a medium farmer
of chhit number 42 in Panchagarh district, the decision to shift was de-
termined by the desire to escape into a system where they would receive
equal protection of law. Roy and his family changed their ‘homeland’
since condition in Bangladesh had ‘worsened’: ‘we had about 900 bighas
(360 acres). Half of it has gone under a river and the other half was en-
croached upon after my father was murdered in 1985’. There had never
been a proper investigation into the murder because he was in an ‘Indian
territory’, a problem that had always hounded enclave dwellers. ‘The
body was taken to India, and we never saw him . . . only the shirt arrived’
(Bagchi 2015, 13).
Abdul Rehman in the Dinhata camp has to take care of his four children.
He left behind a small plot of land and a pond in Bangladesh. He does not
possess any papers related to his land and is still running around to pro-
cure them. Another Dinhata resident with 14.5 bighas of land and a pond in
Bangladesh laments: ‘Here there is no food, which country, which govern-
ment have we come to? Here we have been caged like a bird. We have not got
any work, any place to labour, nothing’. Look at this old man, Rehman points
at a person among those who have gathered around us in Dinhata camp:

He had land there, now there is nothing. Now he, in this age, is thinking
of going to Delhi to find work. He has taken a loan of 1000–​1500. Where
will he repay it from? Look at him. Is he of an age when he should work
to feed himself? There are 4–​5 members in his family, and no one to
earn. How will this old man earn? Will the government not think about
this? When will they think? We have been here for a year and a half.
Neither have we got land and electricity nor do we get ration properly.
They are giving only 30 kilos of rice for 5 people, how will we manage?18

The returnees in the camp were given papers by the Bangladesh govern-
ment when they left for India as proof of ownership of the land that they
had left behind in Bangladesh. They were assured that both the govern-
ments would decide the modalities through which their land would be

18 Conversation with Abdul Rehman, Dinhata Camp, 15 December 2016.

 Liminal Citizenship 183
sold and the money transferred to them: ‘All these matters were supposed
to be dealt with by the two governments and we were supposed to get
money in lieu of the land we left there . . . When we were there, we were
told not to sell land for minimum/​compromised price. But it has been one
and a half years, and the government has not done anything. Neither are
we getting proper food nor are our children getting proper education’.19
One of the residents claimed that 9 bighas of his land in Bangladesh
had been sold for sixteen lakhs, while he received only two thousand ru-
pees: ‘Others have occupied it in Bangladesh. We have one thing to say
whether it is Central government or state, Modi or Mamata—​justice
should be done’. Narratives of loss of land and discontent over their pre-
dicament as camp dwellers abounded—​the story of a mother who died of
a heart attack, worrying about their land, a father suffering a brain stroke,
longing for what they had left behind—​‘supari bagaan, paan bagaan, a
concrete house’ and discontent over the uncertainties of the present—​jos-
tled to be told and heard. There was a palpable sentiment of disappoint-
ment and a repeated call for ‘justice’ from ‘Mamata and Modi’. A resident
expressed his disheartenment:

All the land papers have been given to the government. Their offices are
full of our papers. We have become tired of giving them documents. We
have given so many papers and documents to the DM, Cooch Behar.
When we came here, they asked us to submit all documents, saying that
our claims will be settled immediately. It has now been one and half
years, nothing has moved. We keep going to the DM’s office. It takes
100 Rupees to travel every time to go to the DM’s office. But we have re-
ceived no money. What do we do with our family? We have not got any
justice—​justice for our land. We have to hang ourselves with our family.
We have to die.

An officer in the Block Development Office disagrees with the claims

made by the camp residents. Those who owned land decided not to
come to India, he asserts: ‘Actually those who were landless are the only
ones who came here. For instance, Upen Barman, who had 1200 bighas
of land, did not come to India. The 300 Muslim families that came from

19 Ibid.
184 Citizenship Regimes, Law, and Belonging
Dinhata, were landless’. The camp residents claimed, however, that a list
was prepared by the Bangladesh government: ‘See this document. This
was done by the Bangladesh government. This is the list of our enclave,
listing all the landholding with details of us all. This document belongs to
one family. Every family has such a document showing the land they have
left behind in the enclave’. The camp dwellers resented being compared
with the chhit dwellers, ‘the new citizens’:

They cannot compare us with those who are living in Bangladesh en-
claves inside India because we have come here leaving all our land and
belonging there. Those who are here, they are here with all their be-
longings. What is the comparison of us with them? We have come here,
leaving everything behind.

A resident, Suvajit Rai lamented:

A camp was set up to submit all papers. There is proof and acknow-
ledgement of it. We were asked to submit all documents related to land
and compensation. They told us that matters will be taken care of. We
photocopied documents for compensation and submitted. But till now,
nothing has been done. It has been one and half years. If we do not get
anything, what do we do? My mother died of brain broke, thinking that
there is not going to be any justice. In Bangladesh my mother cultivated
and sold begun, patol and aloo and always had 5000–​10000 Rupees in
her hand. Here she did not even have 10 paise. When she asked an of-
ficer about the compensation for her land, he said it would take ten years
or so. Hearing that, my mother had a stroke and died. In Bangladesh my
father did farming but here there is no work. My mother died in Cooch
Behar MGM hospital. After completing the last rites of my mother, after
the 13 day rituals followed by Hindus, I gave an application to the SDO
and BDO, for some support. I have the receipt. Where else do we go? We
have access only to SDO, BDO, other than that where do we go?20

20 Conversation with Suvajit Rai, Dinhata Camp, 15 December 2016.

 Liminal Citizenship 185
The Haldibari camp consisted of two settlements—​A and B. It housed
the 700 people from 96 families that came from different enclaves in
Bangladesh—​Doikhata, Dhohlakhagrabari, Bharjini, Devigunj, Natok-​
toka—​on 22 November 2015. All camp residents received Aadhaar cards,
ration cards, and MNREGA job cards upon their arrival. Bashir Ahmed,
the officer-​in-​charge of Enclave Settlements in the BDO office, informed
us that all settlements in Dinhata, Haldibari, and Mekhliganj were com-
pleted before 31 July 2015 when the enclave exchange happened: ‘The day
these people came, that day itself Aadhaar cards were prepared for them.
Bank accounts were also allotted to them that very day. Job cards were
given within one month. Voter IDs were given before the election. For
two months they were given cooked food. After that, till today, ration is
distributed’. The distribution of these documents was in keeping with the
Home Ministry’s policy that the ‘returnees’ when they arrived in India,
would furnish their biometric details to enable keeping track of all those
who came.21
Sujit Dev and his six-​member family came from Doikhata enclave in
Panchagarh district in Bangladesh under the administrative control of
Haldibari thana in Cooch Behar. Dev informed us that of the 250–​300
families in the enclave, only five families came to India. As was the case
in Dinhata camp, these families expressed their choice to come to India
in July 2015 and the survey to take a headcount of enclave residents was
taken in 2011. Dev finds it difficult to tell us the reason why he chose
to come with his family to India: ‘It is difficult to give a reason’. While
there were problems in the enclave, ‘there was no injustice’. Was there any
particular reason why the other families did not come? Dev is reticent.
They just did not come. Land was not the reason, which more or less eve-
rybody had. They did not have any facilities there: ‘They simply did not
come’. While coming to India, some families sold their land, but Dev’s
family did not. He left his land in the care of his brother, who had stayed
on in Doikhata. Dev does not tell us why his brother decided to stay: ‘He
stayed back for whatever reason’. As to the life in the enclave which they
left behind, ‘a lot could be said’:

21 Conversation with Bashir Ahmed at the BDO officer, Haldibari, 15 December 2016.
186 Citizenship Regimes, Law, and Belonging
I will tell you one thing. No one leaves their birthplace easily. My father
left 99 bighas of land for his three sons. He died before his retirement—​
killed by a dacoit. At that time, there were thefts almost thrice a month
and dacoity twice a month. That was how life was in those days. Father
was a master (school teacher). When father died, one of us was entitled
to get the job. But the Bangladesh administration resisted saying that we
are from the enclaves and cannot be given work. This was around 1982.
In the absence of a job, our property got expended. I had to sell my in-
heritance. To fill the stomach, I started making furniture. This is how
life went on. Then there was the survey in 2011 and again in 2015. We
were asked to choose where to go. I decided to come to India. Others
stayed back. After coming here, we voted. Then they gave us job card,
Aadhaar card. The day we came, they gave us an ‘agreement’ that we will
stay in this non-​permanent place. Within two years they will give us
a permanent place to live. We will be transferred there—​when, where,
and how—​we do not know.22

Dev now makes masks and wooden toys which he sells in the lo-
cality: ‘Who will take my furniture here? I make masks. Some people buy
them. In Bangladesh, there is a lot of demand of such masks, but here it is
not much’. The decision to leave the enclave to come to India was a ‘risk’
that people had taken, compelled by their socio-​economic conditions.
For a lot of people, it was a decision to ‘migrate’ to escape the uncertainty
of being an enclave dweller, and the promise of new opportunities. Unlike
the strong sentiments around being ‘bharat panthi’ that Abdul Rehman
and some other Dinhata residents expressed as being the driving force
behind their coming to India, Rinita Roy, a resident of Haldibari camp,
decided to come because others were coming too. Roy has two sons—​the
older son was a farmer and the younger, a mason, in the erstwhile enclave.
When asked why and how they decided to come to India, whether or not
there was a discussion following which a decision was taken, Roy says
that she saw some people coming and she joined them. Those who did
not come were also thinking of coming, but did not take the risk: ‘Some
of us, did not think so much, we thought whatever happens, let that be,

22 Conversation with Sujit Dev, Dinhata Camp, 16 December 2016.

 Liminal Citizenship 187
we came, took the risk. Those who did not come were worried about what
would happen afterwards. There was no clarity’.23 Roy had given an ap-
plication in the BDO office appealing to allow her other relatives to join
them—​her daughter, nephew, and other family members whose names
were in the 2011 headcount, but were not able to exercise their choice in
2015. The problem of family members left behind was a common one,
voiced by residents in other camps as well. Shubhranshu, a resident of
Mekhliganj camp informed us that while some of his family members
were able to come, others were ‘stuck’ in Bangladesh. In Shubhranshu’s
case, the separation of family members was largely because of the prob-
lems in the way the surveys took place:

We are four brothers, of whom only two could enrol. My mother could
not enrol either. Both the enrolments were done wrongly. In the 2011
enrolment, two brothers were counted and the other two and my
mother were not. In fact in 2011, someone else wrote our names in the
survey. We did not even know that there was a survey in 2011. We got to
know about it only in 2015, when the survey for choice happened. That
is the reason my two brothers could not come. Had we known about the
survey, all of us would have registered our names.24

Shubhranshu had constructed a house in Bangladesh, just next to the en-

clave in which he resided and possessed another house. When the ‘op-
pression increased in the enclaves’, his family would go to their house in
Bangladesh: ‘If you did not have a house in Bangladesh, you cannot even
sell a cow’.25 Jagat Ray, who too came to Mekhliganj camp in November
2015, expressed similar views about the 2011 survey: ‘Those doing the
survey did not even come to our houses. It was supposed to be a survey.
I got to know about it only when the discussions around it started hap-
pening. That is when we got to know something. Even then we did not
have a clear idea’.26

23 Conversation with Rinita Roy, Haldibari Camp, 15 December 2016.

24 Conversation with Shubhranshu, Mekhliganj Camp, 16 December 2016.
25 Ibid.
26 Conversation with Jagat Ray, Mekhliganj Camp, 16 December 2016.
188 Citizenship Regimes, Law, and Belonging
Bashir Ahmed at the BDO office disagreed with this version of what
happened during the survey. Ahmed was part of the 62 members Indian
delegation that went to the Indian enclaves in 2011 to conduct the survey.
The Bangladesh government gave them administrative support:

The survey happened—​that much they knew. They perhaps did not
know that the exchange pact was signed, or that there will be exchange.
When the team went there, they enroled those who came. How could
they have enroled those who did not come to them? The fact is that
many of these people got Bangladesh border ID cards to take advan-
tage of services. They sent their children to schools in Bangladesh. Since
I deal with these matters, I know. Entire families have taken services;
even elderly people of the families have signed receiving rations that
they have taken from Bangladesh government. Most of them can sign.
[They have] good handwriting. Many of them have typewritten-​like
handwriting. In the Indian enclaves there were no schools, but they all
went to schools [in Bangladesh].

The response to why they decided to come to India elicited interesting

insights. While the Dinhata camp residents appeared to be more vocal
in expressing their choice of coming to India as a reflection of their
pro-​India disposition amidst the conflict in the Indian enclave, and the
Haldibari camp residents remained reticent, the residents in Mekhliganj
expressed it in terms of ‘return’: ‘We lived in the Indian enclaves for so
long, thought of going back to actual soil’. They had heard that there is
‘some land across the river and that they would get something there’. They
would have preferred something close by, having now become familiar
with their new surroundings. Sujit Roy mused: ‘It would be good if we
get something here. I have become adjusted to this place. One does not
know what this land across the river is, and going there with kids will
be difficult’. While coming to India, Sujit Roy gave part of his land to his
sister and sold the rest. When he exchanged the money obtained through
purchase for Indian currency, it was insubstantial. He kept the money in
a bank.
 Liminal Citizenship 189
Rehabilitation, Franchise, and Family

A salient feature of the new political order that was installed in India after
independence was ‘a deliberate and successful dispersal and democra-
tisation of power’ alongside the expansion of governmental institutions
and activities (Weiner 1965, 199). In such a framework, universal adult
franchise played an important role in political socialization, generating
the belief that institutions can be subjected to popular control through
the power of the vote—​a power which resided with every individual. The
state assembly elections were conducted in West Bengal in April-​May
2016—​a few months after the exchange took place. Political parties came
to the camps to campaign and the ‘returnees’, as well as the ‘new citizens’,
voted in the election. The meaning they attributed to the vote is impor-
tant. It was not simply an affirmation of their citizenship, but a promise
that they had extracted from the state through their vote, and subse-
quently found themselves betrayed:
A Dinhata resident, Shabir Ali describes this sentiment as follows:

All candidates who were contesting the elections came and campaigned
in the camp. They said, you have come from the enclaves, you must
support us. Vote for us and we will do your work. Till today nothing
has been done. Where is the MLA? He came every day asking for vote.
And after taking our vote, the MLA hasn’t come a single day, we have
not even seen the feet of the MLA since then. He is not bothered about
what the people are eating, whether or not they have work. The kids
don’t have much to wear and winters have come. Eid went by and so
did Durga Puja. We did not get anything. What law is this? In which
country have I come, leaving behind all land and property? We hired la-
bourers to work on our land. But after coming here we have gone about
asking people to hire us as labourers. We go 5 to 10 kilometers on our
cycle, searching for work. Before we came here, the government was
ready to pay us 5 lakh rupees. This was printed in the ‘Pratidin’ news-
paper. What happened to that money? We were supposed to get 88 ru-
pees per head (per day).27

27 Conversation with Shabir Ali, Dinhata Camp, 15 December 2016.

190 Citizenship Regimes, Law, and Belonging
The residents in the camp voted for the first time in India. Sujit Dev, a
Haldibari resident recalls that he had voted once in Bangladesh, in the
time of President Zia: ‘There was no mention of enclaves. This was 20–​
25 years back. I voted as a Bangladeshi. No documents were required.
My name was in the electoral roll. Everyone had their names. We were in
Indian enclave, but we voted as Bangladeshi nationals. But after Zia, came
Khalida, and since then we did not vote’. As far as the promises by poli-
ticians are concerned, there is an element of resignation and disappoint-
ment that having been brought to India the government seems to have
given up its responsibility towards them: ‘The government has brought us
here, we are interested in what the government does, they are responsible
for us. Who is the opposition here, who is not, we do not want to know,
we listen to everyone’.
The Dinhata residents had been informally communicated that 16
bigha land had been kept aside for them in Dinhata subdivision. They
were not sure if they would be given land or houses. In the absence of any
official communication, they could only surmise. They understood that
they would be allotted flats in two-​storied houses, in which several fam-
ilies could reside. They had information that the government had only
marked out the space for construction but had not acquired the land yet.
The residents were keen that the flats should be allotted in a way where
each family lived on a separate floor to prevent quarrels and acrimony.
To have eight families staying in flats on a single floor would be very dif-
ficult, they said. Fights would ensue if they lived in close proximity with
each other. It is interesting to see how the ‘family’ figured in the survey
for identification of ‘returnees’ and in the subsequent rehabilitation pro-
cess. We may recall that while updating the NRC in Assam, the ‘family’
became simultaneously an object of scrutiny for affirmation of legacy and
subject to individuation through the extraction of suspect members. In
the survey of the returnees from enclaves, their accommodation in camps
and their eventual rehabilitation, the family became a unit for allocation
of sustenance for disbursement of food and accommodation. In some
cases this assumed the form of an aggregate unit where a number of nu-
clear families were treated for convenience as a cumulative singular unit.
In one such cumulated family in Dinhata camp, a ‘single’ ‘undivided’
family consisted of 9 to 10 members. This family consisted of two mar-
ried and one unmarried brothers. There were other families with up to
 Liminal Citizenship 191
14 members. These families, the residents said, needed to be split. When
such aggregate families were registered as a single-​family they were given
a ‘two room quarter’, which is normally allotted to a family and ‘one ra-
tion’. If the bigger families were counted as separate family units, they
would become entitled to more ration—​sufficient for their needs. A big
family with three married brothers would be entitled to 90 Kilograms of
ration rather than the 40 Kilograms they were presently receiving. Shabir
Ali’s family and his brother’s family resided in two separate houses lo-
cated at some distance from each other in the enclave. In the 2011 survey,
they were listed as a ‘single’ family by the officials. Ali talks about their
predicament:

Bangladesh gave them some list of who was where, and the Indian
part accepted it without cross checking the lists handed over to them.
Whatever bluff Bangladesh wrote and provided to the Indian side, they
accepted. Mezanul’s son is now one and half years old, how did the
list have the son’s name in 2011? Mezanul and his brother had distant
houses, Krishnam Adhikari and Sitam Adhikari had different house-
holds. How were they made one family. Here is this Mullah. Their
family has a lot of members, but they ate separately, stayed separately—​
they were converted into one family.28

The enclave settlement in-​charge explained the principle of distribu-

tion to us: Up to five members of a family would get ration of 30 kilo-
grams of rice for one month, 5 kilograms of dal, mustard oil, one and a
half kilograms of salt, one kilogram of milk powder, and 5 litres kerosene.
A family of more than five members would get more, depending on the
number of members in each family.
Mekhliganj camp residents too had voted on 27 May 2016 to elect their
representative in the state assembly. For them too, this was not the first
time they had voted. They had voted in Bangladesh. A camp resident
told us: ‘We did this cleverly. We were in Indian enclaves in Bangladesh.
Our name fell under the Mekhligunj thana, India, booth number 147.
Instead of voting there, we voted in our Dhapra side, in Chandrabhanga’.
Residents complain about the shortage of space: ‘We have not got rooms.

28 Ibid.
 192 Citizenship Regimes, Law, and Belonging
We are a family of nine’, says one resident. The family had been given only
one room: ‘Can that suffice? I have a father-​in-​law, sister-​in-​law, brother-​
in-​law. My father-​in-​law is ill. Where do I keep my things, keep the kid,
where do I dry the clothes of the kids. It is very difficult’.

The ‘New’ Citizens

With the LBAT 2015, it was agreed that when the exchange of enclaves
took place, the people residing there shall have the right to continue
staying if they desired and obtain the citizenship of the country to which
the enclave had been transferred (Article 3 LBAT 1974). In preparation
for the LBAT 2015, the Constitution 119th Amendment Bill 2013 was re-
ferred to a Standing Committee on External Affairs, which submitted its
report on 21 December 2014. Among its various recommendations were
those that pertained to the citizenship of persons who were impacted by
exchange of enclaves:

As per the Ministry, the inhabitants of the Bangladeshi Enclaves in

India, which will be transferred to India under the Protocol, can be
granted Indian citizenship under Section 7 of the Indian Citizenship
Act, 1955 (by incorporation of territory). As per this provision, if any
territory becomes part of India, the Central Government may by order
notified in the Official Gazette, specify the persons who shall be citizens
of India with effect from the date to be specified in the order.29

This procedure of conferment of citizenship under the provisions of the

Citizenship Act of India was different from those who were ‘returning’ to
India from the enclaves in Bangladesh, who were Indian citizens with the
right to return. While explaining this position, the Home Secretary also
informed that when these ‘returnees’ arrived in India, the government in-
tended to take their biometric details:

29 Standing Committee on External Affairs (2014–​2015), ‘First Report: The Constitution (One

Hundred and Nineteenth Amendment) Bill, 2013’, Lok Sabha Secretariat, New Delhi, 2014.
http://​www.prsin​dia.org/​sites/​defa​ult/​files/​bil​l_​fi​les/​SCR-​_​119​th_​%28A%29_​Bil​l_​0.pdf, p. 15,
cited in Lohia (2019, 18).
 Liminal Citizenship 193
But when they come back, we intend to take the biometric details of
all of them and carry out the entire exercise to ensure that we know
who all are coming. Then in close cooperation and consultation with
the Government of West Bengal, they will be taken to the respective
places where they are proposed to be settled and there we will keep a
close watch for some time.30

It is interesting that the ‘mobile’ Indian citizens were rendered sus-

pect because of their former location within Bangladesh. As far as the
Bangladeshi enclave dwellers located in the Indian territory were con-
cerned, it was the district administration of Cooch Behar that was given
the responsibility of eliciting their choice of citizenship and send the list
to the Central government. In a 2019 report prepared for Forum Asia
with Masum, Prachi Lohia points out that on 2 July 2015, directions were
issued to the DM of Cooch Behar by the Central Government to record
the names of Bangladeshi citizens who wished to acquire Indian citizen-
ship and of Indian citizens who wished to renounce Indian citizenship.31
A Ministry of Home Affairs notification dated 12 October 2015 stated
that all the 14,864 Bangladeshi citizens residing in enclaves within Indian
territory would be considered citizens of India from 1 August 2015. The
enclave dwellers remained sedentary on their land to become the ‘new’
citizens of India. Yet, they had to wait for their formal absorption as cit-
izens through documentation of their new identities even as they con-
tinued with their lives in which they had become informally integrated
into the larger community. Lohia states that till 2019, when she completed
her report, the District Magistrate of Cooch Behar had not ‘notified the
recipients of their citizenship’ and they had not ‘received any documents
that explicitly confirmed their Indian nationality’ (Lohia 2019, 19).
The chhit dwellers in Balipukhuri who made the transition to Indian
citizenship felt that the Indian government had taken their votes but did
not give them anything in return. There appeared to be a lack of trust of
a different kind from what was witnessed among the camp residents in
Dinhata, Haldibari, and Mekhliganj camps. While the camp residents had

30 Ibid.
31 The number of returnees as answered in the Lok Sabha by the Ministry of External Affairs
on 4 May 2016. http://​lok​sabh​aph.nic.in/​Questi​ons/​QResul​t15.aspx?qref=​34008&lsno=​16.
194 Citizenship Regimes, Law, and Belonging
expressed their distrust of the survey, the chhit dwellers lamented that the
funds given by the government for the development of the ‘Chhitmahals’
were being underutilized due to what they termed ‘corruption’. A resi-
dent pointed out to a 2 km road which was being made with a fund of 2
crores and 67 lakh rupees, most of which he said would be diverted and
laundered.
The biggest change that the transition to Indian citizenship brought
to the lives of the former chhit dwellers was a re-​articulation of their re-
lationship with the Chhitmahals, especially with the land on which they
had been living for generations. This re-​articulation was not only because
the land was designated Indian territory but the demand this designation
placed on them to prove their relationship with their land with evidence
of ownership: ‘Our parents lived in the ‘chhit’ and we have spent half of
our lives in the ‘chhit’ and now we have become ‘Indians’. Previously, the
land used to be in the name of our parents. We can show the documents.
The land belonged to our fathers and forefathers. The land is still in the
name of our parents. The ownership has not been still transferred to us’.
Their parents had rights over the land and paid taxes to the jotedar in
Patagram. ‘But that was a different nation, then’:

Earlier also we had land. From our birth we have been living in the en-
clave, now also we live here. Now it is India, but we have been living here
for ages. My parents have been living here too. Much of my life was in
Bangladesh but now it is in India. But we have been living in the same
place. We did not have citizenship then, but we had land of our fathers
and forefathers who had been paying taxes to the jotedars in Patgram.
Earlier the border was open. Now the land has not been transferred to
us. The officials say land will be transferred and land deeds will be given
to those who have control over land. We have said we have the docu-
ments and we have been paying taxes.32

The angst over dissociation from land in the case of the ‘returnees’ and the
desire to confirm their association with land under the new legal regime
brought by the transition to Indian citizenship for the enclave dwellers,
was an enduring narrative. The fact that what they had always owned had

32 Conversation with Hiren, erstwhile chhit dweller in Balipukhuri, 17 December 2016.

 Liminal Citizenship 195
to now be ‘transferred’ to them was tantamount to estrangement. Despite
possessing documents proving that they had paid taxes, the DM’s Office,
the chhit dwellers said, had not given them any assurance of transferring
ownership. Indeed, in their verbal communications, the office considered
their land ‘khas jameen’ or land which is owned by the government. With
the exchange of territory, those that had been tilling the land of their ‘fore-
fathers’ were asked to prove ownership. Others had to cut their trees or shift
their houses to allow the government to build new roads and build a bridge
to connect one chhit with another. The compensation which was promised
was not given to them, they complained: ‘It is because of our tenacity that we
have been able to sustain ourselves here. In the past, many people have left
the land due to the difficulties they have faced. But where will we go leaving
our lands here? The remaining people stayed on, especially after 2015’.
An erstwhile chhit dweller in Balipukhuri tells us that almost 300
people belonging to 61 families in the chhit stayed on. The residents
hoped that the change in the status of the chhit would help them sur-
mount problems pertaining to admission in schools and getting jobs.
Asha was visiting her maternal uncle’s home in Balipukhuri chhit, from
the adjoining Khuchlibari chhit. Born and brought up in the ‘Chhitmahal’,
she recounted the disadvantages they had experienced in their daily lives
because of the ambiguity of their status as a chhit dweller:

Our life was difficult. It is very difficult to speak of those days. While re-
membering and talking about them, our eyes well with tears! Let us not go
back to those days. Nowadays we are better—​at least, we are fine for now.
We have faced and tolerated all those things with utmost patience. We
never disclosed our identities as residents of ‘chhitmahal’! You can guess
why. If people had come to know that we were from ‘chhitmahal’, we would
have been denied every opportunity and not allowed in any sphere.33

Asha’s eighty-​year-​old uncle had obtained ‘higher education’ but was

compelled to do agricultural work for livelihood because he could not
get a job. Asha was studying Bengali for her Master’s degree in a college in
Jalpaiguri. She did not disclose her identity as a resident of Chhitmahal to
obtain admission:

33 Conversation with Asha in Balipukhuri chhit, 17 December 2016.

196 Citizenship Regimes, Law, and Belonging
Since they know the names of our parents, we have to change our
parents’ names and give names of some other persons impersonating
as our parents. Now, after the exchange, those who are young can
change the names of their parents yet again. But, for people like us who
are older, it will be more difficult. I don’t know if at all I will be able to
change the names written in our graduation, secondary (madhaymik)
and higher secondary (uccha madhyamik) examination. With much
difficulty we were able to send our children to other people’s homes in
Jalpaiguri or Mekhligunj to study.34

Asha had given the address of an adjoining village to enrol for studies: ‘I
could not even give the name of my motherland!’ After she completes her
Master’s degree, Asha wants to teach in a primary school, if one was set up
in her village:

But as of now, I can’t see anything coming up. Besides, there is also an
ICDS (Integrated Child Development Scheme) centre. But, given the
present situation, it is uncertain whether we will get an opportunity.
Being resident of chhitmahal we are entitled to receive some facilities
now. But, I am not sure whether we will get them. We should get some
facilities, like people belonging to the Scheduled Castes.

Pulin Barman from Dhabalsuti Mirgipur chhit recalls that despite some
problems, there was generally cooperation among ‘the enclave and non-​
enclave people’. This was because we were ‘living side by side’—​there was
‘consideration and also affection’.35 The chhit dwellers were always con-
scious of their ‘precarious status’ and did not get involved in ‘any tussle’.
In Asha’s village—​Kuchlibari chhitmahal—​57 families had been residing
continuously since ‘colonial times’ on 700 acres of land which they tilled
for subsistence. Balipukhuri village did not have electricity yet, but the
process of electrification had begun with the installation of poles for
supply. There was no supply of electricity in Kuchlibari. When Kuchlibari
was still a Bangladeshi enclave, electricity supply lines were installed
through it to supply electricity to an adjoining village in India:

34 Ibid.
35 Conversation with Pulin Barman, Mirgipur chhit, 17 December 2016.
 Liminal Citizenship 197
They got electricity supply but we were deprived because we lived in
chhitmahal. So, we had to take our own electricity supply forcefully.
This happened around two years back. We were adamant that if elec-
tricity lines go through our village, we must have our share of electricity.
Otherwise, no line could go through our village.36

The chhit residents received a Voter ID card, an Aadhaar card and dig-
ital ration cards when the chhits became part of the Indian territory. The
state assembly election had concluded only recently in West Bengal—​in
May 2016—​five months after the absorption of the chhit. Asha claimed
that no political party and candidate came to them for their votes. The
middlemen (dalals) came, however, in large numbers, with promises to
get their work done. These middlemen, she alleged, forged their signa-
tures, and claimed money from agencies. When asked who these mid-
dleman were, Asha could not tell, but she was sure they were ‘outsiders’
who came with a lot of ‘information’, and cheated the gullible elderly
people in the village with assurances of money, jobs, public transport, and
bus stands for their village. At the time of the field visit, the residents had
still not received their MNREGA job cards, and the promised 100 days of
work for each household. The idea that the land belonged to their fore-
fathers recurred in our conversations with Asha. She complained that the
road for which their land was taken was now being diverted to a different
direction: ‘Just a 2 km road will cost around 2 crores and 67 lakhs of ru-
pees. The road was already present, but now they will just put sand and
soil over it’:

The government is doing what it has to. The Prime Minister has given
some crores of money for the enclaves. Someone said a small part of
the land will be taken to build a road there. But no survey of land has
taken place. They were supposed to build a bridge. But now they are
only doing a bit of expansion of the earlier road itself. That road was al-
ways there, for decades. Now they will spread some mud around on two
sides, and take away all the 2 crores rupees.37

36 Conversation with Asha in Balipukuri chhit, 17 December 2016.

37 Ibid.
198 Citizenship Regimes, Law, and Belonging
Asha desists from blaming the political leadership in the Centre and the
state and believes that the funds allocated for the ‘chhitmahal’, if utilized
properly, would lead to the improvement of their condition. She believed
that the compensation for the land acquired from them to build the road
had been sanctioned by the Prime Minister, but had not reached them.
The Chief Minister had also assured them that the people living in the
51 ‘chhitmahals’ would receive electricity supply, roads, primary schools,
anganwadi centres, and much more, and those who lost their land would
be compensated adequately. These promises, she said were made be-
cause ‘we, the people of ‘chhitmahal’ had organized protests and move-
ments for quite a long time’. Asha refers in this context to the Chhitmahal
Movement started by Dipak Sengupta in Dinhata in 1992, and steered
by his son after Sengupta’s death in 2009. This was also the year when
Asha joined the movement. The main slogan of the movement was: ‘Start
exchange of chhitmahal immediately’. Sengupta went to Kolkata and
Bangladesh to campaign for the cause: ‘Dipak started the movement and
we just helped him. We went to the protests, whether in the DM’s office or
in Kolkata to submit the deputation letters’. It was through channels that
the movement had access to, that they came to know that the total money
allocated for the 51 ‘chhitmahals’ was 1500 crores of rupees. Their source
of information was not the DM’s office, but ‘other channels’: ‘A schedule
for the government’s work comes out. If someone with appropriate know-
ledge goes through the schedule, one can know this. However, this is of-
ficial—​bound by secrecy, and cannot be made public. . . . We know. We
know how to get information and from where. The person, who has given
us the leadership, goes to different places to get relevant news’. When the
exchange happened in 2015, the residents of the chhits did not face any
coercion or persuasion from the Bangladesh government to cross over to
Bangladesh: ‘Many of them, even, the DM had come from Bangladesh.
They did not directly request us to remain with Bangladesh. They told us
that it was entirely our choice. If we wanted to go, we could go, otherwise,
we could stay’.38
In the erstwhile Dhabalsati Mirgipur enclave, Rohtas, a farmer like
most residents of the enclave, tells us that his life was the same as before.
Did the fact that he is now a citizen of India make any difference, we ask

38 Ibid.
 Liminal Citizenship 199
him. ‘We continue to work and live the same way that our parents did.
Some work on the land they own, and some on land owned by others’. The
only difference was that they cast their vote in the state assembly elections,
the first time in their life. The voter ID card and the Aadhaar cards were
the first identity documents they received. A bank account with passbook
was opened subsequently and ration cards were given to them—​both
after the election—​informs Devyani Rai, a student. According to another
resident, Pulin Barman, the distribution of ration on the ration card had
begun a month back. Barman informs us: ‘We had demanded the voter
photo ID card first, and then the ration card. Bank accounts have been
given. Now we have voted once. Some enclave dwellers had used Indian
currency before, and some, who had school passing certificates, already
had bank accounts’. In the sequencing of demands the prioritization of
the voter ID card is indicative of not just the completion of their absorp-
tion that the voter ID signified by enabling them to exercise their polit-
ical right to vote, it also suggests the effectiveness, in their perception, the
demands would assume if they could collectively present themselves as a
voting group. At another level, it also points at the various degrees of ab-
sorption that had already taken place for most enclave residents who had
been residing there for generations. The compulsion to access schools
and hospitals surreptitiously or through deception would no longer be
there. Devyani Rai continued to study in the same school after the ab-
sorption of the enclave in India. What difference then had the transition
to Indian citizenship made? To her, the possession of a ration card and the
ease of access to hospitals was a major difference. Earlier, they ‘managed’
by concealing that they were from the enclaves, and gave the address of an
Indian village upon hospitalization.
They all voted—​all the 38 families in Mirgipur chhit with the cu-
mulative vote of 112. Pulin Barman recalls that their leader Diptiman
(name changed) had been saying for a long time that enclave exchange
would happen: ‘We were also hoping for a long time that the exchange
will happen, since that would make things much easier’. A team from
Bangladesh visited them and asked whether they wished to go to
Bangladesh: ‘We said we will stay here. We were born and brought up
here, so why should we go’. The officers from India did not insist that they
should stay here. While most residents of the chhits are farmers, around
50 of them, including Barman go to the city to work. Barman worked in
200 Citizenship Regimes, Law, and Belonging
Pitam Pura in Delhi in a fibre plate manufacturing company. He confirms
the problems people have faced with respect to getting papers to show
land ownership:

We have small bits of land, but we never had papers. The selling and
buying happened by signing 10 rupee stamp papers. We are all poor.
We sold our land to meet the expenses of our daughters’ wedding. Now
even that is becoming a problem since no one is buying our land. They
are saying that the status of this land is unclear. It has become India’s
land and the government might take it over. There is no ownership doc-
ument for us. Everyone knows who owns which land. Whoever is in
possession of the land, it is their land. Now we are demanding that we
should be given documents for our land as soon as possible. The DM’s
office has ordered that if anyone wants to buy or sell land immediately,
they should apply to the DM’s office to get an order. Since 2015, no one
has been able to sell land. If we get our land papers, we won’t have to
look for people to buy our land. They will all come to buy. The district
administration has been conducting a survey of land. They come once
in three months, stay for a couple of hours and the babus then go away.
They ask which land is whose. They have asked everyone. They have
noted which land is under whose possession. But nothing has hap-
pened. They assured us that they will give us the land deeds after the
survey is completed. This might take 3 years.39

Conclusion

In an official Press Information Bureau (PIB) release dated 15 March

2017 the Ministry of Home Affairs, probably for the first time in the
various official texts pertaining to the LBAT, used the expression ‘re-
turnees’ to refer to those inhabitants of the erstwhile Indian enclaves in
Bangladesh who chose to come to India when the exchange of territory
happened in 2015.40 The release was based on a response given by the

39Conversation with Pulin Barman, Mirgipur chhit, 17 December 2016.

40India Bangladesh Land Boundary Agreement (LBA)’, Ministry of Home Affairs,
Government of India, Press Information Bureau, Release dated 15 March 2017.
 Liminal Citizenship 201
Minister of State for Home to a question in the Rajya Sabha.41 Stating that
the LBAT had ‘necessitated development and integration of Bangladeshi
enclaves in India and addressing issues of rehabilitation of returnees from
Indian enclaves in Bangladesh’, the Minister disclosed that the govern-
ment had sanctioned 1005.99 crores of Rupees on 2 December 2015 ‘for
the rehabilitation and up-​gradation of infrastructure’. Out of this 898.50
crores had been allotted for creation and up-​gradation of infrastructure
and 107.49 crores for ‘rehabilitation and construction of pucca houses
for Indian returnees’. My visit to Cooch Behar had taken place almost a
year after the allocation of funds had been made for the purposes indi-
cated in the Minister’s response. These funds were allotted to the state
government for implementing the rehabilitation plan for a period of five
years. Alongside the rehabilitation programme, the government had
sanctioned barbed wire fencing to the extent of 3326.14 kilometres along
the India-​Bangladesh border. The fencing of 2731 kilometres had al-
ready been completed when the Minister made the statement in the Rajya
Sabha. In November 2018, the West Bengal Assembly passed a Bill giving
land rights to enclave dwellers. The West Bengal Chief Minister, Mamata
Banerjee described the West Bengal Land Reforms (Amendment) Bill
2018 as a ‘historic Bill’ which would enable the enclave dwellers to ac-
quire ‘full-​fledged status as citizens of India’. The process of allocation
of land rights, Banerjee said, would lead to the creation of new admin-
istrative districts, while giving ownership of land to the dwellers, who
were now ‘residing on khas land’. While stating that this would require
additional funds that would have to be put in by the state government,
Banerjee made a distinction between the ease with which the process of
integration of enclave dwellers as citizens had taken place and the exclu-
sionary NRC in Assam which had produced statelessness among those
left out.42
In 2016, Banglar Manabadhikar Surakhsa Manch commonly known as
MASUM—​an organization of social activists engaged in the protection of
rights of the marginalized sections—​filed a writ petition in Calcutta High

41 The statement was made by the Minister of State for Home Affairs, Hansraj Gangaram Ahir

in a written reply to a question by Shri Vivek Gupta in the Rajya Sabha on 15 March 2017.
42 ‘Bill to Give Land Rights to Enclave Dwellers in Bengal Passed’, The Indian Express, 19

November 2018.
202 Citizenship Regimes, Law, and Belonging
court pointing at the contradiction in the status of the ‘new citizen’ of the
erstwhile chhits who did not have official documents confirming citizen-
ship, but possessed identification documents such as the Aadhaar card
and the voter ID card which had enabled them to vote in the Assembly
election. MASUM filed a writ petition in the Calcutta High court in 2016
pointing at the anomalous situation where a person could be registered
to vote without having become a citizen of the country. In its judgement
dismissing the petition, the court appeared to suggest that the extension
of citizenship to the enclave dwellers would be an outcome of scrutiny of
applications for citizenship ‘with reference to various aspects’ that would
have to be considered for its ‘issuance’. Applicants may have different
backgrounds, and facts pertaining to the date of residence in India would
have to be ascertained—​which would require each applicant to show
‘when he came to this country, how he has come, from where he comes
and through whom he has come. Unless these facts are analysed after due
enquiry, citizenship cannot be considered’.43 It is significant that the High
Court appeared to be endorsing a process of identification for citizenship
akin to the NRC process in Assam, which would require enclave residents
to show documentary proof. Our conversations with the camp residents
and enclave dwellers showed how in the perception of both the ‘returnees’
and the ‘new citizens’, citizenship was a spectrum on which narratives of
loss and hope jostled for space. The choice of a political identity of citi-
zenship was offered as a possibility of new life, which was experienced by
the old and the new citizens differently. The mobility of the old citizens
and the immobility of the new led in different ways for both, to processes
of estrangement from land and identity. The experiences of estrangement
and the legal resolution of citizenship presented a site of entangled pos-
sibilities, where notions of family, borders and belonging, and state and
identity, assumed unfamiliar forms.

43 W.P. No. 5859(W) of 2016, See Lohia (2019).

 4
Recalling Citizenship
The Constitutional Ethic

On 21 December 2019, Varun Grover, a writer-​poet-​lyricist and stand-​

up comedian, posted a video on his Twitter handle. In this video, Grover
had recited a poem titled ‘Hum Kagaz Nahin Dikhayenge’ (‘We will not
show our papers’). The video became viral and quickly assumed the status
of an anti-​NRC anthem for Indians protesting against CAA/​NPR/​NRC.
Following Grover’s declaration that he claimed no copyright to his cre-
ation, protestors modified its words, adapted it to different genres, and
made it the rousing slogan of their movement. The refusal to show papers
was presented in the poem as the culmination of several acts of defiance
through which citizens would resist coercion by the state. All these acts
were envisaged as exemplary display of civil disobedience in the face of
the force that the state could unleash, and as faith in the power of peaceful
resistance in a country which had come together to ‘save the Constitution’.
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. As people read out the Preamble and held up
its copies in sit-​ins and rallies or displayed posters with the text of the
Preamble inscribed on them, the Constitution became the most visible
symbol of people’s disquiet and popular churning. Two months into the
protests, the Constitution also became a ‘best seller’. A publisher, who
earlier sold only a thousand copies of the Bare Act of the Constitution
in a month, reported five-​fold increase in sales. The paperback edition
of the Constitution in Hindi became the ‘number one best-​seller’ in the

Citizenship Regimes, Law, and Belonging. Anupama Roy, Oxford University Press. © Oxford University Press 2022.
DOI: 10.1093/​oso/​9780192859082.003.0005
204 Citizenship Regimes, Law, and Belonging
constitutional law category on Amazon. The owner of the publishing
house which had been printing the Constitution of India in different sizes
and updated versions for years, attributed the enhanced sales to the uni-
versalization of the Constitution’s appeal. Whereas earlier it was ‘the most
popular book among the Dalits’, ‘people from all sections of society’ were
buying it now—​they wanted to make sense of the removal of Article 370
and CAA—​he explained in an interview.1 It was not clear from the inter-
view whether the publisher established the popularity of the Constitution
among Dalits empirically, or inferred it from its association with B. R.
Ambedkar. Yet, the allusion to its universalization in the present context
was revealing since it pointed to the fact that people were buying physical
copies of the Constitution and not just reading it online. Evidently, the
popularity of the Constitution was not simply because people wanted to
make sense of executive decisions and legislative processes, but also as a
text which could be lobbed into the public space as an expression of fra-
ternity and empathy—​the core components of Ambedkar’s idea of dem-
ocratic citizenship. The installation of public spaces of protest through
‘insurgent’2 reading, ‘postering’, and ‘posting’ of the Constitution, pro-
duced 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.
Interestingly, examples of the Constitution becoming an insurgent
text abound and have resonated with people’s resistance in other parts
of the contemporary world. In June 2019, Olga Misik, a schoolgirl in
Russia read out the constitutional rights of the Russian people listed in
the Constitution in a pro-​democracy rally in Moscow. Called to protest

1 Manoj Sharma, ‘CAA Stir Spurs Demands for Copies of Constitution’, Hindustan Times, 10

December 2020.
2 In his book Insurgent Citizenship (2010), James Holston uses the category ‘insurgent’ to refer

to the relationship of entanglement between two kinds of citizenship in the urban peripheries of
Sao Paolo—​entrenched and insurgent. Insurgent citizenship is ‘conjoined with the entrenched’,
but it also disrupts it as a counter politics, that destabilizes the present, and renders it fragile.
While borrowing the idea of counter politics from Holston’s framework, I use insurgent in the
normative sense, whereby ‘insurgent’ as counter politics must be anchored in the appraisive con-
tent of democracy.
 Recalling Citizenship 205
the suspension of freedom of association in the context of the deferral of
the opposition’s right to contest the upcoming Moscow City Duma elec-
tions, the ‘lone figure’ of Misik sitting cross-​legged in front of a heavily
armed, and ‘notoriously brutal’ 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. Misik told newspapers that her intention was to communicate
to the policemen that what they were doing was illegal, and it did not
occur to her then that ‘someone other than them would hear it’. Misik
was detained soon afterwards—​not from the protest site—​but from a
subway station close by, where there was no rally or crowds to witness
it.3 The protests around the CAA/​NPR/​NRC in India similarly reclaimed
the Constitution. This reclamation took diverse forms which remained
united in their recourse to the Constitution as a text through which the
constituent moment could be recalled. This process was sutured to con-
stitutional politics and resurrection of the promise of democracy em-
bodied in the transformative moment of the constitution giving process.

The Constitution as an Insurgent Text:

The ‘People’s Constitution’

The Constituent Assembly (CA) of India articulated the principle of pop-

ular sovereignty in the Objectives Resolution moved by Jawaharlal Nehru
on 13 December 1946 in the claim that it ‘derived from the people . . . all
power and authority’. The concept of the ‘people’ is central to the uni-
versalist imaginings of modernity. ‘The people’ is abstract but also his-
torically specific and can be traced through diverse genealogies. In the
transition to constitutional democracy in India, the people were consti-
tuted as the repository of sovereign power when they gave to themselves
the Constitution on 26 November 1949—​a Constitution that they had
enacted through the Constituent Assembly. That the people also held
constituent power was established emphatically through Article 395

3 Colin Drury, ‘Olga Misik: Teenage Girl Reads Constitution in Front of Putin’s Riot Police

During Moscow Protests’, The Independent, 31 July 2019, https://​www.inde​pend​ent.co.uk/​news/​

world/​eur​ope/​olga-​misik-​rus​sia-​prote​sts-​const​itut​ion-​mos​cow-​riot-​pol​ice-​putin-​a9029​816.
html (accessed on 26 June 2020).
206 Citizenship Regimes, Law, and Belonging
of the Constitution which repealed the Indian Independence Act (1947),
severed all relations with colonial authority, and rejected the chain of
validation which required that the Indian Constitution be placed be-
fore the Crown-​in-​Parliament for its approval (Swaminathan 2013). The
electoral domain was another space where the people acquired meaning
and form—​constituted through a collective act of voting. The electoral
domain made manifest the unfettered sovereign power of the people,
achieved through the deferral of political authority concentrated in the
state apparatus, to install a constitutional democracy (Gilmartin 2009).
The constitution was made ‘popular’ through different modalities
which were part of the process of structuration of the state and the de-
mocratization of state power. In her work on the preparation of the elec-
toral roll for the first general election in India on the basis of universal
adult franchise, Ornit Shani suggests that the electoral roll became part
of the ‘popular narrative’ connecting people to a democratic imagination
of the state constrained by the Constitution. Shani argues that through
a process of consultation, the Constituent Assembly Secretariat engaged
public officials, people, and citizens association in the details of voter
registration and citizenship, mentoring them into both—​the abstract
principle and practices of electoral democracy—​so that ‘people and ad-
ministrators began using the draft constitution to pursue their citizen-
ship and voting rights, and they linked its abstract text to their everyday
lives’ (Shani 2018, 252–​253).
In a different formulation, Rohit De explores the relationship between
‘the people’ and the constitutional order and the nature of the social
contract that validated this order, given that the people had only a ‘lim-
ited role’ to play in what was a largely oligarchic process of framing the
Constitution (De 2018). De argues that rather than looking for the people
in the Constitution or even in the modes through which the people were
represented in the Constitution-​making process, and its subsequent val-
idation through elections, it would be more effective to see how people
looked at the Constitution. This shift in vantage point enables one to un-
derstand the crucial ways in which the Constitution became intelligible to
the people as a part of their daily lives. Quite like Shani’s study of the con-
versations spun among people around a governmental activity of identi-
fication and enumeration of the voting population, which made the draft
Constitution accessible to the people, De looks at specific instances where
 Recalling Citizenship 207
ordinary people invoked the Constitution to claim their fundamental
rights. In one such instance, Mohammed Yasin, a vegetable vendor in
a small town, who would otherwise have remained ‘a nondescript by-
stander’ witnessing the ‘grand narratives of Indian history’, became one of
the first Indians to present himself before the Indian Supreme Court as a
‘rights bearing citizen’, to appeal to the court to issue an order to the local
governmental authority to perform their functions properly (De 2018).
The Constitution has been archived in different forms and narrativized
in different genres of art. Indeed, the constitutional text, as conserved in
its original textual rendition, is both calligraphic and pictorial—​a product
of the combined labour of artists and calligraphers. Calligraphed by Prem
Behari Narain Raizada and illustrated by Nandalal Bose and his students
from Shantiniketan’s Kala Bhavana, the handcrafting of the Constitution
began when the draft Constitution was ready for printing. It took six
months for the artists to complete the two copies of the handcrafted
Constitution—​in Hindi and English—​which are preserved in a helium
case in the Parliament Library in New Delhi.4 Naman Ahuja (2020) ar-
gues that the illustrations in the Constitution preserved as a historical ar-
tefact, coalesce the historical people in a harmonious representation of
the country’s diversity, with the help of motifs from its mythical and tex-
tual past.5 The juxtaposition of myth and history in a linear narrative of
the past, argues Ahuja, may appear problematic to a modern reader of the
Constitution but it generates ‘productive tensions’, which when inserted
into the present, offer scope for ‘succour and hope’ (Ahuja 2020).
The ‘original’ Constitution has been resurrected in installations and
live art performances in which the Constitution as a ‘body of law’ has
found expression in spatial and embodied experience. Summoning the
historical form of the Constitution in installation art to recall it in a con-
temporary space replete with ‘vulnerabilities’, Riyaz Komu’s art exhibi-
tion ‘Holy Shivers’ gave form to emotions—​of fear—​of the violent present
and uncertain future, and of hope—​in the weight of the promises made in

4 https://​indian​expr​ess.com/​arti​cle/​expr​ess-​sun​day-​e ye/​hand​craf​t ed-​const​itut​ion-​india-​

6233​517/​; https://​www.the​heri​tage​lab.in/​const​itut​ion-​india-​art/​; https://​trans​fin.in/​const​itut​

ion-​of-​india-​b ody-​of-​law-​a-​work-​of-​art#:~:text=​C onst​itut​ion%20as%20W​ork%20of%20
Art,Sur​vey%20of%20In​dia%20in%20D​ehra​dun (accessed 28 June 2020).
5 Naman Ahuja, ‘Can the Historic Art of Our Constitution Look to the Future’, Live Mint,

20 January 2020, https://​www.livem​int.com/​mint-​lou​nge/​featu​res/​can-​the-​histo​ric-​art-​of-​our-​

const​itut​ion-​look-​to-​the-​fut​ure-​115​7988​5322​689.html (accessed on 28 June 2020).
 208 Citizenship Regimes, Law, and Belonging
the past. By invoking symbols from constitutional calligraphy and those
that have become part of the narrative of India’s constitutional democ-
racy, Komu’s installations took the form of a political critique of human
aggression. Komu termed this aggression, ‘militant enthusiasm’—​an in-
stinctive component of human psychology—​to wreak destruction for a
fictional cause.6 In an innovative use of mirror imaging as a concept—​to
represent ‘reflections/​images’ as an aspect of reflexivity—​Komu set up
digitally scanned original pages of the Constitution in collocation with
x-​rayed images receding into darkness, to evoke an imagery of what was
being lost amidst the violence. In an evocative framing of ‘Dhamma-
Swaraj’ through the juxtaposition of Ambedkar and Gandhi’s portraits
in successive panels which blend into each other and eventually appear
inseparable, Komu suggested the relevance of both in tandem instead
of unbridgeable binaries. Komu explained the juxtaposition as fol-
lows: ‘ “Dhamma Swaraj”, is an overlapping triptych portrait of Gandhi
and Ambedkar that explores the interaction between two apparently dis-
parate ideologies in the scope of a single frame’.7 The figure of Ambedkar
on a pedestal supported by iron legs, unusual for Ambedkar’s figures that
have taken a modular form , is without a copy of the Constitution in his
hand, and not instructing nor showing the way forward, but raising both
his hands in a gesture of reasoned argument.8 The representation pre-
sents the possibility of a dialogic space around the Constitution, which
produces communities driven by a different moral order, that is, of public
conscience bound by empathy that makes the alleviation of human suf-
fering its primary concern.

6 Rahul Kumar, ‘In Artist Riyas Komu’s New Work, You Can See How Far India Has Drifted

from Its Founding Ideals’, Scroll.in, 8 February 2018, https://​scr​oll.in/​magaz​ine/​867​176/​in-​art​

ist-​riyas-​kumos-​new-​work-​you-​can-​see-​how-​far-​india-​has-​drif​t ed-​from-​its-​found​ing-​ide​als
(accessed on 24 June 2020). Kumar writes: ‘The title of the show references a theory of Austrian
zoologist and ethologist, Konrad Lorenz, which is shared in his book On Aggression. According
to Lorenz, the tendency or willingness to kill or be killed in defense of one’s community phys-
ically manifests in the tingling sensation in the spine or the raising of hair on an animal’s back
as the first step in a fight with an enemy. Lorenz’s idea of “militant enthusiasm” refers to the
act of eliciting participation for destruction for a fictional yet ideal cause in the service of the
contriver’s aims.’
7 Ashlin Mathew, ‘Silence is a Powerful Enemy of Social Justice’, National Herald, 11 March

2018, https://​www.nati​onal​hera​ldin​dia.com/​art/​sile​nce-​is-​a-​power​ful-​enemy-​of-​soc​ial-​just​ice
(accessed on 28 June 2020).
8 See for a discussion on Dalit symbolism and caste icons, especially the portrayal of Gandhi

as a national and Ambedkar as a ‘particular’ icon Wankhede (2010).

 Recalling Citizenship 209
The reproduction of the Constitutional text as images arranged in a
visual constellation produces different effects. The re-​cognition of the text
from a ‘distant’ legal text to ‘text image’ configured in a familiar space,
the Constitution acquires new relationships with those who look at the
images, and evokes sensory experiences different from its ‘legal/​textual’
form. The passage from the cognitive to the somatic makes way for a dif-
ferent universe of the representation of law. Writing about the ‘pictorial
turn’ or visualization of communication, Boechme-​Neßler (2011) argues
that the relationship between law and art is reciprocal—​it is not just im-
ages in the law which change the law, but images which society makes
of the law, which also change its meanings. The cultural environment in
which these meanings take effect play an important part in shaping ‘the
people’ (Boechme-​Neßler 2011, 51, 119). Public performances, whether
or not the spectator is invited to participate, produce a ‘visceral somatic’
effect—​producing tangible resonances—​shaping an emotional citizen-
ship. Empathetic citizenship generated through an act of seeing as a par-
ticipant in the affective public space is bound by emotion that produces
appraisive political engagement (Miller 2011) and relational experiences
of being citizens (Wood 2013). The geographies of affect imbricated
in emotional citizenship have the property of reproducing beyond the
proximate physical space. ‘The Walk’—​a performance by Maya Rao9 on
the Delhi gang rape, for example, became the inspiration for an instal-
lation performance—​‘The Walk’—​created in South Africa in 2013, as a
response to the gang-​rape and murder of a young black woman. The play
followed the performance by Maya Rao and took the form of a series
of performed installations, which involved the audience walking among
them, and combined live and recorded performance and sound.10 Sara
Matchett, Senior Lecturer in the Drama Department of the University of
Cape Town, South Africa, and Artistic Director of The Mother Tongue
Project, a women’s arts collective, wrote of her experience of Rao’s
performance:

9 Maya Rao is a Kathakali dance exponent, theatre performer, and street theatre activist, en-

gaged in theatre in education campaign. See also Dutt (2015) for an analysis of Rao’s perfor-
mance as protest.
10 http://​www.mothertongue.co.za/​index.php/​productions/​past-​productions/​walk
210 Citizenship Regimes, Law, and Belonging
It’s hard to articulate what was evoked in me. . . . It was most definitely
not a cognitive experience, but rather a visceral somatic one.... I feel
very tearful, deeply moved and somewhat internal. Words are unable to
express this felt sense. It’s like you pulled me inside you, into your core.
And from this place your call placed itself in me, to continue and extend
the call . . . I realised, viscerally, how through the performance we have
made in South Africa, we carry your legacy. I realised how big the work
is. I’ve always known how important it is, but somehow yesterday I was
struck differently. These works in conversation make somatic sense. The
resonances are palpable.11

On 3 January 2020, a march in Jantar Mantar in Delhi against the CAA

organized by LGBTQI groups brought together women’s organizations,
women trade unions, autonomous groups, and women not associated
with any group, in the streets of Delhi.12 Maya Rao read out the Preamble
of the Constitution while draping the sari, presenting ‘an aesthetics’ of
protest which she said ‘derived from the urgency of the moment’ (Sahai
2020). Rao explained her performance: ‘Every time one can approach
the Preamble from a different lens. In the context of the women’s march,
I wanted to create devices that speak to women, and can be read with ease.
The sari is not just a garment, it is layered socially and culturally. Many
women wear the sari from girlhood till the day they die, and for an Indian
woman, it is often a layering of her own skin’. While the sari in its mul-
tiple modes of draping and textures represents the diversity inherent in
‘Indian tradition’, it also manifests the trope of unity in the seamlessness
of the garment itself. Significantly, this seamlessness expressed itself in
the powerful display of unity ‘spoken’ through women’s garments by the
women of Shaheen Bagh, who had been agitating against the CAA and
were also part of this protest. The women strung their dupattas together,
and passed them around, with the participants and the performing art-
ists ‘adding to them and holding them tightly as a rope, creating a motif
of collective expression’ (Sahai 2020). Viewing the performance from the
perspective of artistic aesthetics and method of ‘making art’, this was an

11 http://​may​akri​shna​rao.blogs​pot.in/​p/​str​eet-​thea​tre.html (accessed 30 May 2018).

12 https://​www.thehi​ndu.com/​entert​ainm​ent/​art/​maya-​rao-​leads-​the-​way-​in-​art-​upris​ing/​
arti​cle3​0521​874.ece https://​www.sheth​epeo​ple.tv/​news/​women-​trans-​queer-​citiz​ens-​march-​
caa/​(accessed 27 June 2020).
 Recalling Citizenship 211
exemplary moment where art was made extemporaneously, ‘almost in a
folk form manner’ (Rao in Sahai 2020). Yet, ‘art making’ was also special
as a ‘protest event’—​where the high passion of large numbers present was
channelized into what Rao called ‘uplifting, thought-​provoking collabo-
rative art’ (Sahai 2020).

Citizen Democracy

The movement against the CAA/​NPR/​NRC rallied around the symbols

of the Republic to protest against the politics of Hindutva for the elab-
oration of democratic citizenship. The centrality of the Constitution of
India in this elaboration made the movement around the CAA a ‘critical’
event. An event, according to Veena Das becomes critical if it holds out
the possibility of a ‘new modality of historical action’ (Das 1995, 5). As
a ‘critical event’ the movement against the CAA elaborated an ethics of
political action, in which the constraints of the present were alleviated
though an accumulation and aggregation of practices of signification. In
such practices, the Constitution became a trope and a metaphor invoked
in different sites in spectacular and quotidian ways to invoke democratic
citizenship.
In the literature on transformative constitutionalism (Baxi 2013,
Vilhena et al. 2013, Bhatia 2019), constituent moments are seen as both
events and processes, prompting us to look at the constitution-​giving,
and if one may add, constitution-​claiming processes as a deeply moral
experience. The literature on comparative constitutionalism locates the
constituent moment in countries that emerged out of a struggle against
colonialism and authoritarianism in their histories of transition to the
‘magnificent goal’ of democracy (Baxi 2013). The central motif of trans-
formative constitutionalism is a conscious and meticulous re-​figura-
tion of the relationship with the past (Mehta 2010). In this framework,
constitutions embody the momentous present from where a vision of
a democratic future could be professed. This vision aimed specifically
to repudiate and transform ‘legacies of injustice’ (Bhatia 2019); pas-
sage through the constituent moment ensured that the atavistic bonds
of ‘blood, territory, and historical hurt’ were replaced by bonds of fra-
ternity as a defining feature of citizenship. Yet, the transformative is a
212 Citizenship Regimes, Law, and Belonging
continuous process. The Preamble of the interim Constitution of South
Africa characterized the transition to constitutional democracy in terms
of the ‘traditional metaphor of a bridge’ (Langa 2006, 353). The metaphor
suggested that the Constitution was not a terminal point in the journey
towards democracy. The bridge as ‘a space between an unstable past and
an uncertain future’ was continually created by ‘remaining on it, crossing
it over and over to remember, change and imagine new and better ways
of being’. In this perspective, transformation was ‘a permanent ideal’:‘ . . . a
way of looking at the world that creates a space in which dialogue and
contestation are truly possible, in which new ways of being are constantly
explored and created, accepted and rejected and in which change is un-
predictable but the idea of change is constant’ (Langa 2006, 354).
In their distinctive ways the diverse strands in the movement against
the CAA/​NPR/​NRC were opening up the spaces for both ‘dialogue and
contestation’ (Langa 2006) summoning popular sovereignty for the re-
construction of democratic politics. Through these modalities, they
sought to go beyond the conception of ‘public reason’ found in John
Rawls (1993) who emphasized the importance of dialogue among citi-
zens over a ‘constitutional consensus’ on democratic procedures and
institutions to be secured by a civic political culture. The protestors in-
voked the idea of ‘public conscience’ found in B. R. Ambedkar. Public
conscience for Ambedkar meant ‘a conscience which becomes agitated at
every wrong, no matter who is the sufferer’, and that ‘everybody, whether
he suffers that particular wrong or not, is prepared to join him in order
to get him relieved’ (Ambedkar 1952). With the elaboration of an idea of
public conscience, Ambedkar’s notion of constitutional morality charac-
terized by the habit of ‘pacific criticism’ of the state under conditions of
self-​restraint, met a different ethic of public action and principle of social
solidarity, which was based on trust and empathy. This ethic of public ac-
tion guided by empathy was displayed when the women of Shaheen Bagh
sat in a dharna on 15 December 2019 following the forced entry and sub-
sequent violence by the Delhi police in Jamia Millia Islamia University
campus in Delhi in pursuit of students protesting against the CAA. The
women of Shaheen Bagh set in motion a process whereby ‘the city street’
assumed ubiquity as the space where ‘new forms of the social and po-
litical [could] be made’ (Sassen 2011, 574). Writing about the impor-
tance of ‘public space’ for giving ‘rhetorical and operational openings’ to
 Recalling Citizenship 213
the ‘powerless’, Sassen sees the city as the critical space where the pow-
erless can make history. By becoming present and visible to each other,
the powerless, alter the character of powerlessness: ‘Powerlessness is not
simply an absolute condition that can be flattened into the absence of
power. Under certain conditions, powerlessness can become complex, by
which I mean that it contains the possibility of making the political, or
making the civic, or making history’ (Sassen 2011).
In December of another year—​2012 to be precise—​protests over the
rape of a young woman in Delhi surged in the city. After their sudden
appearance in the high security Raisina Hill, the protestors moved to
Rajpath at the India Gate. Known as the King’s Way when India was a
colony, the Rajpath is a site where an annual display of military power
and the cultural heritage of India, takes place on 26 January, the day the
Constitution of India came into force in 1950. The Boat Club and India
Gate lawns along the Rajpath, where people watch the spectacle of the
Republic, were also often sites embodying the ‘sphere of appearance’
(Arendt as quoted by D’Entreves 1994, 104), where the people claimed
the Rajpath to express their discontent through speech and persuasion.
In the early 1990s, a government order made Rajpath out of bounds
for political rallies and demonstrations in the interest of national secu-
rity and public order. Rajpath was purged of the people and restored to
the state. The people and their tents were shifted to Jantar Mantar, ad-
joining the Connaught Place, and then again to a more constrained space
at the Mandir Marg-​Shankar Road crossing, where people could sit in
after obtaining permission from the local police station. The progressive
constraining and confinement of public dissent to designated spaces—​to
a virtually five and a half yards of democracy from the mammoth pos-
sibilities offered by the vast stretches of the India Gate lawns and Boat
Club—​is symptomatic of the manner in which a security state reinforces
itself through the affirmation of power by force (Roy 2014). Following the
protests around the gang rape, the government invoked section 144 of
CrPC, which restricts public gathering, making the region around India
Gate and Rajpath out of bounds for the people.
If the December 2012 protests were about claims to public places to
make them visible through public presence, the protests associated with
the anti-​CAA movement were more about making public, spaces that
were familiar in the lives of the local people. The chowks, chaurahas,
214 Citizenship Regimes, Law, and Belonging
baghs, and significant signposts of old city scape, such as the ghantaghar
(clock tower) from which a chowk would get its name, became spheres
of appearance. Shaheen Bagh was one such familiar place—​a neigh-
bourhood—​in the proximity of Jamia Millia Isamia, close to the border
of Delhi with NOIDA in Uttar Pradesh. Over the course of the protests,
Shaheen Bagh, a place name, became a metaphor for citizen democracy.
Drawing from the idioms of Gandhian satyagraha as voluntary suffering,
local Muslim women gathered in the street on 15 December 2019—​where
they stayed till the pandemic lockdown began in the last week of March
in 2020—​to ‘protect the future of their children’. Rajvi Desai described the
sit-​in as follows:

On a silent, empty street in Delhi, straddling the boundary between the

capital and its suburb of Noida, past numerous police barricades and
amid small, winding alleys, lies a phenomenon never before seen in
Indian society. Within an almost impenetrable wall of men, thousands
of Muslim women, some as old as 82, sit underneath a makeshift tent,
often with their children cradled in their laps, one eye on a wandering
toddler and the other toward a stage on which activists deliver battle
cries of the impending revolution. They sit in protest, most of them
seven days a week, 24 hours a day, because the BJP-​led government has
compelled them to sleep on the streets, they say; because there’s nothing
else left to do, they lament; because their children need them and be-
cause they’d rather die than be anywhere else, they proclaim. This is
Shaheen Bagh. (Desai 2020, emphasis added)

The deployment of motherhood as a trope to ‘shame’ the state reson-

ates the invocation of political motherhood in other contexts—​largely
authoritarian regimes where enforced disappearances were used as a
mode of regime sustenance. The mothers’ movement launched by four-
teen Argentinian women in April 1977 is one such example. The mothers’
march to the Plaza de Mayo in front of the Presidential Palace in Buenos
Aires in Argentina demanding information about their sons who had
‘disappeared’ under the authoritarian military regime since 1975, con-
tinued unabated as a weekly march till 2006. The movement inspired the
song ‘Mothers of the Disappeared’ by the Irish Rock band U2. Part of their
1987 album The Joshua Tree, the song was a tribute to the disappeared
 Recalling Citizenship 215
persons under dictatorships in Argentina and Chile, but was also a cri-
tique of the support Ronald Regan’s administration gave to these regimes.
While the slogan nunca mas (never again) reflected the mothers’ resolute
defiance of a powerful state through peaceful protest, it also opened up a
register of emotional citizenship along an axis of affect.
The performance of affect by the local Muslim women in Shaheen
Bagh, hitherto considered politically disengaged, became encompassing
to bring into its fold broader solidarities to speak a shared language of
empathy as citizenship. The wooden stage set up in the enclosure where
the women sat, displayed portraits of B. R. Ambedkar, Bhagat Singh, and
M. K. Gandhi, resonating the Dhamma-​Swaraj invocation in Komu’s art
installation. Amidst allegations that the women were being paid by the
opposition parties and petitions in courts for the removal of the sit-​in for
blocking the road and causing hardships to commuters and businesses,
Shaheen Bagh became the public stage of appearance where ordinary
people and political leaders flocked to identify with the cause. In January
2020, almost a month after he was arrested and subsequently released on
conditional bail for leading an anti-​CAA protest in Jama Masjid in Delhi,
the Bhim Army chief Chandrashekhar Azad spoke from the ‘rickety stage’
of Shaheen Bagh holding a copy of the Constitution in his hand. Before
ending his speech with a stanza from the revolutionary poem ‘Sarfaroshi
ki Tamanna’, Azad reminded the gathering that they had the right to pro-
test peacefully. In this protest, it was the Constitution which would be
their protective armour, their suraksha kavach. On one side was the en-
tire might of the state; and on the other, the Constitution—​Ek taraf poori
hukumat, puri takat aur ek taraf yeh Constitution.13 Shaheen Bagh as an
idea and idiom of protest proliferated in other parts of the country—​from
Sabzzi Bagh, Phulwari Sharif, and Mangal Talab in Patna, through Shanti
Bagh in Gaya, Hussainabad Clock Tower in Lucknow to Park Circus
Maidan in Kolkata, the protests were replicated all over the country. In
Ahmedabad a woman held a placard that expressed the anxieties of those
who had gathered in the protest as follows: ‘My documents were burned
in 2002 riots, ab kagaz kahan se laaye (where do we get our papers from)’.14

13 Somya Lakhani, ‘Rickety Stage, Faulty Mike, but Chandrashekar Azad’s Loud and Clear at

Shaheen Bagh’, Indian Express, 23 January 2020.

14 ‘Ahmedabad: Inspired by Shaheen Bagh, Rakhiyal Area Stages CAA Protest’, The Wire, 17

January 2020.
216 Citizenship Regimes, Law, and Belonging
This animation of constitutional we-​ ness was not confined to the
Muslims of India who expressed both anxiety and anger at the articula-
tion of faith-​based citizenship which departed from republican citizen-
ship of the foundational moment. Broad alliances and solidarities were
evident in unprecedented ‘irruptions’ (Holston 2007) across the country
that sought to consciously reject religious identification as the basis of be-
longing. These irruptions recalled the constitutional ethics for generating
a ‘we-​consciousness’ through democratic dialogue and participation and
also for instilling a ‘sense of belonging’ that bind people in a shared life.

‘Have you read the Constitution?’

On 20 December 2019, Chandrashekhar Azad of the Bhim Army was ar-

rested by Delhi Police for leading and organizing an ‘unauthorised’ pro-
test at Jama Masjid. In this protest, Azad read out the Preamble of the
Constitution and criticized the Prime Minister for not listening to the
voices of the women in Shaheen Bagh. While delivering his speech Azad
also recited lines from Rahat Indori’s sher/​poem: ‘. . . sabhi ka khoon
shaamil hai yahan ki mitti mein, kisi ke baapka Hindustan thodi hai’ (this
land has witnessed sacrifices from everyone/​Hindustan is not anyone’s
ancestral property), invoking we-​consciousness based on shared history
of sacrifices made by the people. This was the second time in the recent
past that Indori’s sher/​poem was read out as an indictment of the BJP
regime, the other being Mohua Moitra’s inaugural speech as an MP in
the Lok Sabha in July 2019. Azad’s bail petition heard by Justice Kamini
Lau at the Tees Hazari Court in Delhi was opposed by Delhi Police on
the ground that he had organized a protest from Jama Masjid to Jantar
Mantar for which the Delhi Police had denied permission. The judge
granted bail to Azad referring to the Supreme Court’s order whereby re-
peated use of Section 144 of CrPC was construed as abuse of law. 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,
Justice Kamini Lau finally asked the public prosecutor, ‘Have you read the
constitution?’: ‘In the colonial era, the protests were out on the roads. But
your protest can be legal, inside the courts. Inside the Parliament, things
 Recalling Citizenship 217
that should have been said were not said, and that is why people are out
on the streets. We have full right to express our views but we cannot de-
stroy our country’, she said.15 Azad was given conditional bail the fol-
lowing day. 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, especially those
who wished to access hospitals in NOIDA and Delhi.16
Amidst police crackdown, another judgment, this time by the
Aurangabad Bench of the High Court of Bombay upheld the constitu-
tional right of the people to protest against the CAA. The order came
in response to a petition by residents of Majalgaon in Beed district in
Maharashtra to be allowed to ‘hold peaceful demonstrations and agita-
tions’ at old Idgah Maidan for an ‘indefinite period’ in the evening from
6 pm to 10 pm. On 31 January 2020, the Additional Magistrate of Beed
issued orders to address apprehensions pertaining to ‘law and order’
problems emerging due to agitations by political parties and associations
that had resorted to ‘blockade of roads, taking out morchas, etc., for
many causes including protest against the Citizenship Amendment Act
(CAA)’.The Additional Magistrate’s order mentioned the following ‘spe-
cific possible agitations’: (a) Farmers who had suffered damage to their
crops due to excessive rains were ‘likely to start agitations’ through their
associations; (b) Political parties and social organizations could start an
agitation because of an increase in the prices of essential commodities;
(c) Persons belonging to Dhangar, Muslim, Bhoi, and other communities
‘were likely to start agitation for getting some social protection’; (d) ‘The
people of all religions were likely to start agitations to show protest against
CAA’. In order to prevent these agitations that were ‘likely’ to take place,
the district administration disallowed ‘carrying arms’, ‘sloganeering,
singing [and] beating drums’.
The judges noted that although the district administration’s order was
of a general nature, it appeared to be specifically against those who wanted

15 ‘Have You Read the Constitution?’ Asks Judge as Delhi Police Oppose Bail for Aazad’, The

Wire, 14 January 2020.

16 ‘Delhi HC Dismisses Plea Seeking Removal of Anti-​CAA Protestors at Shaheen Bagh’, The

Hindu, 10 January 2020.

218 Citizenship Regimes, Law, and Belonging
to agitate against the CAA, since these agitations were already happening
everywhere, and there was not even a ‘whisper’ of agitations of any other
nature in the region. The judges concluded ‘that there was no fairness and
the order was not made honestly’. Taking note of the fact that the consti-
tutionality of the CAA had been challenged in the Supreme Court, the
Judges stated that they were not concerned about the content of CAA, but
only the question of permissibility of agitations against the CAA. Holding
the ‘main order’ of the Additional District Magistrate illegal, the judges
‘quashed and set [it] aside’ along with the order subsequently made by the
police station of Majalgaon. The court instructed the district authorities
to give the ‘necessary protection’ to those who wanted to agitate, who the
judges stated would be permitted to do so. While giving permission to the
agitators to sit on an indefinite dharna in the Old Idgah Maidan, the court
noted the undertaking that had been given by them that ‘no slogans will
be raised against the country, against any religion, against the unity and
integrity of the country’.17
In 1952 in the case West Bengal vs. Anwar Ali Sarkar, in which a consti-
tution bench went into the question of ‘constitutional prohibitions’ con-
tained in Article 14 of the Constitution, Justice Vivian Bose opined that
a judge must ‘look straight into the heart of things’. Justice Bose found
it ‘impossible’ to read the provisions of liberty, freedom, and equality in
the Constitution, ‘without regard to the background out of which they
arose’.18 He stressed:

I cannot blot out their history and omit from consideration the
brooding spirit of the times. (T)hese portions of the Constitution . . . are
not just dull, lifeless words static and hide-​bound . . . but, living flames
intended to give life to a great nation and order its being, tongues of dy-
namic fire, potent to mould the future as well as guide the present. (The
State of West Bengal vs Anwar All Sarkarhabib 1952 AIR 75, 1952 SCR
284, paragraph 98)

17 Order delivered by Justice M. G. Sewlikar and Justice T. V. Nalawade on 13 February 2020

in writ petition no. 903 cri wp 223.20 brought by Iftekhar Zakee Shaikh, a resident of Majalgaon
against the state of Maharashtra and the civil and police administration of Beed district.
18 Supreme Court of India, The State of West Bengal vs Anwar Ali Sarkar, judgement delivered

on 11 January 1952, AIR 1952 SC 75.

 Recalling Citizenship 219
The Aurangabad bench of the Bombay High Court too, while setting
aside the ADM’s order, invoked constitutional prohibitions to constrain
arbitrary power. Justice Bose was scrutinizing the West Bengal Special
Court Act 1950 against the provisions of Article 14 of the Constitution
and differed from other judges on the bench on the modalities and
grounds on which the prohibitions would apply. While doing so he put
his confidence in the ‘collective conscience’ of the Republic and its rep-
resentation in ‘fair-​minded’ and ‘reasonable men’ who would protect the
liberties of people without any ‘prejudice’:

The test under Art. 14 is neither classification nor whether there is ab-
solute equality in any academical sense of the term but whether the col-
lective conscience of a sovereign democratic republic as reflected in the
views of fair-​minded, reasonable, unbiased men, who are not swayed by
emotion or prejudice, can consider the impugned laws as reasonable,
just and fair and regard them as that equal treatment and protection
in the defence of liberties which is expected of a sovereign democratic
republic in the conditions which obtain in India to-​day. (Judgement,
Anwar Ali Sarkar 1952)

Writing about court judgements as a ‘compelling genre’, Kalyani Ramnath

speaks of the importance of ‘judicial observations’ in judgements which
may not be part of the operative order, but leave a legacy which becomes
‘instrumental in the shaping of public discourse’. Through these obser-
vations, judgements speak to ‘multiple audiences’ and ‘maybe read not
merely as judicial orders directed at the parties in the case but as writing
that inspires, creates and shapes textual and actual realities’ (Ramnath
2011, 3). While judicial observations may often be seen as ‘unnecessarily
verbose’ and ‘runaway’, they articulate ‘constitutional visions at a par-
ticular point in the Court’s history, its place and importance vis-​à-​vis
its public’, and also ‘create possibilities to formulate strategies by which
laws and courts can be a site for resistance and empowerment’ (Ramnath
2011). The judicial observations made by Justice M. G. Sewlikar and
Justice T. V. Nalawade of the Aurangabad bench of Bombay High Court,
while operatively quashing the ADM’s order denying permission for pro-
tests, looked for reasons in constitutionalism and the rule of law, and the
legacy of the freedom movement that made the Republic intelligible to
220 Citizenship Regimes, Law, and Belonging
the people. The judges started from the premise that the Constitution
gave the ‘rule of law’ and not ‘rule of majority’ to acknowledge the possi-
bility that any law may be perceived by ‘a particular religion’, in this case
‘Muslims’, to be ‘against their interest’. While the Court could not go into
the merits of that perception, it was ‘bound to see whether these persons
have right to agitate’ and ‘oppose the law’. Once the court ‘finds’ that agi-
tating is ‘part of their fundamental right’, it was not its responsibility to
‘ascertain whether the exercise of such right will create law and order
problem’: ‘That is the problem of a political government. In such cases, it
is the duty of the Government to approach such persons, have talk with
them and try to convince them’. Significantly, in an order delivered on
17 February 2020, the Supreme Court had 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 respon-
sibility to convince the people. Importantly, however, the judges also felt,
that it would be wrong to presume that it was ‘only a particular commu-
nity 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 sense of fraternity that ‘the freedom
struggle’ had instilled in the journey towards the Republic:

In preamble, there is a mention of fraternity. The circumstance that

the persons of other communities, religions are supporting the minority
community show that we have achieved fraternity to great extent. Doing
something against this will hurt the fraternity and will create danger
to the unity of the country. (Order dated 13 February 2020, petition
no. 903 Cri WP 223.20, emphasis added)

In addition, the court acknowledged the right of the people to ‘ex-

press their feelings’ as provided under Article 19 of the Constitution if
they felt that the Act was against ‘equality’ assured by Article 14 of the
Constitution and prevented their enjoyment of ‘life’ under Article 21
of the Constitution. The ADM’s order could be construed as a ‘breach’
 Recalling Citizenship 221
of fundamental rights. Locating the agitations again in the history of the
freedom struggle, the judges held the view that ‘non-​violent and peaceful
protests’ were ‘not against the constitution’, and were the way India had
‘won her freedom’. The agitators could not be called ‘traitors’ and ‘anti-​na-
tionals’ for opposing the law:

We are fortunate that most of the people of this country still believe in
non-​violence. In the present matter also the petitioners and compan-
ions want to agitate peacefully to show their protest. In British period
our ancestors fought for freedom and also for the human rights and due
to the philosophy behind the agitations, we created our constitution. It
can be said that it is unfortunate but the people are required to agitate
against their own Government now but only on that ground the agita-
tion cannot be suppressed. . . . This Court wants to express that such per-
sons cannot be called as traitors, anti-​nationals only because they want to
oppose one law. It will be act of protest and only against the Government
for the reason of CAA. (Order dated 13 February 2020, petition no. 903
Cri WP 223.20, emphasis added)

Elaborating on the importance of ‘dissent of the people’, the judges re-

minded the government that it needed to be ‘sensitive when it exercises
powers given by law’:

Unfortunately, many laws which ought to have been scrapped after

getting freedom [have] continued and the bureaucracy is exercising
the powers given under those laws and now against the citizens of free
India. The bureaucracy needs to keep in mind that when the citizens
who believe that [a]‌particular act is an attack on their rights which were
achieved by freedom struggle and when it is against the provisions of
constitution which people have given to themselves, they are bound to
defend that right. If they are not allowed to do so, the possibility of use
of force is always there and the result will be violence, chaos, disorder
and ultimately the danger to the unity of this country. That seriousness
needs to be kept in mind by the bureaucracy while making such orders.
This Court is observing with all possible seriousness that officers from
bureaucracy who are vested with powers of aforesaid nature need to be
sensitized by giving them proper training on human rights which are
222 Citizenship Regimes, Law, and Belonging
incorporated as fundamental rights in the constitution. (Order dated 13
February 2020, petition no. 903 Cri WP 223.20)

Among the protections afforded by the courts to anti-​CAA ‘agitators’ was

the Rajasthan High Court’s order in a petition against an FIR filed by the
Rajasthan Police against protestors in Udaipur on 29 January 2020. In its
order of 12 February, the court issued a notice to the state government
and restrained the police from taking any action against the petitioners
till the next hearing. The protest had been organized by what the peti-
tion described as ‘practicing advocates, retired police officers, and social
activists, among others’, under the aegis of Bahujan Kranti Morcha, for
which permission had been obtained from the administration. Yet, the
petitioners alleged, the police used ‘excessive power’ against them and did
not allow them to ‘enter the Bapu market area on the scheduled day of the
protest’. The petitioners accused ‘an unknown person, not part of their
group’ of ‘intentionally raising slogans like ‘Hindustan mein rehna hai toh
Jai Shri Ram kehna hoga’ (If you wish to stay in India, you need to say
Jai Shri Ram) during the march, after which the police got a legitimate
reason to crack down on the protesters’.19

Democratic Iterations

The robust opposition to the CAA in the Rajya Sabha, where the pro-​CAA
numbers eventually prevailed with a narrow margin, reverberated in the
state assemblies. In an iteration of the federal process, the legislatures of
states ruled by parties that had opposed the CAA in the Parliament re-
solved not to implement it in their states. On 31 December, the Left
Democratic Front government (LDF) in Kerala led by Pinarayi Vijayan
passed a resolution against the CAA in the state assembly and put a stay on
the NPR process in the state. In a significant move, the state of Kerala filed
a suit in the Supreme Court of India challenging the constitutional va-
lidity of the CAA under the provisions of Article 131 of the Constitution.
Under this Article the Supreme Court has original jurisdiction in a dispute

19 ‘Rajasthan HC Pulls Up Police for Coercive Action against Anti-​CAA Protesters’, The Wire,

15 February 2020.
 Recalling Citizenship 223
between the Centre and a state government, if the dispute involved ‘any
question (whether of law or fact) on which the existence or extent of a legal
right depended’. In its plea before the Supreme Court, filed on 13 January
2020, the government of Kerala argued that the compulsion to imple-
ment the CAA and the Passport (Entry into India) Rules and Foreigners
Order, which the state government considered ‘manifestly arbitrary and
unconstitutional’, had resulted in a ‘legal dispute’ between the state and the
Centre in which questions of legal rights were involved:

In accordance with the mandate of Article 256 of the Constitution,

the Plaintiff State will be compelled to ensure compliance of the provi-
sions of the Impugned Amendment Act, the Impugned Passport Rules
Amendments and the Impugned Foreign Order Amendments, which
are manifestly arbitrary, unreasonable, irrational and violative of fun-
damental rights under Articles 14, 21 and 25. Thus, there exists a dis-
pute, involving questions of law and fact, between the Plaintiff State of
Kerala and the defendant Union of India, regarding the enforcement
of legal rights as a State and as well for the enforcement of the funda-
mental, statutory, constitutional and other legal rights of the inhabit-
ants of the State of Kerala. Hence, this Original Suit under Article 131 of
the Constitution is being led.20

Saskia Sassen (2011) and Aihwa Ong (2006) see the urban street and the
cyberworld as spaces of citizenship formation and performance, where
diverse groups may come together as epistemic communities to protest
against the state and demand an end to corruption, nepotism, and auto-
cratic rule. Seyla Benhabib (2007) stresses the need for a different kind
of resistance, which she calls a politics of democratic iterations, referring
to complex processes of public deliberations which take place in institu-
tions of the state and civil society. The sites at which democratic iterations
can take place are the entrenched and structured political and represen-
tative public institutions like the legislatures, decision-​making bodies
like the executive and the judiciary, as well as in what Benhabib calls the
‘informal’ and ‘weak’ publics of civil society associations and the media.

20 ‘State of Kerala Files Suit in SC Against Union Govt Challenging Citizenship Amendment

Act’, Live Law.in, 14 January 2020.

224 Citizenship Regimes, Law, and Belonging
With the iterative processes set in motion by the Kerala government,
which may be seen as a continuum of the ‘political’ created in the streets,
several states followed suit. The Congress-​ruled Punjab Assembly passed
a resolution on 17 January 2020 seeking repeal of the CAA by the Central
government, arguing that it was an attack on the secular fabric of the
country. Stating that the contexts surrounding its passage were reminis-
cent of Germany under Hitler in the 1930s, the Chief Minister sent a copy
of the Mein Kamph to Sukhvinder Singh Badal of the Shiromani Akali Dal
(SAD), the main opposition party in the state and an NDA ally, to stress
his point.21 In addition, the state assembly asked the Central government
to put the NPR process on hold till the time apprehensions among people
that the NPR was a prelude to the NRC and would facilitate the imple-
mentation of CAA was allayed. Passing the resolution after a three-​hour
discussion, the Parliamentary Affairs Minister in the Punjab govern-
ment, in an indication of the ties between the people’s demands and their
iteration in institutionalized spaces, referred to the ‘countrywide anguish’
caused by the CAA and the peaceful protests in Punjab which ‘involved
all segments of society’. Asking that the NPR forms be changed, Chief
Minister Amarinder Singh confirmed that the census in Punjab would
be prepared based on past practices.22 The Rajasthan Assembly became
the third state legislature to pass a resolution against the CAA, NPR, and
NRC urging the Central government to repeal the CAA, after a five-​hour
debate in the Assembly. The Congress-​ruled state under Ashok Gehlot,
like Punjab, asked the Central government to withdraw the ‘new fields
of information’ that were being sought in the NPR process, since ‘a sub-
stantial section of the population believed that the NPR and the NRC
had the same base as the CAA’. In an important intervention, the resolu-
tion drew attention to the fact that the rules under the CAA had not yet
been framed, which he attributed to the Centre’s concern that they too
would face challenge in the Supreme Court.23 On 27 January 2020, the
West Bengal Assembly passed a resolution against the CAA, brought by

21 ‘Amarinder Sends Sukhbir Copy of Mein Kamph’, The Hindu, 23 January 2020.
22 ‘After Kerala, Punjab Assembly Passes Resolution against the CAA,’ Newsclick, 17 January
2020; ‘Punjab Assembly Passes Resolution against CAA by Voice Vote,’ The Times of India, 17
January 2020.
23 Mohammed Iqbal, ‘Rajasthan Assembly Passes Resolution against CAA’, The Hindu, 25

January 2020.
 Recalling Citizenship 225
the TMC, supported by the Congress, and left parties. Mamata Banerjee’s
government had passed resolutions against the NRC in the state assembly
in July 2018, demanding its withdrawal in Assam and in September 2019,
opposing its possible application in West Bengal.24 Banerjee had on sev-
eral occasions challenged the Central government over the NRC saying
that it could be implemented in West Bengal only ‘over her dead body’.25
On 30 January 2020, the Congress-​ruled Chhattisgarh Cabinet under
Chief Minister Bhupesh Baghel, passed a resolution against the CAA.26
The Madhya Pradesh Assembly, then under Congress rule under Chief
Minister Kamal Nath, passed a resolution against the CAA on 5 February
2020 for being against the spirit of the Constitution and asked the Central
government to scrap it. In line with the other state governments which
voiced apprehensions against the NPR, the MP government too asked
the Central government to continue with the NPR exercise only after
withdrawing the requirement of new information which had caused ap-
prehension among the people.27 On 12 February 2020 Congress-​ruled
Puducherry Assembly became the first Union Territory to pass a reso-
lution against the CAA and lodge a protest against the NRC and NPR,
amidst boycott and walkout by opposition members including the
AIADMK, AINRC, and BJP.28
The JD(U) had voted in favour of the CAA in the Parliament, where its
representatives had made it clear that Muslims in Bihar felt secure due to
a number of measures that the government of the state had undertaken.
On 25 February 2020, Bihar became the first NDA ruled state to move
a resolution against the NRC. Nitish Kumar, Chief Minister of Bihar,
veered to what may be perceived as a neutral position on the CAA saying
that it was a central law whose constitutionality was being evaluated by
the Supreme Court, but manoeuvred to support a resolution against the
NRC which was brought by the opposition party—​Rashtriya Janata Dal.

24 Shiv Sahay Singh, ‘West Bengal Assembly Passes Resolution against CAA’, The Hindu, 27

January 2020.
25 ‘NRC, New Citizenship Law over my Dead Body, Mamata Banerjee’, The Indian Express, 17

December 2020.
26 ‘Chhattisgarh Cabinet Passes Resolution against the CAA, Urges PM to Withdraw It’, The

New Indian Express, 30 January 2020.

27 ‘Madhya Pradesh Cabinet Passes Resolution against the CAA’, Business Standard, 5

February 2020.
28 ‘Now Puducherry Assembly Also Passes Anti-​ CAA Resolution’, India Today, 12
February 2020.
226 Citizenship Regimes, Law, and Belonging
As a result, the Bihar Assembly passed the resolution unanimously. The
Chief Minister also sought to assure the people of Bihar that the con-
tentious questions pertaining to the place and date of birth of parents in
the preparation of the NPR will no longer be asked.29 Two other states
with newly elected legislative Assemblies—​Delhi and Jharkhand—​led by
the Aam Aadmi Party (AAP) of Arvind Kejriwal and Jharkhand Mukti
Morcha (JMM) of Hemant Soren, respectively, passed resolutions against
the NRC and the NPR in its new format, soon after the new governments
assumed office. It is significant that by this time Home Minister Amit
Shah had begun clarifying the BJP government’s position saying that no
decision had been taken on a nationwide NRC and no documents would
be required in the preparation of the NPR, supplying information would
be optional, and no one would be marked doubtful.30 On 16 March 2020,
the Telangana Assembly passed a resolution against CAA, NRC, and
NPR for being ‘divisive’ and ‘endangering the unity and integrity of the
census’. The resolution also asked the Central government to amend the
CAA to remove references to religion and foreign countries. The resolu-
tion was moved by the Chief Minister K. Chandrashekhar Rao who chal-
lenged those who saw opposition to the CAA as anti-​national, to label the
Telangana Assembly ‘traitor’ for passing the resolution. The ruling party
in Telangana, the Telangana Rashtra Samiti (TRS) had opposed the CAB
in the Parliament.31 On 17 June, in the middle of a Covid-​19 lockdown
the Jagan Reddy government in Andhra Pradesh passed a resolution
against the NPR and NRC. The YSR Congress Party had supported the
CAB in Parliament and had been under pressure from opposition parties
in the state to pass a resolution against the CAA, NPR, and NRC. The CPI
gave a ‘Chalo Assembly’ call to put pressure on the state government to
join other states which had already done so.32 In a massive anti-​CAA rally
led by AIMIM, Asaduddin Owaisi had appealed to the Chief Minister to

29 Anirban Guha Roy, ‘Bihar Assembly Rejects NRC, Says NPR to Be Rolled Out with No New

Questions’, Hindustan Times, 25 February 2020; Nalin Verma, ‘How Nitish Kumar Made the BJP
Vote for an Anti-​NRC Resolution in Bihar’, The Wire, 27 February 2020.
30 ‘Jharkhand House Passes Resolution against NRC, Seeks NPR in the 2010 format’, The

Outlook, 23 March 2020; ‘Delhi Legislative Assembly Passes Resolution against NRC & NPR’,
Live Law.in, 13 March 2020.
31 ‘Telangana House Adopts Resolution against CAA, NPR and NRC’, The Economic Times, 17

March 2020.
32 ‘Opposition Parties Urge YRSCP, TDP to Oppose CAA, NRC in Assembly’, The Hindu, 13

January 2020.
 Recalling Citizenship 227
reconsider his decision of supporting the BJP on CAA.33 Thus, Andhra
Pradesh, Bihar, Delhi, Tamil Nadu, Kerala, West Bengal, and Madhya
Pradesh opposed the NPR in its current format—​demanding the res-
toration of the 2010 version. States like Rajasthan, Punjab, Kerala, West
Bengal, Telangana, and Chhattisgarh have, in addition, passed anti-​CAA
resolutions too. On 8 September 2021, the DMK which formed the gov-
ernment in Tamil Nadu after the state Assembly election in April 2021,
passed a resolution in the Assembly against the CAA for ‘betraying’ and
‘usurping’ the rights of Sri Lankan Tamil refugees in India.34
While the CAA was being opposed in the city streets and chowks, on
22 January 2020, a Supreme Court bench consisting of the then Chief
Justice of India, Justice S. A. Bobde, Justice S Abdul Nazeer, and Justice
Sanjeev Khanna, heard 144 petitions against the CAA 2019.35 The Bench
refused to pass an interim order to put a stay on the implementation of
CAA until the Central government had been given a chance to be heard
and segregated the petitions pertaining to Assam from the rest owing
to what the bench considered to be special conditions prevailing in
the state.36 Among the latter was the petition filed by the Indian Union
Muslim League (IUML) on 12 December 2019 after the CAA was passed
in the Rajya Sabha and before it received the President’s assent. The pe-
tition filed under Article 32 of the Constitution, joined by the IUML
Members of Parliament, was the first petition filed in the Supreme Court
challenging the CAA. The petitioners pleaded that they did not oppose
the grant of citizenship to ‘migrants’, but in its present form the CAA was
based on an ‘illegal classification based on religion’, which resulted in the
exclusion of Muslims and amounted to ‘religion based discrimination’.
The IUML’s petition was premised on the argument that illegal migrants

33 ‘No NRC in Andhra Pradesh, Says Jagan Mohan Reddy Amid Nationwide Anti-​CAA Protests’,

https://​ w ww.new ​ s 18.com/ ​ news/ ​ p olit ​ i cs/ ​ no- ​ n rc- ​ i n- ​ and ​ h ra- ​ prad ​ e sh- ​ s ays- ​ j agan- ​ mohan-​
reddy-​amid-​nat​ionw​ide-​anti-​caa-​prote​sts-​2433​947.html, https://​www.new​s18.com/​news/​polit​
ics/​no-​nrc-​in-​and​hra-​prad​esh-​says-​jagan-​mohan-​reddy-​amid-​nat​ionw​ide-​anti-​caa-​prote​sts-​
2433​947.htmly (accessed on 4 July 2020).
34 ‘Tamil Nadu Assembly Passes Resolution Urging Centre to Repeal CAA’, The Hindu, 8

September 2021.
35 Several petitions—​about 16—​were also made to urge the Supreme Court to declare the

amendments constitutional.
36 Murali Krishnan, ‘In 10 Points, Supreme Court Hearings on Citizenship Act Petitions

Explained’, The Hindustan Times, 22 January 2020.

 228 Citizenship Regimes, Law, and Belonging
constituted a ‘class by itself ’ and the application of any law to them should
not differentiate on the basis of religion, caste, or nationality.37 The ‘reli-
gious segregation’ in the Bill was not based on ‘reasonable differentiation’
in violation of Article 14 of the Constitution and went against the idea
of India as a country ‘which treats people of all faiths equally’. This peti-
tion was followed up by two applications filed on 16 January 2020 seeking
interim directions from the Supreme Court till its petition challenging
the constitutionality of CAA was heard. In these applications, the IUML
sought a stay on the CAA and a declaration from the Central government
that the CAA, NPR, and NRC were not related. The first application re-
ferred to the contradictory statements made by Union Home Minister
Amit Shah and earlier Minister of State Kiren Rijiju that NPR is the first
step towards NRC, and subsequent statements by the Prime Minister,
Home Minister, and the Union Law Minister denying plans for a nation-​
wide NRC and any link between NPR and NRC. These statements were
made in the wake of countrywide protests against CAA and NRC. Such
‘contradictory statements’, the application stated, were creating ‘wide-
spread confusion and panic among people at large’.38 The second applica-
tion filed the same day sought a stay on the 10 January notification which
brought the CAA 2019 into force.
While most petitions filed in the CAA were based on more or less
similar premises referring to the jurisprudence around Articles 14 and
21, secularism as part of the basic structure of the Constitution, the citi-
zenship provisions in the original constitutional text, international con-
ventions and human rights obligations, and the ramifications the CAA
would have on the ongoing NRC process in Assam—​there were varia-
tions in what was given salience in the petition, making each petition
also distinctive.39 A perusal of two petitions among those associated
with Assam—​by AASU (through its President Dipanka Kumar Nath and

37 ‘Breaking: Indian Union Muslim League Moves SC Challenging Citizenship Amendment

Bill’, 12 December 2019, Live Law.in.

38 ‘Centre Must Clarify If Nationwide NRC Will Be Prepared’: Indian Union Muslim League

Files Application in SC’, 16 January 2020; https://​www.live​law.in/​top-​stor​ies/​cen​tre-​must-​clar​

ify-​if-​nat​ionw​ide-​nrc-​will-​be-​prepa​red-​ind​ian-​union-​mus​lim-​lea​gue-​files-​appl​icat​ion-​in-​sc-​
151​684 (accessed on 8 July 2020).
39 These petitions may be accessed on Live Law.in; for example, https://​www.live​law.in/​top-​

stor​ies/​four-​new-​petiti​ons-​agai​nst-​caa-​in-​sc-​say-​it-​pri​vile​ges-​specif​i ed-​religi​ous-​pers​ecut​ion-​
read-​petiti​ons-​150​903 (accessed on 7 July 2020).
 Recalling Citizenship 229
General Secretary Lurinjyoti Gogoi) and by Debabrata Saikia the leader
of the opposition in the Assam Legislative Assembly (along with Abdul
Khaleque, Congress MP from Barpeta and Rupjyoti Kurmi, a Congress
MLA from Mariani legislative Assembly constituency)—​shows the cen-
trality given to the Assam perspective, even as the general points of chal-
lenge to the CAA, consistent with other petitions, persist.40 It is also
significant that even when the Assam perspective is given primacy in
these petitions, the petitioners do not seek an exemption from the CAA
exclusively for Assam. The AASU petition, for example, appealed to the
Supreme Court to direct the Central government to ‘take effective steps
for implementation of Assam Accord in general and for conservation and
preservation of the distinct culture, heritage, and traditions of the indig-
enous people of Assam in furtherance to Clause 6 of the Assam Accord,
in particular’. At the same time, its first prayer to the court was to declare
the CAA as a whole or its specific sections ‘discriminatory, arbitrary and
illegal’ and set it aside as ultra vires—​going beyond the authority given
by the Constitution of India. The petition by Debabrata Saikia asked the
Supreme Court ‘in the interest of justice’ to quash the CAA, declaring
it unconstitutional and ultra vires Articles 14, 21, the Assam Accord,
the law laid down by the Supreme Court in S. R. Bommai vs. Union of
India (1994) and in violation of the basic structure of the constitution
of India’. The trajectory of the background events they draw to place
their prayers and make their appeal effective is a historical timeline of
Indian citizenship’s exceptional relationship with Assam. In its petition
the AASU describes itself as a ‘non-​political’ student organization whose
aims and objectives, among others listed, are to protect the indepen-
dence and sovereignty of India, the interests of the indigenous Assamese,
raising social, political, and cultural consciousness amongst students,
and strengthening national integration. The AASU claimed ‘representa-
tive capacity’ in making the petition by flagging the leadership it gave to
the Assam Movement (1979–​1985) against illegal migration and ‘in for-
malizing a solution’ through the Assam Accord to ensure the ‘academic,
cultural and developmental requirements of the State of Assam’. It chal-
lenged the CAA citing the long suffering of the people of Assam from the
‘consequences of illegal immigration of Bangladeshi citizens in Assam’

40 I am grateful to Abhinav Borbora for giving me access to the Congress petition.

230 Citizenship Regimes, Law, and Belonging
and seeking the ‘enforcement’ of their fundamental rights’, in particular,
the ‘identity of the Assamese people’, and the larger question of ‘national
security’. Enumerating the long list of legal measures the Assamese people
through their various organizations had taken to address these concerns,
including the Sarbananda Sonowal case (2005) which led to the repeal of
the IMDT Act, through the Assam Sanmilita Mahasangha (2005) case
which resulted in the Supreme Court-​monitored NRC in Assam, to the
petition by Hiren Gohain led Nagarikatwa Aain Songsudhan Birodhi
Mancha (Forum Against Citizenship Act Amendment Bill) which was
filed when the CAB 2019 was pending in the Rajya Sabha in February
2019, the petition made a case before the Supreme Court to declare the
three notifications by the Home Ministry ultra vires.41 The petition by
Debabrata Saikia too traced the ramifications of the CAA for the people
of Assam in particular. Calling the CAA a ‘colourable legislation’, for en-
suring ‘by design and default’ that the people excluded from the NRC,
who belong to specific religions may be able to seek protection under the
CAA, the petitioners raised concerns over the suspicion this would cast
over the proceedings of the Foreigners Tribunals: ‘CA, Act 2019 ensures
that the proceeding before the Foreigner Tribunal and detention would
be directly targeted against the Muslims alone. This will only make the
Foreigners Tribunal more arbitrary’. The CAA, they argued, would subse-
quently ‘render National Register of Citizens (NRC) in Assam meaning-
less’ making large numbers of illegal migrants ‘prospective beneficiaries
of the Act’, by proposing to ‘drop all charges against Non-​Muslim illegal
migrants’, with the result that the Foreigners Act would apply ‘only on
Muslims and Foreigners Tribunals will adjudicate only Muslims’. In ad-
dition, the CAA would contravene the Assam Accord, ‘destroy the fragile
ethnic and socio-​economic fabric’ of Assam and would thereby violate
Clause 6 of the Assam Accord’.42

41 These notifications were the Foreigners (Amendment) Order, 2015 and the Passport (Entry

into India) Amendment Rules, 2015 which exempted six non-​Muslim communities from
Afghanistan, Bangladesh, and Pakistan from the application of Foreigners Act, 1946, if they had
fled these countries due to religious persecution and entered the country before 31 December
2014. A third notification was made by the MHA in 2016 empowering the district administra-
tion to register as citizens of India and issue certificates of naturalization under the Citizenship
Act, 1955 to the earlier mentioned non-​Muslim communities, residing in specified districts in
the states of Chhattisgarh, Gujarat, Madhya Pradesh, Maharashtra, Rajasthan, Uttar Pradesh,
and Delhi.
42 A copy of the petition is available with the author.
 Recalling Citizenship 231
Three former civil servants—​Deb Mukharji, Somsundar Burra, and
Amitabh Pande—​filed a petition as ‘public servants’ who had ‘dedicated
their careers to protecting the interests of the nation and upholding the
principles of the Constitution’. The petitioners requested the Supreme
Court to either declare CAA 2019, its specific sections, and the various
executive orders to which the Act was giving effect unconstitutional
or to make their provisions applicable to all persecuted persons on the
territory of India. This would be commensurate with the ‘moral neces-
sity’ of having a just and fair legal regime of citizenship ‘consistent with
India’s historic place in the world as an open, plural and diverse society,
which has always protected those who need protection, which has al-
ways welcomed persons of all faiths, beliefs, and ways of life, and whose
civilisational character has always been defined by tolerance and assim-
ilation’. The petitioners believed that the CAA was inconsistent with all
these principles and violated ‘every known principle of equality and equal
treatment’, ‘damaged and destroyed’ the Indian Constitution’s basic fea-
ture of secularism and the ‘founding principles’ of the Republic of India—​
the idea of ‘civic nationalism’—​which was premised on ‘allegiance to the
Constitution’ and informed the values which defined what it meant to
be ‘Indian’, and the rejection of the ‘two-​nation theory’ that triggered
Partition’.43 Moreover, by deploying nationality and religion as principles
of differentiation, the CAA made a distinction between those exempted
from prosecution as ‘illegal migrants’, who could be put on a fast track
to citizenship, and others who were subjected to an ‘individualized ex-
ecutive procedure’ for the grant of Long Term Visas (LTVs) under the
Standard Operating Procedure (SOP) laid down by the MHA in 2011.
The petitioners emphasized also the point that had been raised in the
Parliamentary debate and other petitions on the arbitrariness of classi-
fication. While agreeing that the protection of religious minorities from
persecution was ‘a noble’ and ‘worthy’ goal, they argued that the CAA
ignored that there existed religious persecution of minorities in other
neighbouring countries, which too professed a state religion, and that re-
ligious persecution of groups other than Hindus, Sikhs, Buddhists, Jains,
Parsis, and Christians took place in all the three specified countries. The

43 This petition can be accessed on Live Law.in.

232 Citizenship Regimes, Law, and Belonging
Act created therefore, ‘an invidious and unjustifiable discrimination be-
tween individuals in identical circumstances’. It was, therefore, ‘devoid
of rationality, devoid of compassion, devoid of humanity, and devoid of
constitutional validity’.44 Moreover, the petitioners argued, by elevating
religious persecution ‘to the level of constituting justified claims to cit-
izenship, while refusing to accord the same sanctity to other forms of
(equally serious) non-​religious persecution’, the Act violated the basic
feature of secularism. ‘Indian secularism does not permit religion and
faith to determine an individual’s civil status in the polity (through cit-
izenship), either directly or indirectly. And it certainly does not permit
that to be done in a colourable and discriminatory fashion’. Indeed, dis-
pelling the argument that the basic structure doctrine could be applied
only to a constitutional amendment, the petitioners cited the Supreme
Court judgement in Madras Bar Association v. Union of India (2014),
which lay down that an ordinary legislation too could be held unconsti-
tutional if it violated the basic structure of the constitution. Asserting that
laws that dealt with legal status of non-​nationals and conferred or with-
drew citizenship ‘must be subjected to a rigorous standard of judicial re-
view’, since citizenship has been affirmed in judgements by the Supreme
Court, as ‘a most precious right’ (State of Arunachal Pradesh v Khudiram
Chakma 1993), which constitutes the foundation from which ‘critical
human rights’ flow. Citing the Supreme Court’s caution in the case Navtej
Johar v. Union of India (2018), the petitioners pointed towards the power-
lessness of ‘discrete or insular minorities’ to ‘protect themselves through
the normal channels of the political process’—​who must be protected by
the constitutional courts. Refugees and asylum seekers according to the
petitioners were ‘discrete and insular minorities’, who were ‘fleeing from
persecution’, and lacked the ‘basic rights that enabled participation in the
political process’—​the right to vote, freedom of speech, assembly, and as-
sociation—​among them required ‘searching and anxious’ scrutiny of the
Supreme Court. In making this scrutiny, it was desirable that the court
‘should impose a high burden upon the State to justify laws that are fa-
cially discriminatory’.
The petitioners argued that the CAA violated Article 14 of the constitu-
tion by ‘entrenching and perpetuating existing disadvantage, without any

44 Ibid.
 Recalling Citizenship 233
reasonable justification’. Asserting that Article 14 jurisprudence has been
‘continuously enhanced’ by the Supreme Court, and is no longer confined
to the ‘traditional’ classification and arbitrariness tests, the CAA would
have to satisfy the ‘vision of equality and equal treatment’ articulated by
the Supreme Court which focuses on social context and ‘prohibits the en-
trenchment or perpetuation of disadvantage’. Referring to Navtej Johar
(2018), the petitioners contended that the CAA was perpetuating dis-
advantage by focusing on ‘personal or immutable characteristics, which
are either beyond the control of individuals to alter (countries of origin),
or at the heart of individual autonomy and personal self-​determination
(religion)’. The CAA similarly violated Article 21, because it violated the
right to dignity as established in Justice K. S. Puttaswamy v Union of India
(2017).
On 17 March 2020, the Ministry of Home Affairs (MHA) filed a pre-
liminary counter-​affidavit (henceforth, counter-​affidavit) on behalf of
the Union Government, in response to the petition filed by the IUML
on 12 December 2019 (IUML vs. Union of India, WP (C) NO. 1470 OF
2019). The ‘preliminary’ counter-​affidavit was filed by the government to
oppose the grant of any interim order by the Supreme Court and to seek
time to peruse other petitions in detail. In its 129-​page counter-​affidavit,
the government gave a systematic defence of the CAA on ‘legal, factual,
and political’ grounds and claimed the right to respond to all other peti-
tions on a later date. Like all petitions pleading for the evaluation of the
CAA against the standards of validation inscribed in the Constitution,
the government’s affidavit too began with a ‘brief list of dates’ to lay down
the ‘bare facts’ pertaining to the case. Like most petitions, the affidavit
traced the historical trajectory of CAA 2019 to the Passports Act 1920 and
the Foreigners Act 1946 followed by the Partition of India as the anchor
from which other dates that are subsequently identified, followed. The
counter-​affidavit, however, went beyond listing the dates as ‘bare facts’
and turned them into a chronology of ‘events’ through an ‘evaluation’ of
their ramifications for the ‘turns’ in history that the dates represented.
Concerning itself in a large measure with establishing that the
Parliament had the ‘competence’ to legislate on matters concerning cit-
izenship, the affidavit drew upon Part II of the Constitution which car-
ries the citizenship provisions and Schedule Seven under Article 246
which maps the legislative relations between the Centre and the states
234 Citizenship Regimes, Law, and Belonging
and the subjects over which they had exclusive jurisdiction. Through the
former, it sought to establish both the indisputability of the power of the
Parliament to legislate on all matters concerning the acquisition and ter-
mination of citizenship and also the authority to deviate from the citizen-
ship provisions laid down from Article 5 to Article 10 (Page 3, Para 5). In
the distribution of legislative powers between the Centre and the states in
the Seventh Schedule, citizenship is placed in the list of subjects assigned
to the Central government.
Yet, there can also be identified a line of argument in the counter-​af-
fidavit which seeks to demonstrate that the CAA had not really changed
anything and merely inscribed in law what had always existed in prac-
tice. The list of dates gave prominence, through detailed enumeration
and description, to the emergence and development of the policy of
giving LTVs to persons who entered India from the three specified coun-
tries because of religious persecution and intended to make India their
home. The counter-​affidavit emphasized that the need for such a policy
emerged from the failure of the Liaquat–​Nehru Pact, which was signed
on 8 April 1950, to commit both countries to the protection of religious
minorities residing in their territories. It was in 1964 that the implica-
tions of this failure, because of Pakistan’s non-​adherence to its part of the
commitment, became evident. This argument corresponds closely with
the position taken by the Home Minister in the debates on the CAB in
the Parliament. In the narrative of events, the criticality of 1964 lay in
the communal violence unleashed in East Pakistan following the theft
of the holy relic in the Hazratbal shrine in Srinagar in December 1963,
resulting in large numbers of ‘refugees’ fleeing into Assam, Tripura, and
West Bengal. The debates that ensued in the Lok Sabha at that time led
to the decision that India could not take ‘a purely legal and constitu-
tional view’ on the matter. The fleeing people ‘were part of ourselves, with
whom we have ties of blood . . . if they find it impossible to breathe the air
of security in their country and they feel that they must leave it, then we
cannot bar their way. We have no heart to tell them “You go on staying
there and be butchered”.’ It was the ‘historical’ and ‘special’ circumstances
of the ‘specified communities’ in Pakistan, Bangladesh, and Afghanistan
that necessitated a ‘liberal and accommodative visa regime’ for minority
communities from these countries. In the 1980s, successive announce-
ments of change in ‘the policy regarding illegal entrance and settlement
 Recalling Citizenship 235
in India of minority communities’ installed a ‘relaxed/​preferential LTV
regime’, initially for Hindus and Sikhs and since 2011 for Christians and
Buddhists as well. These were ‘executive instructions’ that flowed from
the powers given to the Central government under the Foreigners Act
1946 and the Passport Act 1920. Much of the burden of the history of the
LTV regime traced in the counter-​affidavit was to argue that ‘a classifi-
cation based on special circumstances of specified minorities migrating
into India from Pakistan and Bangladesh for long term stay has been in
existence since last many decades’. Indeed, the affidavit lists a series of
instances to show how a border state like Rajasthan, which like Gujarat,
received refugees from Pakistan over a long period of time, requested for
rules which would enable the government to give citizenship to Hindu
migrants. The requests made by CM Ashok Gehlot of the Congress Party
over a period of time were cited as having paved the way for rules allowing
designated District Collectors in Rajasthan and Gujarat to grant citizen-
ship to ‘Pakistan nationals of minority Hindu community’. The CAA 2019
could then be seen simply as legal affirmation of a long-​standing policy
addressing the special conditions of refugees from neighbouring coun-
tries—​‘a benign piece of legislation’—​all it sought to do was to ‘provide a
relaxation, in the nature of an amnesty to specific communities from the
specified communities with a clear cut-​off date’.
Deflecting the allegations that it ignored other forms of persecution
by isolating religious persecution for consideration of citizenship protec-
tion, the affidavit admitted that the CAA 2019 was a ‘narrowly tailored
legislation’—​a ‘limited legislative measure circumscribed in its applica-
tion’—​not designed to ‘provide answers to all kinds of purported perse-
cutions’. It did not, moreover, change the already existing legal regime for
foreigners who wished to acquire Indian citizenship. The assertions that
it violated Article 14 of the Constitution did not, therefore, hold.
In buttressing the CAA against the charge that it violated the basic
structure of the Constitution and constitutional protections to equality
and life, the counter-​affidavit sought a foreclosure in the argument that
the CAA was protected from judicial scrutiny on any of these grounds.
The protection was drawn from what the counter-​affidavit referred to as
the averments by the Supreme Court, which it asserted had ‘repeatedly
held that in matters concerning foreign policy, citizenship, economic
policy, etc., a wider latitude for classification is available to the Parliament/​
236 Citizenship Regimes, Law, and Belonging
Legislature considering the subject matters of the challenge and the na-
ture of the field which the Legislature seeks to deal with’. Claiming that
the question of ‘entitlement and conferment of citizenship’ fell ‘within
the plenary domain of the competent legislature’, the legislature had the
power to ‘devise its own legislative policy’ on citizenship, which ‘may not
be within judicial review and may not be justiciable’. Decisions which are
an outcome of ‘Parliamentary legislative policy’ emerging from ‘execu-
tive foreign policy decision making’, it argued are not only outside the
purview of the constitutional court, the courts may not have the ‘requi-
site expertise to examine the parameters based upon which such legisla-
tive policy is enacted’. The ‘wider width of legislative policy and legislative
wisdom’ was available only with the ‘competent legislature’. Indeed, the af-
fidavit takes this argument further to emphasize that decisions in citizen-
ship matters which are concerned with immigration policy are generally
governed by ‘executive policy of the sovereign manifested by competent
legislation’. As a matter of foreign policy and security integral to the exer-
cise of sovereign power of a nation-​state, they were exclusively within the
domain of the state and could not come under the scrutiny of the court in
the form of a Public Interest Litigation:

. . . matters concerning the sovereign plenary power of the Parliament,

especially in regard to citizenship and the contours thereof, cannot be
questioned before this Hon’ble Court by way of a public interest peti-
tion. It is submitted that the cardinal principle of locus standi has been
diluted by this jurisprudence evolved by this Hon’ble Court only in
limited fact situations which cannot be extrapolated to include the pre-
sent constitutional challenge to the legislative measure of the Indian
Parliament in the domain of issues concerning citizenship/​immigra-
tion. It is therefore submitted that the scope of public interest petitions,
and the maintainability thereof, especially in matters concerning im-
migration policy must be decided as question of law by this Hon’ble
Court.45

45 Preliminary Counter-​Affidavit, available on Live Law.in.

 Recalling Citizenship 237
The Pandemic Effect

On 12 March 2020, the Director-​ General of WHO announced that

Covid-​19 was a pandemic, a conclusion drawn from the rapid spread of
Cornona virus cases outside China—​ the epicenter—​ where it had all
started in November 2019. The declaration by WHO called for a ‘contain-
ment strategy’ which required that countries escalated their efforts towards
taking preemptive action to delay the spread to ensure that the health care
system reached an appropriate state of preparedness to curb the impact and
eventually eradicate the virus. It was expected that these preemptive actions
would balance the overwhelming necessity to protect people’s health with
the need to alleviate the social and economic disruptions and human rights
violations these measures were likely to cause. These, the WHO admitted,
were likely to present dilemmas before governments in all countries.
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 lock-
down 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. In January 2020 a massive nation-​wide strike was called
by the trade unions to protest the government’s ‘anti-​people’ economic
policies and its plans for disinvestment and privatization of public sector
undertakings including those in the banking sector. 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—​pro-
tests were lifted or deferred—​announcing a period of hiatus till they re-
convened. 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.46 On

46 ‘Jamia, Hauz Rani, Mumbai Bagh: Coronavirus Forces Anti-​CAA Organisers to Suspend

Protests’, The Print, 23 March 2020.

238 Citizenship Regimes, Law, and Belonging
24 March, after a hundred days of incessant sit-​in, the women of Shaheen
Bagh, who had become the face of the anti-​CAA protest in the country,
also dispersed. On 7 October 2020, several months after the Shaheen
Bagh sit-​in folded up, the Supreme Court of India delivered an order
giving closure to an appeal to issue directions to the Commissioner of
Delhi police to clear the road occupied by ‘persons opposing’ the CAA
and the NRC. The appeal was in the form of a Special Leave Petition (SLP)
against the order of the Delhi High Court, which had disposed off the pe-
tition on 14 January 2020, the day that it was first heard, with directions
to the Delhi police to discharge their powers ‘to control traffic’ wherever
protests were taking place, in ‘the larger public interest’. The petitioner
turned to the Supreme Court when the order had no impact on the pro-
tests. On 17 February, the Supreme Court appointed two interlocutors
‘to meet the protestors at the site’. While giving the order, the judges
confirmed that those who felt aggrieved by the law had the right to pro-
test, but the ‘question was where and how the protest can be carried on,
without the public being affected’. By March 2020, after receiving what
it called ‘the second report’ from the two interlocutors—​senior counsel
Sanjay R. Hegde and mediator trainer Sadhana Ramachandran—​the
Supreme Court came to the conclusion that despite their best efforts, the
mediation process ‘could not fructify into success’. The judgement goes
on to refer to the Coronavirus pandemic as ‘the hand of God’ that ‘subse-
quently intervened and overtook the situation’. The protestors, the judges
wrote, showed ‘wisdom’ and returned to their homes, although some ‘po-
lice action’ was deployed to clear the ‘infrastructure’ that had been cre-
ated at the site of protest. Against this background, the three-​judge bench
of Justice S. K. Kaul, Justice Aniruddha Bose, and Justice Krishna Murari
turned their attention to the question of 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
form that ‘yields to social interest’:

. . . [W]e have to make it unequivocally clear that public ways and public
spaces cannot be occupied in such a manner and that too indefinitely.
Democracy and dissent go hand in hand, but then the demonstrations
expressing dissent have to be in designated places alone. The present
case was not even one of protests taking place in an undesignated area
 Recalling Citizenship 239
but was a blockage of a public way which caused grave inconvenience
to commuters. We cannot accept the plea of the applicants that an in-
determinable number of people can assemble whenever they choose
to protest. (Judgement, Amit Sahni vs. Commissioner of Police 2020,
para. 17)

Indeed, while stating that the Shaheen Bagh protests were ‘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’.47
The interruption of Shaheen Bagh and other ‘mini-​Shaheen Baghs’
that had proliferated in Delhi and in other cities set in a period of de-
ferral and interregnum in citizen democracy. 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 possi-
bilities of citizenship. In a sustained environment of fear of getting sick
and dying, the fear of the contagion ushered in the isolated monad as the
best defence in the ‘war on corona’, which worked on the logic of chan-
ging 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 re-​
privatization of home and privatization of work as the home became
the world of work. Through much of the 1970s and 1980s, the women’s
movement had striven to make the ‘home’ visible by rolling back the
devaluation of housework, the recognition of housework as unpaid
work, and contesting the idea of the domestic as a private space of in-
timacy and un-​coerced consent. The women’s movement had sought to
make the boundaries between the public and private permeable, to make
their relationship non-​hierarchical, and open it up to scrutiny against

47 Supreme Court Judgement in Amit Shani vs. Commissioner of Police (Civil Appeal no. 3282

of 2020) delivered on 7 October 2020.

240 Citizenship Regimes, Law, and Belonging
constitutional norms so that it became possible to see that the domestic
was a space of contestation, power relations, and gendered violence.
The pandemic saw rapid reversal of these gains. The sudden conflation
of the spaces of work—​amidst the uncertainty of the times—​reinforced
gendering of work—​care work and housework—​while cloistering ques-
tions of reproductive health, bodily integrity and dignity, and intimate
relationships. The phenomenon of privatization of violence occurred
alongside the participation of people in cultures of violence because of
rampant fear that has been part of the force of the pandemic.48
Domestication of the public occurred alongside cloistering of the pri-
vate space. The decline of the idea of the public as a space of trust, em-
pathy, 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 iso-
lating, 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, where
they would still face rejection, became the most emphatic statement of
estrangement from citizenship. The estranged bodies—​ walking car-
casses (Guru 2016)—​of the migrant workers/​pandemic refugees, the un-
touchable, 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.
For quite some time now, T. H. Marshal’s post-​War trajectory of so-
cial citizenship model has stood eroded. The solidarity of citizenship
for Marshall was established in a growing national consciousness and
‘awakening’ public opinion which produced the ‘first stirrings’ of com-
munity membership. The social inequalities and class structure, however,
remained till the working class learnt to wield ‘effective political power’.
Both—​the welfare models of the post-​war contexts and the workfare

48 ‘Domestic Violence during Covid-​19 Lockdown Emerges as Serious Concern’, Hindustan

Times, 26 April 2020.

 Recalling Citizenship 241
model—​were associated with citizens’ participation in the workforce and
strengthening of labour in employment through negotiation and collec-
tive bargaining. The acceleration of processes of disarticulation that had
set in with neo-​liberal citizenship—​proletarianization as a condition of
political citizenship accruing from the political power of collective bar-
gaining—​to neoliberal citizenship, where proletarianization meant loss
of power and disenfranchisement, was starkly evident when the cities
locked down. Rather than encouraging workers to stay or to return by
securing wages and improving working conditions, amendments in la-
bour laws were suggested to remove protections. Several states contem-
plated either suspending them altogether or increasing working hours,
despite the protection extended by the Supreme Court in its judgment
in PUDR vs Union of India (1982). In this judgement, the Supreme Court
noted that no one would willingly work for less than the minimum wage
without some force or compunction—​and that compunction could in-
clude hunger or poverty.
The abandonment of the citizen by the state corresponded with the ac-
centuation of 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 en-
hanced exponentially. From public order to public health, the Ministry
of Home Affairs has become more pronounced as it has seeped into all
spaces vacated by public power. The augmentation of emergency powers
of the state through the Epidemic Act 1892 and the protective role of the
state through the National Disaster Management Act 2005 have devolved
enormous responsibility and simultaneously powers onto ‘Home’ in the
governmental apparatus. The overdevelopment of Home in the state ap-
paratus 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. In these contexts the precariousness of citi-
zenship was made manifest as the functions of Home became more pro-
nounced in its coercive role of securing public order and the Parliament
remained 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 cen-
tral law to deal with terrorism, against students and activists reflect the
242 Citizenship Regimes, Law, and Belonging
way in which the CAA has been sutured to the national security architec-
ture. 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 to enforce
consent.
 Conclusion

This work traces the antecedents of citizenship in contemporary India to

the regimes of citizenship that were installed through successive amend-
ments in the Citizenship Act 1955. A citizenship regime, it is argued, is not
simply the Bare Act or the provisions of a law and the rules made under it,
but the way in which law is structured to produce specific power effects.
Through successive regimes of law, citizenship in India has gravitated
towards the principle of jus sanguinis which is founded in an ideology
of majoritarian communitarianism. The Citizenship Amendment Act
(CAA) 2019 and the National Register of Citizens (NRC) which consti-
tute the core components of the contemporary regime of citizenship are
an emphatic statement of this ideology. The procedure for the ‘updating’
of NRC in Assam with the requirement of establishing a link through ap-
propriate ‘public documents’ proving an Assamese ‘legacy’ has generated
a form of ‘hyphenated citizenship’ within Indian citizenship. The NRC, as
it unfolded in Assam established the relationship between legal status and
blood ties. Extended to the entire country, it envisions a ‘national order of
citizenship’ (Baruah 2009) based on the principle of parentage. The 2015
Land Border Agreement Treaty between India and Bangladesh is an ex-
ample of the possibility of legibility for those with ambivalent citizenship,
with the resolution of the question of legal-​juridical sovereignty of states
over their territories.
Although citizenship is understood as a condition of equality, it is de-
pendent on a prior status of membership and the distinction, therefore,
between citizens and non-​citizens. The association of citizenship with
‘legal status’ is a continuing legacy of passive citizenship of the absolutist
states which were concerned with imposing their authority over hetero-
geneous populations. Yet, citizenship is also about identity and belonging

Citizenship Regimes, Law, and Belonging. Anupama Roy, Oxford University Press. © Oxford University Press 2022.
DOI: 10.1093/​oso/​9780192859082.003.0006
244 Citizenship Regimes, Law, and Belonging
which are both constrained and enabled by the understanding of citizen-
ship as legal status, determined by the modes through which people ac-
quire citizenship and the conditions in which they can retain, relinquish,
or lose it. The idea that citizenship can be passed on as a legacy of ancestry
and descent has become part of the contemporary legal landscape of citi-
zenship in India. It transmits the idea of blood as an organizing principle
of a bounded political community and citizenship as inheritance. These
can be traced across generations and establish ties with a homeland that
holds out the promise of return, generating ideas of belonging which con-
strue citizenship as a natural and constitutive identity.
The contemporary regime of citizenship, this work argues, has its or-
igin in CAA 2003, which constituted a hinge point, from which the NRC
and CAA 2019 emerged as two discrete tendencies. The CAA 2003 con-
strained citizenship by birth, by limiting it to only those whose parents
were Indian citizens or one of the parents was an Indian citizen and the
other was not an illegal migrant. The amendment also put in place the re-
quirement of identification of citizens and the compilation of a National
Register of Indian Citizens (NRIC). This requirement activated docu-
mentary practices associated with the structuration and standardization
of state power, state-​formative practices and the intensification and ac-
centuation of state authority, internally and externally. The CAA 2019
gives exemption to a ‘class of persons’ from the category of ‘illegal mi-
grants’ prescribed by CAA 2003, in citizenship by birth and naturaliza-
tion provisions. In the process, CAA 2019 has put in place a citizenship
regime that extends the protection of Indian citizenship to those perse-
cuted on grounds of religion, making way for a form of de-​territorialized
citizenship. Yet, the de-​territorialization is deceptive since the protection
of CAA 2019 is available only to persons belonging to specific religions,
namely those Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians, who
are citizens of Pakistan, Bangladesh, and Afghanistan, and had entered
India before 31 December 2014. The CAA 2019, therefore, puts in place a
regime of citizenship ‘bounded’ by religious preference, concealed behind
the veneer of liberal citizenship. In binding citizenship to a preferential
regime based on religion, the CAA 2019 has ‘entrenched’ a religious-​ma-
joritarian order of citizenship. The legal ordering of citizenship is a man-
ifestation of the standardization and intensification of state practices of
ruling that takes recourse to bureaucratic practices of enumeration and
 Conclusion 245
identification to make citizens legible. At the same time, by making the
identification regime dependent on the ‘distinguishability assumption’
(Sadiq 2009)—​based on ‘legacy’ in the case of the NRC and religion in
CAA 2019—​it has projected citizenship, tied to blood and inheritance,
onto a national scale.
The Joint Parliamentary Committee (JPC) which recommended that
the CAB 2016 be considered in Parliament, argued against what it called
‘misconceived and mistaken notions of secularism’ coming in the way of
stopping the influx of illegal migrants into Assam and India (JPC Report
2019, p. 12). Earlier, on 17 December 2014, Justice Ranjan Gogoi and R. F.
Nariman of the Supreme Court of India, had delivered a judgement in
the case Assam Sanmilita Mahasangha and Others v. Union of India and
others [Writ Petition (Civil) No. 562 of 2012] laying down the modal-
ities and the schedule for updating the NRC in Assam. In its administra-
tive guidelines, the Supreme Court followed its decision in Sarbananda
Sonowal v. Union of India and Others (2005) in construing the ‘influx of
illegal migrants into the state of India as external aggression’. As a register
of Indian citizens, the NRC is simultaneously an exercise of identification
of illegal migrants/​foreigners—​termed ‘infiltrators’ (ghuspaithiya) by the
state. It is in this endorsement of closure that the NRC converges with the
CAA, even though the NRC and the CAA are based on different logics
of determining citizenship—​the NRC as a modality of identification of
citizens through the logic of documentary citizenship (Sadiq 2009) to
eliminate illegal migrants—​and the CAA as the extension of Indian cit-
izenship to specified religious minorities to affirm their right to return
to their homeland. The alignment of the NRC with an Assamese legacy
embedded the NRC, like the CAA, in an idea of citizenship, which was
ultimately based on identity drawing upon ethno-​cultural belonging.
The NRC initially found legitimacy in the ideological and political con-
sensus on the citizenship question in the Assam Accord, even though the
Accord itself does not mention an NRC. With the announcement of the
CAA, and the imbrication of the NRC and CAA in the electoral politics
of Assam, the NRC was woven into the agenda of Hindutva. The reluc-
tance of the ruling regime to take the NRC forward after the declaration
of the final list, which, contrary to expectations, excluded large numbers
of Hindus, manifests this alignment.
246 Citizenship Regimes, Law, and Belonging
The coincidence of citizenship regimes based on different logics ex-
acerbated the contradictions that had emerged during the preparation of
the NRC in Assam. These precipitated ferment in specific sites of assem-
blage of citizenship. James Holston describes assemblage as a space of ‘en-
trenched and insurgent forms’ which exist ‘in tense and often dangerous’
relationship with each other (2008, p. 33). The tension in the space of
assemblage occurs owing to the insurgent ‘irrupting’ in and unsettling
the site inhabited by the entrenched. In a different formulation, the CAA
and the NRC are seen as manifestations of contradictions in the state for-
mative practices following Partition, and the ‘nationalizing’ tendencies
inherent in citizenship regimes. The ‘reality of a post-​Partition space’, ar-
gues Sanjib Baruah is not in conformity with the ‘idealized notion of a
bounded national territory with a clearly defined community of citizens’
(2009, p. 593). The contemporary landscape of citizenship in India pre-
sents a space of assemblage where the CAA 2019 and the NRC exist in a
tense relationship, but also converge in their articulation of bounded citi-
zenship, producing disturbed zones of citizenship.
An identification practice based on specified documents recognized
as ‘public’ is a significant aspect of entrenchment of the contemporary
regime of citizenship. As seen in the process of updating the NRC in
Assam, documents became embodiments of citizenship identity. The na-
ture of the documents and the problems of accessibility and ownership
associated with each made some documents more worthy than others in
proving identity through legacy. This created a hierarchy among docu-
ments and among people, since some were more likely to possess those
documents than others. The hierarchy among documents based on their
effectiveness in providing evidence of citizenship was also reflected in the
articulation of preferred identities, and their selective use for the purpose
of identification and expulsion. Proving legacy through documents re-
quired a more difficult and a higher threshold for some, including mar-
ried women in rural areas who shifted residence after marriage. The
invocation of legacy through the NRC also unsettled the relationship be-
tween the constitutional/​legal frameworks of citizenship and the statu-
tory frameworks determining who can vote. Indeed, the peculiarity of
the electoral roll and the legal and conceptual association/​dissociation of
the two—​voter and citizen—​is evident in the contests over the electoral
roll in Assam. A citizen-​resident of Assam was required to trace his/​her
 Conclusion 247
lineage to the electoral roll of 1971 in Assam, and then buttress it with
the legacy data going back to the 1951 NRC of the state. Paradoxically,
the association of the electoral roll with legacy has ensured that the mere
presence of a person’s name on the electoral roll did not prove citizenship,
unless a link with a legacy person was also established.
The requirement of ‘legacy’ made citizenship a condition of constitu-
tive belonging. Ranabir Samaddar (2019) has argued that the constitu-
tive power of citizenship unfolds in two ways: as a procedure to arrest the
power of the family through the construction of a legal myth called legacy,
and as a process that results in the pruning of the power of an individual
to claim citizenship as a person. Samaddar calls this ‘technical power’ that
drives a wedge in the ‘broad continuum of the family reaching up to the
state’. Samaddar’s framework helps us understand how both these prac-
tices work through contradictory logics—​the substitution of the power of
the family to absorb the ‘awkward’ citizen to make her inaccessible to the
state, and on the other hand, reinstalling the order of the state through the
power of legacy—​traced through the family tree and verifiable by public
evidence. The expulsion of the individual in the new identification re-
gime reinforced the power of the state through its capacity to unsettle the
family by summoning individual members—​who consequently became
the nodes through which the entire family could be rendered suspect.
The citizenship regime put in place at the founding moment of the
Republic was structured by legal provisions that were premised on prin-
ciples of inclusion to ameliorate the effects of Partition. By giving legi-
bility to different kinds of movements across the newly created borders,
the ‘crisis’ precipitated by the cartographic sundering of people’s relation-
ship with land was resolved through inclusive citizenship. The contem-
porary narrative of ‘crisis’ in citizenship is sutured around the spectre
of ‘indiscriminate’ immigration and the risks presented by ‘strangers’
among us (Miller 2016). Such narratives of crisis have spelt out the condi-
tions of ‘extreme necessity’ which have given impetus to legal regimes of
citizenship across the world that have been averse to immigrants. These
regimes have recalled the sovereign’s power to command by controlling
the borders in the interest of a national community based on social cohe-
sion, trust, and shared interests. A corresponding tendency has been to
consolidate the ‘stock’, manifested in different modalities for providing
legal affirmation of affective belonging. One of these was the extension
248 Citizenship Regimes, Law, and Belonging
of ‘overseas’ citizenship to those who left ‘home’ to become citizens of an-
other country, made possible through CAA 2003. In 2019, the promise
of return and absorption in the ‘home’ country from adopted countries,
which are inhospitable or hostile, has been invoked as a statement of
citizenship identity based on descent. Shachar (2012) suggests that the
principle of descent underlying just sanguinis enables the sustenance of
ties with citizens and their descendants living abroad, often up to several
generations. Citizenship regimes of Poland, Hungary and other Central
and East European countries have displayed this approach. The Irish
Constitution makes it explicit that those of ‘Irish ancestry’ living abroad
share a ‘special affinity’ with the Irish nation owing to their common cul-
tural identity and heritage. A strong statement of cultural bonds and its
association with a right to return is found in Israel. The Law of Return
‘establishes an entitlement to citizenship’ for those with a Jewish ancestry
‘treating them as inpotentia members of the state, thus creating a legal and
symbolic link between existing members of the polity and a large dias-
pora community. This “right to return” is extended to family members,
up to a third generation, regardless of their own religious affiliation or
place of birth, as long as they can claim a lineage to a person who would
have been entitled to make aliyah (Hebrew: “to ascend”) to Israel, even if
that person is already deceased or never actually settled there’ (Shachar
2012, p. 1010). Apart from the ethno-​national and cultural turn in citi-
zenship, tendencies of ‘solidification’ of citizenship in relationship with
the ‘outsider’ are seen in citizenship regimes that had hitherto professed
republican or multicultural models of inclusion.
In November 2018, President Trump used ‘invasion’ as a metaphor
to refer to the caravan of thousands of asylum seekers approaching the
American borders along Mexico: ‘It’s like an invasion. They have violently
overrun the Mexican border . . . These are tough people, in many cases.
A lot of young men, strong men. And a lot of men that maybe we don’t want
in our country’ (Flynn 2018). The invocation of a crisis ridden border, the
need to deploy troops and install a wall at the border, along with the at-
tack on birthright citizenship was a common refrain by President Trump
in his election campaigns. In her novel Home Fire, Kamila Shamsie
(2017) writes about the estrangement of young Muslim men and women
born and brought up in England in the post 9/​11 and the rise of the ISIS
contexts. Their religious and cultural othering was, however, only part of
 Conclusion 249
the narrative of estrangement. Deeper and more consequential was the
complete withdrawal of state protection and the refusal of a right to re-
turn to a young man, who joined the ISIS and subsequently wanted to
exit. Shamsie’s fictional rendition of the conditions in which citizenship
can be reduced to a privilege is evident in most countries. It is, however,
especially significant for understanding the turn towards strengthening
those provisions that facilitate the deprivation of citizenship for public
good and in the national interest. The loss of citizenship in such contexts,
relegates the political relationship between citizens and the state, to revert
to a stage where citizenship becomes a privilege that can be withdrawn.
The distinction between those who deserve protection and those who do
not depends on what is construed as the capability of a person to show
sufficient and effective allegiance to the state. It also demands conformity
to an idea of citizenship, which is aligned with constitutive conditions of
belonging, such as ancestry and culture. By forming a community of de-
scent, the state no longer establishes its authority as the primary source of
universal membership, by standing above and independent of other local
communities of belonging. Indeed, the state itself becomes the commu-
nity to which citizens are tied constitutively.
The narrative structuring of a ‘crisis’ that makes an ‘appropriate’ citi-
zenship law imperative mystifies the ways in which law serves as a ‘cul-
tural and institutional artefact’ that masks the claims of ruling regimes
to organize the different aspects of social relations. Those who see laws as
part of the ‘superstructure’ would see them as instrumental in mediating,
reinforcing and consolidating existing class relations and power, which is
reflected also in the implementation of law through ‘rules and sanctions’
and ‘class bound’ institutions, including the courts. Law may, however,
also be seen as an ideology which legitimates these practices, but stands in
an ‘active relationship’ with society, often in a field of conflict (Thompson
[1975] 1990). The space of citizenship assemblage precipitated by CAA
and NRC has been replete with ‘irruptions’ which took ‘insurgent’
(Holston 2007) and ‘iterative’ (Benhabib 2007) forms. The debates in the
Parliament represented a strong opposition to the ideology of citizenship
embodied in the CAA and recalled the constitutional secularism of the
founding moment of the Republic. The Constitution was recalled and
reclaimed in the city streets and became emblematic of the transform-
ative moment of constitutional founding, which was resurrected by the
250 Citizenship Regimes, Law, and Belonging
people in their search for democracy as a ‘permanent ideal’ (Langa 2006).
Pius Langa’s use of the ‘metaphor’ of the bridge (Langa 2006) as an em-
bodiment of the constituent moment suggests a continuous quest for the
‘magnificent goal of democracy’. It is also a reminder that the search for
democratic citizenship does not have a terminal point. It demands a con-
tinual flow of people ‘on the bridge’, and its constant replenishment to
make it a zone of sustained inhabitation to guard against the breach of
democracy.
 Citizenship Regimes, Law, and Belonging: The CAA and the NRC
Anupama Roy

https://doi.org/10.1093/oso/9780192859082.001.0001
Published: 2022 Online ISBN: 9780191949678 Print ISBN: 9780192859082

END MATTER

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 Citizenship Regimes, Law, and Belonging: The CAA and the NRC
Anupama Roy

https://doi.org/10.1093/oso/9780192859082.001.0001
Published: 2022 Online ISBN: 9780191949678 Print ISBN: 9780192859082

END MATTER

Index
Published: May 2022

Subject: Indian Politics

 261Index

For the bene t of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear on only
one of those pages.
Tables and gures are indicated by t and f following the page number
Ackerman, Bruce
and theory of constitutional moments 30–31103
Ambedkar, B.R.
in art installation 207–8
constitutional morality 30–31127128
debate on citizenship in the Constituent Assembly 14–159799–103
invocation in anti-CAA protests 203–4212–13
Article 11
and legislative powers of Parliament 242846–47100102120–21
Assam
‘additional load’ 18–1958–59
Assam exception 615–2226–27
CAA 1985 618–20353642–4363–6476–7786–8788–8990t96–97
CAA 2019 See Citizenship Amendment Act 2019
deferred citizenship 612–1318–19
Foreigners Act 1946 4–515–1618–193640–4144–4571–7283–8589–9793t228–30233234–35
‘foreigners’ question’ 15–1635–3678–7986–87
graded citizenship 618–19363790t
history of immigration 15–16
IMDT Act 1983 15–1921–223637–3840–4190t
movement, AASU, AAGP 35–36
NRC See National Register of Citizens
NRC 1951 40
residual citizens 18–1937
Assam Accord 1985
Clause 2 35–36
Clause 5 35–37
Clause 6 57–588888n.8160–62228–30
and graded citizenship in Assam 37
‘negotiated settlement’ 18–1988–89
‘public contract’ 18–1988–89
Assam Sanmilita Mahasangha 42–43
judgement 2014 21–223442–474951–525396–97245
assemblage 6–987246249–50
aggregate of relationships 6–8
mobile and excluded populations 6–8
territorialized 6–8
web of contracts 6–8
Austin, John 22–23
‘monopoly of power’ 23
sovereign 22–23
Baruah, Sanjib 26–28354082n.4785–86159–60243
Baxi, Upendra 68–912103127149–50211–12
p. 262 belonging 8–1027–28215–16
 a ective 20–21165–66247–48
ambivalence of 29–30
blood and 8–929–30
commonality 9–10
constitutive 247249–50
and identity 9–1097101243–44
inherited 21
and NRC 57–58
polyrhythmous 8–9
relations of ligeance 9–10
terms of 4–58–1030–31106–7
territorial 8–9
zones of disturbed citizenship 9–10246
Bentham, Jeremy 23–24
demysti cation of law 23–24
Bharatiya Janata Party (BJP) 3–419–2057–5876–7987–89129134135–37138–39140–41142150–51155–
56157–58225–27
borders
anomalies 171
bounded geographical space 168–69
capacity to control 9–10
‘cultural and political’ 9–10
decolonization and morphological models 168–69
Nehru-Noon Agreement and the Berubari Union 169–70
political and territorial sovereignty 168–69
Radcli e Commission 169–70
and state sovereignty 168–69
bounded citizenship 68–920–2127–2885–86122129244–45
Brubaker, Rogers
national citizenship in Europe 5–6
citizenship
acquisition and termination 14–1546–4790t102–3120–21
norms and principles 102–3
power to District Collectors 83–85
power of Parliament 102233–34Article 11
SOP 2004 and LTV 83–85
by birth 8–913–1519–2036385051–52535486–8797–98
and CAA 2003 86–8791t
and debates in the Constituent Assembly 101
and section 3 of CAA 38–3989–96
citizenship identity 247–48
consciousness about 3–430–31108203–4
constitutional provisions 1314–1546–47109
impermanence of 102–3
creative insurgencies 2–3
deferred citizenship Assam
by descent 8–913–1519–2128–29365354687597–98129156–57243–44248–49
and debates in the Constituent Assembly 105–6112–13118–19
and NRC 156–57
 di erentiated citizenship 35–36
dissident citizenship 30–31
‘documentary citizenship’ 627–2860245
graded citizenship 618–19363790t
hyphenated citizenship 8–926–273458129156–57167–68243
identi cation regimes 29–3059–6068–69
as inheritance 13–1497–98106111–12243–45
instrument of closure 5–8
iterative practices 2–3130–31223–25249–50
liminality 29–31163–64167–68
national 5–62126–28118–19121–22129150–51156–57
political citizenship and proletarianization 240–41
residual citizens Assam
and ‘strangers’ 30–3167–68247–48
terms of belonging Assam
transformative, logic of 610–12
uniqueness of Indian citizenship 697–98
p. 263 citizenship regimes
‘aliens’ and ‘strangers’ 30–3167–68247–48
ancestry and the ‘right to return’ 247–48
‘boundary condition’ 34
conditions of ‘extreme necessity’ 247–48
consecutive regimes 6
constitutional imaginary 3–4
‘crisis’, notion of 9–1030–313435–3658–596077–7879122247–48249–50
and indeterminate citizenship 1318–1937109
‘Law of Return’ 247–48
logic of 4–568–911–1220–21246
closure 3458–59122245
the security state 56–57
‘mobility of people’ 9–10101167–68
national borders 9–10
solidarity models 9–103458–59
sovereign’s power to command 247–48
tendency in 8–919–2027–2885–8690t247–48
tightening of laws 9–10
Citizenship Act 1955 4–561319–2029–303551–5254–555690t109148
Citizenship Amendment Act 1985 619–20353642–4363–6486–8790t96–97
Assam exception 615–19
cut-o dates 18–19364345–4751–5296–97
graded citizenship Assam
section 6A 18–193651–525390t
constitutional validity of 42–4346–475051–5263–6476–78
Citizenship Amendment Act 1986 19–203851–5254–5590t
Citizenship Amendment Act 2003 619–2126–2733–3438–3945–4685–8691t160–62244–45247–48
and citizenship by birth 19–205390t
Citizenship Rules, 2003, 4, 4A 38–3951
the ‘hinge point’ 2186–87129156–57
and JACBR 50
 National Register of Citizens (NRC) See NRC
Overseas Citizens of India (OCI) 3890t
Citizenship Amendment Bill (CAB) 2016 21–223486–8788–8993t96–97119–20246
and Joint Parliamentary Committee (JPC) 119–29
Citizenship Amendment Bill (CAB) 2019 3–4101118–19129–30
p. 264 Debates in the Parliament 131–58
Amit Shah 134–37
‘citizen-activist’ 150–51153
‘communitarian majoritarianism’ 150–51
constitutional disharmony and constitutional identity 139
‘constitutional secularism’ 137–39150–51
‘dictatorship’ 153–54
ssures along party lines 131–32141–42
‘historical necessity’ 150–51
‘in ltrator’ 135–36145–46
and Jogendra Nath Mandal 151–52
law-making and judicial scrutiny 131–33
legislative competence or content 134
majoritarian politics 140–41
manifesto and electoral mandate 134–35
normal and constitutional politics 131
and Parliamentary democracy 140
partition and the Congress 151–53
‘persecuted minorities’ 137–38
populism as political strategy 135–36
regional traditions of martyrdom 153–54
relationship with NRC 97–159
violence against Hindus 140–41
voices from the North-East 143–49
Voting in Parliament 88–89
Citizenship Amendment Act 2019 3–4614–1522–2327–288283–868994t118–19
communitarian majoritarianism 150–51243
and executive orders 96–97
and illegal migrants 96–97
minority communities 89–96
national-majoritarian 21
protests against See protests against CAA
veneer of liberal citizenship 27–2885–86122244–45
civil disobedience in South Africa 1–2
Constituent Assembly
debate on citizenship 99–118
agonism 101
classes of people 104–5
‘common citizenship’ 115–16
and constitutional disharmony 98–99100
and constitutional identity 98–100114–15
and constitutional incrementalism 102–3
and constitutional moments 103
distinguishing ‘migrants’ from ‘returnees’ 109–14
 distinguishing ‘permanent home’ from ‘homeland’ 114–15
experience of Assam 116–17
evacuee property 109–10
as ‘extraordinary provisions’ 116
fault-lines 97–98
non-discrimination 115–16118–19
principle of secularism 114–15117–19
and ‘religious identi cation’ of citizenship 105–8
tumultuous times and inclusionary citizenship 141–42
unbridled power of Parliament 108
deliberative body 1214–15
ideational disagreements 13–1497
institutional arrangements and time delays 142
interlocutory spaces 103
juridical norms 19–20
locating the legal sovereign 12
‘passions’ in 12–13
‘permanent provisions’ for citizenship 97
‘principles’ of citizenship 13–1528–2999–100102–3117–18121145–46
prior consensus 14–15101102–3140
state formative practices 1259–60204–5
p. 265 Constitution
as best-seller 203–4
commencement of 10–111222–23
conversations about 30–31
emancipatory project 11–12
and everyday life 26206
familiar 26
giving process 99–100
as higher-order law 117–18
installations and live art performance 207–8
cognitive and somatic experiences 209–10
constitutional text as image 209
‘fear’ and ‘hope’ 207–8
Riyaz Komu’s ‘Holy Shivers’ 207–8
‘The Delhi Walk’ and Maya Rao 209–11
an insurgent text 204–5
dialogic space 207–8
intelligibility of 213–14
narrativized 207
objectives of 14–15
and the ‘people’ 26206–7
people as source of authority 3–410–11
as performative text 203–4
‘popular’ 26203–4206
popular sovereignty and Article 395 205–6
The Preamble 203–4
Cooch Behar 29–30164–65167–68169n.4171–72
Camps
 Dinhata 29–30164–65172–73180181182183–84185186–87188189190193–94198
Haldibari 29–30164–65185186–87188190193–94
Mekhliganj 29–30164–65181185186–87188191–92193–94
Chhits 29–30164–65166–67197198199–200201–2
democratic iteration 8–9222–25
Derrida, Jacques, ‘mystical foundations of authority of law’ 25–26
discrete tendencies, NRC and CAA 21244–45
‘distinguishability assumption’ 660244–45
enclaves 29–30164–65
and ambivalent citizenship 85–86
‘Bharat panthi’ 175–76
and border-making 168–70
Chhitmahal United Council O ce 174
citizenship through acquisition of foreign territory 87
exchange of 163–64168–73
fragmented citizenship 165–67
‘haphazard’ borders, territoriality and sovereignty 165–66
‘hoisting’ the national ag 174
split-citizenship 167–68
and territorial sovereignty 29–30
enumeration 43
bureaucratic practices of 244–45
and Citizenship Rules 2003 51
house-to house 26–2738–39
legal regime of 21
and NPR 160–62
and NRC 58–62
of voting population 206–7
‘event’ 16–18
critical 16–18211234–35
ethics of political action 211
modalities of political action
of protest 210–11
time/space 16–18
Executive Orders 2015, 2016
and CAB 2016 29–30231–32
and Foreigners Act 1946 96–97222–23
and Passport Act 1920 96–97222–23
Gandhi, Mohandas Karamchand 1–2114–15
civil-disobedience 150–51154–55
Dhamma-Swaraj 207–8215–16
Gauhati High Court 26–2740–4148–4963–6469–73
Hindutva
and CAA 2019 10–1186–87129245
majoritarian order 6
politics of 20–21212–13
homeland 27–28114–15167–68
and belonging 106
of Hindus 86–87115–16
 migration and 181–82
promise of return 243–44
return to 114
and Sikhs 107
identi cation of citizens 36
Immigrants (Expulsion from Assam) Act 1950 44–4550
Joint Parliamentary committee (JPC) and CAB 2016 3–421–2228–2985–8687–8897102119–29
constitutional experts 122–24
p. 266 constitutionality of CAB 123–24
Article 14 and the question of reasonableness and intelligibility 124–26
and authority of precedent 128–29
and constitutional morality 127–29
and critical morality 128–29
Naz Foundation and the ‘test of reasonableness’ 126–27
in liberal democracies 121–22
and ‘natural’ citizenship 121–22
and opposition to CAB 2016 in the North-East 88
and the principle of ‘legislative competence 120–21
jus sanguinis 6–813–1486–8788–8997
jus soli 6–813–1486–8797
Land Border Agreement Treaty (LBAT) 2015 8–929–30163–65166–67171–72192200–1
Bangladesh Vinimaya Committee 174–76177
BDO o ce and enclave settlements 185186–87188
th
Constitution 119 Amendment Act 2015 170–71
and displacement of population 171
exchange of population and territory 164–65171
land and homeland 167–68
LBAT 1974 163–64
‘new’ citizens 164–65166–67183–84189201–182
daily lives 195–97198–99
funds for 197–98200–1
MNREGA cards 197
relationship with land 194–95199–200
West Bengal Land Reforms (Amendment) Bill 2018 200–1
sedentary 193
voter ID cards 197198–99
and citizenship status 201–2
option taking survey 171–72186–88
possibility of legibility 243
Protocol of 2011 163–64
‘returnees’ 164–65166–67181–83185189190192194–95200–1
biometric details 192–93
and ‘family’ 185–87190191–92
land left behind 182–84
land and rehabilitation 190
‘mobile’ citizens 193
‘right to choose citizenship’ 166–68
section 7 of Citizenship Act 1955 167–68192
state assembly elections 189–90191–92197
p. 267 law
anthropological e ect 6–8
anthropological function of, Alain Supiot 7n.7
anthropological scrutiny 4–5
anthropological subject, Laura Nader 7n.7
Article 13 of the Indian Constitution 22–23
authorial power of state 9–10
Bare Act 4–5
coalescent present 4–5
constitutional standards 23–24
deliberative content 31–32
enforceability of 22–2324
eld of 23–24
force of 2–32325–26
in force 22–23
foundational violence 25–26
ideological embeddedness 4–5
imperative of command 23–24
iterations of 8–9
juridical person 6–87n.7
justice as legal virtue 23–2426
just law and morality 25–26
law-making, limits of 28
legal subject 6–822–23
limits of 22–23
‘moral order’ 23–24
normative claim 2328–29120–21
originary violence 25–26
question of authority 23120–21
rules of recognition 25–26
standards of validation 23–24
temporalities of 4–5
test of validity 23
vertical structure, obedience 22–23
violence of 9–1023–2425–26
Manto, Saadat Hassan 12–3
Singh, Toba Tek 1
Marshall, T.H. 5–6240–41
migrant
ambivalent location 9–10
disruptive gure 9–10
‘illegal’
act of aggression 15–1637–3846–47
and Assam Accord 1985 18–19
and CAA 2019 2128–29
Citizenship Rules 4A 51
and elections 15–16
Foreigners Act 1946 14–15
and the IMDT Act 1983 15–18
 national security 9–10
section 6A, constitutionality 4346–47
National Identity Cards 620–2126–2733–3438–3991t160–62
national identity systems 59–60
National Register of Citizens (NRC)
adjudicating citizenship 3442–43
All Assam Ahom Association 42–49
Assam exception 34–3637–4046–4756–5790t158–59
Assam Public Works, petition 42–49
Assam Sanmilita Mahasangha, petititon 42–49
challenging 6A 43–44
challenging Rule 4A 51
judgement in 43–49
bureaucratic rationality 61–62
children of ‘illegal migrants’ 51–56
‘detectability’ 68n.30
detection and expulsion 28–29
documentary practices 26–27
documentary regimes 657–76
emotive appeal 60–61
hyphenated citizenship citizenship
identi cation regimes 29–3059–6068247
ideological alignment with CAA 28–29
JACBR 50
legacy 2126–2733–345558243–47
constitutive belonging 247
legacy data 33–3463–646568246–47
legacy document 67–6869–72
and electoral rolls 63–6469–70246–47
evidentiary paradigm 68–69
and ‘family tree’ 65–66
and linkage documents 63–6467–68
panchayat certi cate AND ‘migrated married women’ 71–75
‘public document’ 67–68243–44246–47
legacy person 65–667274–75246–47
legacy trace 68–70
legal myth 247
lists/drafts 33–3441–42
unique legacy data code 63–6468
‘Miya poetry’ 79–80
National Registration Authority 33
NRC 1951 40–4158–5968
NRC Ulaigol 66
NRIC 620–2138–3953–54244–45
pilot project 40–41
Protests against
anti-NRC anthem 203
responsible participation 62–63
re-veri cation of nal list 80–81
 statelessness 29–30200–1
section 14A CAA 2003 38–39
section 4A Citizenship Rules 2003 38–39
Swajan and Bimalangshu Roy Foundation petition 50
challenging section 6A CAA 50
p. 268 Nehru, Jawaharlal 10–11205–6
and Constituent Assembly Debates 14–15102–3117–18
Overseas Citizens of India (OCI) 19–2086–8791t136–37
a ective belonging 19–20165–66247–48
and CAA 2003 8991t
and foreigners 90t
section 7A 91t
Partition 1
and belonging 12–13
and debates on citizenship in CA 97–119
and historical injustices 3–4
and OCI 19–20
and Part II of the Constitution 10–11
Protests against CAA 2019 422–232630–318385–8788146157–58160–62
alliances and solidarities 215–16
city as a critical space 212–13
constitutional citizenship 30–31102
Constitution-claiming as a moral experience 212–13
constitutional ethics 130–31215–16
constitutional morality and public conscience 212–13
courts and anti-CAA protests
Bombay High Court, Aurangabad Bench 217–22
dharna at Idgah maidan 217
dissent of the people and sensitive government 221–22
‘history of the constitution’ 219–20
‘rule of law’ 219–20
sense of fraternity and the freedom struggle 219–20
Rajasthan High Court 222
dissidence 30–31
domestication of the ‘public’ 240
empathy 203–4207–8212–13215–16
ethic of public action 212–13
fraternity 31–32
‘irruptions’ 215–16249–50
and making spaces public 213–14
pandemic e ect 203–4
petitions against CAA before the Supreme Court 227–33Supreme Court of India
Article 14 jurisprudence enhanced 232–33
‘Assam perspective’ in petitions 228–30
‘civic nationalism’ 231–32
‘founding principles’ of the Republic in India 231–32
‘illegal classi cation based on religion’ 227–28
‘individual autonomy and personal self-determination’ 232–33
‘religious segregation and ‘reasonable di erentiation’ 227–28
 politics of democratic iterations 223–25
Preliminary counter-a davit by the MHA 233–36
‘indisputability of the power of Parliament’ 232–33
‘legislative policy’ and judicial scrutiny 235–36
‘plenary domain of competent legislature’ 235–36
proliferation of 215–16
public conscience 30–31207–8212–13240
public interest petition 235–36
Shaheen Bagh 210–11212–14215–17219–20221239
Dhamma-Swaraj invocation 215–16
emotional citizenship and performance of a ect 214–16
the sit-in 214
Supreme Court decisions
‘blockage of public way’ 239
dissent and democracy 237–38
‘social interest’ 237–39
trope of motherhood 214–15
state assembly resolutions against 222–27
p. 269 refugees
and JPC 85–86
Long Term Visa (LTV) 83–8589
rehabilitation of 87
Sodha community 83–85
SOP for citizenship certi cates 83–85
SOP 2004 and 2011 and minority communities 83–85
Registration Act of Transvaal 1906 1–2
religious minorities 21–2283122–23231–32234–35
religious persecution 27–285076–7783–8689–96122–24125136–38143–45148–49157–58228n.39231–
32234–35
Resolution IV, jail going 1–2
Sarbananda Sonowal case and judgement (2005) 16–1822–2337–3844–4547–484956–5773–7476–77
illegal migration
act of aggression 37–3847–48245
and JPC 159–60228–30245
and state sovereignty 22–2337–38
secularism
basic structure of the Constitution 228–30
basis of republican citizenship 14–15
constitutional secularism 137–38150–51
constitutional value 133
debate on CAA 109138–39159–60245
democratic ideal 14–15101
sovereignty
parliamentary 27–28117–18
popular 2869117–18129140–41205–6212–13
state 16–1837–38106243
territorial 10–1129–30163–66168–70
‘the people’ 149–50
state
 as association of citizens 106
eld of power 4–5
governmental power 69
and legibility of citizens 9–1029–3059–60244–45
and policing activities 12–1316–1859–60239240
process of structuration 5–6206–7
structural e ects of 4–559–60244–45
tangible apparatus 4–5
Supreme Court of India
anti-CAA petitions 227–28
anti-CAA a davit, Kerala 222–23
anti-CAA petitions, AASU and Assam Congress 228–30
anti-CAA petition by ‘public servants’ 231–33
anti-CAA petitions, IUML 227–28
‘legal dispute between the state and Centre’ 222–23
and Berubari Union 169–70
constitutional validity of rule 4A of Citizenship Rules 2003 51
constitutional validity of section 6A 45–465051–5263–64
and the IMDT Act 15–18
modalities and schedule for updating the NRC 26–2733–3437–3840–4647–5051–5456–5764–6576–
7880245
children of ‘illegal migrants’ 54–56
gram panchayat certi cate 71–75
‘originally inhabitants’ of Assam 76
ordinary people as rights-bearing citizens 206–7
preliminary counter-a davit, MHA 233–36
section 144 Cr.PC 216–17
Shaheen Bagh sit-in 219–20237–39
state of West Bengal v. Anwar Ali Sarkar (1952) 123–26
‘territorialized assemblage’ 6–8
p. 270 Transformative Constitutionalism 11–12149–50211–13
‘a ective appeal’ 11–12
democratic future 211–12
‘magni cent goal of democracy’ 11–12211–12249–50
notion of past and future 10–12
Pius Langa, ‘metaphor of a bridge’ 11–12211–12249–50
South African Constitution 211–12
sovereign people 149–50
‘urban street’ 8–926130–31223–25
‘walls of separation’ 27–28122