Charter of a Nation’s Destiny

As we have seen, and as Gautam Bhatia has well described, the Constitution articulates ‘a vision of Indian citizenship that is interwoven with Indian constitutional identity as a whole: secular, egalitarian, and non-discriminatory. Drawing upon universal humanist principles—and in specific and conscious contrast to the State of Pakistan—the Constituent Assembly crafted an idea of citizenship that rejected markers of identity, whether ethnic or religious’. As Partition refugees streamed across the border in the largest exodus then known to humanity, fleeing religious violence, Alladi Krishnaswamy Ayyar, a veteran lawyer, advised the Assembly that, ‘It is for you to consider whether our conception of citizenship should be universal, or should be racial or should be sectarian.’ The Constituent Assembly specifically debated whether it should recognize nationality (in an ethnic sense) or citizenship (in a non-racial, ‘universal’ sense) before opting for the latter. As K. M. Munshi observed: ‘The world is divided between the ideas of racial citizenship and democratic citizenship, and therefore, the words “born in India” become necessary to indicate that we align ourselves with the democratic principle.’

Conversely, P. S. Deshmukh spoke for those who wanted an explicitly religious basis for citizenship: he proposed that ‘every person who is a Hindu or a Sikh by religion and is not a citizen of any other State, wherever he resides’ should be eligible to be Indian. This was rejected after a debate in which Ayyar reminded the Assembly that ‘we are plighted to the principles of a secular State’. The Constitution, in other words, linked citizenship very specifically to the idea of a non-communal, non-denominational polity, without distinction of religion, race, caste, or class—the idea of India again. The ‘rigorously universal and non-discriminatory language’ of the constitutional provisions for citizenship, in Bhatia’s words, ‘were never intended to be read in isolation. Rather, they formed one strand in a web of harmonious and mutually reinforcing principles, which, woven together, made up the Constitution’. Citizenship was linked to ‘a coherent and morally consistent political vision’ of Indian nationhood.

This was the constitutional background to the practice of Indian secularism, which took pride in the fact that its citizenship was held by people of all conceivable religions and ethnicities. Foreigners—including former US president George W. Bush—had admired the fact that despite being home to 180 million Muslims, India had produced hardly any members of ISIS or Al-Qaeda. Indians would point with pride to the fact that this was because Indian democracy gave Muslims an equal stake in the country’s well-being. Sadly, we can no longer say that now.

The reason for fearing that this stake is now diluted is a recent [late 2019] challenge to, arguably, the most fundamental aspect of Indianness, through a law, the Citizenship (Amendment) Act (CAA), which fast-tracks citizenship for people fleeing persecution in Pakistan, Afghanistan, and Bangladesh—provided they are not Muslim. It is, without question, the first law to question a basic building block of our nation—that religion is not the determinant of our nationhood and, therefore, of our citizenship. The implications of this law immediately created an increase in tensions and a wave of protests around the country, leading to an eruption of violence in the nation’s capital that claimed fifty-three lives and left hundreds injured. It has also hurt the perception of India as an inclusive state which honours the equality of all and guarantees that the state will not practice religious discrimination. By excluding members of just one community, the new law is antithetical to India’s secular and pluralist traditions.

The implications—constitutional, political, social, and moral—are profound. The Act paves the way not only for declaring immigrants to be illegal if they happen to be Muslim, but coupled with an even more problematic National Register of Citizens the government announced that it intends to create (though it has since been deferred), would allow it to disenfranchise any Indian Muslim who is unable to prove his antecedents. Many Indians, especially the poor, do not have documentary evidence of when and where they were born; even birth certificates have only become widespread in recent decades. While non-Muslims would, thanks to this Act, get a free pass, similarly undocumented Muslims would suddenly face the onus of proving they are Indian.

It is, in many ways, a breathtaking departure from over seven decades of democratic practice in a country that was proud of its impressive record of managing stunning levels of diversity. As we have seen, the Constituent Assembly had rejected separate electorates, weighted representation, and reservations on the basis of religion. Yet the CAA for the first time introduced religion into a citizenship law in India. Our nationalist struggle had split on this question; it was by rejecting the extreme, exclusivist idea of Pakistan that our founders enshrined in the Constitution an all-inclusive, secular idea of India, which fostered a civic nationalism—as against an ethno-nationalism based on religion, language, culture, and ethnicity—ensuring that all those who call this land their home are equal citizens with equal rights, irrespective of all differences. Yet this fundamental question, of whether religion should be the determinant of Indian nationhood and citizenship, continues to haunt our politics. The religious bigotry that partitioned the country with the founding of Pakistan has now been mirrored in pluralist India. As I told my fellow parliamentarians, that was a partition in the Indian soil; this is now a partition of the Indian soul.

The Act’s supporters in the BJP were belligerent about their bigotry. ‘If Hindus cannot find a home in India, where can they?’ was their refrain. Their implicit argument, like that of Savarkar and Upadhyaya, is that India is a natural Hindu homeland; Muslims have other countries they can lay claim to. That was not what India was supposed to be: the shocking thing about this argument is that, in one piece of bigoted legislation, it sweeps aside the fundamental premise of Indian nationalism. The CAA is not just an affront to the basic tenets of equality and religious non-discrimination that have been enshrined in Articles 14 and 15 of our Constitution, but an all-out assault on the basic assumptions of the republic.

The BJP, which prefers to polarize the electorate by consolidating a majority ‘Hindu vote’ in every election, was quick to paint the anti-CAA agitation in communal colours, as Hindu vs Muslim. I urged Muslim protestors not to play into their hands by saying they were protesting as Muslims, which would only facilitate the other side’s efforts to divide opinion on communal lines. ‘Say instead that you are fighting for your rights as Indian citizens, and every right-thinking Indian will empathize with you,’ I argued. India’s resistance to injustice embraces all communities. I don’t have to be Muslim to object to Muslims being discriminated against in their own country. By creating a republic where all faiths are safe, India’s Constitution protects Muslims as well as others. We’re all in this together.

(Excerpted with permission from Shashi Tharoor’s ‘Our Living Constitution’; published by Aleph Book Company)