- In its second term in office, the Modi Government has enacted the Citizenship Amendment Act.
- According to the terms of the Act, Indian citizenship may be granted to migrants from neighbouring Muslim-majority countries, but not to Muslim migrants themselves.
- That has led to much public violence being enacted in New Delhi and other cities across India.
- That violence will not, however, change the government’s stance on preferential citizenship.
Prime Minister Narendra Modi began his long commitment to the Rashtriya Swayamsevak Sangh (RSS) and his membership of the Bharatiya Janata Party (BJP), both nationalist organisations, as a childhood member. Since his first election as India’s Prime Minister in 2014 and second in 2019, he has, with increasing clarity of purpose, picked up the mantle of his prime ministerial predecessor, Atal Bihari Vajpayee in 1996, enacting populist policies that have damaged minorities; an early example being the cow vigilantism affecting both Muslims and Dalits, which has grown comparatively unchecked, while protesters from across the spectrum are painted as “anti-national”.
Such naming suggests right-wing nationalism. In India, that term is increasingly clothed in populist rhetoric and the message is not to be mistaken. A majoritarian government, located somewhere between authoritarian and constitutional government, backed by a huge mandate, is unlikely to be swayed by judicial or bureaucratic precedents that hinder its agenda – in this case, that of re-affirming the ‘grandiosity of the Hindu civilisation’.
Now, to a considerable degree, Modi’s BJP Government has adopted 1996 Prime Minister Vajpayee’s Election Manifesto, which stated that, for his BJP Government, “Hindutva”, or cultural nationalism, ‘shall be the rainbow which will bridge our present to our glorious past and pave the way for an equally glorious future … The BJP believes in one nation, one people and one culture’.
Thus, in ‘An Agenda for Change: Constitutional Reforms’, (252, 1996 Manifesto), Vajpayee’s Section IV stated that:
We will abrogate Article 370 of the Constitution, which puts Jammu & Kashmir on a separate and separatist pedestal, for the state’s full and final integration with the Union.
The 1996 Manifesto also refers to action proposed to ‘construct a magnificent Shri Ram Mandir … in Ayodhya’ (256, 1996 Manifesto), and, in a passage on ‘illegal immigrants and amendment of immigration rules and other laws’, proposes to ‘impose stringent checks on illegal entry’ and the issuing of identity cards to all legal citizens. (279, 1996 Manifesto.) Thus, prominent demonstrations of cultural nationalism and discrimination in favour of Hindu India by a party, pro-Hindu since its inception, were stated clearly in 1996.
Initially consultative in tone, the preface to the BJP’s 2014 Manifesto raised the need to arrive at a consensus about what is described as the “idea” of India ‘in consonance with the seekings and preferences of the Indian people’, and listed other nationalist issues through the body of the text.
The 2014 Manifesto directly addressed Jammu and Kashmir, which ‘was, is, and shall remain an integral part of the Union of India …’ (p. 8, English version). It also stated that ‘BJP reiterates its stand to explore all possibilities within the framework of the Constitution to facilitate the construction of the Ram Temple in Ayodhya’ (p. 41, English version). The intention to set up a Ministry of the North-Eastern region, which would have among its tasks, addressing the ‘… illegal immigrants in the North-East region on a priority basis … and [with] effective control at the ground level’, was set out (p. 8, English version) – a “natural home” for persecuted Hindu refugees.
While a Citizenship Amendment Act was not referred to at that stage, in 2016, the second year of Modi’s first term, the BJP Government introduced a Bill (that then stalled in Parliament) to amend the citizenship laws to make Muslim migrants from surrounding countries, including Pakistan, ineligible for Indian citizenship.
Each of the above nationalist issues was then clearly illuminated in Modi’s 2019 Election Manifesto and promptly acted upon.
Two months after his party’s resounding victory in the May 2019 election, The Jammu and Kashmir Reorganisation Bill was passed by both houses of the Indian Parliament on 5-6 August, and the Prime Minister’s Hinduisation programme was under way. On 9 November, some three months later, the long-contested entitlement to the Babri Masjid site at Ayodhya, after decades of dispute and the illegal demolition of the structure in 1992, was decided in favour of Hindu ownership by the Supreme Court ‘on the balance of probabilities’, in a judgment drawn from Sections 795-98 in Part P, P2 Conclusion on Title. The judgment and its implications are discussed in detail in the Future Directions International Associate Paper, ‘The Ayodhya Dispute Resolution’, of 10 December 2019.
The Citizenship Act (CAA), passed by Parliament on 11 December, completed the BJP’s 2019 trifecta.
The Supreme Court, which has special powers under Section 142 of the Indian Constitution, is currently examining the CAA to establish or refute its contravention of the Constitution.
Crucial to a decision on the CAA’s validity is Clause 11 of the Indian Constitution, Part II – Citizenship (p. 5) that allows ‘Parliament to regulate the right of citizenship by law’. Thus, even without Constitutional Article 142 (1) setting out the ‘Enforcement of decrees and orders of the Supreme Court …’, what might be termed a ‘justice-oriented approach’, as prevailed in the Ayodhya case, is allowed for, rather than one based on the ‘rigour of law’. The Supreme Court hearing will, therefore, likely find in favour of the right to amend the Citizenship Act, despite its anti-secular element.
Amendments to the CAA enacted in December 2019 were the cause of protest in universities in many cities and of increasing communal violence, but will not change the Modi Government’s approach to preferential admission for any religious migrants from surrounding Muslim states desiring Indian citizenship, while denying that same right to Muslim applicants.
While, as said, the Constitution allows for amendment to the Act, Modi’s amendment contravenes constitutional provisions, as set out in that document’s Preamble:
We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens: Justice, Liberty, Equality and Fraternity….
In response to the passage of the Citizenship Amendment Act, demonstrations have broken out across India as noted above. Many protesters, in what became communal rioting with a slow initial police response, have met with violence from authorities. A number of have been killed – at the end of February, more than 40 had been killed in Delhi. Commentators have likened the behaviour to the massacre of Sikhs following the assassination of Prime Minister Indira Gandhi in 1984, but also to the Hindu-led violence against Muslims in Gujarat in 2003 and, in one strong (and telling) rebuke, ‘The police personnel who are accountable for the violence [in Delhi] … may not have stood by the Constitution, but they did stand by the BJP.’ Arguably incendiary, the BJP election platform in the early February 2020 Delhi elections projected the party ‘as the protector of Hindus … to create a divide between the two religious communities .…’ The BJP lost the Delhi elections.
The CAA and opposition to it, primarily mainly across the cities of India, may well be described as the greatest threat in more than 70 independent years to India’s definition as a nation. The key values set out with great clarity that India adopted at independence are embodied in the Constitution, cited above. India, as an inclusive, equality-based, multicultural democracy that added the word ‘secular’ to the Preamble in 1975, has introduced for the first time a religious criterion for citizenship.
The next impediment to the principles of the Constitution may be the implementation of a National Register of Citizens (NRC), mandated by a 2003 amendment to the Citizenship Act. It is an enormously difficult task, but one which could advantageously incorporate the CAA; Modi has promised its implementation.
While not addressed in this paper, it will be interesting to observe whether University of Queensland Chancellor and former Secretary of the Department of Foreign Affairs and Trade, Peter Varghese’s, development of a strategy to improve Australia’s economic relationship with India, which has been on a “slow burn” since its release in 2018, guided the recently-held Australia-India Business Exchange programme, and which included the Minister for Trade, Tourism and Investment, Simon Birmingham, who led a delegation touring India between 24-28 February. Is India, riven by discord since the implementation of Citizenship Act, fertile or sound geostrategic ground for Australia at this time? Should Australia raise concerns about India’s right-wing surge? Or should it continue to observe the familiar “Doctrine of Impunity” and the non-interference in another country’s domestic affairs?
* The title of this paper is an adaption of India’s Foreign Minister, S. Jaishankar’s, Conversation at the Raisina Dialogue on 16 January 2020, titled ‘The India Way’, broadly bearing on its contribution to global good rather than its path towards a Hindu India.
 Following religious violence in Gujarat in 2002, Modi, then the Chief Minister of that state, was charged before the Indian Supreme Court with failing to protect Muslims. His case was eventually dismissed, but is still remembered both at home and internationally.