Can a Hindu homeland be a democracy?
THE year 2020 began in the shadow of the Citizenship Amendment Act (CAA), enacted in December 2019, and the protests which followed. In 1950, when the Indian Constitution came into force, citizenship was awarded on the basis of birth and domicile (what is known as jus soli or birthright citizenship).1 Since 1950, there has been a piecemeal move towards an ethnic definition of citizenship to favour those who are Hindus by descent (what is known as the jus sanguinis principle of citizenship).2 The passage of CAA is a long leap in that direction, bringing India closer to becoming a Hindu homeland.3
Is the idea of an ethnic homeland compatible with the idea of democracy? It should not be. We have come to understand democracy in a colloquial sense as a source of all good things, including inclusion, participation, rights, protections and in particular, equality. We judge it against those yardsticks when it fails. To the extent that an ethnic homeland is by definition an unequal regime, which privileges co-ethnics (Hindus in this case) and discriminates against others, it should by definition be anti-democratic.
But, I will argue in this essay, democracy as we currently define it is perfectly compatible with ethnic exclusion of the extreme kind that the CAA highlights. This is not because such exclusion is legitimate. It is because there are silences built into our understanding of democracy that legitimize ethnic exclusion through the manipulation of citizenship law.
The CAA in India is simply one more example of how these silences allow democracy to coexist with remarkable forms of exclusion. In the past, these silences legitimized the practice of slavery, colonialism and apartheid in other countries while still allowing them to claim the moniker of democracy. In the present, they are driving the transformation of citizenship regimes in other democracies as well.
What the CAA and the public discourse around it in 2020 reveal is not so much the emergence of a challenge to the idea of democracy as its inherent fragility. A more robust notion of democracy, I argue, requires two additions: the incorporation of a theory of citizenship as an integral component, and an elaboration of the obligations that democracies have to non-citizens.
In the rest of this essay, I justify the interpretation of the CAA as a watershed in the redefinition of India as a Hindu homeland, elaborate on the silences in our current understanding of democracy, and identify the ways in which these silences enable the use of citizenship law to shape democracies as ethnic homelands. I conclude by addressing the question of how to create a more robust notion of democracy and what the stakes are if we do not.
According to the CAA, ‘any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014’ shall, subject to stipulations in supplementary legislation, ‘not be treated as illegal migrant.’4 It makes it easier for such a person to obtain Indian citizenship, by reducing the waiting period to apply from eleven years to five.
The ramifications of this act for the relationship between Hindu religious identity and Indian citizenship are not immediately obvious. It applies to migrants and not to those who are Indian citizens already. Further, its wording does not privilege Hindus over the adherents of several other religious traditions.
The government rejects the interpretation of the act as a pro-Hindu measure, portraying it instead as an attempt to protect the human rights of minorities from many religious traditions.5
According to the Home Minister’s statement of ‘objects and reasons’ accompanying the bill when it was introduced in parliament: ‘The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries. ... Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents… The Bill [further] seeks to grant immunity to the migrant of the aforesaid Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities so that any proceedings against them regarding in respect of their status of migration or citizenship does not bar them from applying for Indian citizenship.’6
Despite the mention of the adherents of six religious traditions in the act, however, Hindus are its principal beneficiaries. They are the largest religious minorities in Bangladesh and Pakistan. According to a 2015 report by the Bangladesh Bureau of Statistics, 88.2% of the population in Bangladesh is Muslim, 10.7% is Hindu, and 1.1% belong to other religions.7 According to Pakistan’s 2017 census, 96.28% of Pakistan’s population is Muslim, with religious minorities constituting only 3.72%. Hindus constitute 1.65%, not including Scheduled Castes, who are counted separately as 0.25%. Christians constitute 1.59%, Ahmadis 0.22%, and other minorities 0.07%.8 In Afghanistan, all non-Muslim minorities, taken together, are less than 0.3% of the population.9
By passing this legislation, therefore, the Government of India has created the legal basis for claiming the twenty million Hindus who live in Muslim majority countries in South Asia as potential nationals. This is comparable to the Law of Return in Israel, which enables non-Israeli Jews to settle in Israel and receive citizenship.
Second, Muslims are excluded from the purview of the act despite their experience of religious persecution. Thus, Shias in Afghanistan or Ahmadiyas in Pakistan or Rohingyas in Myanmar or Muslims in Sri Lanka are not covered. At the same time that the act reinforces the idea of India as a Hindu homeland, then, it also dissociates Muslims from that homeland.
Third, although this policy ostensibly applies to migrants only, it can be used in the accompanying exercise of the National Register of Citizens (NRC), to strip existing citizens of their rights based on religion. In Assam, where this exercise is currently underway, the burden of proof is on residents to prove citizenship. There is no single document that furnishes this proof. There are a host of documents (voter ID cards, ration cards, aadhaar cards, birth certificates) that could potentially be accepted, over which government officials exercise a great deal of discretion. The CAA allows Hindus and other non-Muslims who cannot furnish these documents legal recourse, while Muslims in the same position can be deemed ‘illegal migrants’.
Those who are classified on paper as citizens in India often do not have the de facto rights and legal protections that should accompany citizenship.10 But those who are deemed illegal migrants are denied even those paper rights. They are consigned indefinitely into a precarious limbo, with the threat of deportation, or detention in one of the several centres being built for the purpose, perennially hanging over their heads.11
To see how this exclusion is enabled by the silences in our current understanding of democracy, consider the range of ways in which we define that term. There is no single accepted definition of democracy. But all definitions agree that it is a system of government constituted in some way by and for ‘the people’.
Wikipedia, for instance, which I take as an example of the popular understanding of the term, describes ‘democracy’ as a term derived from the Greek demokratia, combining demos, ‘people’, and kratos, ‘rule’, to mean a form of government in which the people have the authority to choose their governing legislators.12
Wikipedia echoes Schumpeter’s definition of democracy as ‘that institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote.’13 Schumpeter’s definition is the originator of the family of ‘thin’ or ‘minimalist’ definitions that define democracy mainly in terms of competitive elections with full participation.
‘Thick’ definitions of democracy, by contrast, require not just competitive elections but also a larger set of norms, rights, processes and guarantees to call a system a democracy, including rule of law, accountability, responsiveness, deliberation, political equality, economic equality, and checks and balances, among other things.
All definitions, thick or thin, assume a ‘people’ entitled to select their leaders and assured of the institutional guarantees of democracy outlined above, who are different and separate from other people who are not. They assume, in other words, a closed society that distinguishes between insiders and outsiders with the right to participate, and its attendant institutional guarantees, for insiders only.
Who are these people and what are the criteria by which they are to be constituted? On this, democratic theory is silent. Most authors concerned with the concept of democracy focus on the rights and obligations of the people and their representatives, but treat the notion of the people as self-evident, using a number of casually chosen terms for them as if they were interchangeable.
Dahl, for instance, uses the terms ‘people’, ‘citizens’ and ‘large numbers of people’ as equivalents.14 Huntington refers to the people as ‘virtually all the adult population’ in one instance, and those who are governed by the outcome of elections in another.15
These seemingly trivial differences are consequential: they each allow for different forms of exclusion. If the term ‘people’ refers to the adult ‘population’ then there is minimal exclusion: it must include migrants and resident foreigners. If it refers to those who are governed by the outcome of elections, then it must include migrants and foreigners too, since they are subject to the same law as citizens. If it refers to ‘citizens’, then the door is open to the exclusion of large numbers simply through the manipulation of citizenship law. If it refers to ‘large numbers of people’, then the door is open to the exclusion of those with small numbers – in other words, minorities.
Finally, although both thick and thin definitions of democracy lay out an elaborate system of rights and protections for those within, they are silent on what democracies owe to those outside this boundary. The ‘people’ have rights and protections and sometimes obligations. Those who are not among the people have nothing. We do not include a theory of outsider rights in our understandings of democracy or hold it accountable in how outsiders are treated.
These silences have led to egregious exclusions introduced through citizenship laws. When individuals or groups counted among ‘the people’ are excluded or disenfranchised in some way, there is a chorus of criticism, because the criteria for how democracies should treat minorities is clear.
But for those who do not belong to the people, all bets are off. Democratic theory and everyday understandings of democracy have simply not attended to the question of how democracies should allocate citizenship and what they owe to non-citizens. As a result, some of the worst forms of exclusion by democratic governments have occurred, not only on the border between majority and minority, but on the border between citizen and non-citizen.
The classic example of egregious exclusion through the allocation of citizenship is that of the United States.16 The U.S. constitution as adopted in 1789 did not formally define the line between ‘citizen’ and ‘alien’. It claimed rights simply on behalf of ‘the people’. But it withheld the right to personhood from both African Americans and Native Americans. It deemed slaves (and therefore by implication, African Americans) as three fifths of a person.17 Native Americans were deemed uncivilized and therefore also not of the people. Those who were not considered people could hardly be seen as citizens.
It was not until 1866 that African Americans became U.S. citizens through a constitutional amendment, and not until 1924 when most Native Americans became U.S. citizens through the Indian Citizenship act. After the passage of these acts, they continued to be subject to exclusion, but as internal minorities rather than as outsiders. As internal minorities, the basis of exclusion became the subversion or non-implementation or flouting of existing laws, rather than blatantly dehumanizing or discriminatory legislation.
And yet, the US claimed, and received, the title of a democracy from 1789 onwards. Even now, it is routinely referred to as the world’s oldest democracy, where the term dates the founding of democracy in the US to 1789, and not 1866 or 1924.18 And the famous opening phrase of the U.S. Constitution, ‘We the people’ has become the rallying cry of democracy worldwide, replicated in the preamble to the Indian Constitution too, without reference to the chilling exclusions that were built into that term historically and continue to be enabled by it in the present.
Similarly, the establishment of democracy in the U.K. went hand in hand with the denial of equal citizenship to the inhabitants of the colonies. But the U.K. continues to be seen as the prototype of modern democracy. Germany had descent-based citizenship laws for most of the time it has been called a democracy. Japan still does, and it is a democracy too. Closer to home, Sri Lanka disenfranchised large numbers of Tamils almost immediately after independence on the grounds that they were not citizens. And yet it was called a democracy too.
India’s use of the CAA to identify the nation with Hindus and exclude Muslims, then, is simply one more in a long list of exclusion through citizenship law among modern democracies. Perhaps the only difference is that in several of these other examples, countries moved over time from exclusive to inclusive criteria for citizenship, while India is moving in the opposite direction.
As long as these silences exist in our conceptual understanding of democracy, so will the possibility of exclusion under the cover of democratic legitimacy.
A more robust notion of democracy must include just criteria by which the boundaries of the ‘people’ should be determined. This can be done by infusing democratic theory with insights from that body of scholarship on citizenship which identifies the criteria according to which the boundaries of the citizenry have historically been constituted.19
So far, the main conversation between theories of citizenship and of democracy has been on the question of rights and entitlements due to citizens in a democracy. But the literature on citizenship and boundaries makes an important distinction between descent-based (jus sanguinis) and territory-based (jus soli) criteria that we should also pay attention to.
It seems to me that a territory-based, or jus soli, criterion of citizenship is the only just basis for the constitution of democratic citizens. Among those who qualify as citizens, descent-based groups who experience disadvantage may certainly be deserving of specific rights and protections. But descent, or the jus sanguinis principle, cannot be the basis for determining who is deemed worthy of citizenship in a democratic political community and who is not.
Further, a more robust notion of democracy must incorporate a notion of what democracies owe to non-citizens. This is important not only for those outside the boundaries of citizenship but also for those within. Why? Because, as we see in the case of how Muslims in India are affected by the CAA, the line between non-citizens and internal minorities is thin. The terms on which we put people outside the line of citizenship can affect how we treat minorities inside that line.
It affects the majority too, for all majorities are nothing but a collection of minorities. When we permit ourselves to treat some minorities as potential outsiders, and withhold rights from them, we make all minorities potentially vulnerable, including those within the majority. It is not surprising then that many Hindus have been excluded from the NRC,20 and that they appear to be drawn disproportionately from among the Scheduled Tribes, Dalits and the poor.21 Democracies that turn upon outsiders in the end turn upon themselves.
* I am grateful to Niraja Jayal, whose work informs mine, for her comments on this essay and for helping me navigate the literature on citizenship.
1. Niraja Jayal, Citizenship and its Discontents. Harvard University Press, Cambridge MA, 2013.
3. In addition to the discussion in this essay, see for instance Niraja Jayal https://www. theindiaforum.in/article/faith-criterion-citizenship and Pratap Mehta https://indian-express.com/article/opinion/columns/the-morning-after-citizenship-amendment-bill-6162497/
4. Gazette of India, Citizenship Amendment Act, 12 December 2019, and Lok Sabha Secretariat. ‘The Citizenship (Amendment) Bill 2019.’ Legislative Note. No.33/LN/Ref./December/2019. http://22.214.171.124/Refinput/New_Reference_Notes/English/09122019_104728_1021205239.pdf
6. Lok Sabha Secretariat, ‘The Citizenship (Amendment) Bill 2019.’ Legislative Note No.33/LN/Ref./December/2019 http://164. 100.47.193/Refinput/New_Reference_Notes/English/09122019_104728_1021205239.pdf.
7. http://126.96.36.199:8008/WebTest Application/userfiles/Image/LatestReports/SVRS_2015.pdf
8. http://www.pbs.gov.pk/sites/default/files//tables/POPULATION%20BY%20 RELIGION.pdf.
9. https://www.state.gov/reports/2019-report-on-international-religious-freedom/afghanistan/#:~:text=According%20to%20 religious%20community% 20leaders,0.3% 20percent%20of%20the%20population.
10. N. Jayal, 2013, op. cit.
11. https://www.reuters.com/article/us- india-politics-citizenship-camp-idUSKCN1VT00K. See also Sanjib Baruah https://indianexpress.com/article/opinion/columns/a-more-precarious-citizenship-assam-nrc-list-jammu-kashmir-5949158/
13. Joseph Schumpeter, Capitalism, Socialism and Democracy. Harper and Sons, New York, 1942, p. 269.
14. Robert Dahl, Polyarchy. Yale University Press, New Haven, 1971, see especially p. 1-5.
15. Samuel P. Huntington, The Third Wave (The Julian J. Rothbaum Distinguished Lecture Series), p. 7. University of Oklahoma Press. Kindle Edition.
16. The information in this para, unless otherwise stated, is from Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States. Basic Books, New York, 2000.
17. US Constitution as originally signed, Article 1 Section 2 https://www.archives. gov/founding-docs/constitution-transcript
18. See for instance https://www.amacad.org/news/reinventing-american-democracy-21st-century and https://www.washingtontimes.com/news/2017/jun/14/america-now-the-worlds-oldest-democracy/
19. Rogers Brubaker, Citizenship and Nationhood in France and Germany. Harvard University Press, Cambridge, 1992.
21. https://economictimes.indiatimes.com/news/politics-and-nation/many-indigenous-people-others-stare-at-helplessness-after-nrc-rejection/articleshow/71159914.cms? from=mdr, https://www.hindustantimes.com/mumbai-news/dalits-domestic-workers-tribals-protest-against-caa-npr-nrc/story-x3TBldmMATPdgPrZCs5kZO.html