By DALE LUIS MENEZES
Can some progressive laws deliver justice when a country’s statutes books have various other discriminatory and problematic laws? The widespread protests against the Citizenship Amendment Act (CAA) (and rioting in response to these protests) highlight the various unresolved issues dogging the Union of India. Because ‘citizenship’ is the broad, catch-all, and all-encompassing legal concept at the heart of the Indian Republic, the various ways in which it remains unrealized for millions needs to be considered. As the legislations around citizenship are the issue these days, it is vital to think of the various other laws that might subvert the realization of citizenship. Two important legislations are those that pertain to seditious speech and land acquisition laws that promote development, often at the expense of socially and economically marginalized communities.
The current law granting citizenship in India is not based on the principle of jus soli: i.e., an individual being born in the territory of the Union of India (as it was when the law was enacted in 1955). Today, one needs at least one parent to be a citizen of India, that is to say, that one’s parent(s) cannot be an illegal immigrant. This change is effectively making the principle of Indian citizenship that of jus sanguinis, or by descent. The Citizenship Act, 1955 as it stands today, is not as open as it used to be, and the recent policy decisions that demand proof, or papers, of one’s citizenship restrict the rights and freedoms of a person living in India.
Apart from the laws and policy decisions that concern citizenship, other laws have also chipped away at the rights and freedoms of the people. It is then not ironic that the various governments that have ruled the Union of India have used the dreaded Section 124A of the Indian Penal Code, more popularly known as sedition, to clamp down on protest and views that are contrary to its own.
With or without the CAA, vaguely defined offenses such as sedition goes against the spirit of inclusive citizenship. As scholars and legal experts highlight, the use of a vague term like “disaffection” is at the root of much persecution against activists and socially and economically marginalized persons. The history of 124A suggests that the law was made by the British in the 1860s to quell the uprising of the Wahhabis. In other words, to crush popular uprisings, the British State added a vague criterion in which those who were ruled were not permitted to harbor feelings of ‘disaffection’ against the government. What might this disaffection look like? Sadly, it is up to the state officials to arbitrarily decide on this matter.
Indian governments have repeatedly made use of this law since 1947. While High Courts and the Supreme Court have gone back-and-forth in determining the legality and constitutional validity of the law, the sad truth is that it is still on the statute books of India. Mostly, this law has been used against those who resist development, especially the wholesale landgrab for mining and industries. Thus, any reflection on bettering the regime of citizenship in India must also think of the havoc caused by developmental policies and politics.
We in Goa are intimately familiar with the development politics and its human and environmental costs. With industries like tourism and mining being the backbone of Goa’s economy, especially after 1961, the land and other natural resources have experienced tremendous stress. Successive Goan governments have intensified the volume of these two industries, for instance, to the extent that the availability of resources like land and water is not sufficient for effective management of these industries.
The legal basis for this intensified and destructive development is laws like the Goa Investment Promotion Act, 2014, and the Goa Requisition and Acquisition of Property Bill, 2017. While the first Act aims to expedite investment by circumventing the checks and balances already in place, the second Act uses vague terminology that empowers the State to evict and rehabilitate people for “public purpose.” Just like Section 124A, the abovementioned Goa Requisition and Acquisition of Property Bill draws most of its provisions from an old British law, The Land Acquisition Act, 1894. Both these Acts aims to provide arbitrary powers to the State so that the rights of the individual, in this case to the land, can easily be subverted.
Land is a crucial resource for upward mobility, as so many activists from the marginalized communities highlight. Denying access to land to many marginalized communities is an age-old practice in the subcontinent. For many such marginalized communities, access to land and protection from being evicted is the primary means through which they realize citizenship. The aim of any movement around citizenship should be to realize full citizenship within the Union of India by tackling all or most of the allied issues through which full citizenship gets subverted. It should also take into account the history of the last 70 odd years where Indian politics has failed to realize full citizenship.
The point of this reflection is fairly simple: a few good laws (or laws that some assume to be good) is of no use when several other laws enable the State, corporations, and powerful individuals to trample upon the weak and the marginalized. These laws should not be on the statute book at all.
(First published in O Heraldo, dt: 4 March, 2020)
