Why no legal definition of citizenship can cover economic, social, cultural, and other rights

If there ever was a perfect time for this volume to appear in print, this is it, as across the world at this very moment, the challenges posed by the realities of forced migration and displacement both within and across international borders are being responded to by nation-states by the parallel creation of a global crisis of citizenship itself. Although much of the world continues to accord citizenship rights based on either jus soli, “right by birth on soil”, or jus sanguinis, “right by birth of blood” (in addition to marriage and naturalisation by long-term residence, both of which we shall ignore here), many nation-states have accorded a crucial role to documentation to reconfigure both these definitions as neither necessary nor sufficient, and contingent on other laws that regulate documentation itself.

Where once the birth certificate of an individual and/or her parents and their passports signified the state’s official recognition of the individual’s citizenship, today these signifiers are being emptied of content.

The Indian Citizenship Act 1955 and the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003 also require the Indian government to maintain a “national register of Indian citizens” (NRC), and to issue national identity cards to all. The NRC was indeed prepared after the 1951 Census but had not been updated, until the Supreme Court of India ordered it to be updated for the state of Assam in 2013.

The historical specificities of why the process began in Assam need not detain us here; rather, what is of interest is the fundamental rupture the NRC process has introduced into the guarantee of jus soli/sanguinis citizenship, through the proof it demands.

On 31 August 2019, over 19 lakh (19,06,657, to be precise) people resident in Assam found themselves excluded from the final NRC published by the central government. The only recourse now available to them against non-inclusion is an appeal to a state-level Foreigners’ Tribunal; however, should that appeal not succeed, these stateless individuals are bound for special detention camps being constructed across the state, where they are to be housed pending repatriation to their putative country of origin.

Such repatriation, however, can only legally take place if the country of origin accepts the individuals concerned as originally their nationals to begin with, an acceptance that also will be contingent on the nation-states concerned having a repatriation treaty in place. Given the prolonged nature of such negotiations, the only certainty that faces all these “superfluous people”, to borrow a phrase from Hannah Arendt, is a life of incarceration, dispossession and egregious violations of their basic human rights.

This volume is timely in the Indian context because it is most of all a reminder of the price that has been paid not only in India, but globally, by the privations caused by the negation of citizenship based on religion, gender, ethnicity/caste and/or race.

The essays featured in this volume record the experiences of societies in South Asia (India, Bangladesh), Latin America (Peru), Europe (Germany, Austria) and Africa (Reunion Island, Namibia, Rwanda), each of whom has histories marked by large-scale displacement caused by colonial policies of land capture, slavery or indentured labour, or by partitions and other exclusions in the very birth of the nation-state.

In each of these essays is recorded the long after-life that a denial of “belonging” has in the life of an individual, her sense of inclusion in group/community/nation, the marks it leaves on the nation that is created, as well as the implications it has for citizens’ access to rights, the solidarity of fellow-citizens, and the way that its present and its history are articulated.

The essays in this book are more than mere cautionary tales, however, as they explore the ways in which exclusion from the category of “citizen” is constructed over and above the changing legal frameworks of the state, by a society that creates the state and which is in turn formed by the policies adopted by the state. A major strand in the discussion of what value citizenship has for the individual is about whether the notion automatically entails inclusion.

Feminist / race / caste-based approaches have critiqued both the republican – citizens are those who share in the process of civic self-rule – and the liberal – protection under the law for individual freedoms – as mythical, because they are predicated upon equal access to the public sphere in decision-making and equality within society.

Without the state intervening to dissolve the barriers of gender, caste, race and other social constructions, these critiques say, being a citizen has little value, and makes life lived as one marked by destitution and unviability. Several essays in this volume dwell on texts which reveal that, within the mass of so-called citizens of a nation-state, exist enclaves of dispossession and liminal states of existence marked by powerlessness, and the kind of resistance that is made (im)possible.

Another major theme that runs through the essays in this collection is that ideas of universal citizenship embodied in legal definitions are often majoritarian in their call to transcend particularity. More often than not, this leads to an elision of the plural character of all those who are named by the state as citizens, and an erasure of their stories from the grand narrative of the nation. Acts of writing/testimony are simultaneously a disruption and an attempt at expansion of this grand narrative, an attempt at intrapolation into the national story of citizenship, narratives of its experience and denial.

In most such interruptionist initiatives, the essays in this volume tell us, while the state and other citizens may or may not be directly sought out, the primary audience the narrative seeks is the community (often under construction by the process of narration itself) to which the narrator belongs. The success of these interruptions is therefore necessarily contingent on acceptance by the community, and such works tend to assume the shape of community biographies, seeking to represent experiences as shared.

Even if such acceptance is gained, their survival is nevertheless determined by the level of push-back from the state and the majority citizen. Since the state is constantly engaged in the creation of public memory and its memorialisation, interruptionist narratives often need to take on the state and the majoritarian world view of the past and present it often embodies.

Not all states, however, are equally invested in maintaining a silence about an exclusionary past, and rather position themselves in opposition to that past. Many of those citizens who have been excluded from official pasts are allowed to tell their story, with a goal to be able to talk to the present and the future, if only to give the message of “never again”. Even in such states, however, there are stories that can only be told if they fit into the state’s given trope of having successfully left the past behind, and into the tale that it has already told so far. The fact that they are told by voices that are usually elite, authorised by the state or by the displaced community, imposes silences circumscribed by an understanding of the present and the past.

Central to all contestations of statist, majoritarian notions of citizenship is the role of memory. For memory to rise to the level of a challenge to national history, it requires work by the one(s) who remember(s), and an activity of at the very least a gathering of its fragments into a narrative.

Often, however, the act of remembering itself can be made taboo, because it either disturbs a narrative of citizenship or perturbs membership of a collective. If memory work cannot be done, memories may still exist only to lie around as fragments, waiting to form a narrative. Certain kinds of memory work are extremely difficult to do, because they are difficult to narrativise as a cumulation of individual narratives, and revisiting them is a re-enactment of torture and trauma that has the potential to bleed into and swallow the present of the one who remembers. For many, however, memories of gendered violence have been the primary markers of exclusion, just as ownership of women’s bodies have been claimed and re-claimed through violence as markers of citizenship.

As the foregoing brief outline of the rich and varied themes relating to exclusion from the category of citizen has thrown up, it is obvious that no legal definition of citizenship can ever be capacious enough to cover the guarantee of the economic, social, cultural, historical and psychological rights that give the status its substantive meaning. […]The world in the twentieth century, roiled by world wars, mass migrations, mass resistance, and social and political revolutions pointed to the importance of legal provisions of citizenship being enabling rather than restrictive. Unlearning those lessons in the twenty-first century will only take us back to a past that should be left behind.

Excerpted with permission from the “Introduction” by Ayesha Kidwai, to Displacement and Citizenship: Histories and Memories of Exclusion, edited by Vijaya Rao, Shambhavi Prakash, Mallarika Sinha Roy, Papori Bora, Tulika Books.