SEDITION, DEVELOPMENT, AND CITIZENSHIP

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)

LESSONS THAT STUDENTS LEARN: MoI IN TIMES OF CAA

It is four years since the tragic death of Hyderabad Central University scholar Rohith Vemula. Driven to commit suicide by a deeply casteist and discriminatory educational system, Vemula now is a symbol of liberation for all students who hail from minoritized- and discriminated-against backgrounds. In the context of the recent country-wide protests against the Citizenship Amendment Act, 2019, Vemula’s memory fortifies protestors to soldier on.

Vemula’s life and death is also an indication that thousands of people in India desire education, particularly higher education, even when the system is so discriminatory and fails to deliver quality education. Many of these people, just like Vemula, want to be writers, scientists and enjoy the pursuit of knowledge for its own sake. However, as Vemula’s life and pursuit of his dreams indicate, this aspiration for education and a better life is riddled with obstacles. Yet, it was through higher education and the university space that Vemula challenged the casteist politics in India—many like him do the same.

The access to higher education after the Mandal Commission reforms has resulted in many students from minoritized backgrounds thinking about how to make their lives and those of others better. It has also resulted in students from elite backgrounds coming in contact with their non-elite colleagues. Though not always in mutually respectful encounters, this sharing of educational space has led to a change in thinking about Indian society. In short, more people are challenging received wisdom and articulating their opposition to discrimination. More and more people want a say in their political futures.

                                                                                                     

Thus, many students, like and unlike Vemula, join schools, colleges, and universities to make something out of their lives, to succeed, and to have decent employment. If there is a disconnect between what students expect from education and the realities outside an educational institution, they realize that their hopes, dreams, and aspirations will not be fulfilled. Therefore so many students have taken the lead in safeguarding their futures by registering their protests against misguided policies of the government.

Despite having a less than ideal educational system in this country, it can be said that education has positively molded minds. Perhaps, it is the values that education imparts that makes some difference, however little it may be. In learning about ourselves and the world around us, students are automatically led to question: Why does a particular chemical reaction occur? Why does an equation work? Why is there so much poverty around us?

Hence, in Goa, it was not surprising to see the speech by a 14-year old student, Diksha Talaulikar, a student of Maria Bambina Convent High School, to make the news. This speech, made on occasion to mark 70 years of the Indian Constitution, organized by the Department of Education, was a passionate plea against the Citizenship Amendment Act, 2019. Naturally, the ruling establishment was utterly embarrassed by the moral clarity shown by a young student.

Talaulikar, perfectly trained in the art of formal elocution, pleaded, “And today this bill discriminates [against] them (Muslims), thus making a mockery of my fundamental duty to promote harmony and the spirit of common brotherhood among people, transcending religion, region, and linguistic diversities. The country is burning. The soul of the Constitution, the Preamble, the liberty, equality, and fraternity has been murdered.”

Considering that Talaulikar is not alone in expressing such an opinion as school, college, and university students across the country are increasingly vocal about the state of affairs, we have to ask how the educational system can be made better. For despite the less than ideal condition of the educational system, some students demonstrate a remarkable moral clarity that is crucial to the health of the Indian republic and democracy. One needs to urgently think of the reform of primary, secondary, and university system in Goa.

As stated earlier, the demand for a better system comes from the citizens, especially those who are socially discriminated and economically deprived. Take, for instance, the demand for government aid for primary schools using English as the medium of instruction. Popularly known as the MoI controversy, it was a movement that demanded quality education for children so that, much like the children of the rich, the majority of the poor children will have a better shot at gaining employment.

Learning from the MoI movement can inform our current debates over citizenship. While those who were opposed to English as a medium of instruction wanted the poor to bear the burden of learning Indian languages with no guarantees of gainful employment, the poor wanted education in a seemingly foreign language for a chance at a better life. The poor, therefore, was only asking for a deeper realization of their Indian citizenship—the constitutionally guaranteed right of equal education.

The present moment of widespread student protests is an excellent opportunity in Goa to revisit the basic issues of education, as I have tried to show in reference to the MoI movement. The stress by some to use only ‘mother tongue’ as MoI for primary instruction is a political ploy to keep poor children undereducated, thus stealing their right to equal opportunity in employment. By not providing proper education to all members of the society, without discrimination, citizenship only ends up being a hollow concept.

The answer to many of our current woes, then, is simple: the education system needs to be better. Because even if it is bad, many students have found a way to make the best out of a worse situation. How much better would it be if we had a better education system?

(First published in O Heraldo, dt: 5 February, 2020)

INDIAN CITIZENSHIP AND GOAN BELONGING

The passage of the Citizenship (Amendment) Act, 2019 (CAA) has exposed the Indian state’s trust deficit with its people. As it stands today, one needs to prove that at least one parent is a legal citizen. Being born in your country is no longer enough to belong in India! For Goans, this amendment may be in direct contradiction to the Goa, Daman, and Diu (Citizenship) Order, 1962, which granted them Indian citizenship.

The CAA ostensibly aims to give refuge to persecuted non-Muslims from Afghanistan, Bangladesh, and Pakistan. While the protocols and modalities of establishing persecution and refugee status are unclear, many commentators observe that the new amendment is a backdoor approach of accommodating the lakhs of Hindus identified as foreigners after the Assam NRC exercise.

The original law, the Citizenship Act, 1955, was enacted with the express purpose of recognizing all people as citizens within the newly-constituted India. This law liberally granted citizenship to people especially since India was a new nation formed after the demise of British colonialism. The liberal outlook of the law was in sync with standard democratic practices across the world. Thus, in India citizens were recognized on the basis of birth, descent, registration, and naturalization. Subsequent amendments to this Act (by Congress and BJP governments) restricted the liberal outlook of the law.

After the annexation of Goa, Daman, and Diu, the Indian government issued an order, appended to the Citizenship Act, 1955. Similar to the original law, the order extending Indian citizenship to Goans was also liberal in its outlook. Thus, the order states, “Every person who or either of whose parents or any of whose grand parents was born before the twentieth day of December, 1961, in the territories now comprised in the union territory of Goa, Daman and Diu, shall be deemed to have become a citizen of India on that day.”

Though India had granted citizenship to Goans in 1962, the diplomatic tussle between New Delhi and Lisbon over the sovereignty of Goa, Daman, and Diu continued till 1975. India, in 1962, recognized that the problem of sovereignty and citizenship did not have a clear solution. Hence, the 1962 order left the option open for any person in Goa, Daman, and Diu to maintain the preexisting citizenship by notifying in writing to the administration or any other authorities.

In 1975, under the leadership of the then president of Portugal, Mario Soares, who was keen to normalize relations with India (following decolonization in Africa and East Timor), Portugal recognized India’s sovereignty over Goa, Daman, and Diu. This treaty, signed on 14 March 1975 recognized India’s sovereignty by backdating it to 1961. By normalizing diplomatic relations, both Portugal and India recognized that Goans were Portuguese citizens and that the transfer of sovereignty did not extinguish preexisting citizenship rights. These rights could be preserved, redeemed, or renounced. At least in the letter of the laws and treaties, the option to choose was with the individual.

Following the wave of decolonization in the 1970s, Portugal ensured that the right of preserving or redeeming Portuguese citizenship was not eroded once Portuguese territories were incorporated into newly-independent (and expanding) nations like India and Indonesia. By enacting the Decree-Law 308-A/75 of 24 June 1974, Portugal kept the option open for Goans to redeem their right of preexisting Portuguese citizenship.

Goans effectively became Indian citizens because a new territory was incorporated into the Union of India (a legal provision available in the Act of 1955). Descent or naturalization did not apply to the Goan case due to the armed intervention of the Indian army. Conversely, in the case of Portuguese citizenship, Goans can legally claim birth or descent because the Portuguese state, at least from the early twentieth century if not earlier, recognized birth and descent as legitimate means of granting citizenship.

Both the Order of 1962 (India) and the Decree-Law of 1974 (Portugal) operate based on the will of the individual (or at least that is the essence of the letter). While the Indian law required an individual to give in writing to refuse Indian nationality, the Portuguese law requires an individual to reclaim his citizenship by providing the appropriate documents establishing descent to (former) Portuguese citizens. The Indian law assumes the silence of the individual as tacit acceptance of Indian citizenship, while the Portuguese law assumes that an individual or his descendant would like to reclaim preexisting citizenship at any moment in time.

The CAA contradicts the legal history that the Union of India shares with Goa and Goans since 1962. The state of India cannot ask Goans to prove their citizenship as the legal basis for Indian citizenship is not birth or naturalization but conquest. If at all the Indian state can ask any question regarding citizenship, it is if Goans want to opt in or out of Indian citizenship. More than 50 years after the armed annexation, such a question is a fait accompli. Nevertheless, it does not change the fact that Goans can enjoy multiple legal rights of citizenship that nation-states should proactively protect.

As we have seen in the diplomatic relations between New Delhi and Lisbon, citizenship in Goa is tied to national and internal politics. Goans need to think of their citizenship rights in broader terms. They must also think of citizenship historically. The benefits of citizenship depend on knowing how citizenship was recognized in the past, what is its status now, and what it should be in the future.

(First published in O Heraldo, dt: 8 January, 2020)