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Monday, September 22, 2014

Law’s Lesser Citizens and Transformative Politics


-Anupama Roy




The relationship between law and citizenship may perhaps be described as symbiotic. It is often argued that an important function of law is to create juridical persons. The transformation of subjects into juridical persons, that is, into citizens, is especially important if one recalls one of the lessons learnt from the experience of totalitarianism, where the first essential step ‘on the road of total domination was to kill the juridical person’.1 is that the creation of the legal citizen, does not necessarily make for equal citizenship, nor does it create a political community of full and equal citizens. Indeed, the dictum ‘equality before the law and equal protection of the law’, more often than not, is based on a notion of masked/ unmarked citizenship, which is premised on notions of procedural equality. The latter disregards socio-economic contexts, which ultimately determine how people experience themselves as citizens. In other words, legal citizenship, while important for recognition in law and by law of a person’s status as a citizen, requires a privileged status of dissociation, which is, not available in equal measure to all. The ideal condition of equality with which citizenship is associated, may actually remain elusive and fettered, as societies are marked by hierarchies of class, caste, sex, race and religion, rather than equality of status and belonging. These hierarchies constitute the multiple and intersecting axes that determine and condition people’s experiences of citizenship.


Citizenship, therefore, produces its own layers of hierarchies, producing an incongruity between citizenship’s promise of equality and its propensity towards entrenchment of actually existing inequalities. Importantly, these incongruities generate churnings, which have a potential for disturbing the entrenched structures of domination and putting in place more egalitarian When one looks at the legal ensemble pertaining to citizenship in India, as laid down in the text of the Constitution of India, and subsequently the statutory framework put in place by the Citizenship Act of 1955, citizenship appears to have been instituted through practices of legibility. Legibility involved attempts by the state to identify citizens by reducing them to measurable quantities, including facts about domicile, duration and place of residence, dates of  Alain Supiot cites Hannah Arendt (Origins of Totalitarianism, London, Allen & Unwin, 1967, p.447). Alain Supiot, Homo Juridicus: On the Anthropological Function of the Law, Verso, London, 2007, p.x. entry and departure, birth, lineage/descent etc. Legibility of citizens was also associated with corresponding rights, both constitutional and statutory, whereby everyone who possessed a legally recognized status of a citizen, could justifiably claim legally enumerated rights.

The legal framework of citizenship in India, may be seen as a running thread, from the founding moments of the Indian republic, when the Constitution identified who was the citizen of India at the inception of the Indian nation-state, and five years later in 1955, when the Citizenship Act picked up the task of constituting the legal citizen, up to the present moment when subsequent amendments in the citizenship act have paved the way to transforming citizens into enumerable and biometrically mapped populations bearing Aadhar numbers. Significantly, the drawing of national territorial boundaries generated closures by associating the legal status of citizenship with national identity. In 1950, the constitution opened up the closures generated by the drawing of the territorial boundaries of the nation-state, by attributing citizenship to certain kinds of movements of population that had taken place in the intervening period, that is, between 1947 and 1950. The Citizenship Act of 1955 thus held out the promise of legibility to those who occupied the space of indeterminate citizenship between 1950 and 1955. While the element of choice and voluntariness presented themselves as a legal possibility, there were tensions in the way in which choice was determined, seen especially in the finality with which the excision from citizenship was laid down in the Constitution for those who had migrated to Pakistan before 1 March 1947. Moreover, the gendered construction of the juridical persona of the citizen becomes evident in the period immediately following partition. The partition was followed by the governments of India and Pakistan conferring, and putting in place mutually agreed procedures for the recovery, reclamation and restoration of their ‘lunatics’ ‘prisoners’, ‘women’ and ‘children’. The Abducted Persons (Recovery and Restoration) Act was passed by the Constituent Assembly of India on 15 December 1949, which remained in force for eight years until 1957. An impressive body of scholarly literature on partition has shown that women were subjected to successive markings of ‘difference as closure’ even as the nation made a transition into liberatory encompassing/universal citizenship. The Hindu and Sikh women who were recovered from Pakistan to be restored to the ‘nation’ and to their ‘homes’, were differently positioned from Muslim women in India who as ‘recovered abducted women’ were taken into custody and placed in detention camps in India till the time their own government claimed them. The abducted person, created a new and gendered category of ‘inadequate’, ‘indifferent’, ‘awkward’, and ‘inappropriate’ citizens, bringing women within the disciplinary power of the state, and transforming kinship norms of purity and honour into the There are innumerable examples in recent times, of the gendered hierarchies which inform people’s experience of citizenship, most of which may be traced to the foundational and reiterative violence of state formative practices, as well as practices of state-like structures like the Khap Panchayat. It is significant how violence is implicated in state formation and the legitimation practices of the state, and ironically also in caste, community and kinship groupings, which also seek legitimation through sexual, caste, and communal violence. Foundational and reiterative violence manifest themselves at diverse sites, accumulate, and become part of the daily experiences of the vast masses of ‘residual citizens’ whose bodies become testimonies of how the state/society and laws of the state speak to them - in the idiom of torture, rape, custodial violence, ‘honour killings’, extraordinary laws, special forms of policing and surveillance Yet, citizenship is also informed by the logic of momentum, which makes it important to explore it beyond the confines of law. Irrespective of facts of legal belonging, citizenship unfolds amidst specific and often contending political and social fields, and corresponding practices of membership, and is experienced differentially by people across caste, class, religion and gender. Thus, while citizenship, as mentioned at the outset, is informed by deeply entrenched hierarchies, some of which are produced and reinforced through law, it is ultimately relational and dialogical so much so that citizenship can no longer be seen as embodying a politics of indifference, and has come to constitute a condition replete with possibilities and promises for radical change. Correspondingly, the social and political field that citizenship has come to traverse is no longer benign and impersonal or immobilised and stagnant in legal trappings. It rather signifies a continually reconfiguring field of contest. More often than not, the contest is over definitions and the corresponding limits they put on who belongs, how, and on Mahashweta Devi’s fictionalized rendering of the rape of Dopdi, a tribal woman suspected of being a member of a militant, underground, left-wing group, who is raped by policemen who arrest her, is illustrative of citizenship’s field of contest. In Mahashetwa Devi’s story, Dopdi refuses to be clothed and insists on presenting herself to the senior official in a naked state, challenging him to ‘counter [encounter] her’. Dopdi’s challenge to the officer representing the might of the Indian state, was clearly an act of political dissent, where she occludes her rape through an act of defiance, provoking the officer to treat her as a political dissenter and kill her in an encounter. From Dopdi, to the anger of the Manipuri women who stood naked in front of the headquarters of the Assam Rifles, challenging them to ‘take their flesh’, to the passive resistance of Irom Sharmila with whom the state has played an incessant annual ritual of a ‘cat and mouse game’ of release, arrest, re-release, re-arrest ...., for more than a decade, the struggle to dismantle the entrenched structures of domination, have indeed re-crafted the idiom of citizenship.

structures of the state and the ways in which ‘struggles over the state’ and hegemonic articulations of nation-hood, constitute gender through differential inclusions and erasures. The present times have seen a heightened consciousness around citizenship practice, not only because a range of struggles have pronounced the contradiction between the momentum and hierarchical aspects of citizenship, but also because the issues that have subsequently emerged have woven areas of tension around the national belonging as a unit of citizenship-membership and the individual as the citizen-member. Keeping in view these influential frameworks, one must now address the question of the articulation of a praxis of democratic citizenship which takes into account the multidimensionality of oppression and the multiple, intersecting and overlapping axes of disadvantage that determine citizenship. Such a praxis has to grapple with the ideological structures of the state and practices of rule, especially as it is imbricated in the transnational structures of economic and political governance, and the ways in which the ‘struggles over the state’ and hegemonic articulations of nation-hood, constitute gender through differential inclusions and erasures. This praxis has to therefore continue with the earlier idioms of struggle, as well as device new ways by which to address the systems of domination that have mutated under the present contexts of economic liberalisation, globalisation and political conservatism. A feminist praxis of democratic citizenship has to grapple with the ideological

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