Bandung and Nation-Building

Aligned with the provisions of the United Nations Charter,Footnote ³ the Bandung principles were also the result of the specific history of the Asian and African states present at the conference: the states were invested in maintaining their sovereignty and territorial integrity by limiting external interference in “domestic” matters as they emerged from centuries of colonial rule or semi-colonial domination.Footnote ⁴ This emphasis on territorial integrity and non-intervention went hand in hand with the desire to participate in global trade on equal terms.Footnote ⁵ For leaders of many newly independent states, the ability to compete in the international economic system depended on their success in crafting a sovereign nation-state with a strong central government that could exercise effective control over its territories.

Given the significance of territorial integrity and non-interference, independence and the creation of a post-colonial nation-state often required a move from layered notions of sovereignty to absolutist ideas of territorial sovereignty and the concomitant prominence of borders. In the Indian context, for instance, the state-making process involved not only the bloody partition of British Indian territory (to form the states of India and Pakistan) but also the “integration” of the semi-sovereign princely states and the merger of French and Portuguese territories. This territorialization was supposed to provide an effective basis for economic planning and development.Footnote ⁶

However, the nation-building process buttressed by the Bandung principles also created complications in the independent but ethnically mixed states of Africa and Asia since nation-states were “understood to be relatively homogenous populations that were completely loyal to the new post-independence state.”Footnote ⁷ Much ink has been spilled about the often deleterious impacts of the focus on sovereignty and territorial integrity on minorities within post-colonial states. Cyra Akila Choudhury has used the example of Bangladesh to argue that Bandung’s preoccupation with colonial legacies excluded minorities since “[o]nce independence had been achieved, the theory of self-determination was no longer applicable to internal populations.”Footnote ⁸ There is also extensive scholarship on how the heightened significance of borders in independent nation-states such as Myanmar, Indonesia, Kenya, Sri Lanka, Bhutan, Ghana, etc. was accompanied by increasing suspicion of populations who had lived in these polities for decades but were seen as “outsiders.” Such persons often faced difficulties in obtaining citizenship rights.Footnote ⁹ In the Indian context, Ratna Kapur has thrown light on the process of “othering” Muslims by examining the tension between Bandung’s embrace of equality and its vision of post-colonial nation-states as civilizationally distinct from the west.Footnote ¹⁰ This essay also takes up the question of “othering” of Muslims, but it contributes to the conversation by shining a light on the relationship between the Bandungian principle of territorial integrity and changing definitions of citizenship. The following section calls the Bandung principles’ focus on territorial integrity into question by exploring the role of borders in the construction of religious minorities as foreign “others” in Indian citizenship law.Footnote ¹¹

Bordering and the Law of Citizenship in Post-colonial India

Since Bandung normalized and globalized the nation-state form,Footnote ¹² it also legitimated the use of the language of territorial integrity to define the nation and sharpen the distinction between the “inside” and the “outside.” Fixing territorial boundaries is, as Anupama Roy contends, a key element of statecraft that enables the polity “to make a citizen a stable and enumerable category, amenable to specific governmental practices.”Footnote ¹³ Scholars such as Kamal Sadiq have argued that Indian law originally imagined “inclusive, broad, jus soli (civic-based, citizenship by birth) conceptions of citizenship” but soon transitioned to including “exclusionary, narrow, jus sanguinis (blood or descent-based) features.”Footnote ¹⁴ The scope of Indian citizenship was initially debated in the aftermath of the violence of the partition of British India, with members of the constituent assembly (the body responsible for drafting the Indian constitution) having to agree on a definition when millions of people were crossing newly demarcated borders.Footnote ¹⁵ Given this uncertain political context, the Indian constitution, which came into effect in 1950, only defined the individuals who became citizens of India on the date of the commencement of the constitution while authorizing parliament to make laws on citizenship for subsequent times.Footnote ¹⁶ Under the Citizenship Act 1955, any person born in the territory of India was an Indian citizen; the only exceptions were children of diplomats and enemy aliens.Footnote ¹⁷

Despite this inclusive definition, there was a tension between the jus soli and jus sanguinis conceptions of citizenship from the very beginning of the republic.Footnote ¹⁸ Niraja Gopal Jayal has analyzed debates in the constituent assembly to trace how Hindus fleeing violence in what became Pakistan were euphemistically referred to as “refugees” who would be entitled to Indian citizenship, while Muslims escaping to Pakistan and then seeking to return to their homes in India were labeled “migrants” whose claims to citizenship were subject to intense scrutiny and litigation.Footnote ¹⁹ Religion also played a significant role in negotiations between India and Pakistan over the protection of refugees: specifically, the Pakistani government was responsible for the protection of Muslims in India while the Indian government managed the welfare of Hindu and Sikhs in Pakistan.Footnote ²⁰ As Joya Chatterji argues, the demarcation of borders at the time of the birth of the Indian nation-state was accompanied by the emergence of “minorities … as a distinct legal category of citizens who were not fully protected by the states within which they lived.”Footnote ²¹ Despite the support for birthright citizenship, therefore, there appeared to be the implicit idea that India belonged to Hindus, with Muslims being viewed as “foreigners,” in line with the views of Hindutva ideologues such as V. D. Savarkar, who associated Indian territory with “Hindu culture and the Hindu people.”Footnote ²²

Since territory itself became associated with religion, the process of bordering that followed from the Indian state’s espousal of the Bandungian principle of territorial integrity enabled the creation of exclusionary citizenship policies. The foremost example of this comes from the state’s legal responses to the existence of a relatively porous eastern border, where people moved between East Pakistan and the Indian state of Assam, continuing patterns of migration that had started during the colonial period. There was a significant increase in the movement of people during the conflict that led to the creation of Bangladesh in 1971, with millions of refugees fleeing to Assam, many of whom remained there even after the hostilities concluded. The presence of “foreigners” created unease about demographic change within Assam and a popular movement soon arose to demand their expulsion, sometimes exploding into large-scale violence, including the Nellie massacre in which nearly 2,000 people (mostly Bengali-speaking Muslims) were killed.Footnote ²³ After the signing of the Assam Accord to end the movement, the Citizenship Act was amended to provide that an individual born in India after July 1, 1987 could only claim citizenship by birth if either of their parents was an Indian citizen.Footnote ²⁴ There was, however, the so-called Assam exception: individuals who came to Assam from territories that became Bangladesh before January 1, 1966 would be considered to be Indian citizens; those who came between January 1, 1966 and March 24, 1971 (the day before the outbreak of the Bangladesh war) would be disenfranchised for ten years; those who came on or after March 25, 1971 were supposed to be detected and expelled as foreigners.Footnote ²⁵

The concern with alleged illegal immigration from across the country’s borders continued to drive further changes to citizenship law, highlighting the challenges that come with the Indian state’s emphasis on territorial integrity: another amendment to the Citizenship Act in 2003 limited citizenship by birth to individuals with at least one parent who was an Indian citizen and the other not being an “illegal migrant.”Footnote ²⁶ Although the Assam movement was against all “outsiders” rather than being about religion, the term “illegal immigrant” in the Citizenship Rules was redefined to exclude “minority Hindus with Pakistani citizenship,” thereby introducing religion into the scope and definition of citizenship.Footnote ²⁷ The latest amendment to the Citizenship Act, carried out in 2019 (known as the Citizenship Amendment Act or CAA), introduces a more explicit link with religion: fast-track citizenship is offered to “illegal immigrants” but only if they are Hindus, Sikhs, Christians, Buddhists, Jains, or Parsis from Afghanistan, Bangladesh, or Pakistan, with the exclusion of Muslims being justified on the basis that the identified groups are persecuted religious minorities in those countries.Footnote ²⁸ As Niraja Gopal Jayal notes, “[t]he CAA thus facilitates a pathway to citizenship by naturalization for such once ‘illegal migrants’ from these three countries and promises citizenship by birth to their descendants, so long as they are not Muslims.”Footnote ²⁹ However, not all non-Muslim refugees are offered paths to citizenship, with the most prominent exclusion being that of Sri Lankan Tamils, most of whom identify as Hindu.Footnote ³⁰ The Indian state, therefore, makes an explicit distinction between what it considers to be persecuted groups in specifically Muslim states and refugees from other states, thereby linking territory with religion in its construction of citizenship law.

This conception of Muslims being the foreign “other” has only grown stronger in the past two decades, fueled by judicial decisions on citizenship that have highlighted the significance of borders and territorial integrity in defining who is considered to be an “illegal immigrant” rather than a “citizen.”Footnote ³¹ While deciding on the constitutionality of a statute that outlined the procedure for the identification of “foreigners” in Assam, the Supreme Court of India linked the “large scale immigration of Bangladeshi nationals” to Assam with an increase in Islamic fundamentalism in the region.Footnote ³² Consequently, migration could be classified as “external aggression,” with it being “[t]he foremost duty of the Central Government … to defend the borders of the country, prevent any trespass and make the life of the citizens safe and secure.”Footnote ³³ Nearly a decade later, the Supreme Court made more overt statements to demonize religious minorities by relying on crude, anti-immigration rhetoric, including a 1931 report by a colonial official that declared that “the invasion of a vast horde of land-hungry immigrants, mostly Muslims, from the districts of East Bengal” had changed Assamese civilization. The court also cited to a 1998 report that claimed that “[t]he influx of illegal immigrants is turning these districts into a Muslim majority region.”Footnote ³⁴ These pronouncements then became the basis for the institution of a court-monitored process to prepare a National Register of Citizens (NRC) specifically for the state of Assam.Footnote ³⁵

The Assam NRC process was concluded in 2019 and resulted in 1.9 million people being omitted from the final list on account of their inability to produce the requisite documents to prove their citizenship.Footnote ³⁶ Although a large number of Hindus have also been excluded from the Assam NRC, the Indian government has assured non-Muslims of their ability to apply for citizenship under the CAA; “[t]he unspoken promise had been that only undocumented people belonging to the Muslim faith and, therefore, having no recourse to the CAA, would be excluded.”Footnote ³⁷ Although the legal status of many of the excluded individuals remains unclear, with multiple legal procedures to be completed, it is likely that they will be disenfranchised, disqualified from government benefits, confined to detention camps, or deported.Footnote ³⁸ The Assam NRC exercise may be a hint of what is to come since the 2003 amendment to the Citizenship Act requires the Indian government to prepare an NRC for the entire country although the process is yet to commence.Footnote ³⁹ The NRC process presumes that “not everyone is actually a citizen, and that illegal immigrants masquerading as citizens need to be sifted and sorted from genuine citizens,”Footnote ⁴⁰ with this process of exclusion ultimately supposed to be a means to protect the Indian state’s sovereignty and territorial integrity, at least as conceptualized by judicial decisions on the issue.