When the Citizenship (Amendment) Rules 2024 came out on March 11, I had a sense of foreboding and déjà vu. The rules reminded me of the dreadful political imagination behind the Citizenship Amendment Act: the intent of the Modi regime to turn India into an ethnonationalist majoritarian state. They also reminded me of how the government is doing much of this through banal legal and administrative procedures.
There is much to be said – and a lot has already been said – about the constitutional and political improprieties of the Citizenship Amendment Act and the new rules. Here, I want to reflect on what these laws – in how they are imagined, designed, and sought to be implemented – reveal about the Indian state under Hindutva and about the “Hindu Rashtra” that is unfolding in real-time.
Legal fictions
The first characteristic of the Hindu Rashtra that these laws reveal is political subterfuge. India’s emerging ethnonationalist state is based fundamentally on legal fabrication and deceit.
In its public defence of its citizenship laws, the Modi regime has insisted that the CAA was needed to help refugees who faced religious persecution as non-Muslims in Pakistan, Bangladesh, and Afghanistan. The question we need to ask is: why did this government need to adopt this framing for its public defence?
First, it needed to do this to save itself from obvious constitutional challenges. A purely religious classification was likely to be found unconstitutional by a neutral and objective court – perhaps, I should add, by a court that still followed its well-established jurisprudence of equality and secularism. “Persecution”, then, was a mediating concept that was meant to dilute the patent sectarianism of the law.
Second, the government perhaps needed this framing to indicate to the international community that these new laws were humanitarian, and not meant to target Muslims. These laws, it claimed, were meant to affirmatively give citizenship based on the non-sectarian idea of persecution and not to undermine the citizenship status of India’s biggest minority.
But as we know, the CAA or the rules have no mention of “persecution”. While this is part of the government’s public justification, the laws do not require beneficiaries to even claim “persecution”.
The partisans of the regime sometimes mention under their breath that Hindus in these countries are in a condition of persecution as a matter of definition. They say that India must give them preference. If this is so, the regime’s framing of its public defence reveals that it just does not have the strength of its convictions. It does not have the courage to defend these laws – not on the ground of secularism and equality, which they often do – but on the grounds of it being New India’s “Law of Return”: laws that legally mark India as a homeland of Hindus to the exclusion of Muslims.
The category of “persecution”, then, is nothing but a façade – a legal fiction – for the operation of these laws. It is a hollow bridge that connects them to constitutional legitimacy. It is just a ploy for gaslighting the critics of the law who point out that if persecution is the real target, these laws must be more nuanced, capacious, and inclusive.
Persecution is some kind of a legal chimera here: it is not mentioned in these laws, but without it, the laws are legally illegitimate. The government needs to insist that the concept is the legal basis of these laws. But it must also resist any effort to legally include and define it in the laws. The concept of “persecution” needs to legally exists provided it does not become legally real.
This doublespeak that creates empty legal categories is how this regime constantly instrumentalises legal forms. Perhaps this regime’s most significant legacy would be how it turned even legal citizenship fictional. The farcical spectres in Assam’s Foreigners Tribunals or during the NRC show how no proof can ultimately guarantee Indians their citizenship status. Citizenship has stopped being legally real – based on evidence, due process, and a sense of legal gravity. It has become nothing but a ruse, a legal ploy, for discriminatorily classifying people as undesirable, detainable and deportable.
Kagaz-Babu-Police Raj
The second thing that these legal developments reveal is the entrenched, oppressive mechanics of the Indian state. They reveal how, irrespective of its pernicious motives, this government refuses to come out of its obsession with documents, bureaucracy, and security: the trio of kagaz-raj, babu-raj and police-raj.
Take the new CAA rules. These basically have three components. First, they provide a range of forms that the applicants must file with the government to get the benefits under the law. Second, the rules provide a long list of official documents—related to their country of nationality and period of stay in India—that the applicants need in order to establish their qualification under the law. Finally, the rules create administrative bodies—district committees and empowered committees—to ultimately decide whether the benefits should be provided to the applicants.
It need not be said: ridiculousness is writ large here.
Kagaz-raj is such that these rules demand some of the most vulnerable people — the refugees who this government is claiming to help! — to provide official documents from the countries they are meant to be fleeing. Who will be able to procure these documents? To what lengths will they have to go to find and provide these documents?
Babu-raj is such that the committees under the rules have been set up with absolutely no legal guidelines regarding how to assess applications meaningfully, respectfully, and transparently. These administrative bodies existence in some legal grey area, much like Assam’s Foreigners Tribunals that have functioned for decades without any institutional independence or procedural propriety.
Police-raj is such that rather than appointing well-trained and well-sensitised professionals to run a refugee and asylum system, the government has decided to select intelligence officers (besides postal and informatics officers) for these committees. It is not humanitarian orientation but security obsession that defines the character of the CAA rules.
These rules, ironically, will not help its intended beneficiaries. As analyses from Assam (here and here) and West Bengal (here and here) are testifying, the potential beneficiaries of these laws are unlikely to get these documents. If they manage to somehow get them, they are likely to be stuck in an intimidating administrative maze. The ambiguities in the law—clearly intended to enhance their discretionary implementation—will make the potential beneficiaries vulnerable.
Perhaps most damagingly, these rules want the potential beneficiaries to come out and claim that they are foreigners. This will inevitably expose some of the most vulnerable people in our society to state and non-state violence. In Assam, the government wants Hindus—who had claimed to be Indians during the NRC process, and who certainly are Indians—to now claim that they are foreigners. Besides exposing them to penal consequences, this shamefully undermines their dignity as Indian citizens.
This trio of kagaz-babu-police raj is certainly not novel. It is part of the very fabric of the Indian state. But their incorporation and enhancement in these rules reveal how they are being weaponised and will continue to be weaponised by this regime.
Whose Hindu Rashtra?
This irony – the implausibility of these laws helping Hindu refugees despite the government’s proclamations – reflects the mendacity of the Hindu Rashtra. It reveals that even when it comes to the most celebrated of their policies – and the CAA and NRC are hugely celebrated in the Hindutva circles—the protagonists of the Hindu Rashtra cannot sincerely and genuinely help the Hindus.
The CAA and NRC not only show that India’s ruling regime refuses to escape the oppressive logic of kagaz-babu-police raj. They also show that the protagonists of the Hindu Rashtra are—in truth—just not interested in escaping this oppressive logic.
This may be because of a lack of institutional imagination. But I think this has much more to do with something pernicious: that ameliorating the condition of the Hindus–those who are poor, subordinated, marginalised, weak—is just not their concern. Kagaz-babu-police raj is the hallmark of a centralised, opaque, and unaccountable state that this regime wants to entrench. This regime’s only concern is to render Muslims vulnerable – and to use that as a way of building and strengthening their constituency of hatred and violence.
Had this not been the case, why else would this regime frame helping Hindu refugees within the discourse of “chronology”, a discourse that was meant to threaten Muslims that policies like NPR and NRC will be weaponized against them? Why would this regime envelop the cause of Hindu refugees—doubtlessly a worthy cause—as a mere accessory to their larger project of rendering Muslims as precarious citizens?
Hindutva raj in Hindu Rashtra, clearly, is far keener on rendering Muslims in a state of perpetual vulnerability. Hindu supremacist politics is not to materially benefit Hindus at the bottom of social stratification. It is just a symbolic and material subordination of Muslims as a way of making those Hindus feel slightly better about their own predicaments. Just as law is fiction in the Hindu Rashtra, so are the pretentions of empathy for Hindus.
Resisting the Hindu Rashtra
These features of the Hindu Rashtra may also indicate the ways to dismantle it. Any resistance to the ethnonationalist project must reverse the entrenched oppressive logic of the Indian state that this regime weaponises. It must offer a viable hope to Hindus and to the others. And it must make a case for an inclusive democracy and the need for an opposition, for voice and participation, and for fraternity.
Mohsin teaches constitutional law and human rights at Queen Mary University of London, School of Law. These comments were prepared for a panel organised by Karwan-e-Mohabbat and Hindus for Human Rights.
