The case “Amon Rana vs State of Meghalaya & Ors” deals with a petition pertaining to the domicile application of an army recruit. Delivering the judgment, Justice S.R. Sen of the Meghayala High Court, directs the government to follow ‘Rabbe Alam vs State of Meghalaya’ (2017) in matters relating to grant of domicile certificates. Not limiting himself to the legal matters at stake, the judge goes on to lament the plight of Hindus in India in the colonial times and during the Partition.
The judge writes:
As we all know that India was one of the largest country in the world and there was no concept of Pakistan, Bangladesh and Afghanistan. They were in one country and was commanded by Hindu Kingdom but thereafter the Mughal came to India and captured the different parts of India and started ruling the country and at that point of time many conversion took place by force.
The first glaring error is the assumption of a country called India before the advent of colonial rule. The British imperial project sew together the loosely scattered kingdoms of the subcontinent. The term “Hindu” itself had no religious connotations initially. Its provenance lies in the word “Sindhu” – the name for the Indus in Vedic Sanskrit. Achaemenid inscriptions from the mid-first millennium BC refer to the area enclosed by the Indus as “Hin[d]ush”, the “S” having been rendered into “H” in Old Persian. The Indo-Greeks called this area “Indos” and the Arabs “al-Hind”. The term “Hindu” continued to carry a geographical identity until the 14th century when it came to be associated with the non-Muslims in this region (Thapar 2015).
The judgment at its core is a misled statement about who is a foreigner in India and who deserves unconditional citizenships. Even before addressing this question explicitly, it is understandable from the quote above that Muslim rulers – the Mughals – are dismissed as foreign invaders. Yet, when there was no India as such, could anyone, let alone the Mughals, be branded as outsiders? These are strands borrowed from the writings of early Hindutva ideologues, the likes of Savarkar and Golwalkar (see generally, Guha 2011). As Hindutva forces rage through the country, the past is crucial to the construction of the Hindu nation. Romila Thapar (2014) has aptly observed, like so many other scholars, that the politics of Hindutva must present the past as a glorification of the Indian civilization – essentially, analogous with the Hindu civilization. This cannot merely remain a rhetoric. If the discourse of Hindutva is to stay alive, then facts must be fabricated and a history woven out of thin air. And so has there been a push to alter textbooks, be it during the tenure of this National Democratic Alliance (NDA) government or in the twilight of the previous government. In this conundrum of myths and competing narratives, real historians must be silenced. Now, here is a juridical discourse to create the subjectivity of a Hindu nation, refusing even lip service to secular, democratic, Constitutional commitments.
The language of the judgment also reveals the dynamics of the discourse that it seeks to further. Periphrasis – using a bunch of negative terms instead of one positive term – plagues a number of Indian judgments, especially those pertaining to sexual offences (see generally, Khanna 2018). Portraying the Hindus as the worst victims of the Partition, the judgment is rife with phrases such as “lakhs and lakhs of Sikhs and Hindus were killed, tortured and raped”; “Hindus and Sikhs who had to leave their forefather’s property” fared worse than Muslims; and the assertion that though Sikhs were effectively rehabilitated, Hindus were not. Although there are no concrete figures, the Partition is thought to have claimed somewhere between 200,000 (a botched-up British toll) to 2 million lives (a later Indian estimate) (Butalia 2000). There was a large number of Muslims too among the dead. The question of refugees has thus long been mixed up with the “secularism versus Hindu majoritarianism” debate. The issue of rehabilitation has time and again been usurped for political mileage (Kapoor 2017).
The judge is right in appreciating the complexities of demarcating a border in the north-eastern part of India. The idea of the Northeast as a region in itself is a colonial construct (Zou and Kumar 2011). But the judgment again goes awry when it ventures into remarking that
the Hindus, Sikhs, Jains, Buddhist, Parsis, Christians, Khasis, Jaintias and Garos residing in India which ever date maybe, they have come to India are to be declared all as Indian citizens and those who will come in future also to be considered as Indian citizens.
Coming in the wake of the Citizenship (Amendment) Bill 2016, the court should have been the last institution to polarize the already tense Northeastern states. Though the judgment does not mention the proposed law, it in essence exhorts it unreservedly. For instance, the judge’s insistence on protecting the religious minorities in Bangladesh, Pakistan and Afghanistan is unmistakably similar to the objectives of the Bill, which do not quite bode well with India’s obligations under international law (Poddar 2018).
The separation of powers between the judiciary and the legislature is not just a principled division but also holds relevance to the practicalities of administration. The judge’s opinion can best be called ill informed about its political fallouts, if not deliberately indifferent. Immigration in Assam has already given rise to fears of an ethnic crisis (Goswami 2001). To this fire the judgment callously adds the proverbial fuel.
The people of Assam live in an environment of felt betrayal and neglect by the Indian State. In such circumstances, the judiciary is more than just a last resort; to a large extent, it is has kept them hinged to the Indian democracy. This judgment might well be a minority stance within the judiciary at large, but the current political climate is dangerously conducive for its swift propagation. Discourses spread once kindled, and if such judgments are not discouraged, they will turn the people of the region against the judiciary.
The Citizenship Amendment Bill, and accordingly the court’s stance, clearly contravenes the Constitution (Thakur 2018). A blanket right of citizenship for almost everyone who is not a Muslim creates an unreasonable classification, the only objective seeming to be majoritarian politics. Even the judgment, for all its ostensible empathy for the oppressed, remains silent on the Rohingyas, dubbed as the most persecuted minority in the world. This arbitrariness in disfavouring the Muslim refugees brazenly violates Article 14, Right to Equality, of the Constitution. Given the established standards, the move seems to be devoid of any legitimate need or relevant objective (see “E.P. Royappa vs State of Tamil Nadu 1973”).
In “S.R. Bommai vs Union of India 1994”, secularism was reaffirmed as a part of the basic structure of the Constitution. Justice S.R. Sen though believes that since “Pakistan declared themselves as an Islamic country” India “should have also been declared as a Hindu country”. Suddenly, the communal bloodbath of the Partition becomes immaterial.
Knowledge formation is the key to the edifice of any discourse. The judge bases his assumption primarily on three books – My People Uprooted: The Exodus of Hindus from East Pakistan and Bangladesh by Tathagata Roy, Nirbashita Sribhumi Part II and Sundori Sribhumi Srihotto Part I by Dilip Lahiri. “After reading those books, it really pain[ed] and hurt” the judge, so much so that he uses about ten pages out of the little over thirty in the judgment to reproduce parts of the books. Any contrary view, however erudite, is conveniently avoided.
The sources themselves stem from baseless history. For instance, the judge’s prejudices borrow from an assertion that the atrocities against Hindus increased after the demolition of the Babri Masjid in 1992 – “unspeakable horrors were unleashed”. That the mobilization around the Babri Masjid demolition was largely anti-Muslim mattered little. Even in the immediate aftermath of the event, Muslims disproportionately suffered (see, India Today 2011).
Indeed, the judge does not shy away from taking political sides. In appealing to the Prime Minister to make good on his suggestions, he refers to him as “our beloved Prime Minister”. That might be explained as patriotic fervour. What, however, is inexplicable is Mamata Banerjee, the Chief Minister of Bengal, becoming “our Chief Minister” for a judge of the Meghalaya High Court.
With the onset of globalization in India, religious faultlines have cracked open among middle-class Indians, leading them to be less secular in their outlook and more ostentatious in the display of their faith. Unsurprisingly, Hindutva has found its breeding ground among this group (Nanda 2009). The mid-1980s onward witnessed a trend of public servants, otherwise scrupulously committed to their secular offices, leaning towards Hindutva publicly post retirement (Menon and Nigam 2007). From this perspective, the judgment shouldn’t come as a surprise.
The judiciary does not merely administer justice, but in it resides the ideals of democracy. For so many, the judiciary is an embodiment of the Constitution itself. Governments and its agencies may spew out populism, but secularism will remain firm in the eyes of the masses so long as it does not erode from the judiciary. In turn, this is what binds the country together regardless of political viciousness: this is what reassures Muslims every time they are asked to go to Pakistan and comforts Christians upon being unfoundedly accused of proselytization. This ethos binds the neglected Northeast to the Indian state. The judge says, “I am not against my Muslim brothers and sisters who are residing in India for generations and abiding Indian laws.” In saying so, he has already drawn a line between the “good Muslim” and the “bad Muslim”. By saying that unless they abide by the law “they cannot be considered citizens of the country”, the judge has mandated a test of citizenship for Muslims; a test that the rest are exempt from.
Secularism is not a forfeit for the majority but a responsibility on its shoulders. This is what the judicial discourse must seek to establish. Justice S.R. Sen’s judgment does not even make an attempt to do so; in fact it tries to establish the opposite.
Amon Rana vs State of Meghalaya & Ors. 2018. Writ Petition No. 448 of 2018 (Meghalaya High Court, December 10).
Butalia, Urvashi. 2000. The Other Side of Silence. Durham, USA: Duke University Press.
E.P. Royappa vs State of Tamil Nadu. 1973. 1974 AIR 555 (Supreme Court of India, November 23).
Frykenberg, Robert Eric. 1993. ‘Constructions of Hinduism at the Nexus of History and Religion’. The Journal of Interdisciplinary History 23 (3): 523-550.
Fuller, C.J. 2004. The Camphor Flame: Popular Hindusim and Society in India. Oxfordshire, UK: Princeton University Press.
Goswami, Sandhya. 2001. ‘Ethnic Conflict in Assam’. The Indian Journal of Political Science 62 (1): 123-137.
Guha, Ramchandra. 2011. ‘The Hindu Supremacist: M.S. Golwalkar’. In Makers of Modern India, 370-384. Belknap Press.
India Today. 2011.’Bloody Aftermath of Babri Masjid Demolition Across India’. December 5. https://www.indiatoday.in/india/story/babri-masjid-bloody-aftermath-across-india-147823-2011-12-05
Kapoor, Ria. 2017. Build the Refugee, Build the State: Development & Rehabilitation in Post-Partition India. August 14. Accessed December 12, 2018. http://refugeehistory.org/blog/2017/8/12/build-the-refugee-build-the-state-development-rehabilitation-in-post-partition-india.
Kesavananda Bharati vs State of Kerala & Anr. 1973. AIR 1973 SC 1461 (The Supreme Court of India, April 24).
Khanna, Vandita. 2018. ‘Rape, Representations and the Courtroom’. Feminist Legal Studies 26 (forthcoming).
King, Richard. 1999. “Orientalism and the Modern Myth of ‘Hinduism’”. Numen 46 (2): 146-185.
Larson, Gerald James. 1995. India’s Agony Over Religion. New York: SUNY Press.
Menon, Nivedita, and Aditya Nigam. 2007. “Politics of Hindutva and the Minorities”. In Power and Contestation: India Since 1989, 36-60. London, UK: Zed Books.
Nanda, Meera. 2009. The God Market. Noida, India: Random House India.
Poddar, Mihika. 2018. ‘The Citizenship (Amendment) Bill, 2016: International Law on Religion-Based Discrimination and Naturalisation Law’. Indian Law Review 2 (1). doi:https://doi.org/10.1080/24730580.2018.1512290.
Rabbe Alam vs State of Meghalaya. 2016. (2017) 172 AIC 470 (Meghalaya High Court, December 5).
S.R. Bommai vs Union of India. 1994. 1994 AIR SC 1918 (The Supreme Court of India, March 11).
Talbot, Cynthia. 1995. ‘Inscribing the Other, Inscribing the Self: Hindu-Muslim Identities in Pre-Colonial India’. Comparative Studies in Society and History 47 (4): 692-722.
Thakur, Apurva. 2018. ‘Why the Citizenship Amendment Bill Goes Against the Basic Tenets of the Constitution’. Economic and Political Weekly 53 (13). https://www.epw.in/node/151336/pdf.
Thapar, Romila. 2015. Early India: From the Origins to AD 1300. Gurgaon, India: Penguin.
Thapar, Romila. 2014. The Past as Present: Forging Contemporary Identities Through History. New Delhi, India: Aleph Book Company.
Zou, David, and M. Satish Kumar. 2011. ‘Mapping a Colonial Borderland: Objectifying the Geo-Body of India’s Northeast’. Journal of Asian Studies 70 (1): 141-170.
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