The Battle for India’s Founding Ideals

By Madhav Khosla – These events come after much of India has been engulfed in protests over a new citizenship law that treats Muslims differently to those from other religions. These protests, which have seen tens of thousands march across the nation, began in universities. The government’s reaction was swift and brutal. It encompassed both prohibitory measures, such as Internet shutdowns and the prevention of public assembly, as well as reactive measures, which included detention and violence. In Uttar Pradesh, a state which is home to more Indians than any other, the tales of police brutality would send a shiver down any spine.

Sunday’s attack underscores two crucial changes taking place in the world’s largest democracy. The first is to the country’s formal legal architecture. India’s founders, as I have suggested in a new book, India’s Founding Moment, imagined citizenship to be unmediated by community affiliation. For them, to belong to the modern world was to belong to representative framework where each person was treated on free and equal terms.

Measures like the new citizenship law challenge and undermine this founding vision. The law enables “any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan” to become an Indian citizen, thereby explicitly excluding Muslims.

India’s Constitution guarantees the right to equal treatment. This right applies to all persons and not only to citizens. To pass muster, a law has to make an intelligible distinction between those that it includes and those that it excludes. Moreover, this distinction has to bear a rational connection to the law’s objective.

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In this case, the stated objective is addressing the religious persecution of the enumerated classes. But the law does not capture this objective as it is both over- and under-inclusive. It does not provide protection to groups such as the Ahmadiyya Muslims from Pakistan and it assumes that all those who enter India from the specified classes are persecuted. This presumption is revealed by the fact that the law has no provisions relating to religious persecution at all, thus eliminating any link between the distinctions drawn and the declared aim.

As India is thrown deeper and deeper into a cycle of extra-constitutional violence, we should fear that the state and citizens will struggle to manage the situation. In such scenarios, the disorder and horror often follows a logic of its own.

If India continues to unravel in this fashion, there will be unspeakable acts on either side, untold truths that are hidden in every quarter. Even the most terrifying moves will be justified, even the clearest forms of evidence will be challenged.

In a world where public institutions and social harmony have given way, we will live under a state that claims monopoly over the exercise of force but no longer quite enjoys it. The state will deploy and exploit its power in every possible way, but, as in the case of colonial rule, the idea of legitimate authority will cease to have meaning. more>

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