Citizenship and Its Discontents

An Indian History

Niraja Gopal Jayal

• Publisher: Harvard University Press
• Year: 2013
• Print ISBN: 9780674066847
• eBook ISBN: 9780674070998
• Topic: Politics & International Relations
• Subtopic: Indian & South Asian History
• Index: Politics & International Relations

Breaking new ground in scholarship, Niraja Jayal writes the first history of citizenship in the largest democracy in the world—India. Unlike the mature democracies of the west, India began as a true republic of equals with a complex architecture of citizenship rights that was sensitive to the many hierarchies of Indian society. In this provocative biography of the defining aspiration of modern India, Jayal shows how the progressive civic ideals embodied in the constitution have been challenged by exclusions based on social and economic inequality, and sometimes also, paradoxically, undermined by its own policies of inclusion.

Citizenship and Its Discontents explores a century of contestations over citizenship from the colonial period to the present, analyzing evolving conceptions of citizenship as legal status, as rights, and as identity. The early optimism that a new India could be fashioned out of an unequal and diverse society led to a formally inclusive legal membership, an impulse to social and economic rights, and group-differentiated citizenship. Today, these policies to create a civic community of equals are losing support in a climate of social intolerance and weak solidarity. Once seen by Western political scientists as an anomaly, India today is a site where every major theoretical debate about citizenship is being enacted in practice, and one that no global discussion of the subject can afford to ignore.

PART ONE

Status

1

The Subject-Citizen

A Colonial Anomaly

In 1906, the Rev. John Morrison of the Church of Scotland in Calcutta made the startling claim that citizenship was one of the most important political ideas to emerge in India in the nineteenth century, adding cautiously that it was still far from achieving the stage reached by British opinion in 1832.

On the face of it, to speak of citizenship in an empire is conceptually implausible, legally dubious, and historically anachronistic. Subjects of an empire can scarcely be properly described as citizens, for a political community of free individuals would appear to be a necessary precondition for citizenship. This chapter attempts a legal and discursive genealogy of the “subject-citizen” of empire. The hyphenated category is a conceptual artifact that attempts to capture the anomaly of citizenship in the colony, as well as the easy elision between the usages of subject and citizen in the discourse of the time. If the one denotes actual legal status, the other represents a claim, even the presumption, of another status. Every usage of the term citizen is not however subversive. It is little more than an unselfconsciously imitative impertinence, an expression of the desire of the small elite of western-educated Indians to be treated on par with other British subjects, and especially with members of the white Dominions.¹

Morrison himself attributed this new idea of citizenship to three influences in particular: ideas of Christian philanthropy producing a sense of brotherhood and thereby a “civil society”; the free and democratic spirit of English literature; and the English and vernacular newspapers that made people familiar with political life in Britain. As befitted a lecture series² devoted to the defense of the Christian faith, it was to the preeminent influence of Christianity that Morrison attributed the assumption, implicit even in criticisms of colonial rule, that “government exists for the good of the governed, and indeed is responsible for the welfare of the masses” (Morrison, 1906: 73). Notwithstanding the social and religious differences in Indian society, he remarked somewhat optimistically, “politically, all India is already one; her educated men have drunk at one well of political ideas; citizenship and its rights are attractive and destroy no cherished customs” (ibid.: 80–81; emphasis in original). British imperialism was thus crucial to this “consciousness of being a political unit” (ibid.: 72), and indeed the very name Indian being used in the politics of the day was a concept that could not be conveyed by any Indian language. It came from Britain and the English language (ibid.: 78–79).

In recent years, the term “imperial citizenship” (Karatani, 2003; Gorman, 2006; S. Banerjee, 2010) has come to enjoy a certain popularity, but the usage obscures an analytical distinction that is fundamental to the understanding of this phenomenon in colonial India. This is the distinction between the external and internal aspects of the citizenship question. I propose the use of the term imperial citizenship for the first, external dimension, and colonial citizenship for the second, internal dimension. The difference between imperial and colonial citizenship lies in the three primary differences of the addressee of the claim; the bearer(s) of citizenship; and the content of the citizenship claim.

Imperial citizenship here refers to the status of Indians as members of the British Empire, and as such remains close to the original fin de siècle use of the term. This was the site on which claims were made for an equality of status for Indian subjects with other subjects in Great Britain, but also and especially with British subjects in the Dominions and other colonies. It was persistently invoked in claims on behalf of overseas Indians spread across the British Empire, including those by the Imperial Indian Citizenship Association, founded in Bombay in 1915 to advance the cause of Indians in Kenya, Fiji, South Africa, and Canada, among others.³ The term colonial citizenship denotes the more direct relationship between the colonial state in India (including the office of the Secretary of State for India and the Colonial Office in Whitehall) and its subjects within India. This was the site of claims to civil liberties and political rights including claims to political representation, whether in Indian legislative councils or in the House of Commons.

These twin dimensions of citizenship, it will be seen, subsisted in separate silos, though both reflected and reproduced hierarchies of race and class, with varying emphases: in the case of imperial citizenship, predominantly the racial hierarchy that characterized the structure of the British Empire; in the case of colonial citizenship, predominantly the class hierarchy of colonial society, subsisting within a broader racial hierarchy. In Britain, technically, all imperial subjects including Indians had the same rights. While there was sympathy in some quarters of the British establishment for the unfair denial of equal rights to Indian residents of the Dominions, there was little or no recognition of the denial of rights to Indians in India. That the rights available to Indians in Great Britain were not available to Indians within India⁴ did not strike the leaders of British public opinion as paradoxical or inconsistent. Again, in arguments for imperial citizenship, the putative bearers of citizenship included subaltern Indians abroad, but subaltern Indians within India were rarely part of the discursive realm of colonial citizenship claims.

Imperial Citizenship: “A Plan of Geographical Morality”

Despite its oxymoronic appearance, imperial citizenship is not a phenomenon unknown to history.⁵ Indeed, the architecture of citizenship proffered by the British Empire is strikingly reminiscent of the Roman empire,⁶ in particular the 212 CE edict of Caracalla that granted citizenship to all the male residents (excluding the lowest, largely rural, classes) of territories conquered by Rome, estimated at about six million men (Walzer, 1989: 214). In his Roman Oration of 143 CE, the second-century rhetorician Aelius Aristides eulogized this “magnificent citizenship with its grand conception, because there is nothing like it in the records of all mankind. . . . Neither sea nor intervening continent are bars to citizenship, nor are Asia and Europe divided in their treatment here. In your empire, all paths are open to all” (quoted in Nicolet, 1980: 18).

Scholars have interpreted this expansive grant of citizenship status variously as a tool for the incorporation of subject peoples, as a mode of the strategic inclusion of provincial elites in the distribution of public office (Purcell, 1986: 569), and a strategy for raising taxes to pay for wars (Nicolet, 1980: 20). From the perspective of a comparison with the British Empire, it is notable that, despite its generous embrace of geographically scattered and ethnically diverse populations, there were several classes of Roman citizenship, arranged in a complex hierarchy accompanied by a graduated scale of rights: to vote, to stand for public office, to make legal contracts and hold property, to marry a Roman citizen, and so on. At the heart of the empire, the free citizens of Republican Rome constituted only a minority of the population, with the civic mass being ruled by an oligarchical political class whose privileges stemmed from ownership of property and nobility of birth (Nicolet, 1980: 3–4).

British imperial citizenship was not unlike that of imperial Rome:⁷ similarly inclusive in the formal sense, and similarly stratified in reality. In legal terms, the principle of jus soli—birth on the soil of the country—was the normal mode of acquiring citizenship, so all those born within the British Empire shared the common status of being subjects of the king-emperor. This however was pretty much all that was shared or common. Commonality—consisting of common subjection to the sovereign—rather than equality was the defining principle of British imperial citizenship. The symbolic basis of imperial citizenship was the doctrine of natural allegiance to the sovereign, with fealty and loyalty being what subjects offered the monarch in return for his protection.⁸ In point of fact, of course, such rights as subjects enjoyed lay in the custody of Parliament, rather than the monarch, and varied enormously. Within Britain alone, there were four subcategories of citizens with differential rights: natural-born, naturalized (whose citizenship was effective across the empire), naturalized (whose citizenship had only local effect), and denizens (Karatani, 2003: 52).⁹

The differential access to rights was even more pronounced across the empire, echoing and reinforcing the inequality between its different constituent units. From 1870 onward, the self-governing Dominions could confer the rights of a naturalized British subject within the territorial limits of the colony. This meant that while a Frenchman naturalized in New Zealand could be a British subject in that country, when he came to England, he lapsed back to being a Frenchman (ibid.: 56). In response to the insistence of Dominion governments in a series of Imperial Conferences, the British Nationality and Status of Aliens (BNSA) Act of 1914 inaugurated a new split regime of legal citizenship that had the effect of further consolidating the difference between the Dominions and colonies. It entrenched the power of the Dominions to make laws of immigration and naturalization in their own territories, and also empowered them to treat different classes of British subjects differently. From this date onward, the colonies continued to be governed by the older common-law regime of citizenship, while the Dominions came to be governed, from 1914 till the enactment of the Canadian Citizenship Act in 1946, by the so-called common code, which explicitly recognized a form of “local citizenship,” sanctifying the divide between Great Britain and its Dominions, on the one hand, and the rest of the empire, on the other.

The Dominions thus wrested from Great Britain the right to enact immigration policies that were deliberately framed to exclude particular racial groups, mostly Asians and especially Chinese and Indians. The British government did not itself adopt this openly discriminatory and invidious practice, offering only the curious justification that the Asians and Africans who might seek naturalization would be the merest drop in the ocean of the enormous number of such subjects. It also pledged—and honored this pledge of—noninterference, allowing the Dominions unfettered freedom to practice race discrimination in immigration policies. The common code thus cemented the ties between Britain and its White Dominions, which were now more starkly separated from the lesser (and nonwhite) colonies of the British Empire. An unintended, even ironical, consequence of this devolution was that, by the time the common code ended in 1946, the national identities of subjects of the Dominions—such as a Canadian or Australian identity—had also crystallized, in ways that could be seen as undermining the “mother” identity of British imperial citizenship.

In British dependencies such as India, there were two categories of subjects. Those who were born on territory controlled by the British government were designated as “non-European, natural-born British subjects” and enjoyed fewer rights than British subjects elsewhere. Those who belonged to the principalities, controlled but not directly administered by the British, were described as British Protected Persons. A third category, of European society in India, included not just colonial administrators, businessmen, and army officers, secure in their identity as British citizens, but also a range of other classes of “poor Europeans” and Eurasians—from skilled and semiskilled workers to orphans, vagrants, prostitutes, and convicts (Arnold, 1979)—thus yielding a complex and stratified picture of subjecthood within India, but also across the British Empire with its varied categories of territorial control.¹⁰

Neither non-European British subjects nor British Protected Persons (BPPs) could become fully naturalized members of the British Empire, and political equality with other white subjects of the empire was by definition precluded (Gorman, 2006: 164). Till the passage of the Act of 1914, a passport issued in India, as indeed in any of the Dominions, was proof of British subjecthood within that particular territory. British nationality in a form that was coextensive with the British Empire was available only to subjects resident in the United Kingdom. Even after the Act of 1914 was enacted, Indians could enter most British colonies, but their entry into the Dominions became subject to the immigration policies of the latter countries. They could still enter Britain with a British passport, although The Round Table expressed a complacent optimism that the climate of the United Kingdom would more effectively “keep coloured races away . . . than the most drastic of immigration restrictions” (Tinker, 1976: 37).

The nonwhite colonial possessions of Britain had remained marginal to the largely bilateral consultations between Britain and its Dominions that resulted in the BNSA Act of 1914. India was often mentioned, always as an anomalous case because its people formed the large majority of British subjects (Sargant, 1912: 7, 57–58). In 1912, following the Imperial Conference of 1911 at which the premiers of the Dominions had reiterated their demand of the right to frame their own laws of immigration, United Empire, the journal of the Royal Colonial Institute, invited contributions from a range of public figures on the meaning of British citizenship: could women in Britain, who had only the municipal franchise, be considered citizens? Should subjects of non-European descent have an inferior political status? Did white men in the Dominions have the right to work and reside in Britain, and would they have the same political rights as other British citizens? Like many of the other contributors, E. B. Sargant sought to define citizenship in terms of voting rights, clarifying the hierarchies collapsed into the term British citizen:

We should . . . have to speak of a descending scale, first of parliamentary electors within the United Kingdom as alone possessed of British citizenship, then of those in the self-governing Dominions overseas as Canadian citizens, Australian citizens, etc. Next would follow various classes of Crown colonists, distinguished as citizens of Jamaica, etc., then a group of British Indian citizens (since the word “citizenship” is used in the Indian proclamation of the late King-Emperor), and, lastly, women electors who would be merely citizens of London, Montreal, etc, unless they were domiciled in Australia or New Zealand, when they would rise in the foregoing scale. Finally would come the class of unenfranchised (and disfranchised) persons and minors, who, if not aliens, would, like all the classes already mentioned, be British subjects. Such would be the result of not recognizing that British citizenship is multiform in character. On the other hand, if we agree to include more than one status of citizen in our definition of the term, at what point are we to stop? (Sargant, 1912: 4–5; emphasis added)

What was common to all the different categories of British subjects was the principle that, even if denied equal political rights, they were accorded equal protection under British common law, both at home and abroad. However, the idea of British protection appeared largely fictional as Indian indentured labor—known as “coolies” and in effect not very different from slaves—was moved across the empire with not the merest pretence of consent. The first shipload of indentured labor from India reached the Natal in 1860 followed by Indian traders who participated in the slave trade, dealing in both Indians and blacks. Many of the indentured laborers acquired freedom after five years, and settled in the Transvaal, the Free State, and the Cape Colony. Local European resentment against the free Indians and Indian traders led to the imposition of a poll tax on Indians, and a proposal to disenfranchise even already enfranchised Indians. A brief victory was won when, in response to a petition signed by ten thousand Indians, Lord Ripon quashed the proposed law on the grounds that the British Empire could not endorse a color bar in law. Other measures to restrict the activities of Indians were however devised, including the requirement of a license for trading and the requirement to pass an education test in a European language.¹¹ In the Cape Colony, Indian children were not allowed to attend even public schools; in the Transvaal, Indians were given permission to reside only in unsanitary places far removed from the town. The Indian National Congress’s championing of these grievances (in the form of a resolution in 1901) with the government did not produce any results. Gandhi’s very first satyagraha in 1907–1909 was to affirm the rights of imperial citizens to move from Natal to the Transvaal. It was Gandhi’s campaigns that created widespread awareness of discriminatory practices, even as they caused the South Africans and the British to more strongly entrench the bar on the permanent settlement of Indians.

The case of Indians in South Africa is a telling illustration of the distortions introduced into the common law of citizenship in Great Britain, ostensibly unmarked by any racial referent. Nevertheless, the empowering of the Dominions to make their own discriminatory policies, as well as to introduce criteria such as an English language test or a poll tax, confirmed the creation of distinct classes and statuses of citizenship, essentially based on race and suggesting the existence of two empires, one white and the other colored. Notwithstanding the assertion of a common British subjecthood, the common code in effect treated British subjects of Asian origin as uncommon, and undeserving of the bilateralism that characterized agreement among the British government and its White Dominions. In an indignant comment on behalf of the Sikhs who arrived in Canada aboard the Kamagata Maru “in exercise of their rights of British citizenship,” Lala Lajpat Rai wrote in 1914:

The fact is that the British Government in India is on the horns of a dilemma. They want the Indians to believe that they are the equal subjects of the King, but when the former c...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Introduction
• Part One. Status
• Part Two. Rights
• Part Three. Identity
• Epilogue
• Notes
• References
• Acknowledgments
• Index