Is the devolution of naturalisation sufficient to address the persistent challenges of citizenship in the global South? Cautionary lessons from India and South Africa
Sujata Ramachandran (Wilfrid Laurier University, Waterloo, Canada)[i]
In her introductory commentary, Bronwen Manby offers a radical solution to the persistent challenges of naturalisation and formal citizenship rights for migrants, refugees and others in the global South. She proposes that this process should be decentralised or devolved to lower-level governments, at the scale of the state/province or local-level administration. This suggestion emerges out of the findings of her compelling work on naturalisation and citizenship-based issues in various African settings. This work, which began as a ‘citizenship audit’ for the African continent funded by the Open Society Foundations, examines ways in which discrimination based on citizenship status and rights adversely affects the lives of individuals and groups.
Her proposal has some merit for my own research settings: India and South Africa. The localised contexts where migrants reside assume an important role in naturalisation in various ways. Positive social contact between citizens and non-citizens at such settings may help to soften rampant xenophobic attitudes, as has happened in some South African locations. In India, socio-economic integration of migrants at these locales have been preliminary stages of informal and formal naturalisation. Locally-acquired documents are commonly used by individuals and households to establish domicile status which later provides the route to other official documents, such as ration-cards and Aadhaar ID numbers issued to any resident of India based on biometric data. These pathways contributed to the informal naturalisation of some migrants through the easy acquisition of two official documents meant for citizens only – ration-cards and voter identity-cards. Migrants who arrived from Bangladesh at various times transformed into de facto citizens, blurring differences between legitimate residents and undesirable, illegitimate non-citizens. Later, it aroused enormous suspicion towards official documents produced by residents, especially those who share similar cultural-ethnic traits with Bangladeshis.
India: discriminatory effects of formal citizenship determination
The process of naturalisation may be affected, both positively and negatively, by ethnic and cultural continuities and discontinuities across national borders in several, perhaps many, postcolonial countries in the global South. These similarities and affinities may enable some migrants and refugees to integrate socially and economically while nurturing the inclusive approach to naturalisation at the local scales. This is what occurred well into the late 1990s with the so-called irregular Bangladeshi migrants in some parts of India. Certain areas, such as West Bengal state, maintain deep historical ties, strong cultural and ethnic commonalities with Bangladesh, in addition to sharing the largest segment of a common border. Bengalis and Bangladeshis speak the same language and have mutual socio-cultural practices, irrespective of religion. In a formal submission during the late 1990s when India’s principal immigration law was being reviewed, the West Bengal government acknowledged that they had tolerated the informal entry and presence of migrants from Bangladesh. Mamata Banerjee, West Bengal Chief Minister, assured Bangladeshi migrants at a public meeting in early March of this year, after characterising them as ‘refugees’, that since they held voting privileges, her administration would treat them as citizens.
These physical and cultural-ethnic commonalities may have eased the passage of some, such as Bangladeshi migrants, to integration and naturalisation in several areas. But, in the highly diverse, multi-ethnic, multicultural setting of India, differences with other cultural-linguistic and ethnic groups can easily become the source of unchecked and not easily resolved anxieties and hostility. In Assam and other parts of northeastern India, rampant fears about localised ethnic, tribal and cultural-linguistic identities being besieged by the seemingly massive presence of undesirable ‘outsiders’ has greatly fuelled such opposition. The popular image of the latter as ‘illegal Bangladeshi migrants’ has given robust legitimacy to this unease. Crude migrant stereotypes have contributed to the disproportionate targeting of marginal, Muslim and /or Bengali residents in various parts of India, boosted by the rise of anti-Muslim xenophobia.
These discriminatory strains and general opposition to the presence of some or most migrants and refugees can adversely shape the processes of naturalisation through overzealous efforts to block and constrict established policy routes to citizenship. Take the case of the Chakmas in Arunachal Pradesh state in northeastern India. These refugees arrived from East Pakistan (now Bangladesh) in the 1960s. Despite qualifying for citizenship through naturalisation (or long-term residence) and a Supreme Court judgment upholding this eligibility, their citizenship status remains in limbo. Successive state governments have opposed their settlement for an extended period and declined to execute their role in this process. National and local strategies such as the National Register of Citizens (NRC), Aadhaar and Foreigners’ Tribunals (in Assam) are being regularly deployed in India to segregate and denaturalise undesirable residents.
The role of central courts and devolved procedures in South Africa and India
We also see this pattern in South Africa. After receiving the largest number of asylum applications globally for several years, mostly from Zimbabweans fleeing the acute socio-economic-political crisis which peaked in 2008, South Africa regularised their presence through temporary immigration programmes. These measures allowed approved migrants to study and work in South Africa while, concomitantly, disqualifying them from naturalisation. The Green Paper on International Migration, released in 2016, proposed that access to South African citizenship should be treated as an “exceptional” practice involving ministerial discretion and not an automatic right for qualifying migrants after a certain number of years’ stay in South Africa. In its latest iteration, the White Paper on Migration has unequivocally declared that South African “citizenship shall be highly valued and naturalisation…granted where [it] advances national interests and values” (p. 26). The obvious, intended goal is to strictly limit naturalisation, both permanent residence and full citizenship, except in rare cases.
Supported by the Constitution and Bill of Rights which emphasizes equality of treatment for all, South Africa’s judiciary has often restrained such exclusionary practices of state authorities. In a recent legal petition reviewed by the Western Cape High Court, Cape Town, the eligible applicants (born in South Africa to refugee parents) were not permitted to apply for citizenship as provided in the Citizenship Act. The Home Affairs’ Department had contended that they could seek instead ‘refugee status’ or, alternatively, permanent residence. The court ruled that by failing to adopt regulations to implement their right to apply for citizenship, the department was “ring-fencing” or segregating them “in the country that they have lived in since birth” and “only country they were familiar with” (p. 5).
Unfortunately, Indian courts have played a decisive role in strengthening xenophobic tendencies, while ignoring the persistent, unresolved hurdles faced by many marginal residents and legitimate citizens to corroborate their citizenship status. In India, passports were meant largely for the small privileged cohort with the means and opportunity to travel abroad, and are often demanded as definitive proof of citizenship from those suspected of being illegitimate residents. This document is widely accepted as the conclusive symbol and evidence of an individual’s citizenship, membership and belonging. The process of acquiring passports has been simplified and related institutional capacity expanded considerably in the last few years. Yet, less than 6 percent of India’s population currently holds passports. Poorer segments of the citizenry have weak access to this right and possess a very limited set of official documents to confirm their lineage and longstanding ties with India.
South Africa is somewhat of an exception to this problematic reality of weak institutional mechanisms of citizenship confirmation. There too though, naturalisation ensures a greater measure of security to migrants and refugees. The apartheid state crafted a robust system of identification and classification, tied to ‘passes’ to strictly govern the internal mobility of racialised groups, especially its black residents. This inherited, unabandoned system has become the foundation for the contemporary regime of identity documents, separating citizens from non-citizens and resulting in unequal treatment, in particular access to various basic services, such as health care. However, black South Africans who were treated as non-citizens by the apartheid regime may be less able to present birth certificates and other documents to confirm their background.
In a new ruling, South Africa’s Constitutional Court has affirmed the importance of naturalisation and citizenship rights for residents by referring to the country’s difficult past and present circumstances. Before 1994, a majority of residents, black South Africans, were stripped of their citizenship by unjust and inequitable colonial and apartheid-era laws. In the post-apartheid period, refugees, asylum-seekers and migrants have been routinely exposed to various forms of xenophobia, including institutionalised discrimination and public violence. The Court observed that “citizenship and equality of citizenship is therefore a matter of considerable importance in South Africa, particularly bearing in mind the abhorrent history of citizenship deprivation…Citizenship is not just a legal status. It goes to the core of a person’s identity, their sense of belonging in a community and, where xenophobia is a lived reality, to their security of person” (p. 13).
The formal process of naturalisation has already been devolved to some extent in India. In Assam, several thousand state government employees were involved in the creation of the new Register of Citizens. Local police personnel conduct background checks all over India for persons who apply for passports. As per the Citizenship Rules (2009), applications for citizenship through naturalisation and registration are to be assessed and finalised by the District Collector, the state-level Administrative Service officer in charge of the district level-subdivision. These decentralised powers have enabled the fast-tracked naturalisation of six religious minority communities (including all groups except Muslims) from Afghanistan, Bangladesh and Pakistan using state and district-level authorities in seven Indian states. The general requirement of twelve years’ residence in the country has been reduced by half. Devolution has been deployed to selectively incorporate desirable groups requiring shorter tenure for naturalisation, while rejecting others who may have lived there for many decades.
Contexts of naturalisation in the global South
As Irene Bloemraad has noted in her commentary, the obvious limitation with decentralisation is that it may end up benefitting only some migrant groups, exclude many others and thus serve to deepen existing social inequalities. Even in the highly decentralised regime of Switzerland, where citizenship is formally articulated at multiple geographical-jurisdictional scales, a convoluted set of procedures and requirements have rendered this process discretionary and ultimately selective. Barbara von Rütte’s analysis highlights this uneven outcome. This provision has advanced the majoritarian political agenda in India by integrating Hindu migrants from neighbouring countries and rejecting Muslims, rendered less overtly discriminatory by accepting other religious groups. Responding to widespread public protests opposing these latest changes to India’s citizenship law and the proposed creation of the National Register of Citizens (NRC) for other areas, several state-level governments (led by non-Bharatiya Janata Party/BJP political parties) have declared that they will not permit this exercise to be conducted in their own jurisdictions. But this may only offer a temporary reprieve unless the strong xenophobic strains and dangerous politics which victimise legitimate citizens and destabilise the inclusion of established residents are addressed. The long-term effects of such divisive social dynamics of naturalisation can be brutal and devastating, as witnessed in Côte d’Ivoire.
In the global South, these xenophobic tendencies can undermine government willingness to broaden existing channels of naturalisation. Sanzhuan Guo’s post on China notes the clear lack of public acceptance for immigration and proposed easing of restrictions for permanent residence. These anti-immigrant and anti-naturalisation attitudes are deeply paradoxical for countries like India and China. With the largest diasporas globally, both have received enormous benefits from the immigration and naturalisation of large numbers of their own citizens and their descendants in a number of destination countries.
As a second point, we need to examine the manner in which formal and informal processes of naturalisation evolve in different national contexts. As Diego Acosta Arcarazo has argued in his piece, nuanced understandings are needed of the complex workings of naturalisation in the global South. This assessment must move beyond detailed reviews of existing citizenship laws to document the myriad formal and informal ways in which naturalisation operates in practice. We need to highlight unresolved formidable barriers to recognition of citizenship, even for legitimate citizens, and the drastic consequences it produces for those who are unable to overcome such hurdles. Take the unsettling, latest cases of Mohd Azmal Haque and Mohammed Sanaullah of Assam. They were declared as ‘illegal Bangladeshis’ after having served in the Indian army for many years, three decades in Haque’s case. Such cases are becoming increasingly common in Assam. Recent news reports reveal that marginal residents have depleted their meagre resources to fund legal challenges to this onerous classification. These longstanding dilemmas and underdeveloped procedural safeguards to effectively rectify such weaknesses have not yet received adequate attention in India. On a much more positive note, judicial intervention in South Africa has helped to mitigate common challenges of naturalisation for certain categories of individuals (born to South African parents outside the country and born in South Africa to non-citizens).
Third, the temporal aspect of residence for naturalisation must be weighed for those who migrated from Bangladesh and have lived in India for extended periods. The right to naturalisation has been eliminated for those categorised as irregular migrants, along with their successive generations – the latter no longer qualifying for birthright citizenship. Political theorists such as Joseph Carens have persuasively argued that eliminating or blocking naturalisation is incompatible with the central normative principles of equality, rights and inclusion in liberal democracies. Long duration spent in a country, socio-economic integration, and good social conduct are significant indicators of positive engagement as members in the receiving country. Haque and Sanaullah’s long history of military service alone should have been treated as unquestioned evidence of their ‘Indianness’. This consideration is also long overdue, especially as India is unable to deport en masse those it has declared as illegitimate outsiders, even with the expansion of detention institutions. Bangladesh has repeatedly claimed that India is expelling its own unwanted citizens. Those classified as ‘irregular Bangladeshis’ will become stateless, caught in the detention trap or exist in a highly insecure position in India. It is the making of such an underclass, with few rights and weakest status, through naturalisation processes in India and South Africa, which urgently demands the greatest critical scrutiny. The devolution of naturalisation may not be a sufficient condition by itself to address these various challenges outlined above.
[i] This commentary partly draws on prior research published as Sujata Ramachandran (2015) Capricious Citizenship: Identity, Identification, and Banglo-Indians.