Suddenly Stateless Conversation Series III : “Procedure as Violence”

As far as archives are concerned as I mentioned, I started with an interest in examining the everyday experiences of citizenship during decolonialisation in South Asia. How did ordinary people navigate the change from imperial geographies to national geographies? And I figured out that law was central to the story because it created the categories through which political belonging could be understood and secondarily I was also interested in understanding how decolonialization affected people who lived away from centers of power. didn’t want to tell a kind of Delhi centric story of the decade leading up to 1947. So, because of this, these instincts led me to the record room to Madras High Court where I looked at ordinary, everyday cases that the Court would have dealt with in the period between 1942 and 1955. These are not high-profile trials or cases which were discussed in the newspapers but really quite marginal cases that deal with the issues that people faced when they didn’t quite fit the categories that national legal regimes had created. This in a large part involved cases involving immigrants.

Following this archival trail, I also worked at the National Archives in Sri Lanka, where I looked at the Citizenship Commission set up to adjudicate who belonged to Sri Lanka and who didn’t in the immediate aftermath of independence. In particular, I looked at cases featuring the minority Tamil speaking population in Sri Lanka, who are assumed to belong to India because of the language that they spoke in spite of the fact that Tamil speaking people had lived in Sri Lanka for centuries preceding the colonial period. I mean these archives looked like there were just files, government files with reports of enquiry commissions, affidavits, little pieces of evidence. So just masses and masses of files. They’re not judgments, they are not legal judgments which we often see as being the major sort of, for our access to the law. But these are really the backstories and the kind of or the story from the applicant’s side or the litigant’s side.

And you refer to this, there is this very beautiful sentence in the piece that you sent me. You refer to this as, “the messy, complicated, unsettled nature of post-war movement in South-Asia when multiple political imaginations of the region and its future were at work”. Can you, kind of, expand on that and tell us a little bit more about this messiness and the complicated nature of this?

I think this is the part of the work that I found quite, really quite critical to think through. In many ways, the history of South Asia in the 1940s is commonly written in terms of India-Pakistan Partition and you see in the case of the NRC, how this is quite central to the story. So, the imagination of homeland for British India’s Muslims- Pakistan and the different kind of constitutional schemes that were produced as a result. But then there are other stories and other histories that can be written about this decade, particularly when we think about people and places and the margins and borderlands of these imagined nation-states. So, for instance, when we think of the Bay of Bengal literal and about Tamil immigration, the big disruptive moment is that of the Japanese occupation of Burma and the threat of a Japanese invasion of the sub-continent. When you look at the litigation produced during this time between 42 and 55, you see what kind of worlds immigrants had imagined that didn’t quite fit into nationalist frames.  There are these multiple worlds that are being imagined. On the one hand these kinds of constitutional schemes that the nationalist leaders of these various countries are coming up with and then also these minor worlds, if you will, that are being produced by the people, kind of speaking back to the state and saying, “Hey, this is what our world looks like. This is our imagination. This is what the map looks like to us.”

Through the law, people challenged, I think more accurately, they were forced to challenge the categories of political belonging that nation-states were creating during this time.  The legal archive became quite central because it was my one window into seeing some of these things from the other side. For me, these challenges are equivalent to unsettling the dominant ways in which states were imagining post-war South Asia.

So, for instance, to bring it back to the question of the NRC, even though the critical year for “proving” citizenship is 1971, 1966, so much of the historical context is rooted in those initial partitions, in 1947 in particular and the governmental apparatus that were put in place at that time. The foreigner as a non-citizen not in possession of the right documents as it is understood today is a feature of that post-war moment in South Asia. It was put in place during this time although it did have earlier iterations. As Sunil Amrith mentions in his, in his essay these struggles for citizenship in sort of post-war South Asia is based on a disavowal of migration and sort of those tensions are what you see as these multiple imaginations during this time.

And I just wanted to go back on just one of the threads. This disavowal of this idea of migration when all of these colonized bodies throughout South Asia and large parts of Africa have been in constant migration… migration is so integral to our existence and histories. Can you perhaps talk about it a little bit?

I think multiple historians of migrations have spoken about the ways in which the subcontinent has featured this kind of constant movement and how cultures, identities, languages, food, everything is produced as a result of this constant going back and forth. But what is really interesting about some of these citizenship struggles that we see in the subcontinent today, even the issues that I studied in my dissertation work, really starts in the sort of nineteenth-century moment where the intensity and the frequency of migration in the subcontinent but also elsewhere, increases. A large part of this is as a result of colonial projects  — labourers for plantations, for mines from South Asia to SouthEast Asia. It is indenture from South Asia to other parts of the world. There is forced migration, there is voluntary migration, all kinds of movements that are happening. But really the key point to remember is that there is an upward trend beginning in the mid-nineteenth century and it causes a great deal of anxiety to the colonial state, between the crown colonies and British India, and it produces a large amount of paper which you find at the archives, right, around the question of immigration.

And by the 1930s, some of these fears around immigration also overlap with a sort of rising nationalist trend in these colonies. By the time you get to the kind of, the post-war moment, two trends have coalesced. The outsider is the recent arrival, the non-citizen is the illegal immigrant, all of those conflations take place and you have a situation where in order to define who belongs you have to kind of disavow the fact that places had always had people moving through; that there was always these immigration trends. That’s why it is important to remember the kind of colonial and the historical context to many of these struggles that we are seeing today.

Can you tell us about the protagonist — Muthiah and through his story explain how this new citizenship regime was implemented?

The important thing to remember as you’re listening to this story is that around the NRC there has been some excellent reporting that has focused on the protagonist (you know the applicants) but, for the historical Sri Lanka case, these are few and far between. Even when you look at the news reports from that time …these people are faceless, there are no particular stories. So again, going back to the law was useful because there you actually hear particular stories.

I came across Muthiah’s story in law reports from Sri Lanka and in archival materials at the National Archives of Sri Lanka. So according to his accounts, he was a plantation labourer working on an estate in Nuwara Eliya and he was brought to the island from Madras when he was a little boy. He had lived, worked, married and raised children on the island. He spoke Tamil and so was part of the island’s biggest minority population of Tamils. In Sri Lanka or Ceylon, as it was known then, the nationalist trends had begun in the 1930s. Sinhala nationalists had claimed that they were the original inhabitants of the island and the Tamils were interlopers. Tamil nationalists also told their version of the story in which Tamil presence on the island was centuries old. But caught between these two camps were these Tamil speaking labourers brought to the island to work on the tea plantations, the malaiyaha Tamils. These were seen as recent arrivals by both camps.

But in 1948-49, the Sri Lankan government implemented citizenship laws that disenfranchised most “recent arrivals”, struck them off electoral rolls and asked them to prove their citizenship before a commission. For those who could prove their presence in Sri Lanka for three generations in the paternal line, they would have to produce documentation to show why they should be included and why they could register as citizens.

At first, Muthiah does not at first succeed before the commission and his case is taken by the Ceylon Workers Congress, a prominent trade union and litigated the case before the Supreme Court. Over eight hundred and twenty-five thousand people had applied to become citizens through registration. That’s the official number we have. But I wanted to use this one story and this one kind of microhistory of litigation to show citizenship regimes were experienced, how they were construed and the trouble the people had in navigating them when they didn’t quite fit the category.

The Ceylon Citizenship Act and IPRA have two distinctions. So, there is one distinction in which citizenship is by descent and there is a citizenship by registration. Can you briefly explain these two different ideas and how they play out on the bureaucratic procedure? 

It is important to remember that the Ceylon Citizenship Act of 1948 is the only piece of several legislations relating to citizenship that was passed at that time. The Act under which Muthiah and his family applied for citizenship was actually a different one — The Indian and Pakistani Residents (Citizenship) Act of 1949. There was the Ceylon Citizenship Act of 1948, the Indian and Pakistani Residents (Citizenship) Act of 1949, The Immigrants and Emigrants Act in 1948 and also an amendment to the parliamentary legislation that pertained to, whether or not they feature on electoral rolls. With a stroke of a pen that they were rendered stateless. It is actually these multiple pieces of legislation that fit into one another and result in, their rights being, stripped of.

The Ceylon Citizenship Act defined who would be a citizen of Sri Lanka. One of the key features of the Act was that you had to prove your presence on the island going back three generations in the paternal line, which was really quite an extreme standard. Typically citizenship legislation can feature different basis on which you can get citizenship: through birth, through descent, you can naturalize, you can register, if the state that you are trying to be a citizen of acquires more territory and you reside in that territory, you can become a citizen that way. There are multiple ways citizenship is usually acquired. But in Muthiah’s case, he was under this one particular Act, which was set up to deal with the question of those who are presumed to be of Indian origin.  He had to go through the elaborate procedure so that the state could determine whether or not he was eligible to be a citizen.

Under this registration, this Act, people could apply to become citizens, there was an elaborate procedure whereby you had to produce multiple documents to show how you were “permanently” settled on the island and that you had continuous residence from a particular date just as it is happening in the case of the NRC. That you had continuous residence, that you had no connections back, you know, to the place from which you had immigrated and that you were giving up all political rights to the place to the place from which you had immigrated. Now all of these different requirements had to be fulfilled before you could, you could be registered. It was quite an elaborate procedure, whereas none of this was applicable in the case of those who could, who were citizens because they could fulfil the definition in the Citizenship Act of 1948. So that’s the key difference.

Some people, try to make a distinction between birth-right citizenship and citizenship by descent- citizenship through tracing bloodlines. Say, for instance, birth-right citizenship, the kind we have in the US- if you are born in the territory of the US, you become a citizen. Places like India, the India Citizenship Act, for instance, has multiple basis on which you can become a citizen, so does the US. But it’s not terribly accurate to draw this kind of strict distinction between these two. But certain provisions apply more stringently to certain populations as we see both in the case of Muthiah and today in the case of the NRC.

And a lot of what you are describing with Muthiah and the bureaucratic and the legal nightmare that he endures is eerily similar to the four million people in Assam who are now battling to become a part of this National Register. You have already spoken a bit about this but can you tell us a little bit more about Muthiah’s encounters with these systems and how we can understand these struggles in the present context?

In Muthiah’s application, he has a wife and a  child when he files his application to register to become a citizen of Ceylon. And you know, unlike some of the other applications that I had seen,  he really, falls well within the deadline. He files it well in time, supports it with documentation, sends it off. He hears nothing for five years. At the end of those five years, he gets a notice from the Deputy Commissioner saying that he has to appear for an enquiry before the Commission because his permanent settlement has not been approved.

He turns up before the Commission and all of his documentary evidence is perused. He is asked to turn up with two witnesses who have to support the statements that he has made in his affidavit. So as far his documentary evidence is concerned, he has these shopping receipts from a shop and he then has an extract from his post office savings bank account. So, it’s an extract from his bank account. The Commissioner looks at all this evidence and he asks, why did this person hold on to these receipts which are for paltry sums. There is one for one rupee,  another for three rupees. The two witnesses that turn up to support his statements, one of them turns out to be an applicant for citizenship himself and that is reason enough for the Commissioner to dismiss their statements.

From the documents I had, I tried to imagine that scene and the Commission that was set to adjudicate these applications. They had different branch offices and the Commission inquiry usually took place in factory offices on these tea plantations. And I sort of imagined Muthiah turning up bright and early with his documentary evidence and his witnesses, desperate to prove to the Commissioner that Ceylon was the only home he knew.

So, that was the first stage. The Commission finally decides that he doesn’t fulfill the requirements. The case is then appealed to the Supreme Court. One of the lawyers employed by the Ceylon Workers Congress ends up taking on the case. He doesn’t succeed at the Supreme Court either, where the Supreme Court is unwilling to accept the evidence that Muthiah had produced. And that’s where the archival trail, kind of, runs out. After his application fails at the Supreme Court, I have no way of tracing what happened to Muthiah and his family. Along the way, I also, tried to find out how they afforded these lawyers. It sounds like there were several organizations that ran a fundraising campaign to supply lawyers to these people. That’s how the case had actually gone up to the Supreme Court. In the vast majority of the applications that I looked at, this did not happen. The cases ended with the commission inquiry. Sometimes the notices that the commissioners had issued never got to the applicants, so they never turned up for the enquiries. And, and these people sort of disappeared from the archive. You don’t know what has happened to them.

And that brings us to this paragraph where you talk about Muthiah’s series of desperate pleas. He says that he has no connection to India and Ceylon is where he has been since he’s 7 or 8. And what you see is that his emotional and lived belongings are vastly different from the category that the state imposes on him. Similarly, in Assam, the majority of the Muslim immigrants are called Bengali illegals. In reality, many of them consider themselves Assamese and they actually speak Assamese. Can you speak about this great divide in lived experiences of the people and how the citizenship that is imposed on them is constructed through exclusion? Often exclusion of their lived experiences and emotional connections.

I mean the parallels like you said are quite shocking between what I see in Muthiah’s bureaucratic encounters before the Citizenship Commission and with what you see at the NRC and at the Foreigner’s Tribunals. The key here, as you mentioned, is exclusion. This kind of need to construct a dangerous, mysterious, threatening ‘Other’ against which we can construct our communities, so-called, safe havens. So, in aid of this exclusion,  citizenship laws demand a certain kind of fixity, that one must be here or there. You can’t be in two places. And of course, this is not how people live right? A number of people, particularly those that live in borderlands, live or are forced to live across according to rhythms and patterns that don’t match statist categories. And in the case of my historical study, this was true of the Malaiyaha Tamils and many Muslims in Sri Lanka and it is true of those left out of the NRC draft- a vast majority of them Muslims, in Assam today.

There is a way in which the law demands a certain kind of fixity that really causes this gap. But in this context, I also want to add that it’s tempting to dismiss the law as being irrelevant. I mean if people’s lived experiences are so much more and in excess of what the law imagines it to be then why study it? Why study the legal archive at all? But think of it this way. The label that one attaches to someone- immigrant, foreigner, expatriate, refugee, asylum seeker- it then decides what kind of pathways people will be forced to navigate and so this is why we need to pay close attention to the ways in which legalities and illegalities are constructed. And I see this all the time in my dissertation work. You know, even when we compare post-war Europe and post-war South Asia, you see that those labels are, these legal categories are really what, they then determine what people have to confront and challenge. So, which is why I think while there is a gap between these lived experiences, legal categories and legal regimes, it is all the more reason to read along the grain of the archive to see what we find.

And you also make this great observation through Kamal Siddique when he says that the ethnography of the contemporary bureaucratic encounters is not that the immigrants don’t have documents, it’s not that they don’t have documentation. It’s that we refuse not to believe them. Malini Sur who I spoke to before you, says how in India how there is so much bureaucratic corruption and yet there is a refusal to believe a certain kind of documentation. I would love to talk about this idea of proof and how this burden of proof shifts absurdly in certain categories of people.

It’s just fascinating and disturbing to see how that happens especially when you take a single case like that of Muthiah’s right? In Muthiah’s story, early on, even as the first preparations have been made to carry out the adjudication of citizenship applications, the Ceylonese government claims that producing proof in aid of one’s application would be very easy. So, they advertise in all the major newspapers of the time and say that this is going to be effortless.

They list out all the different kinds of proofs that people could produce. So, it ranges from extracts from school registers to householder’s list. There is a list of many, different kinds of documents one can produce in aid of one’s application and this is very similar to what I understand is happening in Assam. And similar to the claims that the Indian government in producing now, that this is effortless, all you have to do is have an extract from an electoral roll or a land title. And so, there is a way this is seen as you know that all you have to do is produce this document.

But as you see in Muthiah’s case, it’s not that he is undocumented. He has plenty of documentation to demonstrate that he has lived and worked and raised a family in Sri Lanka. Just the fact that he produces these shop receipts for a period of time before he was a plantation worker, he used to work as a hawker. So, he produces receipts for a time when he had one to a wholesale store and bought good for his trade and those are the receipts he produces and as I mentioned earlier, the response of the Commission was why would you preserve these receipts. They are for such small sums of money. Or the extract from a post office savings bank account doesn’t rank high enough on the list of documents one can produce in aid of, to show that one is living and working in a particular place and not an economic burden on the state.

So, there is an informal way of ranking of documents and a friend of mine often refers to this as ‘citizenship in a minor register’ and I think it is quite true. Those are a kind of history too that is eclipsed by these statist claims.

In some cases, the law demanded that you prove permanent settlement, continuous residence and in many cases, I noticed that these are actually forms. So, it would say, ‘Does the applicant owned/not owned property in India?’ and on the other side of the column, there would be a place for the investigating officer, for the deputy commissioner to write, ‘Yes/No’. So, it is literally a check-list. So, does he or does he not own property in India? If he does then ‘Indian’. ‘Has he made visits of six months or longer?’ If so, ‘Indian’. There is a kind of internal logic to it, that is, it seems convincing at first, but it is also so out of touch with the way people live, work and imagine their lives. It is altogether useless to even try and glean political belonging to some kind of procedure.

This happens around the subcontinent in this period that I study. It takes place in Sri Lanka. It takes place in Burma / Myanmar and it is taking place in Assam today as a result of the longer histories. There is a way in which proof is not proof enough for certain demographics and South Asia’s many partitions are responsible for that. It is important to remember that this internal logic is not apolitical.

And just as we come towards the end of this conversation, I really like this phrase that you used. You say that “law’s gaze is suspicious and nervous”. You talk about this in relation to Muthiah’s case. I was wondering if you think that this idea of law’s gaze being suspicious and nervous also applies to the case of the NRC. And I was wondering if we can kind of tease out that relationship a bit.

This law’s gaze was in relation to an essay that Dipesh Chakraborty wrote where he discusses and contrasts the legal archive with autobiographies. So, in the essay, law is the language of the rational, modern, rights-bearing subject and an autobiography is a place where you don’t — they are written without restraint. You can be fully expressive. And in some ways when you think of the law as an inventing category, categories, we think of the law as being fixed, universal and sort of, unemotional. Whereas the law isn’t only produced in legislatures. It is produced in the context of legal encounters.

Take anything, take Muthia’s case or take any of the many stories that we have been reading about people trying to challenge their inclusion or exclusion from the NRC or before the Foreigner’s Tribunals. So, this reading of the law, that it isn’t just the text of the law, that it is produced in the context of legal encounters.  I think it brings people’s stories out of the shadows. To show how and where they fair and why. This is important to complicate the story of law’s violence.

So, you know, the law as being this kind of unemotional apparatus that dispenses with one’s life and liberty, separates them from their families. At a philosophical level, I couldn’t agree with it more. But as a historian, I think there is a way in which one can highlight the different viewpoints, the contingency, the context that’s really quite important.

In Robert Cover’s famous essay, he talks about judicial sentencing as an act of violence. The legal word can deprive someone of their life and liberty. It is a word that has real, real effects. But in that story if you tell it from the perspective of a sentence, so Muthiah’s  in my story or others or those people who were left out of the NRC, I don’t deny law’s violence but at the same time I don’t want to grant any kind of uncomplicated heroic agency to the other side.

But we need to understand the kind of magnitude and the nature of law’s violence. And I think that’s where the question of law’s gaze become important. Because there is a way in which if you look at that legal encounter, say for instance Muthiah talks about how he belongs, and it reads as a series of desperate pleas. Its because there is a way in which it forces you to reiterate your lived experiences of citizenship.

‘I belong here. I don’t have any links anywhere.’ This is where my life is’ etcetera. And the nature of law’s violence and nature of law’s gaze is not overt violence. So there are no shattered cities and broken bodies. But it’s sort of, it’s kind of a banal kind, the slow violence, the seemingly innocuous kind and that is harder to show and its harder to convince people that, that’s the nature of law’s violence.

But the result and consequences of violence are no less devastating than what we see in theatres of war and that’s why it is quite important to discuss this emotional component of legal encounters. The kind of slow violence of the bureaucratic encounter. This is why it is quite important, and this is equally applicable to Sri Lanka in 1948 or Assam in 2018.

Kalyani I’m going to commit an act of blasphemy and ask a legal historian to predict the future and I was wondering based on your own experiences of reading, excavating the archive and understanding and looking at Ceylon’s citizenship regimes, what you think might be the events that might play out in the coming months and years, based on the NRC in Assam. 

I think there are a couple of things that we mustn’t forget. Let me put it that way. You know parallels with contexts that I have studied but also generally with things that happened in South and SouthEast Asia. One, it is important to remember that just having a legal procedure in place doesn’t mean the process in apolitical. So, for instance when the government assures people that they will have time to file claims and objections and that there will be no act of coercion against those who are left out of the NRC. It is important to remember what the consequences of those kinds of statements are. And who has to navigate that?

In many of the applications that I looked at, people just dropped out of the legal archive. They either gave up or they disappeared. You know to pursue litigation at any level but particularly at the appellate level is a resource consuming and time-consuming process. And many of the people who are impacted by this are the poorest and the weakest, whose lives are being attacked in the name of perceived threat to national sovereignty.

So, it is important to remember that what legal language is being used in aid of. Those are the sort of main things we need to remember about this process. That often times these kinds of exercises don’t really result in anything.

You know, ultimately what happens in Sri Lanka is that there were a series of negotiations between states and the populations were divided up. You know some were “repatriated” to Tamil Nadu and Kerala, others went to Sri Lanka with no reference to any of these complex bureaucratic procedures that people had followed, invested time and money in. None of that mattered in the end. Ultimately it became a question of just dividing up populations and, you know, this is to say that there isn’t a point to these exercises, I think. And that you know we should pay more attention to the ways in which people construe or imagine their own citizenship rather than taking recourse to a legal definition

Kalyani, thank you so much for joining us today.

Thank you Suchitra, this has been wonderful.

Transcribed by Preetika Nanda.