I read with interest the recent opinion
piece “The Portuguese nationality bug” on the vexed issue of the rights of Portuguese
Indians to Portuguese citizenship and was disappointed by the author’s refusal
to see the larger picture. I suspect that this is because the author seeks to
resolve the question within the narrow frames of Indian nationalism. As a
result, the argument forwarded in the op-ed seems to buttress the rights of the
state over those of citizens. Such legality will only strengthen the growing
authoritarianism of the Indian state over subjects who, while formally
citizens, increasingly lack the space to realize this condition.
In the opinion piece citizenship is presented as a status that is conferred by a state.
This is not only a peculiarly lawyerly perspective but also a dated idea.
Unsurprisingly, the argument refers to a judgment of the US Supreme Court from 1875. The wider field of contemporary citizenship
theory recognizes that citizenship is more than a status, rather a condition to
be realized. In these more recent understandings, as evidenced in the Universal
Declaration of Human Rights (1948) for example, rights are not conferred by a
state, but inhere in the individual. Even the Indian Constitution recognizes
that it is the people who constitute the state as evidenced in the famous lines
of the preamble “We the People of India….” Thus, a post-colonial political
theory recognizes that states are actually constituted by the people, which
formally recognize the rights of people. With the passage of time as our
appreciation of the depths of rights grows, states are required to recognize
these evolving rights. Indeed, this was very much the case with India as well
when from about the 1950s the existing fundamental rights were dramatically
expanded through the interpretations offered by the Supreme Court. 
Of the many rights that inhere in individuals, surely the
right of citizenship is the most fundamental.If there was one single right that
the anti-colonial nationalist movements fought for, it was the right of
citizenship. As in the case of British India, the initial demand was for the right to
imperial citizenship, and it was only because the British, hobbled by a
racist imagination, failed to recognize this right, that the Indian
nationalists pressed forward for a national citizenship.
Citizenship must necessarily
be distinguished from nationality. These are two distinct concepts and must
theoretically be kept separate. While citizenship involves a gamut of rights
that allow one to be a political subject, nationality is the status of
belonging that the nation confers on some individuals, and restricts from
others. This is to say, the first deals with rights, while the second is the
realm of cultural belonging. One of the reasons why the debate on the Portuguese
Indian rights to Portuguese citizenship is so vexed is because the various
parties fail to recognize the fundamental differences between these two
concepts. This is obvious even in the opinion piece where there is a constant
switch between the terms nationality and citizenship as if they were the same.
This failure is not surprising given that the nation-state
form that has been taken up across the world purposely seeks to conflate the
concept of the state and the nation. The famous philosopher Hannah Arendt
refers to this as “the transformation of the state from an instrument of the
law into an instrument of the nation”. Taking up this idea, other
scholars have pointed out that “It was this conquest that defined citizens
of the state as nationals whether defined racially, ethically, culturally or even
religiously”. There is, in fact, no good reason for the two concepts to be
conflated. A state can compromise multiple nations, while nations need not have
a state. Take the case of Belgium, which is composed of people that identify
with two different nationalities, the Flemish and the Walloon. Or take India,
which can be said to comprise different nationalities, but refuses to
recognize, and in principle rightly so, that each of these nations needs its
own state. Indeed, the foundation of the contemporary international order as an
association of nation-states can be traced back precisely to the racist
imaginations of the colonial order. To this extent, the assertions of Portuguese
Indians to retaining their Portuguese citizenship while also accepting that of
India stands to offer the world a model in terms of post-colonial citizenship
precisely because it is born of an early modern experience that differs
dramatically from the colonial experience rooted in late-modernity.
What does come out in striking clarity from the argument in
the opinion piece referred to above is the legal position of the former
citizens of Portuguese India in the Indian republic. In addition to the legal
formulation that the argument the op-ed relies on, and the military action of
1961, this population is not a liberated population able to act on equal
footing with other individuals from British India, but in fact a subjugated
population whose “rights” depend on what the State of India grants them. The
noted philosopher Partha Chatterjee has recently articulated a concept
of political society that addresses precisely this point. He argues that
not all who are formally recognized as citizens enjoy rights. Chatterjee suggests
that these people are members not of civil society, but political society.
Members of political society do not enjoy rights, which are permanent and
inhere in the individual; they are merely extended temporary concessions when
these excluded groups challenge the status quo. Once the status quo is secure
these concessions can and often are revoked. 
Reading the argument in “The Portuguese nationality bug” in
the context of this framework, given that the citizenship rights of Portuguese
Indians seem to depend on the whims of the Indian state, one can see that what
the Portuguese Indians enjoy are not rights that inhere in the individual and
are not granted by the state, but merely temporary privileges that can be, and
are, rolled back when the State feels like. The privilege of Indian nationality
was extended to these groups when the Indian state needed to consolidate its
hold over the newly conquered territories creating the mirage of extension of
citizenship when in fact the recognition of their pre-existing rights is what
would have constituted acceptance into Indian civil society. It needs to be noted that this is not the
position of the Portuguese state that recognizes the continuing rights of
citizens in territories over which it formerly claimed sovereignty.
The argument also fails to appreciate the federal nature of
the Indian Union, a vision that is embodied in the Constitution. The Indian
constitution patently allows for a diversity of legal regimes within the Indian
Union. Take, for instance, Art. 370 of the Constitution that allows for Kashmir
to have its own constitution. This particular article is the subject of much
vituperation but the fact is that such resentment against Art. 370 has been the
result of Hindu nationalist opposition. Ironically it is Hindu nationalism
which is contrary to the constitutional mandate. Art. 370 must therefore be
seen as embodying the basic structure of the Indian constitution that makes
space for a federal structure that incorporates widely different polities
within a single structure. Consider also the fact that Buddhist monks and nuns
in Sikkim get a
double vote to ensure the representative of the Sangha in the legislature. This
argument for legal pluralism can also be buttressed by reference to the reports
on the conclusion of the Indian state’s negotiations with the Naga activists. Though the terms of the
agreement are still secret, if
a dubious news report is to be believed it appears that the Indian state,
under Prime Minister Modi, has agreed to the Naga demand for a separate
Constitution, as well as a separate flag. Such an agreement, if true, would testify
to the capacity of the Indian Union to accommodate legal difference within a
single federal structure.
A resolution of the question of the Portuguese citizenship
of denizens of the former Portuguese India could contribute to the failing health of
the Indian Union. It would allow an assertion of the dignity of the rights-bearing
individual in opposition to asserting the right of a potentially tyrannical
Indian state. It would contribute to the constitutional imagination of a
federal India, an imagination that has unfortunately been undermined by the
desires of Hindu nationalists and successive central governments.
For too long a time the question regarding the legitimacy of
Portuguese Indians holding on to both Portuguese and Indian citizenship is
being debated in a dry and inspired manner. Given that the question is
admittedly complex, the resolution cannot be obtained through a niggardly
attention to the letter of the law. Rather, what is required is a reference not
merely to the spirit that animates laws, but to the larger questions of
postcolonial justice and the rights of individuals, this is to say a reference
to political theory and the philosophy of law. What is required is not a
debugging of Portuguese nationality, but Indian imaginations.
(A version of this post was first published in the O Heraldo dated 4 Oct 2016)
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