Warning signs for democracy

When the State imposes identities on people, like in the case of SIR and transgender bill, the system becomes authoritarian

What is the common idea that runs through the Citizenship Amendment Act (CAA) of 2019, the Special Intensive Revision (SIR) of voters’ list and the Transgender Persons (Protection of Rights) Amendment Bill, 2026, passed by Parliament?

The line that runs through these national legislations and the Gujarat Registration of Marriages Act, 2006, and the move by some temple committees in Uttarakhand to verify the Hindu identities of pilgrims through a test is the same. That idea is this: The identities of a citizen and a voter, and gender, religious and marital status are not claimed and carried by individuals of their free will but are imposed on them by the State or other agencies after tests and verification.

In a democracy, the individual decides who one is and has control over one’s identity. In an authoritarian society, the State decides who a person is, and prescribes the processes to decide and recognise the person’s identity. 

The CAA was passed in 2019 and its rules have been framed. It provides for grant of citizenship to non-Muslim refugees from Pakistan, Bangladesh, and Afghanistan, and excludes Muslims from these countries and Tamils from Sri Lanka.

Apart from being unequal and discriminatory, it avoids the constitutional process for citizenship and creates its own process to award it to persons from selected groups. It introduces a religious test for citizenship. With the National Register of Citizens (NRC), which the government plans to implement nationwide, it will decide the citizen status of people. Those whose names do not appear in the NRC will not qualify to
be citizens. The government, which will prepare the NRC, will decide who
the citizen is. 

The NRC process, when it takes place, may not be very different from the SIR process conducted by the Election Commission of India in some states and still underway in others. A person’s citizenship and status as a voter are involved in the SIR process.

Those who have lived in the country for generations have been told to explain and prove their belonging, and the State, effectively though the Election Commission, will accept or reject the explanation and the proof. The voter’s identity will have to be proved and recognised. The voter status of millions of people has been questioned and lakhs excluded in West Bengal. The problem is not just with the procedure of the SIR but with its design, validity and legitimacy.

The Election Commission’s power to conduct citizenship verification is not clear, and the way it is doing voter verification has raised questions about fairness, accuracy and impartiality. 

From choice to control 

The identity issue has taken a sharper turn with the transgender legislation, enacted last month. The idea that gender identity is a personal choice and self-determined by an individual has been well accepted in democratic societies. The Supreme Court recognised this principle in the NALSA judgment in 2014. It has its basis in the right to privacy and other rights. But the amendment has changed this idea. Identity is no longer self-defined and what you think is true about yourself. It is what the State verifies and certifies.

The Bill says an individual’s declaration of identity must go through a verification process by a medical board. The State, through the board and the administration, will decide the identity, whatever the individual may think it is. It will not be a lived and experienced reality but a condition, verified, recognised and controlled by the State. While the social identity may be fluid and may evolve, the legal identity becomes rigid. 

The State’s movement into the realm of personal identity is also evident in the amended Gujarat Registration of Marriages Act, which mandates that intending couples share details about their parents and declare that they have told their parents about the marriage. That gives the State a decisive say in the citizen’s marital status and makes it dependent on external consent. No one can any longer consider marriage as a matter between two individuals. 

The committee that manages the pilgrim centre Gangotri in Uttarakhand has proposed the consumption of panchgavya, made of cow milk, curd, ghee, urine and dung, mandatory for all those who wish to enter the temple. It is a test to prove the person is a Hindu and adheres to ‘sanatan dharma’. This is an external test of religious identity, which should normally be a matter of self-declaration. A committee is now doing the declaration and certifying that the person is a Hindu. But shouldn’t I have the right to declare my religious identity?

It is true that it is not the government or a government agency that conducts the test, but such proposals pass the government muster in Uttarakhand. Uttarakhand is known to be a testing ground for future ideas and practices.   

Citizenship defines political and civic existence and personal identity. It links the individual to the State, but is not an attribute dependent on the State. In India, it has always been inclusive, encompassing all racial, religious and other categories.

But the certainty about citizenship is weakening now and it is being seen in exclusive terms, as the CAA shows. That is the case with the voter identity, too. When citizenship and voter identity are tested and verified, they become conditional and tentative. The State takes control of them. 

The nature of gender, marital status and religious affiliation is more personal, and does not link individuals to the State the way citizenship and voter identity do. They are expressions of personal autonomy, and individuals should have control over them.

India has had a rights-based democratic order in which individuals defined themselves as citizens and voters, and expressed their other identities in ways they thought right about themselves —men, women or trans, husband, wife, friend or partner, Hindu, Muslim or Christian. When the State or any external agency makes these decisions for individuals, the system becomes authoritarian. The State intrudes into the personal space of citizens. 

One basic difference between democracy and authoritarianism is that in a democracy the people decide the nature of the State and control it, while in an authoritarian system the State decides the nature of the people and controls them.

The Constitution gives wide scope for individuals to make their choices, define themselves and assert their identity in all areas that cover the CAA and NRC, the SIR process, the transgenders’ rights, the marriage bill and the testing of religious identity. But the Supreme Court has not yet ruled on the constitutional status of the CAA and the SIR. Other issues are yet to reach the court. 

(The writer is a former associate editor and editorial advisor of Deccan Herald)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.