Vasundhara Sirnate

India Is ‘One of the Worst Autocratisers in the Last 10 Years,’ Says 2023 V-Dem Report

Clearly, the trend towards autocratisation in many parts of the world began intensifying in 2020. This new V-Dem report lists 42 countries as “autocratising” at the end of 2022 – a record number.

An alarming new report from the V-Dem (Varieties of Democracy) Institute at the University of Gothenberg in Sweden states that by the end of 2022, 72% of the world’s population (5.7 billion people) lived in autocracies, out of which 28% (2.2 billion people) lived in “closed autocracies”.

The report titled Defiance in the Face of Autocratization has further asserted that “advances in global levels of democracy made over the last 35 years have been wiped out.”

The findings of this report should be a cause of global concern for politicians and policy-makers alike.

The report indicates that today there are more closed autocracies than liberal democracies and only 13% of the world’s humans (approximately one billion people) live in liberal democracies.

Amongst the various population-weighted indicators that the report uses to make its determinations on the health of democracy in various countries, it pays particular attention to freedom of expression (declining in 35 countries), increased government censorship of the media (declining in 47 countries), the worsening state repression of civil society actors (going downhill in 37 countries) and a decline in the quality of elections in 30 countries. It also lists Armenia, Greece and Mauritius as “democracies in steep decline”.

Undoubtedly, the last decade has seen the increasing power of autocratic political regimes across the world. Further, when the COVID-19 pandemic broke out in 2020, many countries scrambled to centralise power and suspend parliamentary decision-making in an attempt to manage the pandemic. Such countries used the pandemic to pass legislations that impinged on their citizens’ rights and freedoms.

Some countries also used the pandemic as an excuse to allow the executive in those countries to assume disproportionate power, vis-à-vis citizens. For instance, in Hungary President Viktor Orbán assumed the power to rule by decree in 2020, then declared a “state of medical crisis” when he was criticised, which allowed his government to keep issuing decrees. In 2022 he declared another state of emergency pursuant to the war in Ukraine.

In the United States, the state of Kentucky outlawed fossil fuel protests and a federal appeals court in Texas upheld a ban on abortions which was to foreshadow the overturning of the Roe v Wade judgment in 2022. In Israel, Benjamin Netanyahu suspended the Knesset and postponed his own trial by suspending the courts and increasing surveillance.

In India, the government wasted no time in announcing a new domicile law for Jammu and Kashmir in April 2020 that allowed people who have resided there for 15 years or those who have studied there for seven years and appeared in Class 10 and 12 exams, from acquiring permanent residence.

Clearly, the trend towards autocratisation in many parts of the world began intensifying in 2020. The V-Dem report lists 42 countries as “autocratising” at the end of 2022. This, it says, is a record number.

India is not an exception to this trend. A sudden lockdown in 2020 displayed how easily the lives of people at the margins of Indian society could be disrupted. In 2021, the V-Dem institute classified India as an “electoral autocracy”, while in the same year, Freedom House listed India as “partly free”. Also in 2021, the Institute for Democracy and Electoral Assistance classified India as a backsliding democracy and a “major decliner” in its Global State of Democracy (GSoD) report.

Also read: India Has Significantly Less Academic Freedom Now Than 10 Years Ago: New V-Dem Report

The data made available by the GSoD report demonstrated that between 1975 and 1995 India’s representative government score moved from .59 to .69. In 2015 it was .72. However, in 2020 it stood at .61, i.e, closer to the score India had in 1975 when it was under Indira Gandhi’s Emergency. The GSoD report also listed India alongside Sri Lanka and Indonesia for the lowest score on the religious freedom indicator since 1975.

Therefore, it is unsurprising that the 2023 V-Dem report refers to India as “one of the worst autocratisers in the last 10 years” in a blurb on page 10 and places India in the bottom 40-50% on its Liberal Democracy Index at rank 97. India also ranks 108 on the Electoral Democracy Index and 123 on the Egalitarian Component Index.

Yet, the report concedes on page 24 that the process of autocratisation has “slowed down considerably or stalled” in some countries, including India, after they turned into autocracies.

The report also points out some characteristics of autocratising countries. These include increased media censorship and repression of civil society, a decrease in academic freedom, cultural freedom and freedom of discussion. The report states that media censorship and repression of civil society are “what rulers in autocratising countries engage in most frequently, and to the greatest degree”. It finds also that academic freedom and freedom of cultural expression have declined severely in Indonesia, Russia and Uruguay.

The V-Dem report also extends its analysis to indicators that bolster autocratisation. It says that disinformation, polarisation and autocratisation reinforce each other. It flags those countries that increased their democracy scores (The Dominican Republic, Gambia and the Seychelles) as countries that were able to check disinformation and polarisation. The report aptly targets disinformation as a tool to “steer citizens’ preferences” that is actively used by autocratising regimes to increase political polarisation. It classifies Afghanistan, India, Brazil and Myanmar as autocratising countries that have seen the “most dramatic” increases in political polarisation.

The report tries to end on an uplifting note by suggesting that all is not lost as some countries are moving towards more democracy – Bolivia, Bulgaria, the Czech Republic, Moldova, Dominican Republic, Gambia and Malawi.

To a lesser degree, it counts the Maldives, North Macedonia, South Korea and Slovenia as countries that are making a positive democratic U-turn. It is a little puzzling to see the Maldives listed here as reports from 2022 demonstrate that President Ibrahim Solih (the 2019 election of whom the V-Dem report sees as an indicator of democratisation) did outlaw the anti-India protests that had taken root in some parts of the archipelagic nation. Maldivian civil society actors questioned whether a president had the power to criminalise dissent.

Even so, the V-Dem report states that democracies can bounce back from autocratisation when a certain set of criteria are satisfied. These include mass mobilisation against an incumbent, a unified opposition working with civil society, the judiciary reversing an executive takeover, critical elections, and international democracy support.

Finally, the V-Dem report thinks that there is a shift in the global balance of economic power. It finds that inter-democracy world trade has declined to 47% in 2022 from 74% in 1998. 46% of the world’s Gross Domestic Product now comes from autocracies and democracies’ dependence on autocratic countries has doubled in the last three decades. It sees this dependence of democratic countries on autocratic countries for trade as an emergent security issue for democracies.

Vasundhara Sirnate is a journalist and political scientist and the creator of the India Violence Archive.

Indian-Americans Supporting the CAA Are Forgetting How They Got Their Own Rights

The story of Bhagat Singh Thind holds some valuable lessons.

Over the last month, there have been many protests by non-resident Indians (NRIs) in the United States in Austin, New York, Houston, San Francisco, Dublin (Ohio) and Seattle. These protests have centred on support for the Citizenship (Amendment) Act, 2019 and the National Register of Citizens, or have been led by students who have vehemently opposed both.

NRI and Indian-American communities have, for a long time now, batted for the right-wing Bharatiya Janata Party (BJP) which advances an exclusivist vision of India based on social conservatism, xenophobia, nativism and intimidation of minorities. On September 22, 2019, the Texas India Forum held a massive summit for Prime Minister Narendra Modi – an event that was held at NRG Stadium at Houston and was sold out. It was reported that about 50,000 people attended this event and most were from the Indian-American hyphenated community or were NRIs.

American President Donald Trump also appeared and both world leaders endorsed each other’s political careers – a revealing sign of how Indian-American organisations have lobbied furiously in the US for Modi’s communal record to be expunged. Many Indian-Americans and NRIs also supported Trump’s plan of building the border wall with Mexico and even offered to pay for it if the American government would scratch their backs by making green cards more readily available.

We also know that the ruling BJP solicits campaign funding from NRIs, who typically can make generous donations to parties. This is also one of the reasons that political parties in India are not scrutinised by the Foreign Currency Regulation Act and do not fall within its purview. The NRI community is crucial in presenting the BJP and its leaders as a legitimate and credible political force that speaks for all of India. The NRI community is instrumental in peddling the myth that everything is copacetic in India.

Much has already been said about the overseas patriotism and nationalism of NRIs. Caught in a time warp, many immigrants from India carry with them a romanticised and mawkish notion of India. Their orotund voices refurbish the India story at genteel dinner table conversations in solar powered homes in Danville or New York by obfuscating the reality of India today – that it has listed towards religious majoritarianism, the economy is in shambles, Indian citizens are less free and under immense economic stress, there is social, moral and speech policing, hate crimes have risen, public trust in institutions has been fundamentally dislodged, dissent is treason and at the local level “senas” are building neighbourhood by neighbourhood in some parts of the country. Further, all of this has been single-handedly enabled by a government that has used the rhetoric of development as a cloaking mechanism for policies that systematically target religious minority groups, the poor, women, Dalits, immigrants and Kashmiris.

Over many years, as an NRI myself, I have been befuddled, besieged and bogged down by demonstrations of NRI patriotism. In plain speak, I just don’t get why Indians who have migrated to freer societies by benefitting from the fight for racial equality and removal of discrimination in immigration laws of the US, would support discriminatory laws in the US or in India. Why do they continue to support policies in India that are specifically designed to entrench discrimination, enhance xenophobia, and exacerbate the risks that minorities and vulnerable groups have to face? Why do overseas Indians support the Citizenship (Amendment) Act, 2019 and the National Register of Citizens?

A group of Indian-Americans gathered at Times Square, carrying placards and raising slogans in support of the Narendra Modi government and CAA. Photo: Twitter/@ThakurRanjitDas

It is because of these questions that I have chosen to revive the story of Bhagat Singh Thind, a man whose life I accidentally became acquainted with some years ago in a nondescript bookstore in the US, when I chanced upon a book about him. Thind’s story is a portal into a history that spans a century and straddles competing issues of race, caste, equality, fear, hate, xenophobia, courts, laws, resistance and protests. It is important to render a forthright and factual accounting of this history if only to enable reflection on political processes that are underway in India today.

Thind’s story

Bhagat Singh Thind was born in 1892 in Taragarh, Amritsar, Punjab, colonial India. He migrated to the US on board a ship called the Minnesota which docked at Seattle on July 14, 1913. He was not the only person from his family to attempt to migrate. His younger brother Jagat Singh Thind’s attempt at a life free from British colonialism ended in tragedy.

Jagat reached Canada in 1914 aboard a Japanese steamship called the Komagata Maru. On arrival at Vancouver, only 24 Indian passengers were allowed to disembark and the Maru was turned back with 352 immigrants. Canada’s immigration laws were as restrictive as American ones. After a long journey, the Maru docked at Budge Budge (West Bengal) on September 27, 1914. On arrival it was stopped by a British gun boat and the persons on board were designated as “radicals”. When a leader on the Maru resisted arrest, a riot broke out and 20 Sikhs were shot dead including Jagat.

Around the same time as his brother’s demise on a different continent, Bhagat had taken up employment in lumber mills of Oregon to pay for an education at the University of California, Berkeley. He wanted to study philosophy and metaphysics. In 1918 he enlisted as a private in the US Army and received an honourable discharge after his service had concluded, just short of six months. He was stationed at Camp Lewis, Washington with Washington Company No. 2, Development Battalion No. 1, 166th Depot Brigade. It is claimed that he was also the first soldier to serve in uniform wearing his turban in the US Army.

This is where our current interest in Thind’s story becomes more focused. After he had completed his military service, Thind realised that to thrive in the US one needed to acquire membership of the nation by being a naturalised citizen. At that time cases for citizenship had to be made in US federal courts where a judge would decide “whiteness” of applicants. He applied for American citizenship in Washington state in 1918 and was granted citizenship for precisely four days after which it was rescinded when the Immigration and Naturalisation Service argued that he was not a “free white person”.

Also read: When the US Supreme Court Ruled That Indians Aren’t Legally White

In 1920 he was naturalised as a citizen again from Oregon State but for a second time his citizenship was challenged by the Immigration and Naturalisation Service and his petition went to the Ninth Circuit Court of Appeals, which referred it to the Supreme Court of the United States (SCOTUS) for a decision.

What ensued was a landmark judgment which would affect the fate of scores of South Asian immigrants in the United States. SCOTUS had to deliberate on two things in United States vs Bhagat Singh Thind (1923). First, could a high caste person of “full Indian blood” [sic] be considered a white person? Second, how would this affect other migrants from colonial India who were legally in the US prior to 1917, but were barred from naturalisation because of the Immigration Act of 1917, which attempted to prohibit immigration into the country by expanding categories of people who were considered unfit for membership in the US?

Thind argued before SCOTUS that he was a “high-caste Aryan of full Indian blood”. In essence, he problematically argued that his higher caste status in Indian society lent him a status similarity with whiteness. Therefore, the category of “free white person” could be broadened, he argued, to include higher caste north Indian Hindus owing to their link to an “Aryan” [sic] ancestry.

I am going to pause for a moment here and point out what is obviously disturbing about Thind’s omphalos before SCOTUS. In my assessment, Thind ends up trying to make a hugely problematic manuvadi deal with white supremacy that rested on anti-miscegenation. I must point out, however, that a century ago no one challenged the constitutionality of racial exclusions to citizenship. They instead made arguments to be included into the cult of whiteness.

Article from March 10, 1923 issue of The Literary Digest describing the outcome of the ‘United States vs. Bhagat Singh Thind’ Supreme Court case, which barred South Asians from obtaining citizenship. Courtesy: SAADA

In fact, in 1922, a year before the Thind decision, Takao Ozawa from Japan had made a similar presentation to SCOTUS in Takao Ozawa vs United States (1922). Ozawa had also argued for Japanese persons to be seen as white and the same judge who would rule on Thind in 1923, George Sutherland, had ruled that Japanese were not popularly seen as Caucasian so they could not be classified as such.

Ozawa’s case was incredibly tragic as he was a man who had tried to erase his own identity to fit in. He taught his children how to speak English and tried to raise them as monolingual individuals. The Ozawa ruling was then used to deprive Japanese persons of land-owning rights in Yamashita v Hinkle (1922), where Sutherland cited the ruling to uphold Washington’s Alien Land Laws under which Asians could not own property.

Therefore, Thind’s decision to argue for being considered white before SCOTUS has to be seen in this context. Thind had stayed true to his cultural roots – he spoke about philosophy inspired by Sikhism, he wore his turban with pride and could read and write in Punjabi, Urdu and English. However, it is also an inadvertent commentary on those times in the US that challenging the constitutionality of racial exclusion on the basis of equality was not deployed as a strategy by both Thind and Ozawa and their lawyers.

Thind and his lawyers used race theory of their times to make their case. If scientists had said white meant Caucasian, then who was going to be more Caucasian than someone who had descended from Aryans? To this they added a dose of superiority/prejudice in the lawyer’s closing argument – “the high caste Hindu regards the aboriginal Indian mongoloid in the same manner as the American regards the Negro.” In essence, mobilising prejudice was crucial for inclusion in the cult of whiteness.

According to Bhagat Singh Thind’s son David Thind, in a podcast on Seeing Whiteness by Scene on Radio, his father never really discussed the court case with his family in detail, which leaves us in a dilemma because this disturbing detail at the intersection of caste and race, in what is otherwise a life dedicated to family, philosophy and metaphysics, nags at us as we lurch through this assessment with the goal of avoiding a snap judgment and instead grappling with the facts and context in which these decisions were made.

SCOTUS did not agree with Thind’s argument. George Sutherland was rather impatient with scientific definitions of “Caucasian” and cited arguments between Blumenbach, Keane and Denniker as “irreconcilable”. He deferred to what he called a “common sense” and “popular” understanding of race, where he privileged visibility and appearance over all else. Because so-called Aryans had married with local populations in South Asia and had acquired brownness they could not be seen as white. Plain and simple. SCOTUS had just reinforced whiteness with cataclysmic consequences for many persons like Thind. Sutherland wrote,

“It may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity, but-the average man knows perfectly well that there are unmistakable and profound differences between them today; and it is not impossible, if that common ancestor could be materialized in the flesh, we should discover that he was himself sufficiently differentiated from both of his descendants to preclude his racial classification with either.”

Far-reaching consequences

The Thind decision had far-reaching consequences for immigrants from colonial, undivided India. About 64 such immigrants that had acquired citizenship, were denaturalised. Many other families that had hoped for citizenship, left the country. Amongst the most poignant stories is that of Vaishno Das Bagai (originally from Peshawar) who overnight became an alien in California. Without the protections offered by citizenship, he suddenly found himself subjected to the California Alien Land Law of 1913. He was forced to sell his general store, Bagai’s Bazaar, in San Francisco and sank into hard times.

In 1928 Bagai wanted to return home to India and was refused a US passport. He was told to apply for a British passport as he was technically still a subject of the British empire. Bagai refused. He had left the subcontinent because he wanted to ensure his children grew up in a free country. He would not be a British subject again. Such was his disillusionment that one day in 1928 he told his family that he was going to San Jose for business, rented a room and killed himself by gas poisoning. The San Francisco Examiner printed a letter he left them where he wrote,

“In the year 1921 the Federal court at San Francisco accepted me as a naturalized citizen of the United States and issued to my name the final certificate, giving therein the name and description of my wife and three sons. In last 12 or 13 years we all made ourselves as much Americanized as possible…But they now come to me and say, I am no longer an American citizen. They will not permit me to buy my home and lo, they even shall not issue me a passport to go back to India. Now what am I? What have I made of myself and my children? We cannot exercise our rights, we cannot leave this country. Humility and insults, who is responsible for all this? … I do not choose to live the life of an interned person: yes, I am in a free country and can move about where and when I wish inside the country. Is life worth living in a gilded cage? Obstacles this way, blockades that way, and the bridges burnt behind.”

Two of Bagai’s sons returned to India as adults. One died due to illness and the other, Brij, relocated to Lahore before being driven out of newly created Pakistan during the Partition and returning to the US. The third son, Ram Bagai, remained in the US and at one point served as the head of the Hollywood Foreign Press Association.

Also read: How the Constituent Assembly Debated (and Rejected) Citizenship by Religion

These are narratives of people that were tossed around because of ideas of nation, nationalism, sovereignty, freedom and citizenship. Thind, on the other hand, did ultimately land on his feet. He was third time lucky in his quest for citizenship of the US. He petitioned once again after the Nye-Lea Act (1935) was passed which allowed war veterans to be given citizenship. He got it in 1936. In 1940 he married a second time and proceeded to live his life writing on his unique philosophy that was greatly inspired by Sikhism and he held public lectures in America to halls that remained packed for weeks. Bagai and many others were not as fortunate Thind. It is estimated that half the Indian-American community had to leave the US because of the Thind verdict.

In 1946, when the Luce-Cellar Act was passed, families that had stayed in status abeyance (like the surviving Bagais) were able to petition for citizenship. Even so, the Act only permitted 100 Indians and 100 Filipinos to immigrate to the US each year. However, the Luce-Cellar Act, which was widely supported and lobbied for by prominent Indians in America, effectively struck down the Thind decision of 1922.

In her detailed book The Making of Asian America: A History Erika Lee recounts incredibly disturbing incidents of violence that were visited upon Asians in the late 1800s and early 1900s. For instance, Chinese miners were driven out of Bellingham, Washington in 1885. In 1907, white rage turned against South Asians. On September 7, 1907, 1000 mill workers from the Whatcom Falls Mill Company marched down the streets chanting “Drive out the Hindus”. At 8 pm that evening they began dragging South Asians from their homes and forced 200 of them into jail. The rest of the community packed up and left overnight heading for Vancouver or Oakland. There was widespread talk of a “Hindu invasion” and a “turban tide”. At those times when South Asians faced the worst threats of expulsion, violence and hate, they were often sheltered in black neighbourhoods by dispossessed people who had borne the brunt of white supremacist attitudes and violence.

The flood gates of immigration for Indians opened when the Immigration Act of 1965 was passed which removed quotas for Indians. This came primarily as a result of the struggle of black people for civil rights and equality. The African-American community endured torture, beatings, lynchings, murders, so that everyone, regardless of skin colour, could be a citizen one day. Their struggle made a nation that had surreptitiously built its brand on inclusion while practicing exclusion, take a good hard look in the constitutional mirror.

A global majoritarianism, across time

This long and complicated history, which I have compressed out of necessity, has lessons for us today in India. Over a century ago mobs formed on the streets of American cities asking for religious and racial minorities (Hindus, South Asians, East Asians) to be driven out. We see this in India today in the rhetoric peddled by Indian political leaders about driving out Muslims, Bangladeshis, illegal immigrants, the fictitious anti-nationals. “Go to Pakistan” is majoritarian India’s echo of a slogan thousands of overseas Indians have heard – “Go back where you came from.”

Mobs that dragged Asians out of their homes a century ago in Bellingham, Washington are not dissimilar to mobs that have recently attacked the homes of Muslims and Dalits and lynched them in India. Slurs used against Muslims in India are reproductions of slurs used against Indians in the US. Hate crimes in India against Muslims and Dalits are facsimiles of hate crimes against African-American and Asian communities in the US. Hate groups like the burgeoning local senas in India replicate rhetoric used by similar supremacist groups in the US.

Also read: ‘Invaders’, ‘Terrorists’ and Now, ‘Illegal Immigrants’: Hindutva’s Reframing of Exclusion

Quite clearly, the problem lies with majoritarianism. Perhaps no quantum of democratic conditioning is enough to protect minority groups from the baser instincts of people who believe they are superior to their fellow citizens. Perhaps democracy’s biggest failure lies in its inability to eradicate ideas of supremacy completely from democratic discourse and society.

Either way, for the non-resident or overseas Indians their acceptance into American society came on the backs of black and indigenous peoples’ struggles for equality. Their current entrepreneurial and economic success has come because, as Vijay Iyer has said, “to succeed in America is, somehow, to be complicit with the idea of America – which means that at some level you’ve made peace with its rather ugly past…with all of its structural inequalities, its patterns of domination, and its ghastly histories of slavery and violence.”

India’s insidious project

This is where I will segue into a discussion of the Citizenship (Amendment) Act, 2019 and the threat of the National Register of Citizens. There are lessons to be drawn from Thind’s story. The Citizenship (Amendment) Act, 2019 offers an expedited path to citizenship for religiously persecuted non-Muslim minorities from Afghanistan, Pakistan and Bangladesh who arrived in India on or before December 31, 2014.

Arguments in favour of the Citizenship (Amendment) Act, 2019 suggest that India should open up this path because it is a good, charitable thing. They also say that this does not mean Muslims who may have arrived from these countries by 31 December 2014, cannot apply for citizenship. They can, say the supporters of the Citizenship (Amendment) Act, 2019, but it will just take a while longer.

However, there is a huge problem with this assessment. First, the Act does not recognize persecution of minority Muslims groups like the Ahmadiya in Pakistan, the Uighurs in China, the Rohingya of Myanmar (some of whom also practice Hinduism) or the Hazara in Afghanistan. Second, the Act does not pay heed to the plight of Sri Lankan refugees and Tibetan Buddhists. Yet, the reality is that there are immigrants from these communities across India who have fled here due to political and religious persecution or war.

It is easy to prop the CAA up by saying “look it takes care of X, Y and Z”. However, this framing of the CAA lulls us into artificial ataraxy. The question we must ask ourselves is when the Indian constitution expressly forbids the state from making any law that discriminates against people on the basis of religion, why has this law been made? It is not about who the law includes, but who it excludes and why.

In Thind’s case, American law said that Thind simply wasn’t white enough for citizenship. The current CAA suggests to immigrant Muslims in particular, that they lack something (non-Muslimness) because of which they can’t be Indian enough. The current regime in India led by the BJP has not shrunk back from open vilification of Muslims on TV, social media, statements and laws. A hundred years or so ago, politicians in the US aired similar views about Hindus and ranted about the threat Hindus, along with Japanese and Chinese people, presented to the hard working white man.

Also read: Citizenship Along Ethnic Lines: The Disenfranchised Indians of Madagascar

The CAA is most insidious not as a standalone law, but when it is combined with the National Register of Citizens. In the run-up to the 2019 general elections in India and even after, Amit Shah threatened a nationwide NRC to much praise from Indians and NRIs.

A deeply flawed exercise that was born out of a bargain that the Indian state struck with leaders of the Assam Agitation, and implemented through a Supreme Court directive in 2014, the NRC has already claimed 25 lives and placed 1.9 million people in a doubtful citizenship status. Many of them are not only poor but also Muslim. No amount of producing paperwork has satisfied the local Assamese state that they are Indian.

In a move reminiscent of the NRC after the Thind SCOTUS verdict, the small Indian population in the US fled or was found out and stripped of citizenship. However, we must acknowledge that at least Thind had recourse to federal courts. Those that have not made it on the NRC list in Assam have to go before Foreigner’s Tribunals with no knowledge of whether the Tribunal’s decision will be final or if they can appeal to a higher court.

So what can we expect when the now notified CAA is ever combined with a nationwide NRC? Those that are non-Muslim will find themselves fast-tracked onto a path to full citizenship, while those that are Muslim will in all likelihood find themselves on a fast-track to a detention centre. They will all become like copies of the Thind brothers or Bagai with a nebulous legal and economic future.

There is growing disquiet about the Citizenship (Amendment) Act (CAA), the National Register of Citizens (NRC) and the National Population Register (NPR) and how they might overlap and affect large numbers of Muslims in India. Photo: Reuters/Sivaram V.

Also, all such laws are ultimately about land and property appropriation and consolidation of power that cannot be challenged. Just like in Thind and Bagai’s cases, the laws of the time disallowed immigrants from owning property. A similar situation could easily arise in India for religious minorities. Once such instance of land appropriation has already been blessed by the Indian Supreme Court through the Ayodhya verdict on 2019.

This is certainly a grim scenario, but combine this with the fact that the government has no control over its fringe paramilitary groups that are aggregating in towns like Gwalior, openly carrying weapons and building an organisation with officers across the city. What happens when the hounding out of immigrant Muslims through the nationwide NRC is also seen as an open invitation for neighbourhood level violence? Can the government guarantee that this won’t happen?

Over the last month, at least 250 million Indian citizens have said they do not support the CAA or the NRC and its adjunct the NPR in astoundingly original and creative forms of protest – boat marches, kite flying, continuous sit-ins, resistance kolam, etc. However, influential overseas Indians continue to support the Indian government’s move. In many publications targeted at NRIs or the Indian-American community, the CAA is compared to the Lautenberg Amendment (1990) which gave persecuted Jewish minorities from the erstwhile USSR the capacity to be citizens without the burden of proving individual persecution. However, the Lautenberg Amendment now benefits evangelical Christians. Further, its arms outstretched philosophy that included Iranians, has been undone under Trump precisely by laws that aim at the detection, detention and deportation of illegal immigrants or laws that implement a Muslim ban, i.e., laws that sound eerily similar to the NRC.

The support of our overseas Indian brethren towards such policies is conditioned by their bargain with white power, their lack of knowledge of their own history as immigrants. They know not that at one time the US treated Indians in a similar way to how the Indian government today is treating Muslims. They are unaware of the fact that the only reason they even have that formidable and advantageous presence in the US is because they rode in on the back of the Civil Rights Movement.

They have, therefore, been unable to craft any empathy with the plight of those caught within the sudden and stunning legislative changes of the Indian government. If NRIs and overseas Indians believe that they will always be protected as long as they are able to be the brown supporters of a system of white domination, they are sadly mistaken. A century ago, a wealthy South Asian, Bagai, was unceremoniously dislodged and evicted from political society. In 1972, Idi Amin gave Indians 90 days to leave Uganda. He accused Indians of being disloyal and incapable of integration in one of the most pronounced instances of Indophobia. Over 25,000 Indians left in that time period.

When faced with wilful blindness, all arguments for empathy always fail.

Vasundhara Sirnate Drennan is a co-founder of The Polis Project.

The Death Penalty Ordinance Has No Leg to Stand On

In reaction to the recent horror in Kathua, the government has birthed a myopic ordinance that awards the death penalty not to rapists, but to victims of rape.

By introducing the ordinance awarding the death penalty to rapists whose victims are under the age of 12, the Indian government has reflected its lack of thinking and commitment to and avoidance of facts and research, and, demonstrated a glaring absence of vision or understanding of rape and why men commit rape. In short, the government has birthed a myopic ordinance that awards the death penalty not to rapists, but to victims of rape.

Sanjay is a rapist. He started on this path by indulging in gateway behaviour. He hit dogs as a boy and remained unpunished. He groped a female classmate and passed lewd comments at girls at the age of 16. He was never reported. He then raped a neighbour’s daughter and she never spoke of it. He gained confidence after this and when he found the opportunity, he used it to harass and molest women on public transport. No one reported him. He soon realised that Indian women are not very likely to report him to the police as they fear going to the police and being harassed as much as they fear their assaulters.

By the time Sanjay was 30, he had raped five different girls and women. However, he realised that with new rage against rape amongst Indian women, it was easier and safer for him to rape younger girls, those under the age of 12. They were physically weaker and could be easily abducted. He could threaten them into silence, and they stayed quiet. However, one day after the politicised rape of an eight-year-old girl, the government of his country introduced an ordinance where raping children under the age of 12 became a capital crime.

Sanjay is a habitual offender. He cannot understand how to stop raping girls, because like most serial offenders, he still wants to rape young girls. But now there is an added risk to his pursuit of crime. He could be hanged for it. He knows he will not stop raping girls, but he cannot take the risk of letting his victims speak out. What will Sanjay’s best strategy be in this scenario, given that he will not stop raping, and, he does not want to die?

This scenario is one that we should look at seriously to look at observable and predictable implications of the government’s latest knee-jerk ordinance to amend the Protection of Children from Sexual Offences Act (POCSO), Code of Criminal Procedure (CrPC) and the Indian Evidence Act. Policies that are enacted by states throw up incentives and disincentives for individuals, i.e., people don’t always follow policy, instead they respond to it by changing their behaviours. For instance, during demonetisation, not everyone raced to the nearest bank with all their ill-gotten old currency. Some used it to turn a profit by monopolising the distribution of new notes, others bought gold with hidden stacks of old currency from jewellers with back-dated receipts, which were then legally furnished to authorities by the jewellers as bills of sale, and so on.

Following policy and responding to it are two different things. This is the first point of intervention I will make in the debate on capital punishment for rapists. There is mixed evidence from research on the deterrence effect of capital punishment. Isaac Ehrlich’s work in the 1970s, for instance, reports strong deterrence, while earlier studies do not find such effects. Scholars are also divided on the issue of aggregating crime data. At what level does crime deterrence because of capital punishment work – national, federal or local? Further, there is no clear answer as to what types of crimes capital punishment does deter. Joanna M. Shepherd’s work reports a deterrence effect on crimes (murders) of passion, but only when the period the criminal spends on death row is reduced.

Similarly, the work of Dezhbaksh, Rubin and Shepherd also shows that on an average for every state execution in the US there are 18 fewer murders. So the limited claim that can be made is that capital punishment may act as a deterrent for some types of homicidal behaviour. The other substantial assertion that scholars make is that people of colour, or, persons from groups that are weak and marginalised are disproportionately more likely to get sentenced to death for murder.

Most of these studies have emanated in the United States, where some states still have the death penalty on their books. And this is the first problem when we use these arguments for the death penalty in the Indian context. There is simply no comparable study in India that gauges the effects of the death penalty on crimes committed. Second, there is simply no study anywhere that has been able to link the introduction of capital punishment to a decline in the incidence of rape or a complete cessation of rape.

So what then has prompted this new ordinance legalising the death penalty for rapists that target children below the age of 12? As other observers have convincingly argued, this is a political move by a government that has found itself on the back-foot after a huge backlash against rape in India. It is a policy not for justice for rape victims, but for appeasement of those that are publicly dissenting against the government. But most importantly, and I cannot emphasise this enough, this policy move does not rest on the basis of any strong research, need-finding or clear diagnosis or understanding of the problem of rape in India.

In theory, capital punishment may work to deter, not stop and completely prevent, some crimes. However, the debate about capital punishment is expansive enough to call into question the ethics and morality of a society that would support such cruel and unusual punishment. Most interventions by those who oppose the death penalty rest on the ethics of it, the problem of wrongful convictions and irreversibility of death – all good arguments against the death penalty. With respect to the ordinance observers have raised other arguments about the selective nature of the penalty – why is it only for perpetrators that have raped children under 12? What will this penalty do to the reporting of the crime of rape by a family member when 94-98% of all rapes are committed by family members and persons known to the victim?

Leaving all the other valid critiques that have already been offered, let us come back to the original question posed in the opening scenario. What will Sanjay, the serial rapist, do once he knows that rape is punishable by death? If Sanjay were a typical rational actor, he would stop raping young girls. The heaviness of the punishment before him would be enough to stop him, if he were thinking rationally with a full set of information before him.

However, Sanjay has two problems. First, he is a serial offender, i.e., his pattern of behaviour is unlikely to change in the face of the stiffest punishment. Second, he knows there is still a chance that he can get away with it. What he will do is gamble on the chance that he can still go unpunished.

But how will Sanjay maximise his odds of avoiding the death penalty? In his mind, the answer is simple. He absolutely must ensure the girl he rapes will not survive. This is because he knows that she is the only witness to his crime. And, however unlikely it is that she will report the crime, there is still that marginal chance that she will report it, give evidence in court and have him sentenced to death. To ensure that this probability is reduced, Sanjay will decide to kill his rape victim. He also knows that he can wash or burn away forensic evidence, and, even if such evidence is found and produced in court, he knows that convictions without a live witness are low, and convictions in cases of rape are less than 30% in India.

In short, Sanjay and all other rapists like him will instinctively know that the way to avoid the surety of capital punishment is to ensure the death of the victim so that the only conviction made is done on the basis of forensic evidence, which has a smaller chance of resulting in a conviction than an actual witness testimony given the small number of forensic labs in the country and the problems with long chains of custody. If Sanjay is a man of influence and is charged with the crime, he can have the evidence tampered with or ask his local political backers to stand by him and mobilise mobs to disrupt and bias the legal process. Without the witness/victim to attest to the crime, everything else can be spun to fit his narrative.

Our government has introduced an ordinance to manage public pressure and to improve its image as a government that is tough on crime. In doing so it has reflected its lack of thinking, its lack of commitment to and avoidance of facts and research, and, demonstrated a glaring absence of vision or understanding of rape and why men commit rape. In short, the government has birthed a myopic law that awards the death penalty not to rapists, but to victims of rape.

Vasundhara Sirnate Drennan is the Director of Research at The Polis Project Inc.