The Rule of Law in an Ethnocracy: India's Citizenship Amendment Act and the Will of the Hindu Ethnos
| Published date | 01 October 2024 |
| DOI | http://doi.org/10.1177/09646639231225436 |
| Author | Indrajit Roy |
| Date | 01 October 2024 |
| Subject Matter | Special Issue: The Rule(s) of Law under HindutvaEdited by M. Sudhir Selvaraj, University of Bradford, UK and Raphael Susewind, London School of Economics, UKArticles |
The Rule of Law in an
Ethnocracy: India’s
Citizenship Amendment
Act and the Will of the
Hindu Ethnos
Indrajit Roy
Department of Politics and International Relations,
University of York, UK
Abstract
What is the fate of the rule of law in India that is transitioning to an ethnocracy? Drawing
on a ‘thin’conception of the rule of law, this article argues that the controversial
Citizenship Amendment Act responds to the emergence of a political ideal that con-
structs the Hindu ethnos as central to the Indian nation. Drawing on a variety of sources
that include pronouncements by leaders of the RSS, the ideological fount of India’s ruling
BJP, analysis of right-wing periodicals that function as a conveyor belt of social ideas, and
the provisions of the Citizenship Amendment Act (CAA), this article highlights the core
themes that motivate the will of the Hindu ethnos in respect of the contentious legisla-
tion: (i) the persecution of the Hindu minorities in India’s Muslim-majority neighbours;
(ii) the discrimination faced by Dalits in particular and (iii) the establishment of India as a
Hindu Zion. In the first section, I elaborate the concept of ‘ethnocracy’. The second sec-
tion reflects on the fate of the rule of law in an ethnocratic India by analysing the social
justifications for the introduction of the contentious CAA. In the third section, I situate
these dynamics within India’s broader transition to an ethnocracy, the political ideals that
shape this transition, and the shared social norms that emerge from this transition,
which feeds back to the rule of law in an ethnocracy.
Corresponding author:
Indrajit Roy, Department of Politics and International Relations, University of York, York YO10 5DD, UK.
Email: indrajit.roy@york.ac.uk
Article
Social & Legal Studies
2024, Vol. 33(5) 722–747
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639231225436
journals.sagepub.com/home/sls
Keywords
Citizenship Amendment Act, democracy, ethnocracy, Hindutva, India, Narendra Modi,
Rashtriya Swayamsevak Sangh, rule of law
India’s credentials as a liberal democracy have been seriously questioned in recent years.
In March 2021, Freedom House downgraded its status from ‘free’to ‘partly free’. This
decline was attributed to ‘a multiyear pattern in which the Hindu nationalist government
and its allies have presided over rising violence and discriminatory policies affecting the
Muslim population and pursued a crackdown on expressions of dissent by the media, aca-
demics, civil society groups, and protesters’(Freedom House, 2021). Within a few weeks
the Varieties of Democracy Report noted India’s slide from being the world’s largest
democracy to an electoral autocracy (Biswas, 2021). Prescient observers of Indian polit-
ics had long seen this decline coming especially after the election of the Hindu nationalist
Bharatiya Janata Party (BJP) to power in 2014.
Accounts of India faltering in its commitment to a liberal, pluralistic, democratic order
are gaining prominence (Adeney, 2020; Ganguly, 2019; Manor, 2021; Sinha, 2021). In
particular, India’s lurch towards a Hindu state has been noted (Jaffrelot, 2017) as the
country took on the characteristics of an ‘ethnic democracy’(Jaffrelot, 2019). A 2019
amendment to India’s citizenship laws, which explicitly links membership of the political
community to religious identity, departs from the 1950 Constitution’saffirmation of secu-
larism and equal rights for all and further the rise of an ‘ethnic state’(Khosla andVaishnav,
2021). Such moves, as I have argued elsewhere (Roy, 2021), signal India’stransitiontoan
ethnocracy in which ‘a dominant ethnos gains political control and uses the state apparatus
to ethnicise the territory and society in question’(Yiftachel, 2000: 730).
Scope and Methods
In the first section of this article, I elaborate the concept of ‘ethnocracy’. The second section
reflects on the fate of the rule of law in an ethnocratic India. In the article, following Brian
Tamanaha (2007), I understand the rule of law –following a ‘thin’rather than ‘thick’con-
ception –to be, ‘about government officials and citizens acting in accordance with legal
rules’(p. 17). Indeed, as Joseph Raz (1979) warns us, the rule of law is not to be confused
with a complete social philosophy but merely elucidates a set of legal regulations. Such rules
and regulations need not be substantively democratic and may well undermine human rights.
They may well constrain state power to respect well-established and publicly accepted norms
(rather than being exercised in arbitrary, ad hoc and discretionary ways), as Francis
Fukuyama (2010) would have it. For this reason, it is essential for analysts to recognise
the changing norms and the new constraints that frame the functioning of India’s ethnocratic
state. After all, an ethnocracy is not a totalitarian dictatorship where sovereigns rule by decree
through arbitrary laws and executive fiat. Far from it, an ethnocratic state entails rule by the
dominant ethnos, for the dominant ethnos and of the dominant ethnos (see also MB ‘The
irregular and the unmaking of minority citizenship’in this special issue). Just as a democratic
state is theoretically subject to the will and constraints posed by the demos, an ethnocratic
state is theoretically subject to the will and constraints posed by the (dominant) ethnos.
Roy 723
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