Managing ‘dangerous populations’: How colonial emergency laws shape citizenship

Abstract

This article traces the historical foundations of current security legislation as the matrix of citizenship. Examining Israel’s new Counter-Terrorism Law against the backdrop of security legislation in India, its main proposition is that these laws and their effects are rooted in colonial emergency regulations and the bureaucratic mechanisms for population control developed therein, rather than in the ‘global war on terror’. The article offers an organizational vantage point from which to understand the development of population-classification practices in terms of an ‘axis of suspicion’ that conflates ‘political risk’ with ‘security risk’. Through an account of the formalization of emergency laws, it explains the effects of colonial bureaucracies of security upon independent regimes seeking legitimacy as new democracies by tracing decisions regarding the use of an inherited arsenal of colonial and settler-colonial practices of security laws for population management, particularly mobility restrictions, surveillance and political control. One of the most important of these effects is the shaping of the citizenship of targeted populations by security laws.

Keywords

Bureaucracy citizenship colonialism emergency laws India Israel/Palestine

Introduction

This article traces the historical foundations of current security legislation as the matrix of citizenship. Examining Israel’s new Counter-Terrorism Law¹ against the backdrop of security legislation in India, its main proposition is that these laws and their effects are rooted in colonial emergency regulations and the bureaucratic mechanisms for population control developed therein rather than in the ‘global war on terror’.

Contemporary analyses often focus on 9/11 and the global war on terror as the point of departure for the current stripping of rights by security laws (Brooks, 2004). Yet scholarship has already established that the global war on terror did not produce exceptional methods of policing and state violence (Berda, 2013; Li, 2018; Neocleous, 2007), but rather used existing emergency practices rooted in colonial laws, alongside militant counterinsurgency, to classify, subdue and criminalize dissent (Hussain, 2007; Tomlins, 2006). Building on these scholarly insights into the colonial past, this contribution investigates, first, how an inherited bureaucratic arsenal of emergency mechanisms was institutionalized in two distinct regimes of political membership; and, second, the effects of the transformation of the bureaucratic repertoire into formal legislation on the legitimacy of using colonial security technologies against civilians in a manner that effectively changes the scope of their citizenship.

The article proposes that the origins of the security measures that delineate citizenship in countries that were formerly part of the British Empire are traceable to colonial practices of population control and policing (Valverde, 2006) that circulated in the British Empire, with Palestine acting as a central node for the development of counterinsurgency practices (Khalili, 2010). It investigates how methods developed during colonial rule were institutionally adapted and innovated upon by Israel and India, following their independence, and then employed against populations classified as ‘suspicious’ or ‘dangerous’. This is not to argue that 9/11 was not a constitutive moment for the contemporary security alliance between Israel and India, which is primarily based on their shared conception of ‘geographies of threat’ posed by Muslims to their national majorities (Oza, 2007: 9). However, 9/11 is situated as one episode in connected histories of legal and bureaucratic repertoires.

The investigation of Israel’s Counter-Terrorism Law against the backdrop of India’s history of legal emergency is neither self-evident nor self-explanatory. In brief, India is an aspiring postcolonial democracy in which citizenship has not been explicitly differentiated on the basis of race or nationality; Israel, on the other hand, is an ethnocracy (Yiftachel, 2006) in which formal democratic structures are coupled with governmental practices that privilege the Jewish majority while limiting the political and civil rights of the Palestinian citizen minority (Saban, 2003). Israel further exercises military control over four million Palestinian subjects residing in the territories occupied since 1967, effectively producing a regime that Azoulay and Ophir (2012) have termed the ‘one state condition’ over the entire territory of Israel/Palestine.

In India, British emergency regulations became part of the state’s primary legislation shortly after the country achieved its independence. This legal formalization led to a broad infringement of citizens’ rights. In the summer of 2019, India annulled the special constitutional regime over Kashmir, which until then had been governed under a dual system involving both an autonomous administration and the implementation of various security laws by India’s security forces. The annulment of Kashmir’s special status facilitates the settlement of Kashmir by non-Kashmiris and upholds the heavy-handed rule of security forces over the local population.

In Israel, a patchwork of decrees restricted the mobility of affected populations in order to advance settler-colonial policies (Robinson, 2013; Zureik, 2011), enabling targeted and severe violations of the rights of the Palestinian minority during the military regime (1949–66) and of residents of the Occupied Palestinian Territories from 1967 onwards. The Counter-Terrorism Law, which formalized the state’s counterinsurgency powers, was passed only in 2016. This piece of legislation transformed 80 years of rule by decree through British colonial emergency regulations – deployed mainly against Palestinians in Israel and in the Occupied Palestinian Territories – into formal primary legislation. Alongside the passing of this piece of security legislation, the law regarding citizenship was also amended, empowering Israel’s minister of the interior to revoke citizenship on grounds of disloyalty to the nation. Such grounds include ‘acts of terrorism’, as defined in the new Counter-Terrorism Law.² By focusing on this moment of the institutionalization of colonial emergency regulations, the present article seeks to demonstrate how inherited colonial security laws delineate the citizenship of targeted populations through graded classifications of suspicion.

Drawing on archives of administrative correspondence related to applications for permits, licenses and endorsements in mandatory Palestine, India and Israel,³ I compiled organizational portraits of population classification to trace both the use of an ‘axis of suspicion’ to classify the population and the centrality of this axis of suspicion in the development of the organizational toolkit of colonial emergency laws between the two world wars. Bureaucratic practices enforcing restrictions on mobility were examined in administrative correspondence to highlight how minorities’ claims for citizenship in the post-independence states of Israel and India were shaped by the colonial security laws and their bureaucratic implementation (Valverde, 2010). In addition, I examined official debates on the formalization of emergency laws and the legitimacy of their use against citizens at a number of critical junctures.

The article thus offers an organizational vantage point from which to understand the effects of colonial bureaucracies of security on independent regimes seeking legitimacy as new democracies while continuing to use their inherited arsenals of colonial and settler-colonial practices of population management, surveillance and control. Among these effects is the shaping of the citizenship of targeted populations by security laws.

The article consists of three parts. The first part demonstrates how emergency laws were deployed in the British Empire to establish bureaucratic practices and tools for managing populations in India and Palestine, and other colonies, through classification based on an axis of suspicion that conflated security risk with political risk. The second part focuses on struggles over the political legitimacy of incorporating previously existing emergency regulations into primary law in Israel, juxtaposed with a discussion of how India chose to handle its own inherited legal arsenal of emergency regulations. The third part investigates the contemporary scaffolding of anti-terrorism legislation in both Israel and India. Highlighting three organizing principles inherited from the British colonial regulations, it demonstrates how emergency shaped citizenship through bureaucratic security regulation.

When a political risk becomes a security risk: Security laws as boundaries of citizenship

Since 9/11 and the launch of the global war on terror, anti-terrorism laws have been viewed (and critiqued) as part of a global effort spearheaded by the USA that became ‘the war for civilization’, similar to earlier ‘civilizing missions’ undertaken by imperial forces to ostensibly ‘restore order’, establishing extensive policing powers (Neocleous, 2007, 2011; Tomlins, 2006). Indeed, Israel fuelled and India was looped into this new imperial formation through their shared imaginaries of ‘geographies of threat’ (Oza, 2007), including through the export of weapons and technologies for policing civilian populations. It has also been shown how the contemporary imperial repertoire of modern liberal states was developed in the horizontal circuits of the British Empire, its fulcrum located in Mandatory Palestine, where inventories of knowledge and legal weaponry (Esmeir, 2015) that harboured shifting imaginaries of racial ordering and schemas of ‘suspicious’ populations were imported from India and Ireland, directly or via correspondence with the Colonial Office, and innovated upon (through the appointment and training of administrators, interrogators and police officers) (Khalili, 2015; Stoler and McGranahan, 2007: 9). Here, I take this analysis a step further by shifting the focus from the origins of contemporary laws to the mundane security practices that implemented emergency regulations. These practices matched categories of suspicion to spatial boundaries of mobility, are key to understanding the shaping of citizenship by Israel’s new Counter-Terrorism Law.

Fuelled by the belief that any form of political activism toward liberation from British colonial rule was a threat to ‘peace and good government’ (Tomlins, 2006: 249), colonial governments developed a set of bureaucratic practices of population control and surveillance through emergency laws. During the Arab revolt in Mandatory Palestine in 1936–39, classification of political activists and militants, coupled with various counterinsurgency activities, augmented the enforcement of emergency laws. Following Israel’s independence and the Nakba (‘the Catastrophe’), these practices became an ‘administrative toolkit of suspicion’ for the military government’s relations with the remaining Palestinians. In India, a similar toolkit shaped the relationship between citizenship, political opposition and political violence, establishing a distinction between the sovereign people as a political community endowed with rights and those engaged in political violence, with the latter being governed by emergency laws that were sanctioned by the constitution (Samaddar, 2006) and excluded from the political community. Even those who held formal citizenship became a class whose rights were at the discretion of bureaucratic officials.

Developing the administrative toolkit of suspicion

From the 19th century, British colonial officials justified emergency legislation on grounds of security, economic instability or the hostility of the subjugated population. Through a process of ‘civilizing’ and legitimizing martial law as police power, emergency powers were incorporated into the peacetime administrative system, effectively routinizing emergency as both a form of governance and a tool of law enforcement (Kalhan, 2006; Neocleous, 2007). With the outbreak of World War I and the passing of the Defence of the Realm Act in Britain in 1914, usage of emergency regulations in the colonies skyrocketed. With the Act’s extension to the colonies, the deployment of executive power through emergency law became a central organizing principle of British imperial bureaucracy (Hussain, 2003) that had two principal effects: rule through decrees and the continual manufacturing of administrative exceptions to previous laws (Shenhav and Berda, 2009). Emergency regulations became the British colonial government’s main instrument of population management, which was exercised through an expanding repertoire of legal-spatial tools for control that proliferated throughout the empire (Berda, 2013). As Henry Lovell Goldsworthy Gurney, the last chief secretary of the British Mandate, wrote:

In Palestine, the emergency laws accumulated and tightened to such degree that one might say the entire regulation book could have become a single directive that allows the High Commissioner to do as he wished.⁴

The legal repertoire of spatial control was developed as an alternative to direct state violence against ‘hostile populations’ (Scott, 2010), and dubbed ‘sane imperialism’ by Lord Cromer, the console of Egypt (Baring, 2010: 125). Colonial administrations relied on documents and permits in order to monitor and surveil subjects (Singha, 2000; Smith, 1985), as emergency regulations enabled decrees that restricted movement, closed zones and the establishment of permit regimes in places such as India, Egypt (Mitchell, 2002), Cyprus and Palestine (Berda, 2017), among others.

Obstruction of movement and surveillance of entire populations were as costly as they were unnecessary. Emergency laws thus targeted particular communities that were fluidly classified as ‘dangerous populations’ (Kemp, 2004). Identifying those ‘dangerous populations’ was a complex matter mostly left to the decision of local administrators. Consequently, the administrative toolkit of emergency bestowed on its colonial officers a broad executive discretion to restrict and define entire regions as ‘danger zones’.⁵ Gradually, grades of suspicion merged with regional characteristics, producing laws that referred to ‘criminal’ tribes and ‘dangerous’ populations – classified according to their political leanings, principal occupations or geographic concentrations – and enabled the confiscation of the lands of civilian populations labelled as ‘hostiles’ (Sundar, 2011).

The resulting Schmittian classification of populations as friend or foe (Schmitt, 2005) through emergency regulations was not, however, a Schmittian foundational moment of sovereignty defined by the sovereign power’s ability to ‘decide on the exception’. In the British colonies, it was not a moment but a gradual process driven by the bureaucratic need to prioritize the deployment of resources to implement the emergency laws over suspicious, racialized ‘surplus populations’ (Khalili, 2015: 3). The very practice of labelling populations as ‘suspicious’ justified the regulation of their movements and the monitoring of their activities. Registering and labelling were necessary for positioning the ‘politics of preemptive counterinsurgency as defensive holy war by presciently racializing its theological enemy’ (Feldman and Medovoi, 2016: 3).

These bureaucratic practices transformed the binary opposition between friend and foe into an ever-expanding index of suspicion that conflated a security threat with a political threat (Berda, 2013). This fluidity, the crux of British colonial bureaucracy, was achieved through the use of demographic categories that manipulated ‘intractably divisive primordial loyalties’ effectively, for the surveillance and monitoring of colonized populations (Stoler, 2016: 63).

The creation of ‘blacklists’ and the classification of ‘security’ and ‘political’ prisoners were primary tools used against national liberation movements, criminalizing political and cultural activities as a security risk. Blacklists constituted an important bureaucratic method that was used to justify administrative detention, limitations on movement and forced expulsion. In the early days of Mandatory Palestine, two legal tools – the Crime Prevention Ordinance and the Collective Responsibility for Crime Act – shaped the political nature of the blacklists. These laws allowed commissioners to preemptively restrict movement and impose collective fines for activities related to political organization, including supporting political associations.⁶ Fuelled by an institutional logic that further blurred official distinctions between political and paramilitary activities, or individual and collective responsibility, blacklists legitimized the use of violence to shut down political opposition. In due course, one’s official inclusion in the community of suspicion meant that what had led to the classification no longer mattered. Blacklists affected freedom of movement in ways that ranged from the prevention of international travel to detention. During times when permits were needed to leave a colony or to travel between villages, classification as suspect determined one’s ability to obtain the required documents. The document that was used to enable movement became the basis for claiming citizenship in the independent states.

Axis of suspicion: Blacklisting in India

The British government of India could not and did not need to use the complex system of restrictions established by emergency regulations against the entire Indian population. To make effective use of this system, officers needed categories that would facilitate identification of ‘dangerous populations’. Extensive scholarship shows how British colonial rule in India was preoccupied with managing occupied populations, as shown by the ceaseless taxonomy of demographics: race, class, religion, sex, caste and region.⁷ Less studied has been a spectrum of categories that I call the ‘axis of suspicion’, in which subjects were ranked as loyal citizens, active collaborators, of dubious loyalty and, finally, as suspects and enemies of the state. These categories, while not always articulated explicitly, were nevertheless significant in thousands of applications for identity documents, permits and licences that required recommendations, endorsement or evidence of ‘good character’. One was classified as suspect or dangerous merely for belonging to a particular religious, regional or political group – a process that echoed earlier templates that assigned criminality by birth⁸ – or on the basis of intelligence sources or a recommendation on official forms. Political activities that generated such classifications included violating public order, assisting strikers, protesting and acting against the colonial regime, violently or otherwise.

The blacklist ranked suspects according to levels of political risk or undesirability. Fluid categories created by clerks, police and border officers, and altered frequently at their discretion, soon became the site of internal bureaucratic struggles. The British Home Office Suspect List composed in 1914 comprised outlaws and deserters, but quickly expanded to include impostors, spies and enemies of the crown. With the rise of political violence in Bengal in the interwar period (Ghosh, 2006), when the British government of India tightened control of its borders, the list became an essential tool in the population-identification system. As emergency legislation expanded across the empire, the use of lists peaked in Palestine and Cyprus, and later in Malaya and Kenya.⁹

Besides preventing entry of ‘suspects’ and ‘enemies’, the list was an instrument for labelling groups and individuals for monitoring purposes.¹⁰ Categories were a site for bureaucratic negotiation about the constitutive characteristics of a security threat: after name, date of birth and nationality was a column describing occupation or political leanings. Because definitions of suspect populations were fluid, a person’s occupation or politics could well render him a suspect: fascist, prostitute, ship’s cook, commercial agent, soldier, lawyer, journalist, mechanic, tailor or salesman – there was no telling which characteristic might tip the scale.¹¹

Administrative examples abound of the Home Office’s meticulous attention to classification based on categories of suspicion that delineated spatial boundaries for mobility and rights. For instance, fears of a Japanese invasion of India via Burma led the governor of Assam to set up a profiling system to identify and arrest potential spies. Those entering India from enemy areas were assigned one of three categories: black, gray or white. One official wrote that ‘blacks’ were suspected of active collaboration with the enemy.¹² Allegedly posing a genuine espionage risk, they were detained under heavy guard. ‘Grays’ were released and repatriated but confined to their village for up to a month.¹³ The Political (Internal) Department placed spatial restriction orders on ‘grays’ in order ‘to prevent them from working against the security of British India’.¹⁴ ‘Whites’ were released unconditionally. As we shall see in the third section of this article, this logic of delineating spatial boundaries according to degrees of suspicion formed a template for the permit regime Israel operated during the military government, matching degrees of freedom of movement with political affiliations.

Classification according to degrees of suspicion did not end with World War II. Political prisoners in India were lumped into two categories: prisoners convicted of political offences or awaiting capital punishment and prisoners held in administrative detention without trial. The latter were divided into three subcategories: members of the Indian National Congress (nicknamed ‘the Gandhians’), security prisoners (including alleged terrorists, vandals and political prisoners) and security-political prisoners (known also as ‘Goondahs’).¹⁵ This classification was particularly important because release of prisoners active in the national movement was a political tool in the negotiation between the colonial regime and the Indian National Congress, as well as its rivals.¹⁶

The blurry boundaries between political and security offences were negotiated anxiously in the department, furthering their conflation. While some senior officials tried to maintain the distinction ‘despite the difficulty of defining violent crimes and political crimes’, lists that lump together the whole gamut of activities evidence the failure of such attempts and the officials’ sense that ‘all the people serving sentences for crimes committed during the Congress rebellion committed serious offences, and we cannot confidently say that the activities fall squarely beyond the boundaries of non-violent political activity’.¹⁷

Classification as suspects subjected people to the vast executive powers granted by laws such as the 1915 Defence of India Regulations Act, which empowered public servants to prevent the movement of suspicious individuals or communities and set out instructions for their detention and registration. Following the outbreak of World War II, the British government enacted the Emergency Powers (Defence) Act of 1939 in various forms throughout its empire, empowering senior officials to order administrative detentions, searches, seizures, arrests, expulsions and execution of individuals perceived as being in opposition to the colonial regimes. Movement was monitored either through checkpoints or through a permit regime for entry, exit or movement within decreed boundaries.¹⁸ Thus, for instance, the Bengal Special Powers Amendment Ordinance 1946 gave local police officers the power to declare curfews and demand permits for movement.¹⁹ The declaration of entire areas as emergency zones allowed commanders of local police forces to shoot curfew violators (see, for example, the Madras Disturbed Areas [Special Powers of Armed Forces] Ordinance 1947).²⁰ The Punjab Public Security Ordinance 1947 provided special powers to confine the entire population, requiring all residents to obtain entry and exit permits from the regional governor.²¹

The classification of populations and the proliferation of bureaucratic practices of emergency grew in tandem exponentially. During the 1940s, as partition plans in India and Palestine were advanced as a solution to intercommunal conflict, the pace of population classification along muddled categories of race, nationality and religion accelerated. As insurgencies erupted in colonies where British rule had exacerbated existing intercommunal conflicts, British officials circulated personnel, training, technologies and, most of all, forms and administrative decrees. The diffusion of techniques shifted pace and focus according to the political needs and influence of officials in the colony.

Bengal to Palestine: The diffusion of emergency practices

The colonial administration of the British Mandate of Palestine was preoccupied with controlling the movement of populations from its inception, not least because its attempts to monitor Jewish migration and settlement in Palestine – the most controversial political issues at the time – demanded a sophisticated system of statistics, regulations and documents (Zureik, 2001).

Emergency laws enacted in 1931 were used extensively only with the 1936 outbreak of the Arab rebellion against the British colonial regime, which was perceived as collaborating with Jewish immigration and economic development (Norris, 2013). In 1936, the High Commissioner, following the formula used in India and Burma for applying defence regulations,²² declared martial law by decree.²³ The administrative tools used to quash the revolt were mostly adapted from the bundle of laws published by the Home Department of the government of India in 1934 and granted special powers for ‘dealing with terrorism and other forms of subversion’.²⁴ Officials experienced in combatting political and militarized dissent were recruited to help with their implementation. From 1936 to 1939, the Arabs in Palestine lived under a severe military regime (Hughes, 2009).

The format of the Mandate government’s blacklists was similar to that used in India but focused mostly on security and political threats. From the 1930s, there were separate blacklists for Jews and Arabs (as well as a joint blacklist of former government employees that included their names and details of the department in which they had worked).²⁵ The blacklist for Arabs comprised over 2000 names classified by kinship, political connections and region. The Jewish Yishuv (settlement) establishment contributed names and information to this list.

In 1945, Jewish militias launched a joint armed struggle against the Mandate government’s restrictions on Jewish immigration and land settlement. Senior officials in the Jewish Agency, previously viewed as allies by the Mandate government, took an active part. In response, the Mandate government drew on the emergency toolkit it had developed from the laws inherited from Bengal and Ireland during the Arab revolt to establish the Defence (Emergency) Regulations 1945, which enabled expulsions and the demolition of family homes of suspects, as well as the death penalty for political militants. After a spate of attacks on bridges, prisons and railway tracks, the ‘special suspect list’²⁶ of Jews expanded to 3500 names. In June 1946, during Operation Agatha, British police arrested over 2000 people named in the Jewish blacklist (Wagner, 2008).

The levels of violence and repression used by the British against Jews, however, were attenuated in scale and scope: the Mandate government was reluctant to use its tools of counterinsurgency and massive collective punishment in Jewish settlements in the same way it did in Palestinian towns and villages.²⁷ This difference in approach was rooted in the earlier alignment between the Jewish Yishuv and British officials who viewed the Jewish settlers as a proxy for European colonizers (Yacobi, 2015: 3–5) because they were European born and, unlike the Palestinian natives, were not presumed to support terrorism collectively. Jews on the blacklist were thus evaluated on the basis of their political and organizational affiliations.

Classification by degrees of suspicion in Palestine was simpler than the classification matrix in India, not least because from 1935 onwards the Mandate government divided the population of Palestine categorically into Jews or Arabs. Still, the array of spatial-legal means was as rich as the repertoire in India, partly owing to the importance of land mapping and jurisdiction in the ongoing struggle between Jewish settlers and Arabs, and partly owing to the British preoccupation with preventing illegal Jewish immigration.

During the last years of the Mandate, Britain’s heavy-handed rule by decree was at the forefront of the critique advanced by the Jewish Yishuv to delegitimize the British presence and demand independence. Following independence, Israel’s decision not to incorporate the Defence (Emergency) Regulations 1945 as formal legislation was central to the nascent state’s campaign for political legitimacy as a democratic state. It reserved the use of the Defence (Emergency) Regulations for those who were deemed ‘violent’ opposition, thus distinguishing between the political community of citizens and those who engaged, or were likely to engage, in acts of political violence, who would be governed by their provisions.

Legislating the toolkit of suspicion in the new state: Institutional legitimacy

The end of British rule in India in 1947, and in Palestine in 1948, amid attempts to partition the former imperial territories, was marked by violence and displacement of populations on an enormous scale. Partition was accomplished in India/Pakistan at the cost of millions of casualties. In Israel/Palestine, where over three quarters of a million Palestinians were forced to flee during the Nakba, partition and the establishment of a Palestinian state were not achieved.

Following independence, both India and Israel inherited the bureaucratic toolkit of emergency measures – comprising laws, maps, statistics, equipment and bureaucratic forms that had been deployed against those opposed to British rule – but each formalized these powers differently, demarcating boundaries of national belonging that legitimated differentiated use of executive power against different types of citizens.

The wars over partition had transformed Muslims and other minorities in India, and Palestinians in Israel, into aliens of a sort, belonging to a separate political entity in the eyes of the bureaucracies and security forces of their respective countries. They became suspects a priori and enemies de facto. Once they were perceived in this way, the bureaucratic toolbox embedded a political logic of suspicion that legitimized the use of colonial measures against the new ‘minorities’ that remained in both India and Israel. Bureaucrats produced maps of danger zones, borderlands and areas of infiltration that determined the limits of mobility in tandem with boundaries of political membership in the community, created by the classification matrix of loyalty and suspicion of populations.

Notwithstanding the fact that partition never materialized in Israel/Palestine, and despite the difference between the political regimes of Israel and India, in both cases a permit regime based on emergency laws was one of the methods deployed to prevent refugees from returning to their homes (Robinson, 2013; Zamindar, 2007). Returning refugees were termed ‘infiltrators’ in Israel and ‘spies’ in India. In Israel, this spatial-legal system was a mechanism that used administrative means to shape the boundaries of political belonging and prevent Palestinians from returning and claiming residency and then citizenship. The categories by which Israel classified subjects (as citizens, residents, refugees or infiltrators) were institutionalized through the permit regime. The type of permit one held infused legal and political meaning into one’s location, (for example in India during the first population census in 1951), and determined one’s status (Jayal, 2013). Thus, temporary emergency decrees that prevented mobility became the foundations for the categorization of minority citizenship (Lustick, 1980; Rouhana and Sabbagh-Khoury, 2015).

How did differences in the way the two states legislated the bureaucratic toolkit of emergency they inherited from the colonial government, affect the scope of power deployed against citizens? Previous scholarship has held that the bureaucracy remained neutral across regime change. Emerging scholarship, however, suggests that inherited bureaucratic practices of documentation and classification became critical to the shaping of the new states (Berda, 2017; Kim, 2016; Mathur, 2016). This section examines how legislation of the bureaucratic toolkit of emergency shaped political membership laws before it crystallized into statutory laws of citizenship.²⁸

Despite the shared legacy of colonial emergency regulations, the relationship between citizenship and security laws in the two countries evolved differently: In India, inherited colonial laws were used against citizens of various ethnicities and religions, including members of the Hindu majority, usually intersecting with caste, linguistic minorities and rural areas. These laws were deployed against the Maoist insurgency, the Gurkha movement in Darjeeling, the Sikh independence movement in Punjab, in Nagaland, and in Jammu and Kashmir (Chenoy and Chenoy, 2010). In Israel, emergency laws served as the backbone of the colonial military government from 1949 to 1966 to control Palestinians perceived as enemy population (Sa’di, 2016). In 1952, Palestinians were legally granted citizenship, yet the practicable rights of the Palestinian minority went into effect de facto only when the military regime was dismantled in 1966 (Boimel, 2002). From 1967 onwards, the Defence (Emergency) Regulations were also used as the legal infrastructure for governing Palestinians in the Occupied Territories.

Following the war of independence and the Nakba, Israel made a political choice to refrain from formal incorporation of the Defence (Emergency) Regulations within the new state’s primary law. This contributed to the establishment of a two-tiered regime of differentiated citizenship, one for Jews and the other for Palestinians (Rouhana and Sabbagh-Khoury, 2015), whereby Jews would live within a postcolonial framework and Palestinians under both colonial and postcolonial conditions simultaneously (Stoler, 2016: 62). Thus, while the Defence (Emergency) Regulations were not formally incorporated into law by the Knesset as the nascent Israeli state sought to secure international legitimacy as a democratic state, they were used primarily against Palestinians whose political activities were perceived as a security threat.

In India, legal tools for coping with potential opposition to the regime were incorporated quickly into primary legislation. With the Preventive Detention Act 1950 and the Armed Forces Special Powers Act 1958, India opted to transform colonial emergency laws into primary legislation to legitimate the deployment of such laws against all citizens perceived as ‘dangerous’, with a specific focus on counterinsurgency.

Two paths thus diverged in a manner that highlights how legal formalization of colonial security regulations affected the degree of legitimacy the state bureaucracy enjoyed in using emergency powers against various populations. These two different paths are discussed below.

Formalizing the toolkit of emergency: Indian postcolonial boundaries of opposition

The British enacted preventative detention measures in colonial India for the duration of World War I. Upon expiry, they were supplanted by laws enabling the government to detain people, curtail due process and confiscate property. The notorious Rowlatt Act of 1919²⁹ and amendments to the Bengal penal code enabled the detention of any person deemed to pose a danger to public order, national security or the provision of vital needs (including strikers). Opposition to these laws was pivotal to the emergence of Gandhi’s non-cooperation movement in 1922.

The transition from colonial rule to home rule began more than a decade prior to independence. In 1935, the Government of India Act empowered provincial governments to declare a broadly defined state of emergency. British colonial repression by emergency laws had been a climactic issue for the Indian National Congress, which promised in its 1936 election pamphlets that it would ‘take every possible step to end and annul the ordinances, laws and decrees oppressing the Indian people and crushing their aspirations for freedom’.³⁰ Nevertheless, in 1937 elected Congress members used the very same regulations to persecute opposition groups. Officials imposed administrative arrests on activists from both the right and the left (members of the Rashtriya Swayamsevak Sangh and Communist parties, respectively), using provisions of the Public Safety Acts. In 1946, an opposition leader demanded that the provisional parliament explain ‘why, with the Congress Party already in office . . . are decrees being issued allowing detention without trial, arbitrary collective fines, surveillance of public political assemblies and severe infraction of the civilian rights of the people and the continuance of the defense of India rules in some form or another?’³¹

In 1952, the provisional parliament passed the Preventative Detention Act,³² which was challenged in Parliament and subsequently upheld by the Supreme Court as constitutional (Singh, 2007). The fact that the Ministry of Home Affairs circulated the template of detention orders against individuals who posed a ‘potential risk to state security’ by simply changing the source of authority from ‘Defence of British India’ to ‘public security’³³ underscores the materiality of the colonial toolkit of emergency.

The Preventative Detention Act was a temporary act. It nevertheless remained in force until 1969, and was enhanced by the 1954 Maintenance of Internal Security Act. During the emergency enacted by Indira Gandhi (1975–77), the Maintenance of Internal Security Act was used to detain opposition members and civil rights activists who appeared on ever-expanding blacklists. The Public Safety Act of 1978 and the National Security Act of 1980 extended India’s counterinsurgency repertoire, constructing an alternative detention system that ran parallel to the criminal justice system (Baxi, 1982: 30) and was put to considerable use in Kashmir as a key tool for targeting political association (Duschinski and Ghosh, 2017: 321).

Another colonial law, the Armed Forces (Special Powers) Act, which had been enacted during World War II to facilitate the deployment of forces in order to ward off a Japanese attack,³⁴ was continuously used against citizens in areas that opposed central rule. Through the impunity that it granted the armed forces in relation to actions against civilians, including arrests without warrants, damage to property and even the killing of detainees, this act codified a categorical distinction between ordinary citizens and those who allegedly engaged in violence. The latter were construed as a ‘dangerous population’ and stripped of their rights as citizens (Samaddar, 2006: 30). This categorical divide was entrenched through the spatial zoning of so-called disturbed areas by security forces using the act.

During the process of partition, the central government declared that Bengal, Assam, Eastern Punjab and the United Provinces were ‘disturbed areas’ in which the civil authorities would require the support of military forces to administer civilian life, and where the security forces were granted special powers (Lokaneeta, 2018: 4) and immunities against litigation for violations of civil rights.³⁵ The reasons for and boundaries of a ‘disturbed area’ were flexible, with the latter sometimes encompassing an entire state (Baruah, 2014: 190).

From the very enactment of the Armed Forces (Special Powers) Act, some colonial officials were concerned about the legitimacy of using decrees – as distinct from formal laws – that granted immense discretionary powers. In 1946, when the governor of Bombay issued a decree that permitted shooting demonstrators during curfews, Home Office staff warned, ‘no decree, only an ordinance would grant immunity to security forces’.³⁶ Continuous criticism from the legal section of the Home Department notwithstanding, from independence in 1947 to 1950 most provincial governments imposed martial law as a way of governing their civilian populations. Thus, in 1953, the Assam Maintenance of Public Order Act granted powers to prevent protests and monitor political activity, regulating and preventing movement using a variety of blacklists. In 1958, the Armed Forces Special Powers Act was passed to support military troops in their efforts to quash the Naga independence movement, suppressing protests by citizens in Nagaland and Manipur on the ground that they posed ‘a constitutional problem’ (Akoijam and Tarunkumar, 2005). This practice of protecting security forces against litigation related to their harmful actions towards civilians in Assam and Manipur was also later used in Punjab, the northeastern provinces and Kashmir. Impunity for security forces was institutionalized into the Indian constitution, creating de facto immunity for public servants regarding any acts they might have undertaken to protect an area under martial law, as though a constitutional emergency had been declared through Article 356 of the constitution, but without any time limits (Chopra, 2015).

The above indicates that colonial security laws were eventually incorporated into the Indian constitution. This made it possible for the Indian government to classify Indian citizens not just as political opponents but also as ‘dangerous’ populations living in territories classified as ‘disturbed areas’.

Rule by decree: Israeli emergency regulations and the colonial boundaries of opposition

Israel never formally incorporated the Defence (Emergency) Regulations into its primary law, though they remain in force today and are being used in parallel with the provisions of the new Counter-Terrorism Law.³⁷ The Jewish Yishuv had refrained from condemning the use of the Defence (Emergency) Regulations by the British to suppress the Arab revolt. That indifference, even acquiescence, changed once the Regulations were deployed against Jews.³⁸

In 1946, two years after Jewish militants initiated a violent campaign against British rule by bombing the colonial immigration offices, two young attorneys, Dov Yosef and Yaakov Shimshon Shapira (both would eventually become justice ministers), condemned the Defence (Emergency) Regulations, claiming that ‘even Nazi Germany didn’t have laws like these’ (Shapira, 1946: 59). They demanded the annulment of laws that granted unlimited power to the government. Vociferous critique was also deployed to show that the heavy-handedness of the British Mandate government was both ineffective and morally illegitimate – the Yishuv’s way of insinuating that the British had lost control over the situation in Palestine.

Following independence, the Defence (Emergency) Regulations became part of Israeli law through the Government and Law Ordinance that ensured the continuity of Mandatory laws, a step that seemed obvious to those who view Israeli state institutions as the ‘natural inheritance of the previous [British Mandate] regime in Palestine’ (Samuel, 1957: 2).³⁹ This legacy provided local legal elites with both a European corpus of judicial decisions and an arsenal of legal weaponry developed by the British to deal with ‘hostile populations’ in the colonies.

Interestingly, the very first petition to Israel’s High Court of Justice challenged the constitutionality of the Regulations in connection with the administrative detention of members of a militant Jewish movement (Etzel). While the judges upheld the legal basis of the defence minister’s powers of detention, they questioned both the lawfulness and the morality of the Regulations.⁴⁰ Following this decision, the government decided to annul the Defence (Emergency) Regulations – a decision, however, that has yet to be implemented.⁴¹

Following the 1948 war, Israel imposed military rule over Palestinians who remained in its territory. The Defence (Emergency) Regulations served as the legal basis for this action. The military government established a permit regime that was originally intended to prevent Palestinian refugees from returning to their lands. By late 1949, the Ministry of Minorities, seeking to prevent Palestinians from claiming citizenship,⁴² initiated the amendment of the Population Registry Ordinance – a colonial law that outlined procedures for the registration of the population – to enable the distribution of temporary permits instead of ID cards to certain Palestinians deemed less desirable as potential citizens.⁴³ Over time, the permit regime evolved into a massive surveillance mechanism (Zureik, 2001) that classified people under a range of categories of suspicion and collaboration, effectively wiping out the option of being considered loyal citizens.

Between 1948 and the 1952 enactment of the Citizenship Law, the military regime distributed temporary identity cards to Palestinians. These were renewed every three months, with renewal contingent upon the recommendations of the military governor and police.⁴⁴ Even those Palestinians who had been granted all the requisite documents and enjoyed the right to vote had a partial and unstable citizenship (Robinson, 2013) that depended on discretion. Israel’s adviser for Arab affairs stated explicitly that some ‘will not get ID cards for security reasons or because we need to examine their loyalty to the state’.⁴⁵ Following the passing of the Citizenship Law in 1952, Palestinians became citizen-subjects (Boimel, 2002; Sultany, 2003) under colonial rule. This ‘settler-colonial’ citizenship (Rouhana and Sabbagh-Khoury, 2015) meant that the military governor could suspend their civil and political rights by restricting mobility (permanent movement restrictions were practised until 1959; night-time restrictions remained in force until 1966), imposing administrative detention and confiscating goods.

While not entirely without opposition, the Defence (Emergency) Regulations attracted little public attention until they were directed against Israeli Jews: In 1951, a political group of ultra-orthodox Jews were administratively detained over an alleged plan to attack the Knesset. In response, an alliance between the right-wing Herut Party, the Religious Front and the communists demanded the annulment of the colonial regulations.⁴⁶ Thus, during a heated parliamentary debate on 21 May 1951, Herut leader Menachem Begin decried the lawfulness of the Defence (Emergency) Regulations in the following words:

These are tyrannical laws, these are immoral laws, and these are Nazi laws. An immoral law is also an illegal law. ... If these laws, the terrorist laws of an oppressive regime, remain in place in the state of Israel – one day there will not be left a single part of society unhurt by them. ... The very existence of these emergency laws is a badge of shame, their enactment – a crime.⁴⁷

That day, the Knesset declared that ‘the Defence (Emergency) Regulations 1945 that still exist . . . since the days of the British rule utterly contradict the very foundations of a democratic state’ and demanded their annulment within two weeks.⁴⁸

That demand came to naught. Two alternative draft bills submitted by a committee⁴⁹ – one attenuating the scope of executive powers to suspend civil rights and the other excluding political activities from the realm of emergency legislation⁵⁰ – were strongly opposed by the Ministry of Defence.⁵¹ The Ministry of Justice, for its part, resisted any primary legislation that would enshrine the content of the Defence (Emergency) Regulations. Thus, the attempt to cancel the colonial regulations imploded, the committee disbanded, and the draft bills were shelved. A decade later, when Menachem Begin motioned to end military rule, his speech focused on the illegitimacy of using the colonial emergency legislation:

We heard the argument that the British did us a favour by leaving us the Defence (Emergency) Regulations as they departed. . . . If the State of Israel did not find it appropriate to pass such a law, how is it appropriate for it to retain one? The law should have been struck from the books a long time ago . . . just as any nation relieving itself from a foreigner’s yoke strikes down the symbols of its own enslavement.⁵²

Begin’s critique was not concerned with the inequality between Jews and Palestinians but with the legitimacy of the Defence (Emergency) Regulations from an institutional standpoint: the state bureaucracy was making use of colonial regulations that were established to govern the lives of hundreds of thousands of people under colonial rule but was seeking to avoid formally incorporating the same regulations within its legislation because of their undemocratic content. The performativity of this critique was underscored by fact that he himself did not annul the regulations even after he became prime minister in 1977.

In 1967, when Israel occupied the West Bank and Gaza, the military advocate general used the Defence (Emergency) Regulations as a legal basis for the military government of the Occupied Palestinian Territories. They became the main legislative corpus in the territories until the establishment of the Palestinian Authority in 1994, and their legitimacy has rarely been challenged in the Knesset.

Since the 1980s, there have been several attempts to institutionalize emergency legislation, including the Emergency Powers (Detentions) Act that requires judicial monitoring of detentions. However, given that Israel never lifted the state of emergency declared in 1948, this law is used interchangeably with the Defence (Emergency) Regulations to detain Israeli citizens (usually Palestinians) and citizens of Lebanon. In 2002, a law enabling detention without trial of Palestinians fighters from Gaza as ‘unlawful combatants’ was introduced.

A broad consensus in the Israeli legal community views the Defence (Emergency) Regulations as undemocratic legal tools that are nevertheless essential for the security of the state (Gil et al., 2010). Critics of this raison d’etat argue that such political ambiguity is characteristic of the fluid jurisprudence of the continuous Israeli emergency, facilitating state manipulation of legal tools to bestow a mantle of democratic legitimacy upon the unconstitutional and undemocratic discrimination against Palestinian citizens without tarnishing the facade of formal democracy (Mehozay, 2016).

Thus, the Defence (Emergency) Regulations (and their virtually exclusive enforcement on Palestinians) consistently achieve and maintain a double goal of linking freedom of movement to suspicion and creating a separate category of citizens who are governed by security laws as well as other laws. The enactment of the 2016 Counter-Terrorism Law and the 2018 Nation-State Law (Harel, 2018; Jabareen and Bishara, 2019) has institutionalized de jure the structural discrimination between Jewish and Palestinian citizens and residents hitherto practiced de facto.

Anti-terror laws as formalization of differentiated citizenship

Israel’s recent Counter-Terrorism Law represents the culmination of a process in which the distinctions that have been made between populations on the basis of security measures applied since the state’s inception are formally embraced: the Counter-Terrorism Law supersedes some of the Defence (Emergency) Regulations⁵³ and other laws.⁵⁴ It officially ends the use of differentiated bodies of law for different populations by incorporating (most) of the Defence (Emergency) Regulations into primary law, while maintaining the differential treatment of Palestinians in legal and administrative practices through three major organizing principles of the colonial toolkit of emergency: spatial boundaries, kinship and political affiliation.

The colonial origins of contemporary anti-terror legislation, together with the story of its institutionalization in both India and Israel, provide an analytical framework for understanding the impact of such legislation on citizenship and how security laws shape contemporary political membership, rights and mobility. The legacy of the bureaucratic toolkits of emergency was deployed differently in the two cases because Israel continued to apply the colonial law and the structure of colonial administration vis-a-vis its Palestinian population whereas India institutionalized these laws, incorporating them into parliamentary legislation, the constitution and the body politic.

The liberal binary principle of legal/illegal attributes great importance to primary legislation in parliament: procedural formalization gives public legitimacy to transgressions of civil rights as long as the infringement abides by institutional standards (Lavi, 2006). The formalization of colonial defence regulations thus creates legitimacy for their authoritarian contents, normalizes draconian arrangements of colonial legislation and makes them a part of the repertoire of legitimate laws of a formally democratic state (Margalit and Shinar, 2010).

In Israel, the Defence (Emergency) Regulations functioned as a second system of law to govern a racialized population deemed to be a political threat. From the outset of the military government, the Regulations were used as a way of controlling Palestinians, preventing their return to and advance settlement of borderlands, even during the decades when the civilian population was not perceived as a ‘security threat’. Following the occupation of the West Bank and Gaza, the Regulations were used extensively to legitimize administrative detention, expulsions and house demolitions, and provided the basis of the criminal law used to try residents of the Occupied Palestinian Territories in military courts. Alongside the Defence (Emergency) Regulations, the 1979 Emergency Power (Detentions) Law institutionalized processes of administrative detention that distinguished between the detention without trial of citizens of Israel and that of residents of the Occupied Palestinian Territories. From the 1980s, the Terrorism Prevention Ordinance was used as a political law against those who met with the Palestine Liberation Organization or against Palestinian members of the Knesset that had met with foreign officials from enemy countries. The enactment of the Counter-Terrorism Law acknowledges and signals the state’s acceptance of a two-tiered system in which Palestinians are perceived as both a political and a security threat. While the racialized nature of the use of security laws in India is similar to that in Israel/Palestine, the differences in the trajectories of institutionalization widen the scope of political legitimacy that India has for delineating citizenship with security laws. The difference in the formalization of the colonial law granted the Indian government greater legitimacy to deploy its security laws against threats of violent political opposition in shifting locations, depending on the nature of the political crisis. Since the 1980s, their deployment is no longer justified by specific political events nor bound by location. It is racialized, with such laws being deployed mostly against Sikhs and Muslims.

The transition from emergency to anti-terrorism in India

From the 1980s onwards, India began a slow transition from emergency to anti-terrorism legislation, despite vocal opposition from social movements and human rights organizations. This shift labelled targeted populations as enemies of the state, stripping them of most of their civil rights. The 1985 Terrorist and Disruptive Activities (Prevention) Act, a temporary order to confront a Sikh movement seeking to set up an independent state in the Punjab, enabled administrative detention, special courts and secret witnesses in trials. Perceived as a tool for communal and sectarian politics because of its use not just against Sikhs in Punjab and Kashmiri Muslims,⁵⁵ but also against other minority groups (Singh, 2007: 53), the Act was renewed five times until it expired in 1995.

In 2001, the right-wing government led by the Bharatiya Janata Party passed the Prevention of Terrorism Act, extending the maximum period of administrative detention from 90 to 180 days. While the opposition argued that the Prevention of Terrorism Act was a political law rife with enforcement biases directed primarily at the Muslim population (Krishnan, 2004), the Act garnered public support after an attack on the Parliament building in December 2001. The use of the Prevention of Terrorism Act to suppress minorities and political opposition (Mate and Naseemullah, 2010) has remarkable similarities with the use of the Defence (Emergency) Regulations against Palestinians in Israel: Primary legislation in India, previously used across a variety of opposition movements, has been increasingly directed at controlling the Muslim minority (Oza, 2007: 20). This represented a significant change in India, where, on the administrative axis of suspicion, Muslims initially had the possibility of being perceived as loyal citizens, a possibility denied to Palestinians in Israel, whose citizenship has always been caught within the matrix of suspicion.

In 2004, the Prevention of Terrorism Act was supplanted by the Unlawful Activities Prevention Act, perceived to be less draconian, except that it allows for the extensive use of secret evidence (Sethi, 2014). Democratic forces in India viewed this change as a considerable achievement.

Organizing principles of Israel’s Counter-Terrorism Law and India’s security laws

In both the Israeli and the Indian laws, the broad and vague terminology used to define and delineate terrorism stems from the colonial toolkit used to identify ‘dangerous populations’. India’s Unlawful Activities Prevention Act and Israel’s Counter-Terrorism Law use similar instruments (administrative detention, restrictions on movement) and definitions, all traceable to previous colonial emergency legislation, while at the same time considerably strengthening the criminal powers of counter-terrorism legislation, making it easier to incriminate suspects and to shift the onus of disproving membership of a terrorist organization onto the accused. The three organizing principles of this shared legacy are political affiliation, kinship and spatial boundaries.

The offences of supporting, identifying with and abetting terrorism are defined so broadly (through terms like ‘terrorist act’, ‘terrorist organization’ and ‘membership in a terrorist organization’) that political identity, belonging to a particular community or belonging to a community in which there is a continuous organizational framework perceived as a terrorist organization can suffice for the suspension of one’s right to due process. Any participation in political activity in general, and in public events in particular – including waving a flag or identifying on social media – becomes a risky affair for minority populations already perceived as ‘dangerous’ by the regime. The charge of ‘aiding and abetting’ has been defined so broadly as to include daily and mundane practices in families and communities – including the activities of educational institutions and health and welfare organizations – criminalizing kinship and participation in social, economic and cultural life. In 2018, Israel’s Counter-Terrorism Law was amended to include the prevention of funerals of those defined as terrorists and to enable the state to keep the bodies of those it defines as having committed lethal terrorist acts.

Both the existing Indian laws and the new Israeli law endorse the organizational logic and the spatial-legal tools that both countries inherited from colonial rule: practices of managing populations and classifying them according to their level of hostility or the security risk they pose to the central regime on an ‘axis of suspicion’. The generation of a population index – which links levels of suspicion to political membership and determines the extent of legal protection from the violation of rights – is the method through which security laws delineate the practical boundaries of citizenship. It is a conceptual index, existing in the bureaucratic justifications of actions against these populations. This organizational logic and its related legal toolkit – which define population collectively and not in terms of individual activities and status and were developed by the British Empire during the interwar period – are clearly distinct from the counter-terrorism legislation of other states, including both those of the UK (Pantazis and Pemberton, 2009) and the dual laws the USA enacted to differentiate potential enemies (Gross, 2002), in which ‘citizen terrorists’ are identified individually (Eckert, 2008: 18–20).

Since 1948, Israel’s use of the Defence (Emergency) Regulations and a patchwork of emergency legislation has allowed its Jewish citizens and international observers to imagine the state as a democratic regime resorting to colonial legislation to address justified security concerns in the context of a permanent state of war. Against the backdrop of India’s legal history of emergency, it is possible to detect how the difference in the institutional trajectories of the same colonial security laws affected the breadth and legitimacy of curbing rights. Israel’s long avoidance of transforming the Defence (Emergency) Regulations into primary legislation sustained imaginaries of a democratic state despite the dual system that imposed the Regulations almost exclusively on Palestinians – both those who were citizens of Israel and those who were residents of the Occupied Palestinian Territories.

Israel’s new Counter-Terrorism Law completes two processes that redefine the relations between security laws and citizenship in a manner akin to that seen in India: First, a transition from emergency regulation to counter-terrorism legislation allows for discrimination based on political affiliation, kinship and demographic traits; second, the change bestows legitimacy on practices of differentiation between Jews and Palestinians in Israel, including the revocation of citizenship and other rights, following incrimination. Between them, these two processes transform the colonial logic of separating populations on racial grounds and managing them according to an axis of suspicion into an integral tenet of governmental activity to ensure homeland security.

Relations between loyalty, security and citizenship can be framed in various ways. Since 9/11, Britain, Israel and India have introduced measures linking citizenship with loyalty, framing the latter as the preservation of national security or of ethnonational interests. The revocation of citizenship as a preemptive step provided it is conducive to the ‘public good’ is one such measure (Lavi, 2010) that delineates citizenship through national security in a way that has enjoyed public legitimacy.

The analysis presented in this article thus challenges legal histories that perceive the continuity of the legal system from the time of the colonial regime to independence as an inevitable inheritance, rather than a political choice (Harris et al., 2002), albeit one that is affected by the identity and culture of the citizens (Likhovski, 1998). Such views overlook the impact of institutional change. Institutional transitions of law are significant events precisely because they mould the relationship between the legislature and the executive, bounding the scope of autonomous bureaucratic activity against breaches of internal security. These executive boundaries of the de facto political community are particularly salient for transitions out of colonialism and provide a template for understanding how institutionalization of anti-terrorist legislation in both India and Israel charts the boundaries of political membership and redefines loyal citizenship by turning practices that blur the distinction between a political threat and a security threat into permanent legislation.

Transition to counter-terrorism legislation, as we know from India, broadened the possibilities for the regime to act against political opposition – both violent and peaceful – in any venue of resistance to the regime. Israel’s Counter-Terrorism Law can theoretically pursue two directions: one, legitimating the use of different types of laws against different populations; the other, expanding the space of legitimacy for the regime to apply such legislation to all citizens, including Jews perceived as posing security risks or otherwise presenting political opposition. In practice, however, the likelihood of a universal application of the Counter-Terrorism Law is nominal in view of the recent enactment of the 2018 Nation-State Law, which enshrines an ethnonational hierarchy between Jewish citizens and others, proclaiming the exclusivity of Jewish self-determination and settlement. The coupling of the Counter-Terrorism Law with the Nation-State Law would most likely generate the administrative revocation of the citizenship of Palestinians, and only Palestinians. The fact that, in March 2019, the Knesset empowered the minister of internal affairs to revoke residency status and social security rights in cases of breach of loyalty underscores this point.⁵⁶

Conclusion

The perception that legislative activities in both Israel and India are but part of the global war on terror phenomenon led by the USA turns a blind eye to colonial legacy and the ways in which states deal with their inherited bureaucratic infrastructures of rule. Such a perception also ignores the importance of formalization and institutionalization of bureaucratic legacies as critical indications of political goals. With its 2016 Counter-Terrorism Law, Israel joins India in cementing the boundaries of citizenship through security laws. Yet India’s citizenship regime is not explicitly differentiated in terms of race or ethnicity. By transforming pre-state colonial legislation into contemporary law, Israel effectively integrated the bureaucratic mechanisms of racial discrimination into primary legislation. These mechanisms within the law create the legitimacy for a population-management system monitoring threats, including political affiliations and loyalties. Whereas, in India, the boundaries of citizenship are still universal, albeit eroding and fragile for minorities, in Israel, the Nation-State Law and the Counter-Terrorism Law have delineated a precarious, dangerous zone of political membership for minorities, making citizenship contingent on the prerogative of the state to revoke it, ostensibly for security reasons.

Footnotes

Acknowledgements

The author would like to thank the reviewers and the editors for their critical engagement and important comments, as well as Darryl Li and Orna Ben Naftali for their insights.

Funding

The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Partial funding for this research was provided under National Science Foundation award #1061227 (LSS – Law and Social Sciences Program).

ORCID iD

Yael Berda

Notes

Yael Berda is an assistant professor at the Department of Sociology of the Hebrew University of Jerusalem and a visiting assistant professor at the Department of Sociology of Harvard University in 2019–20. Berda has been a practising lawyer on security and constitutional cases in Israel’s military courts and Supreme Court. She received her PhD in sociology from Princeton University, her MA from Tel Aviv University and her LLB from the Hebrew University of Jerusalem. Her second book, Living Emergency: Israel’s Permit Regime in the Occupied West Bank, was published in 2017 by Stanford University Press. Email: Yael.berda@mail.huji.ac.il.

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