On January 22, 2020, the nation will set its eyes on the Supreme Court when it is scheduled to finally take up the batch of petitions challenging the Citizenship Amendment Act, 2019 (CAA).
As it is a constitutional issue involving more than 60 petitions, the hearing will probably be an administrative one for fixing the schedule. Further, since the present petitions raise questions of constitutional importance the case maybe referred to a larger bench of 5 or more judges as per Article 145(3) of the Constitution.
While it is true that any law has the presumption of constitutionality, the ex-facie discriminatory character of the CAA is clear from the global condemnation received by it from international organisations especially with the UN Human Rights Committee calling it “fundamentally discriminatory”.
The Government has turned a blind eye to the large- scale pan-India protests against the CAA, NPR (National Population Register), and the NRC (National Register of Indian Citizens), and proceeded to bring the CAA into force throughout the country on January 10, 2020. The Government has already set out the schedule for the NPR exercise to be completed by September 30, 2020, which can be immediately followed by the NRC.
While some State Governments have refused to implement the CAA and NPR, the State of UP has astonished the nation by already drawing up a list of 32,000 refugees who will potentially get citizenship of India under the CAA. It is noteworthy that this list was prepared and sent to the Central Government even before the CAA was actually brought into force. Such haste in implementation risks making the SC hearing merely an academic exercise, since the citizenship once granted cannot be reversed even if CAA is held to be unconstitutional.
In fact, in the recent times, on several occasions complete implementation of questionable policies (like demonetisation, electoral bonds etc.) has taken place before its constitutionality has been decided, making the SC verdicts almost redundant.
With regard to CAA, it is important to understand that the idea of India which was carefully crafted by our founding fathers, excluded any reference to religion. In fact, the core idea behind the CAA was expressly rejected by the framers of the Constitution. In August 1949, some members of the Constituent Assembly proposed to introduce a similar religion-based conception of citizenship which automatically gave Indian citizenship to Hindus and Sikhs.
Coincidentally, the logic for such a proposal was also that India was a ‘natural home’ for those communities. This idea was specifically rejected by our founding fathers in favour of a plural, inclusive, and secular conception of citizenship. This shows that India’s constitutional ethos has always been secular and the addition of the term secular in the Constitution in 1976 was a mere confirmation (not a novel addition) of the same.
Through the CAA, the Government seeks to fast track the procedure of grant of citizenship in favour of certain communities to the exclusion of others. The basis for excluding Muslims is ostensibly to protect only persecuted communities in neighbouring countries.
This façade of protection is shattered when one reads the text of the CAA which does not even use the word “persecution” at all but simplictor proceeds to fast track the citizenship procedure for Hindus, Buddhists, Sikhs, Christians and Parsis. The CAA conveniently picks and chooses between persecuted persons excluding intra-Muslim minorities like Shias, Ahmadiyyas and Hazaras whose persecution is well-documented, and sometimes even legally sanctioned.
Again, the extension of benefit to the persecuted minorities to only Muslim neighbouring countries is suspicious, especially when India already has large number of Tibetan refugees from China, Rohingya Muslims from Myanmar, Tamil Hindus from Sri Lanka, all of whom have been inexplicably excluded.
With the impending NRC exercise, at stake is also the likely harassment of the poor and marginalised, particularly the potential disenfranchisement of Muslims when the nationwide NRC exercise is carried out.
The consequences of the combined effect of the CAA with the NPR exercise followed by a nationwide NRC exercise could be disastrous. The Government’s claim that the three are not interlinked is patently false. The simple response to that is the fact that all the three (CAA, NPR, NRC) are within the framework of the Citizenship Act, 1955.
Of the 60+ petitions in consideration before the Supreme Court, certain petitions have also sought the Government “to refrain from preparing the NRC arbitrarily” without having the requisite framework in place and also to not carry out the NPR exercise as it “is not an isolated exercise and is intrinsically linked to the subsequent preparation of the NRC”.
The Government’s claim that the NPR and NRC are unrelated is again plainly false. Both the exercises are carried out under the Citizenship Rules, 2003, from which it clearly emerges that the NPR is not only a first step, but a precondition to the NRC exercise.
The Government’s claim that the NPR data will only be used for the 2021 Census when the Census Act, 1948 does not provide for such use is a diversion and also without authority of law.
In fact, the Government’s notification announcing the preparation of the NPR does not make any reference whatsoever to the Census. On the contrary, the fact that Assam is excluded from the NPR exercise clearly indicates that the same is done only for the purposes of a nationwide NRC.
Moreover, at least twelve states have refused to implement the CAA-NPR-NRC complex, with the Kerala legislature even passing a resolution demanding a rollback of the CAA. The challenge to the CAA by the State of Kerala under Article 131 of the Constitution is unprecedented and directly concerns the federal character of the Constitution. If unchecked by the Supreme Court, the present constitutional crisis can snowball into a full-fledged confrontation between the centre and states unmatched in the history of the country.
In the background of round the clock protests throughout the country, particularly the sit-in protest led by women at Shaheen Bagh in Delhi coupled with almost 22 reported civilian deaths in different parts of the country allegedly at the hands of the police, it remains to be seen as to how the Supreme Court will proceed on Wednesday.
As the “sentinel on the qui vive” (The Vigilant Protector) of fundamental rights, it is in the hands of the Court to restore peace in the country by staying operation of the Act until the petitions are finally decided.
While stopping the operation of an Act on the pretext of unrest does not bode well for the rule of law, however, in order to do complete justice, it is necessary that the Court pre-empts any irreversible consequences. In doing that, the Court will also have to give significant weightage to the simmering discontent and confusion prevailing around the CAA-NPR-NRC which have serious ramifications for the secular and federal character of our polity.
All hopes are now pinned on the Supreme Court and it is expected that it will rise to the occasion by effectively and decisively hearing the petitions as soon as possible to bring an end to the current impasse between the State and citizenry. On January 22, 2020, when Court 1 of the Supreme Court is seized of the petitions challenging the CAA, the task before it is to assert itself as not only the protector of the Constitution but the idea of India.
The authors are advocates of the Petitioners challenging the CAA before the before the Supreme Court of India. Views expressed are personal.