This government uses law to defeat laws: Indira Jaising speaks on CAA 2019, 2021 Amendment to Delhi Act

An event organised on Friday on the occasion of the launch of a book on Citizenship, Rights and Constitutional Limitations authored by Dr KS Chauhan saw Senior Advocate Indira Jaising express strong views against the Citizenship (Amendment) Act, 2019 (CAA) and the recent amendment to the NCT of Delhi Act, 1991..The launch event also witnessed speeches by former Vice-President of India Hamid Ansari, former Supreme Court Judge, Justice V Gopala Gowda, former Vice-Chancellor of the National Law University, Delhi, Dr Ranbir Singh and former Executive Editor of Rajya Sabha TV, Urmilesh..[Watch the launch event].During her address, Jaising commented that the situation is such that the present government uses laws to defeat laws.."In my opinion, the defining moment of this present situation is this government uses law to defeat laws and thus I believe we live in a state of lawlessness," Jaising said. .Jaising made the remark while observing that the participatory process of democracy is being taken away in passing laws as money bills. ."My understanding of democracy is that it is a participatory process - in law making, giving inputs into bills and laws which are introduced in the Lok Sabha and the Rajya Sabha, and participatory in our rights as citizens. It is these participatory rights also which are being taken away by laws which are introduced as money bills, not introduced in the Rajya Sabha, by laws which are introduced as ordinances, and then passed into law as if they were totally constitutional - they are not," she said. .In the context of CAA, she remarked that religion should not be a relevant consideration for the grant of citizenship, which she recounted was initially linked to birth. This was up until a 2004 amendment to the Citizenship law, following which citizenship could be acquired by birth only if one has an Indian parent, Jaising observed. .She went on to comment that the process underlying the proposed National Population Register (NPR) goes contrary to the rule of law when it reverses the burden of proof whereby an undocumented person has to prove their citizenship rather than the State."We need to safeguard against this gradual erosion of the principle of ‘innocent until proven guilty’ and ordinary principles of burden of proof which always lie upon a State," she said..She linked the impact of these laws to right to citizenship, which she observed was the right to other rights, including fundamental rights"Once you are a citizen, you are guaranteed all the protections that the constitution has to offer. Perhaps that too is the rationale behind the recently enacted Citizenship Amendment Act - read with the NRP - to deny to certain sections of our people the right to citizenship and to empower others simultaneously, solely based on religion," Jaising said. .On the recent bill introduced in the Lok Sabha to amend the 1991 Delhi Act, Jaising observed that it seeks to re-define the word 'government' as meaning ‘lieutenant governor’."Now, I ask the question why would I vote for a nominated Lieutenant Governor when I, as a citizen of Delhi, cast my vote? When I cast my vote, I cast my vote for a representative which I choose as my representative. It is a patently unconstitutional law. But as I said earlier, we have mastered the art of defeating law by law. All we need to do is change the goal post. What you do is, you just redefine the word ‘government’ to say it means the ‘Lieutenant Governor” and by a magic wand, we have all lost our citizenship rights," she said..The enshrinement of rights in the Constitution by itself does not guarantee that people will enjoy these rights, she observed earlier in her address. In this regard, she observed that the Constitution itself was the result of a political process. Therefore, the only guarantee for the implementation of rights is to speak up for those rights, Jaising added. ."It is we who have to speak up, it is we who have to dissent, it is we who have to resist an unjust government and unjust law. Once this is clear, the right to organise, the right to associate, the right to protest, the right to resist - must come naturally to us, as naturally as we breathe, as naturally as we survive," she said..She went on to opine that today, institutional autonomy has eroded, separation of powers has been done away with and a free press is nowhere visible. She added that the right to speak one's mind has been under attack over the past several years. ."Today, I am not called a citizen of India, I am called 'anti-national', 'urban-naxal.' We must ask ourselves, are these not curse words for a citizen? Let me tell you the offence of ‘anti-national’ does not exist in the Indian Penal Code at all. The sooner we give this reply to those that call us anti-national, the better for us. The most important right of citizenship, for me, is the right to speak my mind. This is the right which is under attack for the last several years. This government has successfully immobilised opposition parties, now what it is seeking to do is to immobilise civil society," she said..She further remarked that that civil society, which includes NGOs, are the last line of defence of rights. "That’s why it’s very important for the government to use FCRA or the Enforcement Directorate or allegations of money laundering against each and every one of us," she said. .Before concluding her speech, she also spoke on the continued existence of Section 124A of the Indian Penal Code, which deals with sedition. Referring to the terms in which the offence has been defined, Jaising opined, "Words like 'disaffection to the government established by law' have no place in a republican form of government. Words like ‘disloyalty’ have no place in a republican form of democracy. These words had an appropriate place under imperial rule. But the minute we say that we are a republic established by law, a republic established by the constitution of India, in which we are citizens, we owe no duty of so-called affection or loyalty to the government by law established. On the contrary, we have a right to dissent and I would like to see the right the dissent enshrined as a fundamental right in the Constitution of India. Whether that will happen in my lifetime, I don’t know.".Referring to an image of poet Varavara Rao, an accused in the Bhima Koregaon case who was recently granted medical bail and for whom Jaising had appeared before the Bombay High Court, she added, "... it took months and months before he could be released on medical bail by a very bold judgment of the High Court of Bombay, which was anchored in the right to life. It is not my case that I advocate violence. But I do believe that the debate over Section (124A) cannot be anchored on whether my act was violent or not violent. If I have indulged in violent acts, surely the law will take care of me. But to demand unquestioning loyalty to a government is to conflate the difference between government and nation."