Use of seemingly benign law to create a divide in society: Justice AP Shah on Citizenship Amendment Act, 2019

A public discussion on the Citizenship Amendment Act, 2019 (CAA) saw former Chief Justice of the Madras and Delhi High Courts, Justice (retd.) AP Shah critique the amendment as plainly unconstitutional, apart from being morally reprehensible.

. While speaking on its possible nexus with the exercises of the National Register of Citizens (NRC) and the National Population Register (NPR), Justice Shah also said,

. “This combination of CAA-NRC is designed to deprive Muslims of equal rights under Indian law and Indian society. It uses seemingly legitimate tools of law, policy to sanction discrimination…This is the use of seemingly benign law to create a divide in the society.”

. He added,

. “The one time in recent history that legally sanctioned discrimination existed was in Hitler’s Germany and Mussolini’s Italy; both fascist regimes, centred on deeply disturbing ideologies and indefensible moral values.” Justice (retd.) AP Shah . Justice Shah was speaking at an event held on Monday evening, which also featured talks by N Ram , Chairman of The Hindu publishing group; legal scholar, Usha Ramanathan and journalist, Rohini Mohan . The theme of the discussion was CAA-NRC-NPR.

. The event commenced with N Ram speaking on popular protests against the CAA 2019, and the possible drivers motivating the movement.

. In his address, N Ram opined that one issue that has catalysed the protests was the State repression that preceded the CAA and which has continued since.

. “Young people feel suffocated … they want to breathe the fresh air of democracy. They want to enjoy fundamental rights ... This, I think, is very important and inspiring.” N Ram . Referring to the State’s use of Section 144 of the Code of Criminal Procedure to curb protests, Ram opined,

. “… what is the purpose of it? To teach the protestors a lesson and in particular, teach the Muslims a lesson. That’s what comes out, as far as I can say."

. As his speech came to a close, Ram also made critical note of the Supreme Court’s response to the issue. In doing so, he also referred to writings by Gautam Bhatia on how rights courts have transitioned to executive courts in recent times, particularly during former CJI Ranjan Gogoi’s tenure.

. He clarified that he is not attributing any motives to the Supreme Court, but rather that there has been a general subversion of institutions.

. As he concluded his address, Ram said,

. “ For the first time there is a direct challenge to a government that is not only communal, but also authoritarian .” N Ram . The need to protect minorities underscored the address given by Justice Shah at the event. He began by recalling a speech made by Dr BR Ambedkar in the Constituent Assembly, in which he had also cautioned that,

“ It is for the majority to realize its duty not to discriminate against minorities .”

. Justice Shah proceeded to recount that, given that his father was the President of the Hindu Mahasabha in the 1940s, he was acquainted with writings by Vinayak Damodar Sarvarkar, the proponent of the Hindutva philosophy. In this backdrop, Justice Shah commented that the idea of Hindutva is completely opposite to the real India.

. “The real India we live in today, is the complete opposite of the homogenous, imaginary identity that the Hindutva groups have sought to portray.” Justice (retd.) AP Shah . He further pointed out that the Constituent Assembly had unanimously rejected the idea of India as a religious state. While this is the case, he observed,

. “ Unfortunately our political leadership is determined to translate this Hindutva idea into reality in one way or other .”

. Justice Shah also questioned the need for extending the NRC exercise pan-India, given the negative experience of the exercise in Assam.

. While recounting his experience of being part of a people’s tribunal in Assam to examine the impact of NRC in the state, he also commented that the problems underlying the functioning of the Foreigner’s Tribunals . On tribunal proceedings, the former judge said,

. “ Proceedings are so arbitrary, notices are rarely served. Can you imagine … nearly 64,000 persons have been declared as foreigners through ex parte orders. Notice is not served, so they have not appeared and they have been declared foreigners .”

. “ It all depends on luck ”, the former judge added, while explaining how clerical errors in documents may lead to detention as a declared foreigner.

. “Those who suffer in this exercise are the poorest, those who are marginalised", he said.

. Justice Shah was also prompted to criticise the manner in which the government has been reacting to popular protests. He said,

. “ What the government is doing is labelling the country as anti national, anti-hindu, anti-democratic. This is their usual tool of othering. This comment, I believe, is the search of an enemy every day. There are liberals, leftists, students, press...they are all [labelled as] enemies.”

. He added,

. “ The leadership forgets that it is their duty to govern, rather than being an agency whose role is to gather and pander to vote banks and indulge in identity based politicking.” Justice (retd.) AP Shah . The response of the judiciary in intervening on the issue also featured as Justice Shah concluded his address. While commenting that he is worried about the manner in which the Supreme Court has been prioritising cases, the retired judge said,

. “ Seems to me, the court is completely unmindful of what is happening in this country... I’m not saying Sabarimala is not an important issue. But is it important today? Is it a burning issue today? It might be at some stage, that’s another subject to discuss … But this is really troubling that the Court has no time for this important issue which is affecting the lives millions of people .” Justice (retd.) AP Shah . He concluded his speech saying,

“ I can only hope better sense prevails .”

. During the course of her address, Usha Ramanathan opined,

. "There are many people who are complacent because they don't think it will affect them … but if we read the CAA carefully, we find that they can't be as sanguine as that …”

. In her address, Ramanathan also spoke on the possible use of biometrics to discern citizenship, if the CAA is combined with the NPR.

. While questioning the claims made by the government that there is no link between the NPR, the NRC and the CAA, Ramanathan pointed out that the NPR exercise was proposed back when the UID project was introduced by the Unique Identity Authority of India (UIDAI).

. “I find that the UIDAI is at the centre of all of this… the UID was started as mission mode project. And the NPR was a project that was going to to be done simultaneously with the UID.”

. She proceeded to speak on the collection of personal data that would inevitably accompany any effort to acquire a personal ID. Ramanathan spoke of how this information may be compiled to build a database. To support her point, she also questioned the need for multiple personal IDs, observing that,

. “None of them established our identity, then why do you want it?”

. Ramanathan highlighted that the aim is to gain executive power, whereby the government gets to decide who may be called on to verify their identity.

. As she concluded her address, she also commented on how biometrics is a sham.

. “ There have been [repeated] admissions that biometrics don't work. Why is it important?” Usha Ramanathan . She proceeded to opine that if biometrics is made the basis for citizenship, even those who are able to get their biometrics-based ID may face difficulties. On this aspect, she said,

. “[The aim] is control over deciding whether we are citizens or not continues to vest with the state. We will never be free of it...The larger politics is perfectly clear. ”

. Rohini Mohan informed the audience on how the NRC process has affected the people of Assam, based on field reports she has compiled from the state.

. She spoke of how the NRC, when it was introduced, was viewed as the solution to address yeas of polarisation, fear and anxiety in the state against illegal immigrants, and was meant to be a uniquely Assamese exercise.

. Following the Assam Accord of 1985, she spoke of how successive governments adopted measures intended to preserve the local culture and identity in Assam. However, over the years, these efforts were reduced to one solution, she observed, i.e. to throw out migrants.

. These exercises included the engagement of “border forces” who would report “doubtful citizens” and the addition of a doubtful “D” status on voter cards on such suspicion being formed. The NRC that followed was initially viewed as a bloodless, fully technical and less biased exercise.

. All the same, it took a toll on local citizens in the state, she stated, highlighting her experience interviewing several local residents.

. “ When we submit documents, It could go wrong in a million ways, and it did ”, Mohan commented, while referring to describing the documentation procedure for NRC in Assam.

. She spoke of people who were excluded because of clerical errors over which they had no control, or because their documents were washed away in floods, or because some of their family members were facing proceedings before Foreigners’ Tribunals. She pointed out,

. “ NRC [in Assam] is not a clean process, it was tainted by all the other processes that existed before .” Rohini Mohan . She added that it was not just the illiterate, the poor or women who got excluded. She spoke of Army persons, academicians and children also being excluded.

. The Foreigners’ Tribunal proceedings itself are opaque, biased and arbitrary , she said. To examine whether there were patterns of bias, Mohan spoke of Right to Information (RTI) applications she filed for 6 months’ worth of tribunal judgments from all 100 tribunals in Assam. She was only able to obtain the information sought for from five tribunals. On an examination of these verdicts, she found, inter alia,

In 82℅ cases, the accused were declared foreigners

89% cases involved Muslims

9/10 Muslims declared foreigners

4/10 Hindus declared foreigners

78% declared foreigners without accused being heard

. She also noted that the government’s once projected figure of 50 lakh illegal immigrants in Assam is without any concrete basis.

. “This number comes from nowhere… 50 lakhs [of illegal immigrants in Assam] is an unsubstantiated number which has now become a target.” Rohini Mohan . As she concluded her presentation, Mohan pointed out that the BJP government in Assam itself has trashed the NRC. In this backdrop, she pointed out that is odd that the Centre may now want the NRC implemented nation-wide.

. A Q&A session followed the talks by the speakers. The gathering dispersed after reciting the Preamble to the Constitution, on a request by an audience member.

. Corrigendum: The article had earlier mistakenly mentioned the date of the Assam Accord to be 1971 instead of 1985. The error has been rectified and is regretted.

Use of seemingly benign law to create a divide in society: Justice AP Shah on Citizenship Amendment Act, 2019

Meera Emmanuel