Nationwide protests against CAA, NRC are noisy and chaotic but vital to furthering constitutionalism
The protests against the Citizenship Amendment Act has gained significant and sustained engagement and we must strive to keep up the momentum.
The Constitution of India and its Preamble were reduced to mere words when the Indian government gazetted the controversial Citizenship Amendment Act, 2019.
That millions of people hit the streets and that the government employed every tool at its disposal to prematurely contain the protests signal a clear anti-government sentiment.
Even with all the constitutional and legal constraints, there exists enough room to stage non-violent, unarmed and democratic protests in public spaces.
The Constitution of India and its Preamble were reduced to mere words when the Indian government gazetted the controversial Citizenship Amendment Act, 2019 on 12 December.
As expected, protests followed in many parts of the country. Prompt Section 144 orders were imposed, and communication channels were blocked in many states. Thousands of unarmed protesters, who came out to resist majoritarian norms, were detained and were denied basic legal and medical services. Close to 30 people reportedly died.
While favourable orders came from the Gauhati and Karnataka high courts, the Supreme Court and the Delhi High Court, under whose nose hundreds of students were brutally assaulted inside the campus of Jamia Millia Islamia University, chose not to intervene.
That millions of people hit the streets and that the government employed every tool at its disposal to prematurely contain the protests signal a clear anti-government sentiment. The Citizenship Amendment Act is widely seen as a legal tool to further the NDA government’s “us-versus-them” philosophy, which puts Hindus first on any political agenda. When clubbed with the National Register of Citizens, the Act has the potential to turn a vast number of Indian Muslims into stateless persons for all practical purposes, leading to deportation or detention.
The protests also signal a pro-Constitution sentiment. Those protesting believe that a discriminatory law such as the Act has no place in a democracy run and guided by the principles enshrined in the Constitution, the people’s book. However, at times, the Constitution is only part of the problem, and not the solution. No wonder then that even those who stand in favour of the discriminatory Act read out Articles from the very same Constitution.
For instance, in Parliament, home minister Amit Shah read out the equal protection clause stipulated in Article 14 of the Constitution accompanied by a long list of Supreme Court judgments in support of the constitutionality of the Act. Several “eminent” lawyers appeared on prime-time TV debates pronouncing upon the constitutionality of the Act, while taking recourse to legal jargon. When police lathi-charged students studying inside the library of Jamia Millia Islamia University, sections from the Criminal Procedure Code were invariably shared on social media in justification of police trespass and brutality.
A new narrative is deceptively being built, i.e. protests are anti-democratic and anti-Constitution and that citizens must take recourse to constitutional means to confront the government in power. Certain sections of the media are acting hand in glove to further this “counter-protest” strategy of the ruling dispensation.
There is no denying that the right to protest has limits and violence cannot be justified: in fact, damaging public property only emboldens the law enforcement agencies and also delegitimises protests in people’s eyes. In any event, most protests against the Act have been peaceful and in rare cases where violence was reported, it is still unclear if the violence was instigated, directly or indirectly, by state governments. However, it is important not to let abstract legal precepts or legal niceties constrain our loyalty and commitment to some of the first principles of justice and fairness. Even with all the constitutional and legal constraints, there exists enough room to stage non-violent, unarmed and democratic protests in public spaces.
And how exactly, if I may ask, should one confront the government when institutional means of redressal of grievance seem to be wholly inadequate? How does one make an elected government accountable in the beginning or middle of an electoral cycle, when the ballot box cannot be immediately used? Of course, one could wait to vote an unjust government out of power every five years, but doesn’t waiting and slogging for justice perpetuate further injustice?
Or, one could turn to the Supreme Court (or high courts for that matter) against government excesses for urgent redressal. However, the less said about the court the better: in the recent past, the court has denigrated itself from a guardian of civil liberties to an extended bureaucracy, conveniently abdicating its judicial responsibility when citizens needed it the most.
Legal and constitutional challenges to government excesses, as we saw in the cases of demonetisation and Aadhaar, take too long and it has so happened that the court decided a matter of immense public interest not until the same became fait accompli.
Besides, when the Supreme Court will eventually examine the constitutionality of the Act, it will do so within the confines of judicially evolved principles of equal protection, which can be tweaked one way or another. As Professor Shubhankar Dam reminds us in a recent article, we should not conflate constitutionality with justice or wisdom: constitutionality of a law is only one of the many ingredients of justice. In a democracy, moral criticism and civil protests against an unjust and imprudent law are not only desirable but are also necessary and obligatory.
No one disagrees with the fact that a citizen has a moral duty to respect, obey and comply with a law made by Parliament. However, this moral duty is not absolute and there also exists a moral right to disobey and disrespect a law that is inherently and grievously unjust, immoral and unconstitutional. The Citizenship Amendment Act, 2019, which effectively arbitrarily singles out Muslim illegal immigrants and unreasonably abridges their fundamental rights, is a sad example of such a law.
Many would cast doubt on the legality of the declarations made by the chief ministers of Chhattisgarh, Kerala, Punjab, Madhya Pradesh, Maharashtra and West Bengal – all Opposition-ruled states – that they will not implement the Act in their respective states.
Constitutionally speaking, Parliament is empowered to legislate on citizenship matters under Article 246, read with Entry 17 of List I in the Seventh Schedule to the Constitution. It is also correct to argue that the Act is valid and operative in India, as it has not been stayed or struck down by the Supreme Court. The Central government can direct compliance with the Act under Article 256. The President may also declare, under Article 365, that the government in the respective state cannot be carried out in accordance with the Constitution.
But we must look beyond centre-state relations and look for answers to the following vital questions: can the Central government read and apply the Constitution selectively as per its whims and fancies? Can the Central government enforce and implement one Part of the Constitution to direct state governments to comply with a law that flies in the face of another Part of the very same Constitution? Would state governments not lose their legitimacy if they acted in conformity and supported and implemented a patently unconstitutional, immoral and discriminatory law?
When we speak of law or rule of law, can a law made by Parliament or a decision handed down by a court of law – even when coming from the highest court of the land – qualify as “just” and “moral” if it goes against basic human values of equality and fairness?
A reasoned and principled protest, accompanied by a willingness to submit to punishment or prosecution (for instance, by defying Section 144 orders), will mean that we do not leave the cause of justice and fairness with legislators and judges alone. It will also mean that the people of the country, from whom the government derives its ultimate authority, are in constant vigil of their constitutional rights and liberties. The protests against the Citizenship Amendment Act has gained significant and sustained engagement and we must strive to keep up the momentum.
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