This is a watershed moment for the judiciary not to falter and for judges to undo the wrongs of the past

The recent enactment of the amendments to the Citizenship Act have left many, and certainly myself, very disturbed. The legislation itself is undoubtedly problematic and is compounded by the linkages with the National Register of Citizens (NRC). I was a part of a People’s Tribunal on the deployment of the NRC in Assam, and we found that even though it was conducted under the aegis of the court, it was a disastrous exercise with terrifying consequences.

The protests that have followed the Citizenship (Amendment) Act (CAA), 2019, were not surprising, but the manner in which the protesters were treated certainly is. The reaction of the law and order machinery to what were essentially student-led peaceful protests has led to incidents of violence and loss of property across the country, which is terribly unfortunate. This is a reflection of the times we live in and signals that the youth in our country have to spend the next significant amount of time battling a leadership that comes across, at once, as communal and authoritarian.

Subdued judiciary

At such times, empathy is but a natural reaction, particularly from a generation that has lived through and seen the worst of the authoritarian regime that was the Emergency. In this context, what I personally feel worse about is that the voice of the judiciary in this narrative is either almost entirely absent or has been overwhelmed by a strong executive.

The CAA is touted as a “fast-track” means of granting citizenship by naturalisation to what it identifies as persecuted minorities (Hindus, Sikhs, Buddhists, Jains, Parsis and Christians) from three neighbouring countries (Afghanistan, Bangladesh and Pakistan). Those belonging to these communities from these countries will not, as per the law, be regarded as “illegal immigrants”.

Restrictive definition

Since the Bill was proposed, and after it was eventually enacted, we have seen multiple perspectives emerge that offer frameworks of different kinds to explain the legislation and the politics surrounding it. The primary, and arguably, the most important view is that the legislation is unconstitutional. It is so for many reasons, not least that it is arbitrary and violates the right to equality before the law enshrined in Article 14 of the Indian Constitution. It deliberately marginalises Muslims as a minority community, and uses religious identity as the basis for granting citizenship. In doing so, it erodes the spirit of the Constitution. There is no legislative basis for singling out persecution of religious minorities as the basis for granting Indian citizenship, just as there is no logic in restricting “fast track” naturalisation to persons from three countries alone. Surely, persecution of any kind ought to be the sole criterion for granting citizenship to immigrants. Restricting the definition of persecution in this manner erodes the premise on the basis of which the republic of India was constructed, and ignores the historical realities of the freedom struggle (founded on principles of equality and diversity) which brought us Independence.

Alternative perspectives exist too, on the opposite side of the spectrum, fuelling a narrative that the CAA is not harmful at all and is intended merely to offer amnesty and a speedy route for legitimate migration. Arguably, this narrative — that the CAA is not harmful —is a more important issue than the question of constitutionality, for it tries to sweep under the carpet the grand design that this legislation forms a small part of.

Of a religious nationalism

What is the grand design, you may well ask. On the face of it, the implications of the CAA is to isolate individuals who identify as belonging to the Muslim community. If you restrict the understanding of the law, as the government would have it, to applying it only to immigrants, then this law automatically makes Muslim immigrants second class priorities when they are on Indian soil, even though they may have made the long trek to India for the same reasons (poverty, political persecution, etc.) that drove their Hindu or Christian neighbours out. If you expand the understanding of this law, as the government has overtly done (by linking the NRC to the CAA), it has implications of making all Muslims in India second class citizens. In doing so, this law and policy subverts and even destroys fundamental constitutional principles of secularism, fraternity, and humanity.

The roots of this lie in the ideology of cultural and religious nationalism propagated by Hindutva icons, i.e., Vinayak Damodar Savarkar and his ilk, with Savarkar propounding that the ideal was the “Hindu Rashtra (state), Hindu Jati (race) and Hindu Sanskriti (culture)”. In the form of religious nationalism, this ideology envisages a nation under Hindu rule, a Hindu rashtra in Akhand Bharat (a United India), premised on the belief that only Hindus can claim the territory of British India as the land of their ancestry, i.e. pitrubhumi, and the land of their religion, i.e. the punyabhumi. In this context, Muslims and Christians are viewed as foreigners who are not indigenous to the territory of India, and whose religion originated in a separate holy land.

My personal background links up with this narrative in more ways than many would imagine. My maternal grandfather was the president of the Hindu Mahasabha in the 1940s, and the first writings that I was ever exposed to in my school days were Savarkar’s works. Writing in 1938, when Hitler was on the rise, Savarkar justified Hitler’s policies towards the Jews and driving them away from the motherland. He said, “A nation is formed by a majority living therein. What did the Jews do in Germany? They being in minority were driven out from Germany.” While absorbing what I read as a child, and admiring (even now) his poetry, I was also always questioning the Mahasabha as an institution, attempting to understand what prompted their actions. Even in those times, I was especially struck by Savarkar’s obsession with Fascist dictators of the times, notably Hitler and Mussolini.

The ideological positions on marginalisation, majoritarianism, and constitutionality taken by the Hindu Mahasabha and its successors have been consistent, but in their consistency, they have also revealed flaws in holding on to an imaginary idea of a Hindu rashtra, and disengaging from the reality of a culturally, linguistically, and religiously diverse, modern India.

Because the CAA is immoral, a people’s movement is inevitable and necessary, for otherwise the fundamental principles on which the constitutional idea of India rests will be destroyed for something that can render deep wounds forever.

A turning point

In the wake of the CAA protests, the Chief Justice of India reportedly said that if people/protesters wanted to “take to the streets”, then they need not approach the courts. Some could read this statement as a sort of warning that good behaviour was a prerequisite for obtaining justice. In any event, in a democracy, protest and a recourse to the judiciary are options that are legitimately available to the people. Indeed, to dissent or protest is the lifeline of a democracy. But, what is the judiciary supposed to do when society as a whole is protesting? In such a scenario, as is playing out now, there is no clear line that can be drawn between declaring protesters as good or bad.

Historically, Indian courts have had a chequered history in tackling circumstances where they are the final arbiter. Especially when faced with a powerful executive, courts have tended to falter, the Emergency being a case in point. This is a watershed moment for this generation of judges to undo the wrongs done by their predecessors 40 years ago to the people of India. We eagerly await these reparations.

Ajit Prakash Shah is a former Chief Justice of the Delhi High Court and former Chairperson of the Law Commission of India