In CAA narrative, finding the judiciary’s lost voice
Paper: GS II
Topic: Amendment in Constitution, Important Aspects of Governance, Transparency and accountability, Government Policies and Interventions.
For Prelims: NRC, National Population Register(NPR), Citizenship Amendment Act, 2019
For Mains: Issues arising out of their Design and Implementation, Role of judiciary.
In News: In the CAA narrative, finding the judiciary’s lost voice.
Supreme Court of India
- The Supreme Court of India is the highest judicial court under the Constitution of India, the highest constitutional court, with the power of judicial review.
- Consisting of the Chief Justice of Indiaand a maximum of 34 judges, it has extensive powers in the form of original, appellate and advisory jurisdictions.
- It is regarded as the most powerful government institution in India.
- As the constitutional court of the country, it takes up appeals primarily against verdicts of the high courts of various states of the Unionand other courts and tribunals.
- It safeguards the fundamental rightsof citizens and settles disputes between various government authorities as well as the central government vs state governments or state governments versus another state government in the country.
- As an advisory court, it hears matters which may specifically be referred to it under the constitution by President of India.
- It also may take cognizance of matters on its own (or suo moto), without anyone drawing its attention to them. The law declared by the supreme court becomes binding on all courts within India and also by the union and state governments.
- As per Article 142of the constitution, it is the duty of the president to enforce the decrees of the supreme court.
In CAA narrative, finding the judiciary’s lost voice
This is a watershed moment for the judiciary not to falter and for judges to undo the wrongs of the past.
Amendments to the Citizenship Act:
- Disastrous and problematic: The recent enactment of the amendments to the Citizenship Act has left many, very disturbed. The legislation itself is undoubtedly problematic and is compounded by the linkages with the National Register of Citizens (NRC). NRC in Assam found that even though it was conducted under the aegis of the court, it was a disastrous exercise with terrifying consequences.
- Protest that turns violent: 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.
- Communal and authoritarian: This is 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: The voice of the judiciary in this narrative is either almost entirely absent or has been overwhelmed by a strong executive.
- Restrictive definition:
- Since the Bill was proposed, and after it was eventually enacted, 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.
- Fuelling a narrative that the CAA is not harmful: 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:
- 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 apply 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.
- 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.
- 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.
Way Forward
- The obvious question is whether in a country such as India, with a secular Constitution, certain religious groups can be preferred in the acquisition of citizenship. Especially when secularism has been declared to be a basic feature of the Constitution in a multitude of judgments.
- 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. If it is, the judiciary must call it out for what it is a patently unconstitutional piece of legislation.
Mains Question:
Is Citizenship Amendment Act unequal, unsecular, may be called an unconstitutional piece of legislation, finding the judiciary’s lost voice?
Approach:
Question Demand: Question demands to write about religion was conspicuous in this constitutional scheme, in its absence.
Introduction: The Citizenship Amendment Act, 2019 (CAA) that seeks to amend certain provisions of the 1955 Act. Mention about CAA, its need and impact.
Body:
- The impact CAA will left on India’s social fabric, as the recent NRC which itself sets the example of threat and restlessness, can this be applicable to the whole of India.
- Discuss the role of the judiciary in weaning out unconstitutional legislation.
- Put points in respect to CAA that is mention by the government and the role of dissent in democracy.
- The real challenge for India will begin after the process of identifying immigrants is done.
Conclusion:
But in addition to this basic question, the CAA is peppered with unconstitutionality. The classification of countries and communities in the CAA is constitutionally suspect. Suggest the steps that need to be adopted in real sense to bring India together as CAA can be catastrophic for the social fabric and future of India as a secular.