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View: All eyes on courts for CAA but they have been known to falter before

Labelling dissidents as anti-national is not how democracies work. Instead, our political leadership and its followers should introspect as to who really is creating this divisiveness and hatred in society.

Last Updated: Jan 26, 2020, 08.24 AM IST
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This is not an occasion we had expected to mark 70 years after India became a republic. It is indeed sad that 70 years after the Indian Constitution was formalised, 70 years after our Supreme Court was created, 70 years after the idea of India was forged into history, we should have to face a political crisis that is overturning the notions of identity, nationality and citizenship that India meant to celebrate.

In 1950, the primary identity we set out to build was consciously not meant to centre on religion, caste or language. Instead, we sought to construct a more inclusive nationalistic identity, originally, by uniting people against colonial powers — an “anti-colonial” nationalism of sorts — and later, by simply being Indian, a word that came to be associated with non-violence, peace and freedom. Echoing leaders like Gandhi, this idea of nationalism as a unifier continued into notions of citizenship embedded in the Constitution and the 1955 Citizenship Act.

Competing ideas of nationalism and citizenship always lurked in the background, notably the divisive version advocated by Veer Savarkar, which inspires Hindutva forces even today. This version forcibly imposes an imaginary cultural and religious difference to separate Indian people, riding on Savarkar’s concept of Hindu Rashtra, Jati and Sanskriti, and the idea that only Hindus could rightfully claim India as their own. This imagined Hindu rashtra is delusional and unworkable when faced with a culturally, linguistically, and religiously diverse contemporary India. In this context, the Citizenship Amendment Act (CAA), the National Register of Citizens (NRC), and the National Population Register (NPR), collectively designed to deprive Muslims of equal rights under Indian law and equal membership of Indian society, are recipes for disaster.

Some argue that CAA is a benevolent law to protect vulnerable populations in neighbouring countries, especially those persecuted by religious leaderships. But this is far from true. If persecution motivated this law, then why restrict it to religious persecution? Even if persecution is narrowly viewed as only religious, why are only Muslim-majority countries guilty, or how are only Muslims always perpetrators and never victims?

The selection of refugees from only Pakistan, Bangladesh, and Afghanistan is also arbitrary, with no reason to ignore other countries who may be equally guilty of persecution. This use of seemingly legitimate tools of law and policy to sanction discrimination has only one parallel in recent history, in Hitler’s Germany and Mussolini’s Italy, both fascist regimes with deeply disturbing ideologies and indefensible moral values.

Besides these moral concerns, the law fails constitutional tests too, by overturning notions of secularism and equality. The Fundamental Right to Equality before the law, under Article 14 of the Constitution, requires three essential conditions: any classification of persons must be reasonable; there can be no arbitrariness in state action; and the state cannot treat people unequally without reason. All three are flouted here. The CAA seeks to protect persecuted minorities from certain countries, but limiting this to non-Muslims is irrational, as the Ahmadiyyas, Hazaras, and Shias remain victimised in our neighbourhood. The CAA also arbitrarily applies restrictively only to three countries, which have nothing in common other than Islam as their state religion. By using religion as the condition to determine entitlement to protection, the CAA also treats people unequally, thus contradicting Article 14’s constitutional assurance, making the law susceptible to invalidation.

Even as the CAA, NRC and NPR are used to divide and rule, it is heartening to see people emerge in an unprecedented collective protest. The establishment’s efforts to silence and quash the movement are in vain. Students, especially, have proven to be the torchbearers of constitutional principles, showing that many still believe in a secular, democratic society.

But it troubles me greatly when our home minister uses vocabulary like “tukde tukde gang”, which sycophantic followers lap up, parroting it thoughtlessly at every opportunity. Labelling dissidents as anti-national is not how democracies work. Instead, our political leadership and its followers should introspect as to who really is creating this divisiveness and hatred in society.

Amid all this, there is a refrain that we must repose faith in the judiciary and expect courts to restore balance. While the court is seized of the matter, the prioritisation of the case has been really disappointing. Courts have also done little in the past to assure us that such faith is warranted. Continuing a trend that dates to the Emergency, the judiciary has shown that it can falter before an overpowerful executive. We do not know what the future holds. But one thing is certain: the fight for a secular, undivided India celebrating principles of equality and fairness, must continue. The CAA must become nothing more than a brief, aberrant nightmare in history.

Shah is former chief justice of Delhi high court and former chairperson of Law Commission of India

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