SC to the rescue

by January 16, 2020 0 comments

Kerala’s suit on CAA in the top court may be an opportunity to clarify grey areas and assumptions around the new law

Many may interpret the Kerala Government’s challenging of the Citizenship Amendment Act (CAA) in the Supreme Court under Article 131 as pointless or even a deterrent to nationalist design. But what many are missing is that it also provides an opportunity to seek the apex court’s detailed clarification on the matter once and for all rather than confining the law to the domain of subjective assessment and selective interpretation. Article 131 allows a State or even several States to file a suit in the Supreme Court in case of any dispute that it/they may have with the Union Government. What the suit does is make it morally incumbent upon the court to undertake a more rigorous examination of the subject concerned than moving it to the outbox of a blanket dismissal. The Chief Justice of India (CJI) may have to constitute a larger Bench to hear the case, considering that a decision is pending on the 2015 verdict by a two-judge Bench that Article 131 could be used to examine the constitutionality of a statute. Although the ruling party and the Opposition have been peddling and politicising their own interpretations of the new law, the fact is there are too many questions that need answers. Most mistaken is the perception that civil society protests are anti-Hindu. Nobody seems to have any issue about repatriating and rehabilitating persecuted Hindus in other countries in their homeland. But the fact is the CAA, given its exclusionary clause against Muslim minorities, codifies a religious classification in governance policies, something that experts argue violates Article 14 of the Constitution and can set a wrongful precedent inimical to the secular character of India. They say it also challenges the right to life under Article 21 and freedom to practise religion under Article 25. Since much of this is implied and not categorically stated, the top court’s informed views would settle the raging debate of the times. This is much-needed considering that the law can be referenced to explain multiple situations and misguide identity politics. And if indeed saving religious minorities in countries with civilisational contiguity is the pivot of the argument, the Kerala Government has asked why leave out Sri Lanka, Myanmar, Nepal and Bhutan? The other grey area concerns the law’s linkage with the proposed National Register of Citizens (NRC), whereby disqualified settler Hindus with inadequate legacy papers could still seek clemency under CAA but Muslims in the same boat would not. Besides, the economic cost of the influx mandated by CAA, even rehabilitating immigrants with jobs, has not gone down too well in the North-east, which is protectionist about rights of indigenous people and their political relevance through economic stakeholdership. The ability to apply for citizenship on the basis of a self-declaration and fast-tracking of procedures virtually aim to undo the complexities and systemic harassment that disempowered many Hindu citizens during the compilation of the Assam NRC. It is these anxieties and derivatives that need transparency, considering it suits both the ruling party and the Opposition to hunt through the haze. Most importantly, it would settle the threat perception to India’s real civilisational pride, that of multiple heritage, a rarity of co-existence that Microsoft CEO Satya Nadella is proud to uphold but is dismissed as an “uneducated” opinion of dissenters.

Most significantly, a comprehensive rather than selective interpretation would help law enforcement in classifying protests as seditious or democratic. After all, CAA protesters got legitimacy because of the Delhi High Court upholding their rights to do so. Another city court, while hearing the bail plea of Bhim Army chief Chandrashekhar Azad, also reminded the Delhi Police that he had a constitutional right to protest. Judge Kamini Lau even observed that people were out on the streets as what should have been said inside the Parliament was “not said.” That’s why the Kerala Government’s suit becomes significant, for it forces the powers that be to lay down the rationale of the CAA rather than dismiss protests as divisive anti-Government propaganda. Politically, the Kerala Government, which has urged other Opposition States to challenge the Act in a court of law, has even made way for each protesting Chief Minister to seek a rational legal redress and escape the anarchist allegations being levelled by the ruling BJP. Bihar Chief Minister Nitish Kumar, an ally of the BJP, has spoken against CAA/NRC, joining Madhya Pradesh’s Kamal Nath, West Bengal’s Mamata Banerjee and Jharkhand’s Hemant Soren in opposing the law. Similar suits would lend weight to their agenda than appearing as compulsive disruptors of public life.

(Courtesy: The Pioneer)

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