The Sanskrit phrase “vasudhaiva kutumbakum”, found in ubiquity in Indian diplomacy and addressed by dignitaries, means that the world is one big family. India and our charge d’affaires in other countries, often invoke this antiquated quotation, in order to proclaim India as a liberal nation, that subscribes to the idea of fraternity and brotherhood, notwithstanding the territorial sovereignty of the countries around the world.
India, despite not being a signatory to a number of international conventions and frameworks, is still viewed with deference and honour, owing to our otherwise maintained goodwill and an independent judiciary, which has, from time to time, been incremental in keeping the executive on its toes. Of late, the state of affairs has not remained the same.
In the winter session of the Parliament, Union Home Minister, Mr. Amit Shah, tabled the fractious and contentious piece of legislation, namely the Citizenship Amendment Bill, which sought to grant citizenship to persecuted minorities from six communities (Hindus, Christians, Sikhs, Buddhists, Jains, and Parsis) who came from Afghanistan, Pakistan and Bangladesh before 31st December 2014.
It is unambiguously clear as to what this Bill, which later became Act (the CAA), aims to achieve—which is to “grant citizenship”, which covers it with a sheen of innocuousness. But later, they claim to have a nationwide NRC (National Register of Citizens), and the ordeal witnessed by millions of Assamese, has made the citizenry realize the material consequences of this double whammy (the CAA and the NRC).
The Act is ex facie discriminatory, arbitrary, and is hit by, inter alia, the whole edifice of our Constitution and it impinges upon its basic structure. In Kesavananda Bharati vs. State of Kerala, the Supreme Court held that the basic structure of the Constitution cannot be altered by the Parliament.
The CAA precisely does that. By excluding Muslims from the narrowly constructed realm of persecuted minorities, the legislature has propounded an unreasonable definition of the term “persecuted minorities”, which may suffice the threshold of the banal test but fails to satisfy constitutional sensibilities.
The Act contravenes Article 14 of the Constitution, which guarantees to all, equality before the law and equal protection of the law. Any legislation, which appears constitutionally unsustainable, has to succeed the test of reasonable classification for it to be valid.
Be that as it may, arbitrariness remains a precursor to the doctrine of reasonable classification. Therefore, any legislation or government policy will have to be proved as non-arbitrary, before testing its vires on the touchstone of doctrine of reasonable classification. The doctrine of reasonable classification was devised by the Supreme Court of India in Saurabh Chaudhari vs. Union of India (2004), wherein twin tests were laid down.
The first and foremost step is, that the classification that the legislation aims to achieve is based on intelligible differentia, which is, that the group(s) of persons included and excluded by the legislation are distinguishable and distinctive; henceforth, those who will be beneficiaries of the policy are segregated, from those who will not be the beneficiaries of the law.
The second and the most crucial test is, that the classification that the legislation proposes, should have a rational nexus with the object of the legislation.
In the instant case, the object behind the amendment, in a nutshell, is to grant citizenship to persecuted minorities. But the Act, through its myopic lens view of “persecution”, has left out various other neighbouring countries and communities, that suffer the brunt of persecution because of their identity.
Notwithstanding the colossal failure of the legislation to pass the test of reasonable classification, I am of the considered opinion that it completely defies the principle of non-arbitrariness, which is the very soul of governance and administration.
Justice Rohinton Nariman, in his judgment, in the much celebrated Triple Talaq case, affirmed that laws can be struck down on the ground of ”manifest arbitrariness”. Justice Nariman made a brilliant retort to the argument of parliamentary sovereignty. He wrote: “Our law reports are replete with instance after instance where Parliamentary wisdom has been successfully set at naught by this Court because such laws did not pass muster on account of their being unreasonable.”
The storming of the Indian political discourse with the CAA, coupled with NRC, has precipitated into widespread protests and agitations across the country. The protests assumed violent form at Jamia Milia Islamia University campus in New Delhi, and in many other states, especially in Uttar Pradesh, where, as many as nineteen people died.
Hundreds of people were arrested and detained. The Uttar Pradesh Government went ahead to even send notices to alleged vandals who destroyed public property, asking them to pay for the losses incurred by the state exchequer. We saw internet shutdowns and invocation of Section 144 Code of Criminal Procedure 1973 in many places, surprisingly, even in the heart of the national capital.
The Supreme Court was approached immediately, subsequent to the violence by the Delhi Police, who entered inside the library of the university, lathi-charged even the non-protesting students, rendering them severely beaten, their arms amputated, visually blinded them, calling it their attempt at restoring law and order.
The Supreme Court, however, shrugged off its responsibility and implored the petitioners and senior lawyers to approach the different High Courts which are better equipped with dealing with such kind of situations, which require ascertainment of facts and circumstances.
This, in my opinion, was the most glaring example, of how the judiciary abdicated its duty, which is to uphold fundamental rights, while the right to peaceable assembly and without arms is a fundamental right guaranteed by the Constitution of India. Supreme Court displayed its intellectual inconsistency, by succumbing to the procedural intricacies and looking to the other side; when Indians across the country were becoming victims of police excesses due to their exercise of the right to protest.
As recently as last September, the Kerala High Court delivered a remarkable judgment. In Faheema Shirin RK vs. State of Kerala and Ors. the Kerala High Court did a wonderful job of judge-made law. It held the right to use the internet as a fundamental right, within the meaning of the right to freedom of speech and expression.
To reach this conclusion, the Court cited various international resolutions of the United Nations General Assembly. In particular, the Court said: “When the Human Rights Council of the United Nations have found that right to access to Internet is a fundamental freedom and a tool to ensure right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of law.”
The Court went ahead and even linked the right to use the internet with the right to self-determination. This judgment comes on the heels of when there is a blanket clampdown of internet services across the newly formed Union Territory of Jammu and Kashmir, and the states are shutting down internet services to puncture the resolve of the protestors standing against CAA.
Another travesty committed by the states is the routine manner in which Section 144 of the CrPC was invoked, to create fear in the minds of the people, and dissuade the idea of protests. Section 144 cannot be invoked in the manner in which it was. Section 144 can be imposed in urgent cases of nuisance or apprehended danger of some event that has the potential to cause trouble or damage to human life or property.
Section 144 of CrPC is used to generally prohibit public gathering. An executive magistrate is conferred with the power to invoke this section, which effectively curtails some of the most essential fundamental rights, only because if a dangerous law and order situation arises, a judicial magistrate will not be able to weigh and determine whether an invocation of Section 144 would be justified.
But the conferment of this power, upon the executive magistrate, would not mean forfeiture of his/her obligation to apply his mind and furnish and issue a detailed order, explaining the imminent threat to law and order which is apprehended by the administration.
Unless there are demonstrable grounds that point towards an imminent threat to law and order, no imposition of 144 would have legal legs to stand. The extremely vague standards that the Section puts forth, and the lacunae which the absence of guidelines instils, makes it a tool of repression of protests.
The clampdown of the right to use internet and imposition of Section 144 of CrPC, in an area as a whole citing law and order problem, is like extrapolating a minor issue into an altogether superlatively dangerous situation; and it is akin to romanticising an ordinary and harmless protest/agitation, and tantamount to an administrative excess.
Many people have looked down upon protests with disdain, characterised them with attributes of anarchy and lawlessness, classifying them as something which mars the congeniality of the public life of individuals and serves no fruitful purpose.
Some, surprisingly from even the legal fraternity, have argued that when the topmost court of the country is seized of the matter and will eventually take a call on the constitutionality of the CAA, the protests have lost their plot and are being thrust for political motivations and personal ambitions of people leading the protests. Such people and I call them the ignorant constitutionalists, are doing a disservice to the cause of justice and constitutional discourse.
The Constitution of India begins with the words: “we the people of India…give to ourselves this Constitution..”. It is an assertion that signifies the ownership of the Constitution, which is vested in the people of India. Constitutional interpretation is outsourced and the Supreme Court is assigned the task to adjudicate, but the idea to decide the contours of the Constitution does not rest with the Supreme Court alone.
The people of India, too, in all their limited wisdom and articulation, are very much in possession of the authority to engage at all levels, through legitimate means of their choice, with the Constitutional transformations and evolutions.
The collective conscience doctrine, through which the court justifies capital punishment to those convicted of the most reprehensible of the crimes, is also premised upon the very same idea of applying public mood to adjudicatory powers. It is nothing but an ad-hoc jury system, shrouded in judicial conceit. The protests against the CAA signifies the very same collective conscience and the heartbeat of the populace.
By referring to the collective conscience doctrine here, I by no stretch of the imagination, mean to defend capital punishment. But this hypothesis deserves un-expendable hailing in the case of CAA protests. The Supreme Court is the custodian of the Constitution but the people of India retain its ownership. I would end with a quote by Judge Learned Hand: “I often wonder whether we do not rest our hopes too much upon Constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no Constitution, no law, no court can save it”.
Kaustubh Mehta is a law student and a regular contributor to the FLAIR TALK, a legal magazine of the All India Reporter.