“The Supreme Court May Or May Not Save The Constitution, But People Of India Can”

This post is also a part of YKA's user-run series, Excluded - Understanding the CAA and NRC, by Indian Civil Liberties Union, curated by YKA top user Sanobar. Join the conversation by adding a post here.

By Abhyudaya Tyagi

On November 25, 1949, as he addressed the Constituent Assembly of India for the final time, B.R. Ambedkar did not hesitate in acknowledging the limits of the constitution that he had just presented. The statesman left Indians with a warning, arguing that “however good a constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot.”

Unfortunately, Ambedkar’s warning has not been heeded, and attempts have been made to undermine the very principles behind Babasaheb’s constitution. The most insidious attempt to do this has occurred through the Citizenship Amendment Act (CAA) and the National Register for Citizens (NRC). The malevolency and the unconstitutionality of the CAA and NRC have already been established by scholars far more knowledgeable than this author. But it begs reiteration if only to counter the misinformation coming from the government and its preferred media outlets.

The responsibility of upholding the constitution cannot solely fall upon leaders and institutions, but must also lie with every Indian. Representational image.

Simply put, the Citizenship Act goes against the very principle of equal religious protection enshrined in Article 14 of the Constitution. And at a more practical level, the NRC will exclude millions of people in a country with alarmingly low poor rates of documentation. Excluded Hindus will receive citizenship and excluded Muslims will be sent to detention camps. Their only crime will have been their poverty and their religion.

In ordinary times, one would turn to the country’s democratic institutions, hoping that they would help resist the dangerous intentions of this government. But in this extraordinary moment, almost all institutions have failed to protect the constitution and the fundamental rights enshrined in it.

This grand institutional failure began in Parliament, where such a fundamental alteration to Indian law was only debated for a day each in the Lok Sabha and Rajya Sabha. It continued with the Police, which launched a crackdown against protestors across India. Most of the media, the so-called ‘fourth estate’ of any democracy, has been woefully inept in scrutinizing the government’s claims and has instead chosen to villainise protestors. And perhaps most disappointing is the Supreme Court, which has continuously declined to stay the CAA.

In the face of such institutional failure, it is easy to adopt a tone of despondency. For in the traditional interpretation of the above Ambedkar quote, both the political and institutional leaders asked to serve the constitution have turned out to be a “bad lot”. Our democracy is in peril, and our idealistic constitution has been rendered rudderless by those asked to “work it”.

But there is a more optimistic interpretation of Ambedkar’s words and their application to our current politics. Perhaps when Ambedkar discussed those “called to work” the constitution, he was not only referring to political leaders but also the ordinary citizens of India. For the responsibility of upholding the constitution cannot solely fall upon leaders and institutions, but must also lie with every Indian.

Home Minister Amit Shah recently backtracked on his statement that NRC is about to come.

If institutions fail to provide checks and balances, then we have to resist the CAA and the NRC by whatever means that the constitution permits us. Such resistance in the face of institutional failure has already been exemplified in the massive demonstrations against the CAA and the NRC. The protests have forced the government to mount a tactical retreat with regards to the NRC.

On 4th February, the Home Ministry stated that that government has yet to decide with regards to the NRC, a clear reversal from Amit Shah’s earlier statement that the “NRC is about to come”. In that sense, dadis and nanis of Shaheen Bagh have proven to be more effective institutional checks than the Justices of the Supreme Court.

The students of this country have shown themselves to be more impressive adversaries of this government than opposition leaders in Parliament. Every single protester has reclaimed Ambedkar’s Constitution from the people who want to tear it apart and the institutions that were ready to enable this catastrophe.

But our resistance cannot be limited to protests and demonstrations. Eventually, the government will bring the NRC, perhaps through the backdoor of the National Population Register (NPR). And when that happens, simple dharnas will not be enough to save millions from the terror of detention camps. To prevent such horror, we will have to mobilize again, not on the streets of Shaheen Bagh or Jantar Mantar, but in the rather mundane alleyways of the Indian bureaucracy.

In recent protests, Varun Grover’s wonderful poem “Hum Kagaz Nahi Dikhayenge” has become one of the anthems of this movement. It carries an incredible message, as an idealist vision of a country where one’s identity is not determined by the papers that they can display to a government bureaucrat. But at a practical level in the current political circumstances, we must switch to a different message. We must ensure that every Indian, regardless of education or income, can show the necessary kagaz (document). For while the revolutionary spirit of “Hum Kagaz Nahi Dikhayenge” is admirable, the marginalized simply do not have the option of risking their freedom for a slogan.

After all, the insidious designs of the government concerning the NRC rely upon making the process so byzantine that the marginalized will not be able to muster the financial and human capital required to navigate it. And in such a situation, it should be the duty of all conscientious citizens to help ensure that no individual is wrongly excluded from the NRC. The process will be frustrating, especially with state machinery that is both incompetent and malevolent. But this is also the most pragmatic option, especially when grandiose institutions like the Supreme Court have failed us.

The students of this country have shown themselves to be more impressive adversaries of this government than opposition leaders in Parliament. (Photo by INDRANIL MUKHERJEE/AFP via Getty Images)

Modi and Shah may be able to control the proceedings of Parliament, but they cannot control every small bureaucratic office in the country. And in that lies our strength: the ability to mobilize large groups of skilled individuals who can help navigate the bureaucracy and ensure that each individual can procure the prescribed documents.

The incarceration of even one innocent person to a detention camp will be an indictment, not only of our leaders and our institutions but also of our society. And thus it is the responsibility of every privileged citizen to stand with their marginalized compatriots, not only in protests but also in the chaotic bureaucratic mess that will follow. And it is only in that fraternal spirit that we can overcome the moral turpitude of our leaders and the complicit cowardice of our institutions.

The Supreme Court of India may not save the Constitution. But the People of India still can.

Abhyudaya Tyagi is a student of New York University, Abu Dhabi.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

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