By now, as one enters into another national election season, there is little doubt in realising that the incumbent BJP government has created a formulaic approach to triggering chaos for electoral gains either through direct action or in letting chaotic events take their course for an exercise of post-event politicisation (during elections).
Back in 2019, there was the Pulwama attack that occurred close to a national election, in the run up to which the BJP employed images of ‘martyred’ soldiers while harnessing the popular vote for its rhetorical pitch of ‘nationalism’ across India.
Post-elections, one saw the introduction of the Citizenship Amendment Act (CAA)-National Register of Citizens (NRC) combine (explained by the Union home minister’s own ‘chronology’), triggering nationwide protests, only to be quelled down by the nature of strict (curfew-style) lockdown measures introduced during the COVID-19 scare (in late 2019 and early 2020).
The street protests at the time across Indian cities and states were anchored not by politicians but angered youth, women and civil society groups, who found solace in peacefully protesting against the government by reading the constitution’s preamble and fighting discrimination meted against any religious minority.
Now, as we walk into another national election, with a political opposition distraught and lacking a cohesive counter-electoral strategy to contest against the incumbent BJP, the home minister has once again brought the CAA (-NRC) chronology back into discussion.
On Tuesday, the Union Ministry of Home Affairs released a list of questions and answers in an attempt to also respond to any ‘allegations’ about the discriminatory nature of the CAA.
As argued here by The Wire’s editor, Siddharth Varadarajan, this document is full of “half-truths” and “outright lies”.
The political agenda of the legislation is very clear. The BJP wants to use the CAA (and then the NRC) as a legalised force to change the macro-demographic composition across states in establishing a Hindu-majoritarian state while directly discriminating against religious minorities and Muslims in particular.
My principal concern here has little to do with (or say on) analysing the motivation or ideological agenda of a political party in power – which seems explicitly clear by now.
What isn’t clear, though, is the extent to which India’s own judiciary and the apex court in particular have chosen to deflect and defer in their own role and responsibilities when it comes to sharing their views on a law some say is highly unconstitutional.
Interpreting the ‘constitutionality’ test
The CAA is under challenge before the Supreme Court. In December 2019, parliament amended the 1955 Citizenship Act to grant citizenship to Hindu, Sikh, Buddhist, Jain, Parsi and Christian migrants who entered India from Pakistan, Afghanistan, or Bangladesh before 2015.
The Indian Union Muslim League (IUML) challenged the amendment in the Supreme Court in 2020 after which more than 200 petitions have been filed and tagged with the IUML’s challenge, the Indian Express reported.
Its report added that petitioners include Asaduddin Owaisi, Jairam Ramesh, Ramesh Chenninthala and Mahua Moitra, as well as political organisations such as the Assam Pradesh Congress Committee, the Asom Gana Parishad, the National People’s Party (Assam), the Muslim Students’ Federation (Assam) and the Dravida Munnetra Kazhagam.
In October 2022, a bench of the top court ordered that final hearings would begin in December that year after then-Chief Justice of India U.U. Lait’s retirement, but the case hasn’t been heard since then, the Express reported, adding that the court’s website says the case is listed before a bench headed by Justice Pankaj Mithal.
Also read: Understanding CAA Rules, the Process, and What It Means to Resist
I rely here on reviewing Gautam Bhatia’s legal reasoning and jurisprudential grounds challenging the CAA’s constitutionality:
“The constitutional debate around the Citizenship (Amendment) Act has been framed around the following arguments: (a) does the grant of immunity and citizenship to a select group of migrants violate the principle of “reasonable classification” under Article 14, by virtue of the individuals and groups it excludes?; (b) does the selection of groups lack any “determining principle”, and is therefore unconstitutionally arbitrary?; and (c) by privileging religious persecution over other forms of persecution in claims to citizenship, does the CAA violate the basic feature of “secularism”?”
These are well-identified legal issues that come up in the constitutional challenge against the CAA for the courts to dwell upon. Bhatia also states: “Beyond reasonable classification, arbitrariness, and secularism, there are deeper reasons to hold CAA unconstitutional.”
He explains these deeper reasons in three points.
First, according to him,
“The principle of equality under the Indian Constitution has moved beyond the classification and arbitrariness tests; secondly, that – contrary to a widespread assumption in our legal culture – citizenship laws deserve greater judicial scrutiny instead of judicial deference; and thirdly, that notwithstanding the language of Article 11 of the Constitution, there exist implied limitations upon Parliament’s power to confer or withdraw citizenship – limitations that flow from the existence of equally important and fundamental constitutional principles.” (emphasis in bold provided)
Supreme Court’s role as a counter-majoritarian institution
The question of judicial deference is an important one.
After all, what is the role of the Supreme Court here or what is the basic role of judicial review in a democratic society? For the answer to these questions, Bhatia drew from his reasoning justifying the court’s interventive role (in terms of reviewing a law) as a counter-majoritarian institution.
The court exists to check the “excesses of majoritarianism on the understanding that true democracy meant something more than the brute majority rule,” he said.
For now, the court appears, sadly, to be subjugated in agency and form. Credit: Wikimedia Commons/Pinakpani.
India’s evolving constitutional idea of ‘equality’ was borrowed heavily from American jurisprudence. On the Supreme Court’s role in checking the excesses of majoritarianism, refer to this explanation by Bhatia offered here:
“In its famous Carolene Products footnote, the US Supreme Court noted that the role of the Court was particularly important in cases involving “discrete and insular minorities”.
Why? Because it were these minorities that faced the greatest difficulties in articulating their interests through the normal channels of (majoritarian) democratic governance.
The task of the Court, essentially, was to come to the rescue of those whom the political process – formally or effectively – excluded from equal participation. (emphasis in bold provided)
Thus, for instance, if there is a country where same-sex relations are viewed with opprobrium by a large segment of the population – to the extent that the LGBTQ+ community is permanently excluded from access to political power, as nobody else will ally with them – the Court is justified in subjecting laws targeting that community to stringent scrutiny.”
In any constitutional democracy, it is difficult for any one institution or branch of government to exercise ‘absolute power’. Even though Article 11 of the constitution gives parliament the right to “regulate citizenship by law” and make “any provision with respect to acquisition and termination of citizenship” as well as “all other matters” relating to citizenship, it still doesn’t give it ‘the absolute power to do so’.
As observed in Kesavananda Bharati, there also exist implied limitations that flow from the structure of the constitution.
What is the implied limitation in the present case?
The answer, in Bhatia’s legal reasoning (one that can be generally agreed upon), is the constitutional principle of secularism.
“Secularism, as Kesavananda Bharati held, is a basic feature of the Indian Constitution (independent of its subsequent insertion into the Preamble during Indira Gandhi’s Emergency).
The Indian Constitution commits us to being a secular polity. The key issue, then, is that can the conditions of entry into the polity (determined by citizenship law) be such that they frustrate the character of the polity itself. The answer, obviously, is no. (emphasis in bold provided)
“In other words, therefore, there is an implied limitation upon the power under Article 11 to grant or withdraw citizenship, that does not permit Parliament to pass any such law that would negate the secular character of the polity – in this case, through the backdoor, by creating conditions of entry where religious claims become determinants of citizenship.
To put it in a single sentence: the principle of secularism acts as an implied limitation upon Parliament’s power to legislate on citizenship. Parliament, therefore, has all powers to prescribe conditions of citizenship except and insofar as such conditions frustrate the Constitutional commitment towards preserving a secular polity.”
Political opposition’s indifference
Going beyond the Supreme Court’s act of judicial deference and deflection away from its own juridical responsibility in reviewing the CAA, in a hot election season, as the CAA gets notified weeks before the upcoming polls, one would have imagined a more vivid response from the political opposition.
As Pratap Bhanu Mehta rightly said, “We are in an insolent tyranny, whose hallmark is that it will take the calls for ordinary justice, decency and liberty as signs of ‘anti-national insurrection’. Its cause is served by portraying everything as disorder…”
The INDIA bloc, as clueless and organisationally incohesive it seems at the moment, has done nothing to counter the BJP’s move.
Apart from a few chief ministers (like of Tamil Nadu or West Bengal), most leaders of the opposition haven’t done much (beyond posting on social media handles) in challenging the unconstitutionality of the CAA and fighting the law tooth-and-nail by taking this to the streets.
The political opposition (led by the Congress) may yet again outsource street protests against the CAA’s discriminatory intent to aggrieved groups, individuals and older women rather than present a more united, coordinated and cohesive strategy going into the elections.
The deafening noise of an observed ‘silence’ – in protecting minority rights – may also reflect the degree of the illiberal turn taken of late by most of the principal political opposition, which in turn signals their miserable failure in committing to the constitutionally safeguarded principle (and practice) of secularism while taking on the BJP’s divisive politics head-on.
In the 1970s, during the period of the Emergency, a unifying political oppositional architecture was evident because of the leadership of Jayaprakash Narayan (JP) and other leaders leading the fight against Indira Gandhi’s oppressive regime, and their ability to include those affected by poor economic and social conditions (workers, farmers etc.).
Rahul Gandhi’s Bharat Jodo Yatra (1.0 or 2.0) has garnered little support in uniting the Indian political opposition against the BJP, and the INDIA bloc seems to be headed nowhere.
And so, one of the critical differences between now and then (the 1970s) is the lack of a JP-style, exemplary form of opposition-uniting, cohesive public leadership (especially in the main political opposition) that can unite all political parties to challenge the Modi BJP’s hateful and divisive ideological agenda.
Rahul Gandhi or the Congress have failed to exercise this kind of leadership, which is hurting the electoral possibilities of a national-level political coalition that can fight against the incumbent while offering a more promising counter-narrative.
The courts too haven’t stood up to the authoritarian incumbent – i.e. to Modi – as they did to the Congress in the 1970s (during Indira’s regime).
During the 1970s, the Supreme Court stood its ground in upholding the constitution’s basic structure and in attempting to protect basic civic and political rights. For now, the court appears, sadly, to be subjugated in agency and form as well as heavily executivised – that is, acting in the interest and representation of the government – to a great extent.
As leadership and vital democratic institutions fail in upholding civic-institutional and constitutional morality, one can only hope that the practice of popular social movements against a regime can find a new voice and form this election through the kind of movement that was led earlier in the street protests (back in 2019) against the CAA-NRC combine.
Such a movement must be led by the educated, young and old; united across India; and one whose sustenance can perhaps establish a new normal in restoring hope among the future generations in a united India’s ability to acknowledge (and live with) its own differences and counter the violent politics of a brutish majoritarianism that a regime may seek to entrench.
Deepanshu Mohan is Professor of Economics, Dean, IDEAS, Office of InterDisciplinary Studies, and Director, Centre for New Economics Studies (CNES), O.P. Jindal Global University. He is a Visiting Professor at the London School of Economics and a 2024 Fall Academic Visitor to Faculty of Asian and Middle Eastern Studies, University of Oxford. He has held Visiting Professorships with University of London’s Birkbeck College (UK), University of Ottawa (Canada), Carleton University (Canada), Stellenbosch University (South Africa), FGV (Rio, Brazil) in the past.
