TEST OF CONSTITUTIONALITY

Petitions challenging the citizenship amendment act to be heard by the Supreme Court today are going to be part of history irrespective of their proceedings. In the past month, the entire country has marked sporadic protests. The widespread dissent brimming within the country has seen two major propellents in students and women. Thronging the streets with placards mocking CAA and idolising Ambedkar, Gandhi and the Constitution itself, these students and women have played a big role in giving impetus to the principal opposition offered to CAA. Reading the Preamble, those incessant protests have even garnered international solidarity. Both women and students have collectively fuelled the spirit of dissent that has been subject to multiple restraints in its democratic existence. But the dissent has only grown stronger. Public criticism of the contentious legislation has only widened. Instead of addressing the dissent, the Central government has chosen to ignore, rather promote the legislation, highlighting its need. While a meek opposition initially spectated the student agitation, it soon joined the camp to strengthen the dissent — when, ideally, it should have been the other way round. And, finding it of utter convenience, the Centre has moved forward to hold the opposition parties responsible for fuelling misconception and inciting the youth. A government deriving its power from the will of people failing to address the concerns of a section of its people does not quite fit the democratic ethos. In contrast, as if to mock, the ruling party proceeded to mobilise its cadre to run a pro-caa campaign that convinces people of CAA’S need. Videos by the BJP’S IT cell explaining CAA’S requirement and criticising protests against it are a case in point. When questions of unconstitutionality have been raised citing the Act’s discriminating feature based on religion, the government’s argument of providing relief to countless Hindus, Buddhists, Sikhs, Jains by giving them citizenship and not taking one from anyone doesn’t fit. Our Constitution does not discriminate on the basis of religion and that has been a prominent pain point regarding the Citizenship Amendment Act that the Judiciary ought to address. Union Ministers have been found promoting CAA while addressing crowds but none of those took the responsibility as an elected representative to lend an ear to public dissent. A similar episode of mass people’s movement had hit the country at the beginning of the last decade when Anna Hazare-led Anti-corruption movement had mustered support in the wake of high-office corruption episodes prevalent in the country at the time. The question to ask here is if the Manmohan Singh-led Central government could lend an ear to the protests, why is the Narendra Modi-led government not ready to do so now? In times like these, shouldn’t a democratic nation expect its prime minister or those holding responsible elected positions to address the simmering dissent? Holding a dialogue only uncomplicates matters and evading one only aggravates it. It is on the crossroads of this impasse that the hope of relief sought by protestors brings the Judiciary in the picture. With independent pleas filed in the Supreme Court invoking Article 32 of the Constitution, and Kerala’s plea challenging CAA by invoking Article 131, the entire hope rests in the hand of the top court.

The pleas invoking Article 32 of the Indian Constitution argue how the legislation violates the basic structure of the Constitution. The Kesavananda Bharati judgement advocates that anything that tends to violate the basic structure of the Constitution shall be void. Article 131 of the Indian Constitution, under which Kerala has challenged the legislation in Supreme Court, invokes the original jurisdiction of the Supreme Court, urging the latter to deliberate over the constitutionality of CAA. In complete exercise of constitutional provisions, the CAA chapter must be scrutinised as the law has cast a polarising effect on the country. After having spectated an entire month, it is time for the highest court of the country to take cognisance of the matter and uncomplicate the chaos that has mired the country for the good part of the Winter. The petitions challenging the Citizenship Amendment Act have sought a declaration of the law as unconstitutional. It is now left to the custodian of the law to decide if it is or not.