CAA: Pursuing process and protest
Along with courts, citizens must also remain prominent players in constitutional interpretation
T he passage of the Citizenship (Amendment) Act (CAA) has triggered protests across the country. These protests can be seen through two distinct lenses. The first would to be view the protests through the lens of a formalistic understanding of the rule of law. Dozens of petitions challenging the constitutionality of the Citizenship Amendment Act (CAA) have been filed in the Supreme Court (SC). Critics will have their day in court challenging the CAA, which the SC will adjudicate upon. Critics should, the argument goes, have faith in the judicial process, and leave it to the court to perform its role of interpreting the Constitution.
The second way of seeing the protests is to do so empathetically, based on a meaningful understanding of the rule of law. In this approach, the protests and constitutional litigation are not mutually exclusive, but run along parallel tracks. A State that thinks of the protests in this way would address them with a light touch rather than an iron fist, even if those protests get out of hand from time to time.
There is a powerful principled reason to adopt the second approach in preference to the first. Interpreting the Constitution is not within the authority of the courts alone. The people must, at a minimum, remain prominent players in the process of constitutional interpretation. They should be able to determine what the Constitution’s promises (including “equality before the law” and “the equal protection of the laws”) mean for them, and whether those promises have transformed into practice.
Aside from this principled reason, there are significant prudential reasons for the protests to continue on the sidelines, as the constitutional litigation progresses. First, it is always open to the government to amend the law while litigation is ongoing, so long as its amendments do not exacerbate the very reason for which the law has been challenged. In this instance, for example, there is nothing preventing the establishment from pursuing amendments that extend the scope of the CAA to all persecuted minorities of Afghanistan, Bangladesh and Pakistan — not just non-Muslim minorities. Alternatively, it would also be open for it to extend the scope of the CAA to religious minorities of all neighbouring countries — not just neighbouring countries in which Islam is the dominant religion.
Pursuing these amendments could well make the constitutional litigation redundant. Therefore, the banal statement that we are used to hearing from governments of all persuasions — that the matter is “sub-judice” — and that the law cannot be amended while litigation is ongoing, is misleading. Deciding not to amend the law in these circumstances is neither a matter of compulsion nor of constitutional propriety — it is a conscious choice. Civil society should continue to put the establishment to the test of making that choice.
Second, the SC’s historical record in relation to legislation that is challenged for violating fundamental rights is patchy, in particular when the issues involved include foreign affairs, national security, and the exercise of sovereign power. The constitutional challenge to the CAA is at the confluence of all three (or at the least, is likely to be framed in this way by those defending the law). Examples abound, but we need not look beyond those instances where the most-draconian national security legislation, including the Terrorist and Disruptive Activities (Prevention) Act (TADA), Armed Forces (Special Powers) Act and Prevention of Terrorism Act, has been emphatically upheld by the court.
The establishment narrative can be hard to dislodge. For example, in the early paragraphs of its judgment upholding TADA, the Supreme Court observed: “Every country has now felt the need to strengthen vigilance against the spurt in the illegal and criminal activities of the militants and terrorists so that the danger to its sovereignty is averted and the community is protected”. Replace “militants and terrorists” with “immigrants”, and the new narrative is in place.
Third, even in those instances where the SC does make a robust decision, legislative change is often more effective and easier to implement on the ground. This can be because of government action (formal compliance with the SC’s decision while sidestepping it in spirit) or inaction (failing to ensure that the lofty principles in the court’s decision percolate to those responsible for implementing it).
Ramachandra Guha — who was one of the petitioners in the Salwa Judum case (and as it happens, was also detained for participating in protests against the CAA in Bengaluru) — must know this well. A cat-andmouse game followed the SC’s decision, in which the Salwa Judum assumed various avatars over the years. Persuade Parliament to change its view, and you have addressed this piece of the implementation puzzle.
If the Citizenship (Amendment) Act is unconstitutional, there is no need , for the people or for the establishment , to wait for the SC to tell them that it is.
THERE ARE TWO WAYS OF SEEING THE PROTESTS — EITHER THROUGH A FORMALISTIC UNDERSTANDING OF LAW, OR A MORE EMPATHETIC, MEANINGFUL UNDERSTANDING OF LAW. ADOPT THE SECOND APPROACH