The hastily enacted Citizenship Amendment Act is facing the people’s wrath. Rarely has a law provoked a similar rainbow protest in modern India. Not one age group, caste, ethnicity, region or religion, but a transection of India is on the streets in protest. Separately, some 61 petitions challenging the law’s validity await hearing in the Supreme Court. The contested law must acquit itself before both: the rambunctious streets and the placid court. But these are separate conversations. And we must keep them so.
One set of conversations concerns the law’s constitutionality. This remains unresolved. Experts have professed rival arguments. In India’s legal system, the final word on constitutionality rests with the Supreme Court. But constitutional conversations are, inherently, the littlest ones.
The Indian constitution commands the state in three ways. It enumerates things the state cannot do; things the state may do; and things the state must do. The state cannot violate fundamental rights. The state may make laws and policies to further its agenda. The state must strive to promote the welfare of the people. These commands set the floor, the lowest bar of acceptable conduct. Legislators and ministers must reach this minimum standard to uphold their oath.
So, when courts pronounce laws as constitutional, they certify their minimal acceptability. If courts declare laws unconstitutional, they imply the laws have failed even this basic test. But we mustn’t conflate constitutionality with prudence. The latter is a superior bar. A judicial declaration of constitutionality isn’t a medal of wisdom. It’s a petty, bureaucratic tick – one that allows governments to proceed with their policies.
Emphasising arguments about the Citizenship Amendment Act’s unconstitutionality, effectively, lowers the bar. The government and its minions understand this fully. Little wonder, they are eager to engage at this level.
Much has been said about the constitution’s right to equality and the tests judges have developed to interpret the right: “intelligible differentia” and “rational nexus”. Missing from the commentary, however, is the Supreme Court’s actual record on Article 14. Decisions tell a lucid tale. The court has been spectacularly lax in applying its tests. It has a catalogued history of inventing fanciful reasons to uphold the constitutionality of laws. Except on rare occasions, the court, now, invariably allies with government.
A former solicitor general of India admitted this in a recent interview. Defending the new citizenship law’s validity, he said: “Even if Parliament had enacted a law allowing only religiously persecuted Hindus to settle in India, that, too, would be likely constitutional.” He is correct. But his comments also reveal the rot in India’s equality jurisprudence. Judges are likely to uphold even manifestly discriminatory laws.
Ignore the popular drumbeat about judicial activism, of interventionist judges, of saviors and watchdogs. The Supreme Court is no such thing. It hasn’t been any such thing for a long time. On issues that matter, the court is often its master’s voice.
The second set of conversations around the citizenship law is happening on the streets. These are more challenging; they entail changing hearts and minds. Compared to the constitutional conversations, these are thicker exchanges. But these are the ones the government appears keen to avoid.
Some protesters underscore the law’s imprudent instincts. Even if constitutional, this law is a civilisational dagger. It rips apart India’s millenarian resolve to shelter the wronged without fear or favour. Others, like Delhi Chief Minister Arvind Kejriwal, have highlighted the law’s class bias, especially when understood in the context of the proposed National Register of Citizens. If implemented, the register will overnight alchemise unlettered citizens, without long documentary trails, into unlawful residents in their own lands.
These arguments speak to why the law is unenlightened. Perhaps constitutional, but still unenlightened.
A prolonged rainbow protest will quiz Narendra Modi’s resolve like never before. In his nearly six years as prime minister, Modi has succumbed just once. In 2014, he introduced radical changes to the land law in India through an ordinance, and repromulgated it twice. But the Rajya Sabha remained out of reach. The National Democratic Alliance had far fewer seats then. Unable to cajole or coerce additional support, Modi relented against a united opposition. It remains his only parliamentary defeat.
India has since witnessed a raft of edgy policies: Aadhar, demonetisation, Money Bills, abrogation of Article 370, and more. None induced national protests. Nothing impeded the government, not courts, not voters. It feels different this time.
Suddenly, Home Minister Amit Shah doesn’t sound as belligerent. He says he is open to further changes to the legislation. He sounds less bellicose on the National Register of Citizens, too. In fact, the prime minister denies his government has any such plans.
Student protesters need a peaceful vocabulary to articulate the illogic that scaffolds this law. Chandrashekhar Azad, the leader of the Bhim Army, reportedly led a coral recitation of the constitution’s preamble at the Delhi’s Jama Masjid last Friday. Leaders of the Congress read out parts of the constitution. Elsewhere, protesters rendered the national anthem; the police, apparently stumped, joined in.
Protesters should go beyond the national anthem. Literally. In the second stanza of his Morning Song of India, Rabindranath Tagore waxed about an idea this law imperils. Protesters should informally adopt it as their anthem too.
Aharaha tava avhbana pracharita,
Suni tavo udaro vani;
Hindu, Bauddha, Shikha, Jaina, Parasika,
Purava paschima ase
Tava simhasana pase;
Prema hara haya gatha
Janagaṇa aikya vidhayaka jaya he,
Bharata bhagya vidhata;
Jaya hē, jaya hē, jaya hē; jaya jaya jaya jaya hē.