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As the apex court rejected a stay on CAA, civil society along with students has hit the streets to defend the Constitution and clashed repeatedly with the police. Has the centre bitten off more than it can chew?  

By Neeraj Mishra

Massive protests over the Citizenship (Amendment) Act, 2019, have rocked many cities across India with thousands of citizens taking to the streets. Clashes with the police led to one person being killed in Lucknow and two in Mangalore. What started as a student agitation spread like wildfire as opposition leaders, intellectuals, activists, Bollywood personalities and ordinary citizens fought fearlessly for the restoration of India as a secular nation that abides by constitutional norms.

The reaction from the government was draconian. For the first time, mobile, internet and SMS services were suspended in many cities. In Delhi, 20 Metro stations were shut on December 19 as a precautionary measure. Among those detained temporarily were Left leaders Sitaram Yechury, D Raja, Brinda Karat, Congress’s Ajay Maken and Sandeep Dikshit and activists like Yogendra Yadav. In Bengaluru, historian and author Ramachandra Guha was detained and this was captured on TV much to the chagrin of civil society. Congress’ Abhishek Singhvi even went to the extent of calling this an “undeclared Emergency”.

Meanwhile, the Supreme Court rejected a stay on the Act and instead decided to hear 59 petitions filed against it in January after the courts reopen. A bench of Chief Justice of India SA Bobde and Justices BR Gavai and Surya Kant instructed Attorney General KK Venugopal to ask the government to publicise the provisions of the Act through the media to remove any confusion. CJI Bobde said: “We will have to see about the stay.” The Court also declined to set up a committee of a retired SC judge to probe the violence in different parts of the country against the CAA and told all the petitioners to approach high courts in respective states where the incidents had occurred. It also refused to probe the violence at Jamia Millia Islamia, where over 100 students were admitted to various hospitals, and Aligarh Muslim University (AMU).

These student protests remind us of earlier such agitations. Two years before Emergency was imposed by Indira Gandhi in 1975, a youth agitation began in Ahmedabad University against the upward revision of canteen charges. It spiralled into nationwide protests which spread from Patna to Allahabad to Jabalpur. A similar agitation broke out in JNU a couple of months ago against hostel fees. That too fanned out to other universities. The Jamia violence too has united students and youth across Mumbai, Chennai, Bengaluru, Hyderabad and Delhi besides AMU. A total of 33 universities have been singed over this contentious issue.

It is obvious that the fire of rebellion among the youth has been stoked. A relaxed, candle-marching generation of touch screen devotees has been awakened from their comfort zone and forced to take to the streets. And on-the-spot videos of the violence unleashed on them by the police have crowded out propaganda videos on social media and challenged the “truth” propounded by authorities. The Supreme Court refused to see these videos when senior lawyers Indira Jaising and Colin Gonsalves approached it but as they have gone viral, people know what is happening in the heart of the capital and elsewhere.

Anti-CAA Protests
Anti-CAA Protests

While it was the CAA issue that sparked the flames, the power of a resurgent youth was there for all to see. A youth that has risen in defence of democratic principles and the Constitution when all else has failed. Soon, in a massive show of support, civil society also joined the students. One is reminded of the far-reaching transformation of the youth in movements such as the JP one in 1975, the Mandal one in 1989 and the Praful Mahanta-led AASU agitation of the 1980s. The first two movements surged on the back of unemployment and a bleak economy. It’s a cocktail more explosive than the Molotov one that the students of Jamia are accused of throwing by the Delhi Police. It’s unfortunate that at a critical moment like this, the students lack a far-sighted leader they can look up to. While the Congress is fractured and various opposition parties did come together to meet President Ram Nath Kovind, we are still to see a JP of the movement emerging.

This government has moved to implement its agendas—abrogation of Article 370, construction of the Ram Mandir and the CAA—so swiftly that even the Shiv Sena has reminded the BJP of its acche din promise and asked it to desist from digressing from the real issues of employment and the economy. Experts say the courts cannot but read the issue in its entirety. A lot of discussion on the constitutionality of the CAA has already taken place. The issue has been internationalised by students in Cambridge and Harvard. Several international bodies, including those in the US and UN, have already expressed concern. Even minorities in the three countries (Pakistan, Afghanistan and Bangladesh) who will be welcomed into India, according to the CAA, have disassociated themselves from it.

The CAA has a cut-off date of December 31, 2014, and this too has led to many questions which the courts will have to decide on. Does it mean that those already here before 2014 are eligible only? Does it mean that Muslim refugees who have been here before 2014 will automatically be transported back or into camps? Does it mean any pre-2014 non-Muslim will automatically be considered a “persecuted minority”? The cut-off date effectively means that if one is a persecuted minority and wants to come to India after 2014, he is welcome. All those who came before that will have the benefit of proclaiming themselves “persecuted”, except Muslims.

The apex court will have a lot on its hands when it takes up the issue in January. Even if all arguments in favour of the CAA are accepted, it remains to be seen as to who will be considered “persecuted”. It has not been defined in the Act and from the speeches of Home Minister Amit Shah in both the Houses of Parliament, it would appear that all minorities in these countries are considered “persecuted”. What this will mean to international relations is something External Affairs Minister S Jaishankar will have to look into. Other nations can also turn around and ask the same question about India’s treatment of its own minorities, especially those affected by the 1984 and 2002 riots.

Can states defy the CAA?
Can states defy the CAA?

Some of the sanest questions are being asked by student leaders like Kanhaiya Kumar, who has been drawing huge crowds. He asked the students to not disassociate the CAA from the impending National Register of Citizens (NRC) and the National Refugee Policy (NRP). Much of the agitation in Assam has been caused by the CAA because of which the “benefits” of the NRC are lost for the Assamese as nearly 15 lakh Hindu Bangladeshis will not have to prove anything. They will get absorbed automatically through the CAA. Indigenous Assamese don’t want any refugees and for them the CAA flies in the face of the NRC already conducted there.

Some regional parties such as Naveen Patnaik’s BJD and Nitish Kumar’s JD(U) have tried to disassociate the CAA from the NRC to explain their support for it in Parliament. But Amit Shah himself lucidly explained it to the public in West Bengal three months ago: “Theek se samajh len. Pehle CAB ayega phir NRC. (Understand this carefully; first comes CAB, then NRC).” Now all those stating that the CAA has nothing to do with Indian Muslims like the Shahi Imam and Law Minister Ravi Shankar Prasad will have to understand that while the CAA itself may be for incoming refugees, once it is injected with the NRC, everyone will have to prove they are Indian citizens and show their ancestry. While Hindus will have a CAA pass, Muslims will be stuck. It’s exactly like the Ahnenpass (ancestor pass) which documented the Aryan lineage of citizens of Nazi Germany. The decade-long NRC exercise in Assam has also done the same. Each individual has had to prove his ancestry in an exercise that has already cost Rs 1,600 crore. Multiply that by 29 states and there is a gargantuan problem staring you in the face. The Supreme Court will also have to look at it from a historical perspective. Will Articles 14 and 15 of the Constitution and secular and non-secular arguments suffice here? After the Bangladesh War of 1971, Prime Minister Indira Gandhi had explained that all those who had come into the country after March 25, 1971 would have to go back “irrespective of their religion”. Now the BJP says only Muslims will have to go back.

Even as debates and protests are gathering momentum over the constitutionality of the CAA and the NRC, the centre has issued an 11-page guideline to all states to construct “modern detention camps”. Called the “2019 Detention Manual”, it gives state governments construction guidelines. Thousands who are expected to get deported in Assam are actually helping build these detention camps. In the years to come, will the detainees be kept in the camps forever or be “pushed back” into their “home” countries? How will these countries react and what will it lead to? The burden of expectations on the Supreme Court has never been heavier.

Lead picture: Protesters’ rally in Kolkata against the CAA/Photo: UNI

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