CAA-led narrative on religious persecution ignores political specificity, nuance in neighbourhood

Sanjib Baruah
What is remarkable about statements by ruling party politicians on the Citizenship Amendment Act (CAA) is that they attribute the purported persecution of non-Muslim religious minorities in Bangladesh, Pakistan and Afghanistan to a fixed and unchanging reality. At all times in their recent history, the three countries have presumably been alike. This ideologically laden narrative defines the three neighbouring countries in essentialist terms — they are Muslim majority countries; that’s all there is to know about them. There is no need to understand history, and the dynamics of political change. The ideological predilections of governments in Muslim-majority countries make no difference to the way religious minorities are treated. The implicit contrast is with Hindu-majority India, which by definition, is inclusive and tolerant — no matter the actual treatment meted out to minorities.

Thus, in neighbouring Bangladesh — if one follows the logic of this perverse revisionism — the persecution of religious minorities has occurred under all governments: The first post-liberation government led by Mujibur Rahman, the military regimes of Ziaur Rahman and Hossain Mohammad Ershad, the democratically elected Bangladesh National Party (BNP) government led by Khaleda Zia, or the Awami League governments led by Sheikh Hasina Wazed.

But was life for the Hindu minority really the same in the Bangladesh of the early 1970s, when “Joy Bangla” dominated political life, as in the 1990s, when “Allahu Akbar” and “Bismillah” became popular election slogans? Was the removal of secularism in 1977 as one of the four fundamental principles of the Bangladeshi Constitution, or the declaration of Islam as the state religion in 1988, of no consequence to the situation of the Hindu minority in that country?

India’s new official narrative is, of course, at complete variance with the understanding that has informed Indian foreign policy so far. If Hindus were equally persecuted in East Pakistan/Bangladesh both before and after it broke away from Pakistan, why did India even bother to intervene in the war of liberation? Was India’s decision to intervene in Bangladesh’s war of liberation, where Hindu Bengalis were both major players and targets of the Pakistani crackdown, then a failure of historic proportions?

If the persecution of Hindus has been a persistent feature of all Bangladeshi governments, what explains the very different quality of its relations with India when the country has been ruled by governments with different ideological orientations? Were previous Indian governments unconcerned about the condition of the Hindu minority? Or did they pursue a more pragmatic and realist approach than the current government? After all, putting non-Muslim citizens of the three countries on a path to Indian citizenship — as the CAA effectively does, despite the asserted cut-off date of December 2014 — amounts to a significant surrender of India’s sovereign prerogatives to set immigration policies to its smaller neighbours.

This new narrative is, of course, oblivious of the way inter-faith relations in India, or the state of bilateral relations with India, affect the security and confidence of the Hindu minority. According to the Bangladeshi scholar Meghna Guhathakurta, who has written extensively on the conditions of the Hindu minority in that country, the destruction of the Babri Masjid in 1992 had “resulted in a backlash against the Hindu temples, life and properties all over Bangladesh. Even Christians and Buddhists were not spared.” Attacks on Hindus and their property in Bangladesh also took place after the Gujarat riots of 2002.

The seven decades of the subcontinent’s post-Partition history make it abundantly clear that there is no better guarantee of peace and security for religious minorities in the CAA-covered countries than better inter-faith relations within India, and relatively peaceful relations among South Asia’s three post-Partition states.

Not surprisingly, people in all three CAA-covered countries — including leaders of minority organisations — reject the new Indian narrative. Some have sounded the alarm on the danger that this narrative — and the Indian policies accompanying it — presents to South Asia’s future stability. While the Indian media has focused mostly on Pakistani Prime Minister Imran Khan’s criticism of these policies, the reaction of the other two countries that enjoy friendly relations with India, merits no less attention.

Afghan and Bangladeshi officials have set aside diplomatic niceties to criticise the new Indian narrative. Afghanistan’s ambassador to India Tahir Qadiry has publicly rejected the charge that his country persecutes religious minorities. Afghans of all ethnicities and faith, he said in an interview with India Today, have been victims of the four decades of war that his country has suffered. However, since the fall of the Taliban, the Afghan government has tried to fashion policies beneficial to the country’s Sikh and other minority communities. There are now Sikh members of the Afghan Parliament, and Sikhs are represented at the presidential palace as well.

Bangladesh’s Foreign Minister A K Abdul Momen also rejects the “allegations of minority repression in Bangladesh.” Important voices in Bangladeshi civil society, such as Professor C R Abrar of the University of Dhaka, have been highly critical of the “anti-Bangladeshi vitriolic statements” coming from the “Indian ruling elite.” Categorising Bangladesh “as a nation that oppresses its religious minority,” he writes, is a deliberate insult to the people of Bangladesh. Despite India’s much-repeated assertion that the NRC and CAA are India’s internal matters, Abrar warns that their consequences for Bangladesh are likely to be “grave.” There will be millions of Muslims unable to prove their claim to Indian citizenship under the rules of the NRC who would not get the protection of the faith-based amnesty that the CAA now provides. While India may not deport them as a matter of policy, in coming years many of them may choose to cross into Bangladesh in order “to avoid languishing in detention camps in atrocious conditions.”

The Bangladesh Hindu Bouddha Christian Oikya Parishad (Hindu Buddhist Christian Unity Council) fully echoes the concerns of the protesters in Assam and the rest of Northeast India regarding the CAA. The Parishad, formed in response to the Eighth Amendment to the Bangladeshi Constitution which had made Islam the official state religion, has expressed its “deep concern” that the CAA would “encourage minority people to leave Bangladesh.” The organisation’s adviser, Nitai Roy Chowdhury, has expressed fears that because of the NRC and the CAA, “Hindus will want to go to India, meanwhile Muslims from India will try to enter into Bangladesh which could create a dangerous situation.”

India’s many friends and well-wishers in Afghanistan and Bangladesh now have ample reasons to wonder: With friends like these, who needs enemies?

This article first appeared in the print edition on January 22, 2020 under the title ‘Three as one’. The writer is professor of political studies, Bard College, New York

Man of destiny

Ramachandra Guha

In December 2018, I was having lunch with an entrepreneur-friend who works closely with the Central government. The Bharatiya Janata Party had just lost state elections in Madhya Pradesh, Rajasthan and Chhattisgarh, putting three chief ministers out of office and out of work. I suggested to the entrepreneur that when the prime minister won re-election the following May (as he was already very likely to do), he should induct these now jobless politicians of his party into the Union government. These politicians were not without controversy; at the same time, all were capable administrators, and all brought something solid to the table. Vasundhara Raje was arrogant and entitled, but with her interest in art and culture would make a decent tourism minister. Shivraj Singh Chauhan had the stain of Vyapam around his administration, but even his critics conceded that his policies had helped improve the lives of Madhya Pradesh’s farmers. Surely he could be an effective Union minister for agriculture and rural development in Narendra Modi’s second cabinet? Raman Singh’s government in Chhattisgarh was guilty of serious human rights violations; at the same time, it had distributed subsidized food to the poor far more effectively than had most other states. Would he not make a useful addition to the second Union cabinet too?

My BJP-leaning friend agreed with me. Even during its first term the Modi government had not exactly been talent-rich. Of the few experienced ministers it had, Manohar Parrikar, Sushma Swaraj and Arun Jaitley were all visibly ailing. Inducting people like these three former chief ministers into the Union cabinet would surely make the execution of the government’s programmes more effective.

In the event, Narendra Modi did not bring this trio into his cabinet after he won re-election. At the same time, ministerships were given to politicians whose talent lay chiefly (if not exclusively) in demonizing political opponents and religious minorities. To make matters worse, the loss of Jaitley, Swaraj and Parrikar had been compounded by the flight of first-rate professional talent from the Central government. In the prime minister’s first term he had the benefit of the full-time advice of at least four top-flight economists — Raghuram Rajan, Arvind Subramanian, Urjit Patel and Arvind Panagariya. By 2019, all had left government, to be replaced by people who lacked the professional credibility the earlier quartet did. To make matters worse still, in Modi’s first term as prime minister he had some high-quality civil servants in both the finance ministry and the Prime Minister’s Office, individuals with experience and wisdom who were unafraid to speak their mind. By the time Modi was sworn in afresh in May 2019, these people had left government as well.

There is a pattern here. It seems that Modi cannot work closely or for long periods with people of independent standing, whether these be civil servants, economists, or other politicians within his own party. There could be at least three reasons for this. First, the prime minister is by temperament a loner, with no friends and family, an entirely self-made man who has never really learnt to build relations of reciprocity. Second, he is an autodidact, entirely self-taught, who is suspicious of people with degrees from prestigious universities (hence his famous, or rather notorious, remark that he would always choose ‘hard work’ over ‘Harvard’). Third, he is a narcissist, whose world revolves largely — if not entirely — around himself. He is the BJP, he is the Government, he is the Union Cabinet, and he is India. There is no Team Modi — for there can only be a Brand Modi.

As an economic analyst who has advised many governments once told me, if anyone wishes to work with the current prime minister he or she has to observe this rule: ‘Total obsequiousness, no credit’. There is but one exception to this rule — the present home minister. When Modi was chief minister of Gujarat, Amit Shah at one time held as many as 12 portfolios (notably, though, without holding full cabinet rank). When Modi became the BJP’s prime ministerial candidate in 2013, he insisted that Shah take charge of the key state of Uttar Pradesh, and help with the overall campaign as well. After the general elections were won, Shah, with Modi’s blessings, became BJP party president, a post he held all through the government’s first term in office. After the prime minister’s re-election in May 2019, Shah joined the cabinet as home minister, while continuing to be party president. In the months since he has become visible and more prominent still — as in the ubiquitous coupling of his name with the prime minister as the Jugalbandi of Indian politics, and in his piloting of major legislation in Parliament.

In their years together in Gujarat, Amit Shah worked largely in the shadows of his Saheb. He was seen as someone who listened to His Master’s Voice and carried out His Master’s Orders. Between 2013 and 2019, Shah’s role was to win state and national elections for Modi and the BJP; by raising money, choosing candidates, designing electoral strategy, placing booths on the ground. Since May 2019, however, he is no longer Modi’s loyal apprentice, nor even Modi’s principal political strategist at election time. He is now his co-equal in government; indeed the driver of the most consequential policies of the government.

The policy decisions of Modi’s time in office that have caused the most damage to the country are demonetization and the passing of the Citizenship (Amendment) Act. The first was undertaken against the expert advice of a governor of the Reserve Bank of India; the second was pushed through by the home minister. The economy still hasn’t recovered from the abrupt and arbitrary withdrawal of high currency notes, while the CAA has sharply polarized Indian society within weeks of its passing through Parliament. Both decisions were taken, as it were, out of the blue; the situation or context did not remotely demand them. Anyone with a clear head about the country and its future should have understood this. The prime minister did not or could not.

Entrepreneurs and civil servants who have worked with Modi tell me that he sees himself as a Man of Destiny, as someone who will transform India in a more thoroughgoing manner than any previous prime minister. It may well be that — given our fractious and self-serving Opposition — Narendra Modi will win a third term as prime minister, and thus come to have as long a tenure in the post as Jawaharlal Nehru and Indira Gandhi once did. But already, a mere six months into his second term, one senses that his legacy will be even more mixed than theirs, more decisively titled towards the negative side of the balance sheet. He inherited a strong economy, and had a citizenry willing to take him at his word that he represented them all. With two electoral mandates behind him, Modi could have taken India to the next level; economically, politically, socially. Instead, he has blown it all away. Our economy is more fragile and vulnerable than it was in May 2014. Our society is more fearful and divided. Our institutions are more compromised and corroded.

If Narendra Modi will never be seen by future generations of Indians in the sort of shining light he had once hoped for, one reason, of course, is his inability to shake off his sectarian past. For all that smooth talk of being for Everyone and especially for Development, he has outed himself as being — in keeping with his RSS past and cast — merely a Hindutva majoritarian. But a second reason surely is the narcissism of his personality. Had the prime minister thought to take individuals of ability into his cabinet, had he thought to listen more attentively to expert advice in economics, law, science, defence, and foreign affairs, he would have been in a better place today. And so would India.

Four years after Rohith Vemula died, the public university is still riddled with crises old and new

Satish Deshpande
Public memory is notoriously short. Many may have already forgotten the name Rohith Vemula, the spontaneous surge of anguished emotion that it provoked across the nation and beyond, or the poignant clarity with which it illuminated the impasses of Indian higher education. The fourth anniversary of Rohith Vemula’s institutionally-enabled suicide may thus be an apt occasion to reflect on the sobering fact that, today, the critical injuries inflicted on our public universities are not those caused by lathis in uniform or iron rods in masks.

Three of these wounds are less visible but far more serious and long lasting in their effects. As his short life and moving last testament show, Rohith would have felt the pain of each one of them directly and acutely.

The first injury is the deliberate diminishing of the public university as an instrument of social justice. In a huge country like ours where enduring inequalities have deepened greatly in recent decades, public higher education seemed to offer the hope of rapid mobility at least to the top rungs of the have-nots. This became a real possibility only in this century, when a critical mass of college-eligible students from the underprivileged majority emerged for the first time in the history of our republic. Given the frantic pace at which enrolment in Indian higher education has expanded in the last two decades, it seemed that this hope was about to be converted into reality.

But as research from around the world on the recent “massification” of higher education now suggests, nowhere has this really happened. The proliferation of institutions came at the cost of highly uneven quality. The dominant groups managed to retain their disproportionate access to the better institutions, thus ensuring that higher education did not become an equalising force. For a brief while, it seemed that a strong reservation policy would enable India to evade the global trend, as the social composition of the student bodies in our elite institutions changed dramatically.

However, the combined effect of two countervailing forces seems to have postponed a positive outcome. The first is exactly what Rohith Vemula was struggling against — the subtle, informal ways in which dominant prejudices work to ensure that access in principle does not lead to inclusion in practice. The other force is the state itself, which is undoing with one hand what it is doing with the other. This is seen in the effective dilution of reservation policy as a tool of social justice by extending it to the economically backward, and in the recurrent efforts to reduce grants and raise fees. The latter policy seems particularly ill-considered because global evidence shows that, compared to the total expenditure, student fees form only a small proportion of revenues in a public university. This implies that attempts to reduce the consumer surplus accruing to affluent students do more harm than good.

The second and oldest of the grievous wounds suffered by our public universities is the crippling of their ability to promote free and rigorous thinking. It is easy to overlook the necessary relationship between the two. Rigour can only be attained through unrestrained criticism, and such criticism obviously requires freedom as its own precondition. Only when this basic need is met can students hope to soar “from the shadows to the stars”, as Rohith wrote.

The erosion of autonomy began well before the current regime. Much of it was ceded by academics rather than snatched by bureaucrats or politicians. There is an added irony in the fact that, over the past decade or so, the state has met (at least partially) the longstanding demand of academics for raising outlays on higher education, but has simultaneously taken over control of the academy.

Today this control extends far beyond the financial and statutory oversight legitimately expected of the state. The added twist provided by the current government is the overt and covert pressure that it is exerting on courses and syllabi in the social sciences and humanities to make them conform to its ideological expectations.

The third and most serious injury suffered by public universities is the newest and least visible. It is caused by the Modi regime’s ceaseless efforts to turn public opinion against universities, intellectuals, and more generally, against reasoned debate. This appears to be part of a wider global trend towards authoritarian right-wing regimes with a fondness for “alternative facts”. The Indian version is particularly potent and is helped by the jobs crisis which undermines utilitarian respect for higher education.

Criticism of the present risks making the past seem unduly rosy. Dark chapters in the history of higher education have been contributed by every political party, as the record of universities in our states amply demonstrates. Nor can it be denied that academics themselves have often played — and continue to play — stellar roles in these tragedies and farces. But even the accumulated disappointments of this tarnished past cannot match the depths to which the present regime has descended in denigrating every variety of rational, evidence-based debate.

Sometimes it seems nothing has changed in the four years since Rohith left us. Exactly the same tactics that were used against him and his comrades are being used today in several universities: Those opposed to the regime in power are first attacked and then indicted as the perpetrators. The whole drama is enacted by blatantly biased authorities and applauded by a viciously partisan media.

At other times, it seems that everything has changed. “My birth is my fatal accident”, wrote Rohith. His cry is echoed today by the many millions facing the prospect of endless punishment for the crime of having been born in one community rather than another.

“Never was a man treated as a mind”, Rohith also wrote, eerily echoing the present. As institutions devoted to the life of the mind, universities must somehow survive these times when a mind has become the most incriminating thing that a person can possess. It is only fitting that students are our best hope of survival for it is their minds that are at stake.

This article first appeared in the print edition of Indian Express on January 17, 2020 under the title ‘Where the mind is with fear’. The writer teaches sociology at Delhi University.

The targeting of university campuses is part of a campaign to discredit dissent

D. Raja
The last few years have seen people from all over the country join hands to protest the policies of the BJP government. Currently, people are out on the streets against the Citizenship (Amendment) Act and the brutal attack on JNU students and faculty. People are asserting their right to protest, resist and dissent, which are essential for the functioning of any democracy. However, the ruling dispensation, to gain support for their authoritarian rule, is running a sustained campaign, especially on social media, to discredit thinking minds and intellectuals. This campaign is nothing short from an assault on reason itself, a typical characteristic of fascism.

All fascist regimes target universities, since intellectuals have put up the greatest resistance against attacks on reason, freedom of expression and liberty. Since this government came to office, the budgetary allocation for education has been cut, there have been attempts to tamper with history and impose pseudo-science and hearsay in the curriculum. We have also seen university campuses being turned into battlegrounds for refusing to bow to the sinister designs of the BJP-RSS combine. What happened in JNU on January 5 is not an isolated incident. It was a deliberate attempt to weaken the anti-fee-hike movement. It was an attempt to intimidate the student community, not just of JNU, but of the entire country, and ward off their demand for quality and inexpensive public education.

Starting from the FTII, Pune and Ambedkar-Periyar Study Circle in Chennai, students have resisted the government’s attempts to impose its nefarious agenda. Whether it was the Occupy UGC movement or the protests after the institutional murder of Rohith Vemula, the attempt to malign JNU after the sedition row or the recent police atrocities on the students of Jamia and AMU, students have resisted shoulder-to-shoulder with intellectuals and activists.

This unity is a cause of worry for the RSS-BJP and therefore, they have tried their best to demean intellectuals and activists. This virulent campaign was started by the prime minister when he drew parallels between “hard-work” and “Harvard” to taunt Amartya Sen. Dissenters from JNU and other universities were dubbed anti-nationals. Many human rights’ activists were trolled for their justified criticism of police and army excesses. Nobel laureate Abhijit Banerjee was attacked on social media when he criticised the government’s economic policies. Union Minister Piyush Goyal dubbed him a “Leftist” as though being a Leftist is bad or unreasonable.

India has a long tradition of dialogue and debate, arguments and counterarguments. Tolerance for difference gave rise to this beautiful and diverse country. In modern times, intellectual leaders of varied hues such as Rammohun Roy, Vivekananda, Tilak, Gandhi, Nehru, Maulana Azad, Bhagat Singh, Ambedkar, Periyar, etc. produced a diversity of views and enabled India to become a plural and tolerant nation. This legacy is being challenged by the BJP-RSS. From Mussolini, Hitler and Franco to Narendra Modi and Amit Shah, this pattern of delegitimising thoughtful voices can be traced. These leaders made populist appeals to the youth based on demagoguery and emotion and downplayed reason and critical thinking. In Italy and Germany, they turned the youth into cadres of Blackshirts or Brownshirts. In India, the ruling regime is trying to turn the unemployed and frustrated sections into compliant robots or rancorous mobs. The government treats citizens as subjects who need to follow and obey its command.

During the infamous dictatorship of General Franco in Spain, the philosopher Miguel de Unamuno said: “It torments me to think that General Millan Astray might dictate the norms of the psychology of the masses”. Spanish General Millan Astray summed up the fascist argument on intellectuals and critical minds when he replied to Unamuno. The General said: “Death to intelligence! Long live death!” The reply of Unamuno is of special significance to us today in India. He said, “You will win, because you have enough brute force. But you will not convince. In order to convince it is necessary to persuade, and to persuade you will need something that you lack: Reason and right in the struggle.”

History shows that the Left cannot be intimidated. It will emerge as the hope for the people and future.

This article first appeared in the print edition on January 17, 2020 under the title ‘An assault on reason’. The writer is general secretary, CPI.

It is a huge mistake to dismiss the opposition to CAA as anti-national, anti-Hindu or anti-democratic

C Raj Kumar India is facing a significant challenge that will test its commitment to constitutionalism and democratic values. Parliament recently passed the Citizenship Amendment Act (CAA) that has raised important constitutional questions. However, what is at stake is more than just the constitutionality of the Act.

The CAA provides that migrants from certain communities will not be treated as “illegal migrants” for the purposes of the Passport Act and the Foreigners Act, if they meet four criteria: One, they came to India before December 31, 2014; two, the central government has exempted them from the Passports and Foreigners Acts; three, they are from Afghanistan, Bangladesh or Pakistan, and; four, they belong to any one of the six religious communities, Hindus, Sikhs, Christians, Parsis, Jains or Buddhists. As per the information of the government of India, only about 31,313 people fulfil the above four criteria and have stated, when they first entered India, that they had come to the country to escape religious persecution. Only these people will actually benefit from this law.

But the CAA might not pass constitutional scrutiny because of the following reasons. One, there is no intelligible differentia. The CAA identifies persons belonging to six religious communities and privileges them over other religions — especially Islam. This doesn’t qualify the test of reasonable classification and the law will not pass constitutional scrutiny, having specifically left out Muslims. It is an example of discrimination — the grant of citizenship on the basis of religion was rejected by the framers of the Constitution.

Two, the classification doesn’t have a rational relation to the object. The classification in the Act has been ostensibly done to provide the privilege of citizenship to those who have been affected by religious persecution. But both the selection of the countries and the inclusion of religions do not have a rational relationship with this objective. There is enough evidence to prove that there are people practising other religions, who suffer from religious persecution in these three countries as well as in other countries in South Asia. In fact, addressing the problem of religious persecution would have been a legitimate criterion for legislation — instead of using a particular religion or country of origin as the basis of granting citizenship.

Three, arbitrariness is antithetical to equality. Article 14 of the Constitution provides for “equality before law or equal protection of the laws within the territory of India”. The Supreme Court has emphasised the importance of non-arbitrariness to pass the test of equality. In this case, the selection of the countries, the identification of the religions and more importantly the selective exclusion of Muslims, is a clear violation of Article 14 . Numerous judgments of the Supreme Court have underscored this and the Court has been unequivocal in its commitment to the jurisprudential foundations of this principle. 

Four, the CAA violates the basic structure of the Constitution. An important doctrine of Indian constitutional law is that the basic structure of the Constitution is unamendable. The power of Parliament to amend any provision of the Constitution and to pass any legislation is plenary, provided the basic structure and framework of the Constitution is not altered. In short, no amendment to the Constitution can change India from being a Republic. Over the years, the Supreme Court has listed what it regards as part of the Constitution’s basic structure and framework, including its power of judicial review, federalism and secularism. The doctrine of unamendability of the Constitution’s basic structure has now entrenched fundamental values of constitutionalism by imposing limits on the sovereign power of Parliament. The CAA, by omitting Islam, violates the principle of secularism, which the Court has held is part of the basic structure of the Constitution.

While these are four good reasons for the CAA to be declared unconstitutional, there are other reasons as to why this was unnecessary and unwarranted. First, the CAA has undermined the concept of federalism. Given that the Act needs to be implemented by the state governments, and several chief ministers have expressed their disapproval, effectively implementing this law will be difficult. The Kerala legislative assembly has, in fact, passed a resolution to this effect.

Second, the CAA has affected the collective consciousness of the Indian identity. While, globally, identity politics is nothing new, India has steadfastly adhered to the values of pluralism. But the CAA, in its existing form, places religious identity over other identities for granting citizenship — that needs to be rejected.

Finally, the non-violent opposition to the Act is part of our democratic culture. Most of the protests and the opposition to the CAA have been non-violent, democratic, inclusive and pluralistic. The violence that has happened on account of the protests is unacceptable in any democratic society, committed to the rule of law. It is a huge mistake to dismiss the opposition to the Act as anti-national or anti-Hindu or anti-democratic.

The resistance across the country, particularly among the youth and the students across university campuses is motivated by a deep commitment to constitutionalism and democratic values. It has even been largely devoid of participation by political parties. In fact, non-violent protests are the most democratic form of political engagement and this demonstrates the fact that the youth of India are deeply committed to the fundamental values of constitutionalism and democratic governance.

So, what is the way forward? There is a strong case for the CAA to be declared unconstitutional by the Supreme Court. This outcome can be avoided, if Parliament revisits the Act and includes all religions and the beliefs of India’s tribal population who are animists and do not adhere to any of the major faiths in the country. Doing this will send the right message to all citizens across India, including some 200 million Muslims and some 104 million tribals, that it was never the intention of the government to discriminate against anyone on the basis of religion, faith or belief.

This article first appeared in the print edition on January 16, 2020 under the title ‘Don’t call them anti-national’. The writer is founding vice chancellor of O P Jindal Global University and founding dean of Jindal Global Law School.

Democracy: All for one

Prabhat Patnaik
The last few days have been a real eye-opener, not just for the Bharatiya Janata Party but even for its critics. The protests against the Citizenship (Amendment) Act have been so massive in scale and so spontaneous in character that they have taken everyone by surprise. True, they have had the support of several political parties, but neither these parties nor their front organizations nor even well-known non-party political activists have been instrumental in organizing them.

Students and youth have been in the forefront of these protests; and in that sense they constitute a continuation of student movements that have been going on for some time now in campuses around the country. But they are not confined to students alone. The demonstrators have belonged to all walks of life and all religions even though Muslims, especially young Muslim women, have been extremely active in this resistance, breaking the stasis that had for long characterized that community. Narendra Modi’s jibe about their being recognizable from their dress, suggesting that the resistance is merely a Muslim affair (even if it had been, one must ask: so what?), is not just crude; it represents a complete misreading.

The demonstrations have been in defence of the Constitution and the values upon which modern India has been founded, in particular the principle of equal rights for all. Indeed this has been its most exhilarating feature, the fact that the students and youth of the country have risen in such large numbers to defend the foundational values of modern India against the Hindutva onslaught. With such commitment on their part,one feels assured that the future of the nation is safe, no matter what its current travails.

This upsurge is particularly important at present. The Narendra Modi government had hollowed out, one by one, all the pillars of democracy over the last five years, and mass intervention remained the last bulwark against a fascistic imposition of authoritarianism; this intervention has now occurred. Having got a majority in the Lok Sabha and hence obtained access to State power, it had unashamedly used this power to enfeeble every single pillar of democracy. It had acquired control over the Rajya Sabha where it did not have a majority through a combination of stick-and-carrot methods. Unleashing the Central Bureau of Investigation, income tax authorities and the Enforcement Directorate against regional party leaders helped it get their support on crucial bills. There was also the offer of Central funds to cash-strapped states run by regional parties for their legislative support; and, as a last resort, there was the threat of destabilizing their governments by purchasing their MLAs. All these measures ensured its complete control over both Houses of the Central legislature.

Similar methods were reportedly used against the judiciary to browbeat it if not into submission, then at least into being accommodative towards the executive. And the bulk of the media, often called the fourth pillar of democracy, not only fell in line but even became, for all practical purposes, the torch-bearers of Hindutva because of the threat inter alia of being cut off from government advertisements; the few intrepid souls in the media who dared to speak the truth were harassed no end.

Having got virtually complete control over the State in this manner, and having used the UAPA, sedition laws and other such repressive laws against individual activists to imprison or terrorize them, the Modi government thought it was sitting pretty; it was confident that it could now embark with impunity on its project of undermining the Constitution in the interests of Hindutva.

The abrogation of Article 370 and the bifurcation of that state into two Union territories was a ‘dress rehearsal’. The fact that the move hardly raised much opposition in the rest of India despite the entire political leadership of that state being put behind bars and the people being put to extreme hardship, including being kept incommunicado, confirmed the government’s belief in its own invulnerability no matter what it did. It became emboldened to legislate the CAA, which was a key step in the journey towards a Hindu rashtra. The mass resistance this move has generated, therefore, has come as a bolt from the blue for the government.

It has beaten a temporary retreat, claiming that it had never mooted the National Register of Citizens, and that the National Population Register has nothing to do with the NRC. Both these are false claims; but the fact that it is making these claims shows its temporary retreat on the NRC. Indeed, several state governments, including those of parties that had voted for the CAA, have also pledged themselves against it.

This retreat, however, is only temporary: the BJP’s world-view does not admit making enduring concessions to the popular mood. It has now embarked upon the task of discrediting, and thereby forcibly preventing, mass demonstrations of the sort we have seen of late. This would, it feels, remove the last bulwark against its march towards a Hindu rashtra.

The argument, echoed even by General Bipin Rawat who had no business to do so, is not just that such demonstrations have caused much damage to property, but that the demonstrators are generally mischief-mongers, or that mischief-mongering is part and parcel of such demonstrations, from which it follows that these demonstrations must be curbed by the police, through brutal means if necessary. The brutality at Jamia is sought to be justified by the government on the grounds that a bus was torched by demonstrators, even though the torching happened a kilometre away from Jamia and no student was involved in the incident. The brutality at AMU is sought to be justified on the grounds that hooligans had entered the campus. The logic is: if damage to property is to be curbed, then such demonstrations must be curbed through police brutality. The people, in short, must not be allowed to express their dissent even collectively.

Apart from the element of reification it involves, namely that the people’s freedom must be made subservient to the task of preserving property, this argument is also reminiscent of colonial times, of the logic that the colonial rulers had used against the anti-colonial struggle. Any mass demonstration can be infiltrated by agents provocateurs planted by the police itself whose subversive acts would then be used to unleash police brutality, which would then, it is hoped, discourage participation in such demonstrations. The BJP state governments have been working on this plan. It is not surprising that deaths through police action have all occurred in BJP-ruled states. It is also not surprising that Delhi, whose police is controlled by the Centre, saw horrible brutality against Jamia’s students. The students and the youth of the country, however, have shown that they cannot be cowed down so easily.

The recent developments bring out two important points about democracy. First, democracy requires not just decision-making on the majority rule, not just “government by discussion” (as Amartya Sen, quoting Walter Bagehot, reminds us), not just a set of universal and justiciable political and social rights; it requires all these, but above all it requires collective action for its defence. Second, individual rights can be enjoyed only through collective action. The collective alone can be the means of ensuring the individual’s freedom.

Supreme Court has not acted with urgency to protect citizens from executive excesses

Dushyant Dave
The Supreme Court of India enjoys an extraordinary status in the hearts and minds of Indians. They look up to it when it comes to keeping the essence of the nation intact and insulated from attacks by the executive of the day. The Court has created for itself an exalted position over the last seven decades by assuming the role of a sentinel on the Qui Vive (“on the alert” or “vigilant”).

Part III of the Constitution of India contains Fundamental Rights and Article 13(2) thereof mandates that, “The State shall not make any Law which takes away or abridges the rights conferred by this part and any Law made in contravention of this Clause shall to the extent of contravention be void.” Thus, there is a twofold provision — prohibiting the state from making an unconstitutional law, and simultaneously declaring that such a law would be void. Article 14 contains a positive injunction against the state: “The State shall not deny to any person equality before the Law or the Equal Protection of the Laws within the territory of India”.

Affirmative action on the part of the state in favour of disadvantaged sections of society is within the framework of liberal democracy. Socio-economic justice is part of the equality clause. Equal protection also means right to equal treatment of citizens: This is the essence of Article 14, a basic feature of the Constitution, which obliges the courts, especially the Supreme Court, to review state-made laws and declare them as unconstitutional, if found to be so. The Court cannot desert its duty to determine the constitutionality of an impugned statute. And so, the decision of the SC, led by the chief justice himself, to defer the examination of the challenge to the much talked about Citizenship (Amendment) Act, 2019 is, to say the least, disappointing.

The Court should have put aside other matters and heard the group of writ petitions challenging the validity of this ex-facie unjust law. Its vacation is hardly an excuse to defer such a challenge. Even if the judges wanted to enjoy their much deserved winter vacation, their refusal to stay the law is even more disturbing. Such an order would have immediately defused the tempers running high across the nation, and, “We, the People” could have breathed a sigh of relief. Instead, the judges have left us to fend for ourselves in the streets of our cities. The cost of this decision by the Court will only become clear with time.

The granting of a stay order against the operation of this citizenship law would not have caused any prejudice to public interest whatsoever. On the contrary, it is my belief, that it would have served the public interest well. It is true, there is, generally, a presumption in favour of constitutionality of law. But that is not an absolute rule. If the Act ex-facie violates the fundamental rights of citizens, a mere presumption which decides the burden cannot serve that law.

The Delhi High Court’s order to defer the writs in the Jamia violence cases is a shocking abdication of its constitutional duty. It appears that judges across the spectrum are unwilling to test the executive’s actions, however unconstitutional they may be.

We must beware that the popular saying, “Nero fiddled while Rome burned”, does not come true for this great nation. The Supreme Court, in recent years, has shown its leanings in favour of the executive. In a series of decisions, the Court has, surprisingly, justified many of the state’s actions, which either needed a deeper probe or simply to be declared unlawful. In fact, the Court is almost proving that it stays in ivory towers. After the appointment of the current chief justice, those of us who admire the Court had expected a departure from such a course.

One can only hope that the Court introspects and intervenes forthwith to stop any bloodshed in the country, and assuage the sentiments of a large section of the society, which feels they are no longer wanted.

The Preamble is an irreversible contract between the state and its people to keep India a “Sovereign, Socialist, Secular, Democratic Republic”, and, “to secure to all its citizens” justice, equality, fraternity and liberty of thought, expression, belief, faith and worship.

The great judge, H R Khanna, in the celebrated Kesavananda Bharati case declared that the “State shall not discriminate against any citizen on the ground of religion only”, and, interpreted Articles 15(1) and 16(2), even before the “secular” word was added to the Preamble.

All citizens, including judges, must remember the words of B R Ambedkar: “It is quite possible for this new born democracy to retain its form but give place to dictatorship in fact. If there is a landslide, the danger of the second possibility becoming actuality is much greater.” These words appear too relevant today. Will the judiciary’s conscience awaken soon?

Discrimination, not justice: Hope this generation does a better job of navigating the struggle than the one that came before

Pratap Bhanu Mehta
India is in the midst of, arguably, the largest student protest since the Emergency. The ground of protest is clear: India cannot be a Republic founded on discrimination and a pervasive sense of fear. It cannot exclude or target anyone simply on the basis of their identity. It is hard to predict the shape of any movement. We left the current generation of students a tattered constitutional legacy, weak institutions, an uncertain economic future, a poisonous public discourse and a corrosive politics. We left them insecure and weak leaders or those whose divisive passions are their only policy. So this movement will have to find its own vocabulary, leadership and strategy for moral and institutional regeneration. But here are some possible challenges to ponder, based on past experience, especially of the Emergency.

In some ways, the fight during the Emergency was simple. It was a fight for the restoration of democracy against authoritarianism, joined by all kinds of forces. At this fraught moment there are two battles. There is a battle against state authoritarianism, its attempts to exercise pervasive control. But there is also the battle against communalism, the attempt to divide society and unleash passions that relegate minorities to second class citizens. They are two sides of the same coin — the government is fomenting both processes. But in society, the two can work at cross purposes. The BJP has a slew of proposed bills, from anti-conversion laws, to a common civil code to population control. Each one of them will, like the CAA, wear the garb of secularism; each one will, in its content, likely smuggle in majoritarianism by disguise. These will pose both tactical and moral challenges.
 

The tactical challenge will be that they will once again consolidate majoritarian identities, produce that fog of silence in which the CAA will be excused. The moral challenge will be to find a vocabulary and positions that nudge secularism towards freedom and equality for all individuals rather than one that pits minority and majority identities in competition with each other, as our politics often did. The communal axis will be used to divide society so that it cannot unite against the authoritarian state. So, the fight over CAA cannot be won without ensuring these issues do not divide us.

The state has advantages in this fight. It has the power of repression. No violence can make a dent in it. Even in the moments of revolution, states usually first implode from the top. But the state is often in a “heads we win, tails you lose” position. It first discriminates and exercises arbitrary power. If it works, it gets away with it. But when there is protest, it uses that as a pretext to repress even more. It will use the fear of disorder to consolidate support behind it. In the case of minorities, it applies this Catch 22 logic even more: It targets them based on their identity. When they protest, it uses that to furnish proof of their perfidy. 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.

This is a difficult challenge. Once tyranny provokes, it can provoke both reactions together — the potentially morally regenerative resistance of the students; but also of forces that will use this moment for their fantasies of disorder. The roots of lurking violence in our society are complex: A toxic combination of disenfranchisement, lack of hope and sheer prejudice is building up in various parts of India. A successful movement will have to ensure that the exemplary power of what the students stand for is not overshadowed by the risky collateral that always accompanies large-scale movements. This is a battle at the level of the conduct of the movement. Its exemplariness will be its greatest power. But it is also at the level of the information terrain on which modern social movements are fought.

During the Seventies, in the backdrop of economic stagnation, there was still a readymade architecture of other social movements that could join in. The labour movement, for example, was very much in the backdrop of resistance to the state. Such social movements are harder to create. So, students will have to find different means to ensure that they are not isolated. This time, it is also dealing with a genuine authoritarian and communal counter movement in the form of the RSS that can mobilise cadres and information.

The communal and institutional fissures that we are dealing with run within our families, often even within us. The streets would not have become necessary if the normal institutional channels of upholding principles had not failed so miserably. Our institutions failed not just because of political forces, but because, few exceptions apart, so many of teachers, university leaders, Supreme Court judges, policemen, bureaucrats, journalists, corporate leaders, etc. often let us down on basic institutional principles. These are the small capillaries that hold any order together. But the people in these institutions, especially amongst the middle classes, are our most intimate acquaintances, whose social esteem is tied to the position they hold not to the principles they espouse. Even as civic movements are built, it is important to remember that the reproduction of prejudice, or the norm that is comfortable with lack of institutional morality, is nurtured in these more intimate spaces, and will have to be dealt with there.

While we focus on the government, it is also important to focus on the Opposition, for one practical reason. They control a significant number of states. Immediately, the movement will need more and more state governments to resolutely stand by a pledge not to implement the NRC, with which the CAA is allied, overtly or covertly. Their resolve will have to be strengthened.

Violence will not help any cause. But when the state discriminates and calls it justice, when it stokes fear and calls it citizenship, and when it exercises control and calls its freedom, when it confuses prejudice with policy, it sets the seeds for disorder. There are risks inherent in any social movement. But the risk of giving the state a free pass are higher. Given the complex conflicts that have been unleashed, no one can be complacent about India’s prospects. Let us hope this generation does a better job of navigating this struggle better than ours did, with more imagination, morality and grit. It will have to fight communalism and authoritarianism, even as it isolates the real sources of disorder both outside, but especially inside the state.

History against sectarianism

Ramachandra Guha
In December 1947, the annual Indian History Congress was held in Bombay. The president-elect that year was Professor Mohammad Habib of the Aligarh Muslim University, a historian of early medieval India, known especially for his studies of the Delhi Sultanate. From the late 1930s, many students and faculty at AMU had been active supporters of M.A. Jinnah and his Pakistan movement. Mohammad Habib was not one of them. He was resolutely committed to an inclusive Indian nationalism, whereby citizenship was to be defined by shared values rather than by common religious beliefs. He idolized Gandhi; as did his wife, Sohaila, whose father, Abbas Tyabji, had worked closely with the Mahatma.
In December 1947, India was a land at war with itself. A wave of intense communal rioting had both preceded and followed Independence and Partition. Professor Habib’s friends and family urged him not to take the long train journey from Aligarh to Bombay. They worried that he might be identified by his religion, and attacked. The patriot disregarded them, and delivered a presidential address whose words and warnings resonate 72 years later.
Mohammad Habib began his speech at the History Congress by praising Gandhi, whom he called “the greatest Indian teacher of all times”, under “[whose] divinely inspired guidance” his compatriots had “liquidated peacefully and by mutual agreement one of the most powerful empires the world has seen”. He then turned to the fact of Partition and what had led to it. He himself thought that the prime cause was the British creation of communal electorates, “a hideous arrangement no western democracy would have tolerated for a moment”. After Muslims were asked to vote separately, argued Habib, “differences of religion, inevitable in a large country like ours, were thus fused into two opposite political groups, and their increasing hostility was inevitable as with each succeeding election, and an expanding body of voters, all representatives were required to appeal exclusively to masses of their own denomination.” An inevitable (and noxious) consequence of communal electorates was that “the minority would lean more and more on the foreign power, and try to prove worthy of its support by sabotaging the national movement.”

Pakistan had been created as a homeland for Muslims. However, many Muslims had voted to stay behind in India. To those who questioned their commitment, Mohammad Habib answered that “the overwhelming mass of the Muslims of this land have an undoubted Indian paternity. It is true that there are innumerable Muslim families in India who claim a foreign origin, but this affiliation is purely fictitious.”
Habib warned Indian Muslims against nostalgia for the medieval past, when the rulers were of their faith. As he remarked: “The position of the Indian Musalmans in the middle ages was, if a very rough simile be allowed, not unlike Indian Christians during the British period.” Ruler and ruled might worship the same god; but in everything else they were separate and different. Habib further remarked: “In days when we were suffering from an inferiority complex owing to the brutal fact of a foreign government, which seemed unshakable, we made the best we could of our medieval Rajput Rajas and Turkish Sultans. That attitude is no longer necessary; and the plain truth has to be told that all our medieval governments were intensely exclusive aristocratic organisations... War and politics were games which only the well-born were allowed to play. The governments were in no sense governments of the people. An analysis of the officers of the Moghul and the pre-Moghul governments of Delhi will reveal the plain and sad fact that Muslims of Indian birth were rigidly excluded from the higher military and civil offices of the state. An Indian Muslim had as little chance of becoming a warlord of the Empire of Delhi as a Hindu Sudra had of ascending a Rajasthan throne.”
These warnings are still relevant, except that they apply to Hindus rather than Muslims. Indeed, Hindutva, the philosophy that animates our ruling regime, is entirely based on an inferiority complex. Hence its glorification of Hindu rulers such as Chandragupta and Shivaji, disregarding the fact that their regimes practised gender and caste discrimination absolutely at odds with what a modern, democratic republic should countenance.
As a thoroughgoing democrat himself, Mohammad Habib deplored the fact that, in the India of December 1947, “the hold of the ‘community’ over the individual is as complete today as it was in the middle ages.” Thus, “[s]ocial conventions and social prejudices, stronger than they have ever been in the past, strengthen the slavery of the individual. He is completely at the mercy of the community and its leaders in every sphere, including even the sacred sphere of his personal and domestic life.”
In India, the religious community defined and controlled the individual when he or she was alive, and when he or she died. Thus, as Mohammad Habib remarked: “It is impossible even now to be an Indian without being a member of an Indian community. There is, I believe, at present no graveyard in the land to which an Indian could lay claim merely on the basis of his Indian citizenship, and admission to every one of them lies through some community rite.”
To elevate the individual over the community, argued Professor Habib in 1947, “is the real challenge of the hour”. As he put it: “The present-day ‘communalist’ is a creature of tradition, a tradition so vitiated as to be next door to barbarism. The future ‘citizen’ will be a creation of laws consciously planned for the public good.” Habib accepted that “[d]ifferences of religion there are and will be; in this there is no harm.” However, he was emphatic that a central task of the Republic taking shape was to create “one State, one Law and one National Community for the whole land”. Mohammad Habib would certainly have been in favour of a common civil code for all citizens; elsewhere in the lecture, he lamented the fact that “the Indian citizen has neither a law of marriage nor a law of inheritance.”
In the last part of his lecture, Mohammad Habib turned to his own profession, the writing of history. He notes, accurately, that most Indian historians were from an elite background (they still are), and “this fact has inevitably coloured their vision”. Thus, while “[m]odern works on Indian history do not show any antipathy to the peasants and the working classes,” at the same time, “their attitude to the higher classes has been one of uncritical adulation.”
Because of this focus on the ruling classes, said Professor Habib, “[t]he lot of the Indian worker and everything connected with it — his wages, the prices of commodities necessary for the maintenance of his family, the struggles of his life, his joys, his sufferings and his hopes — all these are a virgin field for the historical investigator.” In asking for closer attention to the lives of workers and peasants, Mohammad Habib anticipated what became known as Subaltern Studies. Notably, even here he warned against dogmatism. Thus, while advocating a history from below, he observed: “I do not wish to postulate the theory of class-conflicts, nor am I unaware of how difficult the application of this [Marxian] theory becomes when, regardless of the fact that it is based on the experience of Europe during the modern machine age, it is applied to all countries and all times.”

I first read Professor Mohammad Habib’s lecture some 25 years ago, when, on the shelf of a university library, I came across the printed proceedings of the Indian History Congress of 1947. I came across an online text recently, and read it again, to be struck afresh by its sagacity and wisdom. The quotes offered above demonstrate this adequately, I think, but let me nonetheless offer some last examples. Back in December 1947, Professor Habib argued that while the State could fund historical research, it “should not interfere in the question of interpretation”. A free India, he said, “implies a free history of India in which every point of view has a right to be heard. Free and untrammelled discussion will lead us to the truth; and there is no other way of reaching it.”
Professor Mohammad Habib urged politicians to stay away from controlling or monitoring how the past was presented or re-presented. As he remarked: “A state-dominated interpretation of history is one of the most effective means of sabotaging democracy.” This was extraordinarily prescient, anticipating what Indira Gandhi sought to do with history and historians in the 1970s, and what Narendra Modi seeks to do with history and historians today.

Proposed citizenship law is immoral, will unleash a legally-sanctioned regime of discrimination

Gautam Bhatia

On December 4, the Union cabinet cleared the Citizenship Amendment Bill (2019), paving the way for its introduction in Parliament. Ostensibly, the CAB is a legislation designed to protect persecuted minorities. It stipulates that “Hindus, Sikhs, Buddhists, Jains, Parsis and Christians” from “Afghanistan, Bangladesh and Pakistan” shall not be treated as illegal immigrants. Individuals belonging to these categories are also granted a fast track to citizenship by naturalisation (after a period of six years).

The CAB’s stated objective — to give shelter and protection to persecuted minorities — is laudable. The text of the Bill, however, not only undermines that objective, but also rends the plural fabric of the Indian Constitution. In its careful listing of protected communities, it explicitly — and intentionally — leaves out Muslims. The message it sends, thus, is one of discrimination, exclusion and second-class citizenship based on religion.

What justifications may be advanced for the CAB in its present form? The first is that Pakistan, Bangladesh and Afghanistan are Muslim-majority countries where Muslims, by definition, cannot be persecuted. This is false. The Ahmadiyya community in Pakistan has been subjected to sustained discrimination and violence. Religious communities — and nations — are not monoliths, and frequently persecute those who are ostensibly their own. And so, if the CAB is motivated by considerations of protecting the vulnerable, then what matters is not the religion of those who are persecuted but their humanity.

Furthermore, there is no explanation for why the CAB has picked out Pakistan, Bangladesh, and Afghanistan — and only those countries. If the criterion is undivided, pre-Partition India (as the CAB’s Statement of Objects and Reasons mentions), then Afghanistan ought not to have been a part of the list. If, on the other hand, the criterion is neighbouring nations, then there are a host of countries surrounding India that have visited terrible violence upon minorities. The Rohingya Muslims of Myanmar have been subjected to ethnic cleansing and genocide. Sri Lankan Tamils have suffered systematic discrimination and state-sponsored persecution. It is suggested in the CAB’s Statement of Objects and Reasons that Afghanistan, Pakistan, and Bangladesh have an official state religion (Islam). But so does Sri Lanka (Buddhism).

When viewed objectively, therefore, it is abundantly clear that the CAB has been designed in a manner that specifically excludes Muslim refugees from the possibility of amnesty and citizenship, for no reason other than their religion. To start with, this is morally indefensible, and a betrayal of the egalitarian and pluralistic values that guided our freedom struggle and the founding of our Republic. It is also unconstitutional. Article 14 of the Indian Constitution guarantees to all persons equality before the law, and the equal protection of laws.

As the Indian courts have often held, Article 14 prohibits the state from engaging in irrational classification of persons, from arbitrary action, and from treating people unequally for no legitimate reason. The CAB manages to violate each of these three principles. Its exclusion of Muslims from the list of protected communities in Pakistan, Afghanistan, and Bangladesh — in the teeth of the documented persecution of the Ahmadiyyas — is an irrational classification if the goal is to protect persecuted minorities. The restriction of the CAB to just these three countries is entirely arbitrary, as there is no underlying principle that connects them. And the design of the CAB — that first selects Muslim-majority countries and then offers amnesty only to religious minorities within those countries — creates religion-based distinction between those entitled to protection, and those excluded from it. This is an affront to the secular foundations of the Indian Republic, and therefore, an illegitimate legislative purpose.

There are two further factors that exacerbate the immorality of the situation. In response to widespread protests from the North-eastern states the last time the Bill was introduced, the CAB’s new iteration now exempts the amendment from applying to the “tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule of the Constitution.” This is an entirely unprincipled manoeuvre. The purpose of the Sixth Schedule of the Constitution was — and is — to protect the distinct culture and way of life of India’s indigenous populations. It has nothing to do with separate citizenship regimes. In order to secure smooth passage, therefore, the Union cabinet appears to have tacked on a purely political exemption to an already unconstitutional legal regime. This is the very definition of arbitrary state action.

Secondly, the CAB cannot be viewed in isolation from the proposed National Register of Indian Citizens (NRIC). The home minister has repeatedly vowed that the NRIC will be implemented shortly, in order to identify and remove “infiltrators” from the country. This follows upon the heels of the hugely expensive and disastrously-managed NRC process in Assam, that ended with the exclusion of 19 lakh individuals who now face the prospect of statelessness. The NRC process saw widespread panic, fear, and suffering — especially among the poor and marginalised — as it imposed onerous documentary requirements upon people. The NRIC will replicate this suffering on a national scale, but when it is combined with the CAB, it becomes clear that that suffering will be specifically visited upon India’s Muslims, who will be facing the brunt of the NRIC without the prospective shield of the CAB (a shield that will be available to all other communities).

Together, the NRIC and the CAB constitute a pincer movement against India’s Muslims. Their combined effect is to deny to Muslims equal moral membership in the polity. In the history of the 20th century, such legally-sanctioned regimes of discrimination have been seen before: In fascist states, the epitomes of morally and ethically bankrupt regimes.

The CAB, therefore, must be strongly opposed. It must be opposed by all those who continue to believe in a plural, egalitarian, and democratic India, where religion is not a brand that can condemn individuals to perpetual second-class citizenship. And it must be opposed in the courts, as a flagrant violation of equality and the rule of law. It is only principled opposition that can reclaim from naked power politics the fundamental values that animated India’s freedom struggle, and that lie at the heart of the Indian project of secular and democratic republicanism.

Bhatia is a lawyer and author of Offend, Shock or Disturb: Free Speech Under the Indian Constitution.

ശബരിമല: സ്ത്രീകളുടെ ശുദ്ധിയിൽ സംശയംതീരാതെ

പ്രമോദ് പുഴങ്കര...

Read more at: https://www.madhyamam.com/opinion/open-forum/sabarimala-women-entry-supreme-court-malayalam-article/649211

 പ്രമോദ് പുഴങ്കര
ഒരു ആധുനികസമൂഹമെന്ന നിലയിൽ മുന്നോട്ടു നടക്കാനുള്ള ഇച്ഛാശക്തി ഈ രാജ്യത്ത്​ നിലനിർത്താൻ ഭരണഘടന വ്യാഖ്യാനങ്ങൾക്ക്​ ചരിത്രപരമായ ചുമതലയുണ്ടെന്ന്​ അംഗീകരിക്കുന്നതായിരുന്നു ശബരിമലയിലെ യുവതീപ്രവേശന വിലക്ക്​ ഇല്ലാതാക്കിയ സുപ്രീംകോടതിവിധി. ആ ചരിത്രപരമായ തീരുമാനത്തിലൂടെ മുന്നോട്ടു നടക്കുന്നതിനുപകരം അറച്ചുനിൽക്കുകയാണ്​ സുപ്രീംകോടതി പുനഃപരിശോധനഹരജികളിൽ നൽകിയ വിധിയിൽ. ഏതു ആചാരാനുഷ്ഠാനങ്ങളായാലും ഭരണഘടന പൗരന്​ നൽകുന്ന അവകാശങ്ങളെ മറികടക്കാനോ വിലക്കാനോ അവക്ക്​ കഴിയില്ല എന്ന പ്രഖ്യാപനമായിരുന്നു ആ വിധി. സ്ത്രീകളെ അവരുടെ ശാരീരിക സവിശേഷതകളുടെ പേരിൽ തരംതാഴ്ത്തിക്കാണാനോ മറ്റുള്ളവർക്ക്​ ലഭ്യമായ അവകാശങ്ങൾ അനുഭവിക്കുന്നതിൽനിന്നു തടയാനോ ആകില്ലെന്നും അന്ന്​ കോടതി വ്യക്തമാക്കി. ആർത്തവത്തി​​െൻറ പേരിലുള്ള അശുദ്ധി കൽപിക്കൽ തൊട്ടുകൂടായ്മയിൽ കുറഞ്ഞൊന്നുമല്ല എന്നു പറഞ്ഞതോടെ ജാതിക്കപ്പുറവും ഉടലെടുക്കുകയും നിലനിൽക്കുകയും ചെയ്യുന്ന തൊട്ടുകൂടായ്മയുടെയും സ്ത്രീവിരുദ്ധതയുടെയും പിന്തിരിപ്പൻ സാമൂഹികക്രമത്തിനെയാണ്​ അന്ന്​ സുപ്രീംകോടതി ആക്രമിച്ചത്.
എന്നാൽ, പുനഃപരിശോധന ഹരജികളിലെ വിധിയിൽ, അഞ്ചംഗ​ െബഞ്ച്​ തീർപ്പുകൽപിച്ച വിഷയങ്ങളെയെല്ലാം വീണ്ടും പരിശോധിക്കേണ്ടതുണ്ടെന്ന നിലപാടെടുത്തതോടെ ഒരു തരത്തിൽ ഒരു അട്ടിമറിയാണ്​ നടന്നിരിക്കുന്നത്. വിശ്വാസപ്രശ്നങ്ങളിൽ കോടതികൾക്ക്​ എത്രത്തോളം ഇടപെടാനാകും എന്ന കാര്യത്തിൽ ശബരിമല വിധിയിൽ സംശയമൊന്നുമുണ്ടായിരുന്നില്ല. ഏതു വിശ്വാസവും  പ്രായോഗികരൂപത്തിലേക്കും സാമൂഹികവ്യവഹാരങ്ങളിലേക്കും വരുമ്പോൾ അതായത്,​ വിശ്വാസം അതി​​െൻറ അമൂർത്തമായ വൈയക്തികമണ്ഡലം വിട്ട്​ ഒരു സാമൂഹിക ഭൗതികപ്രവർത്തനമണ്ഡലത്തിലേക്ക്​ എത്തുമ്പോൾ അതിനു രാജ്യത്തെ ഭരണഘടനയെ മറികടക്കാനാവില്ല എന്നായിരുന്നു ശബരിമല വിധിയുടെ അന്തസ്സത്ത. ഇതാണ്​ വീണ്ടും പരിശോധിക്കേണ്ടതാ​െണന്ന്​ ഭൂരിപക്ഷവിധിയിലൂടെ സുപ്രീംകോടതി പറയുന്നത്. തെറ്റായ കീഴ്വഴക്കങ്ങളും ഒത്തുതീർപ്പുകളുമാണ്​ കോടതി ഇതിലൂടെ നടത്തിയിരിക്കുന്നത്. അഞ്ചംഗ ​െബഞ്ചി​​െൻറ വിധി പുനഃപരിശോധനക്കായി വരുമ്പോൾ, പുനഃപരിശോധ ഹരജികളിൽ തീർപ്പുകൽപിക്കുന്നതിനുള്ള നടപടിക്രമങ്ങളും രീതികളും അനുസരിച്ചാണ്​ അതു ​ചെയ്യേണ്ടിയിരുന്നത്. ശബരിമല വിധിയെ അസാധുവാക്കുന്ന പ്രത്യക്ഷമായ കുഴപ്പങ്ങൾ അതിലുണ്ടോ എന്നത്​ മാത്രമാണ്​ കോടതി പരിശോധിക്കേണ്ടിയിരുന്നത്. അതിനുപകരം പുനഃപരിശോധന ഹരജിയെ ഒരു പുതിയ ഹരജിപോലെ പരിഗണിക്കുകയാണ്​​ ഭൂരിപക്ഷവിധിയിൽ ചെയ്യുന്നത്. 
ശബരിമല വിധിയിൽ എന്തെങ്കിലും ഭരണഘടനാപരമായ വ്യാഖ്യാനപ്പിശകുകളുണ്ടോ എന്നത്​ മറ്റു കേസുകൾ പരിഗണിക്കുന്ന വേളയിൽ മറ്റൊരു വിശാല െബഞ്ചിനു തീർപ്പുകൽപിക്കുകയും അങ്ങനെ വിധി അസാധുവാക്കുകയും ചെയ്യാം. എന്നാൽ, അത്​ മറ്റു കേസുകൾ വിധിതീർപ്പിനു വരുന്ന ഘട്ടത്തിലായിരിക്കണം. ശബരിമല വിധിയുടെ പുനഃപരിശോധന ഹരജി സുപ്രീംകോടതിയിൽ അത്തരമൊരു നിയമപരമായ ചുമതല ഏൽപിക്കുന്നില്ല.
മുസ്​ലിം, പാഴ്സി, ദാവൂദിബോറ വിഭാഗത്തിലെ സ്ത്രീകളുടെ വിവിധ ഹരജികളെല്ലാം ഇത്തരത്തിലൊരു വിശാല​െബഞ്ചി​​െൻറ തീർപ്പിനു വിധേയമാക്കിയ സുപ്രീംകോടതി ശബരിമല വിധിയുടെ പുനഃപരിശോധനയുമായി അതിനെ കൂട്ടിക്കെട്ടിയത്​ തീർത്തും അനാവശ്യമാണ്. മതന്യൂനപക്ഷങ്ങളിൽപ്പെട്ട സ്ത്രീകളുടെ വിഷയങ്ങൾ പരിഗണനക്ക്​ വരുമ്പോൾ ശബരിമലവിധിയടക്കം പരിഗണിച്ചു വിധിപറയാൻ ഒരു തടസ്സവുമില്ലാതിരിക്കെ പൊതുസമൂഹത്തിൽനിന്നു ഹിന്ദു യാഥാസ്ഥിതികരും ഹിന്ദുത്വരാഷ്​ട്രീയവും​ നേരിടുന്ന പൗരാവകാശങ്ങൾ സംബന്ധിച്ച എതിർപ്പുകളെ വഴിതിരിച്ചു വിടുന്നതിനുള്ള ഒരു രാഷ്​ട്രീയ അടവിനോട്​ ചേർന്നുപോകുന്നു ഈ ഭൂരിപക്ഷവിധി. 
വിശാല​െബഞ്ച്​ പരിഗണിക്കണം എന്ന്​ ഭൂരിപക്ഷ വിധിയിൽ പറയുന്ന കാര്യങ്ങളിലൊന്ന്​ ഭരണഘടന ധാർമികത സംബന്ധിച്ചാണ്. ഒരു മതേതര ജനാധിപത്യ ഭരണഘടന നിലനിൽക്കുന്ന രാജ്യത്ത്​ ധാർമികതയുടെ നിയമപരമായ വ്യാഖ്യാനത്തിലും പ്രയോഗത്തിലും അതിനു ഭരണഘടനാപരമായ ധാർമികതയെ മാത്രമേ ഉയർത്തിപ്പിടിക്കാനാകൂ. ദലിതരും മതന്യൂനപക്ഷങ്ങളും സ്ത്രീകളുമെല്ലാമടങ്ങുന്ന ഒരു വലിയ വിഭാഗം ജനതയെ നൂറ്റാണ്ടുകളായി അടിച്ചമർത്തിക്കൊണ്ടിരിക്കുന്നത്​ ധാർമികതയുടെ മതവ്യാഖ്യാനങ്ങൾ വെച്ചുകൊണ്ടാണ്. രാജ്യത്ത്​ നിലവിലുള്ള രാഷ്​ട്രീയസാഹചര്യമാകട്ടെ, ഹിന്ദുത്വരാഷ്​ട്രീയം സൃഷ്​ടിക്കുന്ന അത്തരം പിന്തിരിപ്പൻ ആഖ്യാനങ്ങളിലൂടെ കടന്നുപോവുന്നു. അത്തരമൊരു ഘട്ടത്തിൽ ഭരണഘടനക്ക്​ അപ്പുറമുള്ള ധാർമികത വ്യാഖ്യാനങ്ങൾക്ക്​ പൗരാവകാശങ്ങളെ നിയന്ത്രിക്കാനാകുന്ന ശക്തിയുണ്ടെന്ന തരത്തിലേക്ക്​​ കാര്യങ്ങൾ പോകാതിരിക്കേണ്ടതുണ്ട്.
ശബരിമല വിധിയെത്തുടർന്ന്​ കേരളത്തിലെ തെരുവുകളിൽ സംഘ്​പരിവാറും സവർണ ജാതിക്കോമരങ്ങളും അഴിച്ചുവിട്ട കലാപങ്ങൾ ഇത്തരത്തിലുള്ള മതബദ്ധമായ സ്ത്രീവിരുദ്ധതയുടെയും ജനാധിപത്യവിരുദ്ധതയുടെയും ഉറഞ്ഞുതുള്ളലായിരുന്നു. ശബരിമല ദക്ഷിണേന്ത്യയിലെ രാമജന്മഭൂമിയാണെന്നായിരുന്നു ബി.ജെ.പി പ്രഖ്യാപിച്ചത്. കേരളസമൂഹത്തിലെ സ്ത്രീവിരുദ്ധതയുടെ ആക്രോശം കൂടിയായിരുന്നു ആ സമരം. ഒരു ആധുനിക ജനാധിപത്യസമൂഹമെന്ന നിലയിൽ അതിനോട്​ ചെറുത്തുനിൽക്കാൻ ശ്രമിച്ച മനുഷ്യർക്ക്​ പുനഃപരിശോധനഹരജിയിലെ വിധി സന്തോഷം തരുന്നില്ല. 
ഭൂരിപക്ഷവിധി വിശാല​െബഞ്ചി​​െൻറ തീർപ്പിനായി നിർദേശിക്കുന്ന ഒരു വിഷയം കടുത്ത ആശങ്ക ഉണ്ടാക്കുന്നതാണ്. ഒരു മതവിഭാഗത്തിലെ ആചാരങ്ങൾക്കോ സമ്പ്രദായങ്ങൾക്കോ എതിരെ ആ വിഭാഗത്തിൽ പെടാത്ത ആരെങ്കിലും നൽകുന്ന പൊതുതാൽപര്യഹരജി പരിഗണിക്കേണ്ടതുണ്ടോ എന്നാണത്. ഒരു ജനാധിപത്യസമൂഹത്തിൽ നീതിക്കു​ വേണ്ടിയുള്ള അന്വേഷണത്തെ, നീതിക്കുവേണ്ടിയുള്ള സംവാദങ്ങളെ മതബദ്ധമായി ചുരുക്കിക്കാണലായിരിക്കും ഇത്തരത്തിലൊരു ചോദ്യത്തിന്​ കോടതി നിഷേധാത്മകമായാണ്​ ഉത്തരം നൽകുന്നതെങ്കിൽ സംഭവിക്കുക. ഒരു ആധുനികസമൂഹത്തിൽ മനുഷ്യരെ മതത്തി​​െൻറ അടിസ്ഥാനത്തിൽ നീതിക്കുവേണ്ടിയുള്ള പൊതുസംവാദത്തിൽ പങ്കെടുപ്പിക്കുന്നത്​ തീർത്തും പിന്തിരിപ്പൻ നടപടിയാണ്. ഈയൊരു ചോദ്യം കോടതി ഉയർത്തി എന്നതുതന്നെ അത്തരമൊരു സാധ്യതയിലേക്ക്​ നമ്മെ ഭയപ്പെടുത്തുന്ന ഒന്നായി മാറുന്നുണ്ട്. 
മതത്തെയും മതേതരസമൂഹത്തെയും മതേതര ജനാധിപത്യ ഭരണഘടനെയെയും സംബന്ധിച്ച ആധുനികമനുഷ്യ​​െൻറ സംശയങ്ങളല്ല ഇന്ന്​ കോടതി ഉന്നയിച്ചത്. പകരം, ജീർണമായ അനാചാരങ്ങളിൽ കുടുങ്ങിക്കിടക്കുന്ന, സ്ത്രീവിരുദ്ധതയെ സ്വാഭാവികമായ സാമൂഹികനിയമമായി വ്യാഖ്യാനിക്കുന്ന, ജനാധിപത്യത്തെ മതമേധാവിത്വത്തിനു പിറകിലായി വെക്കുന്ന, പൗരാവകാശങ്ങളെ മതമേലധ്യക്ഷന്മാരുടെ തീട്ടൂരങ്ങൾക്ക്​ വിധേയമാക്കുന്ന ഒരു അടഞ്ഞ സമൂഹം പുരോഗമനമൂല്യങ്ങളുടെയും പൗരാവകാശത്തി​​െൻറയും ഇരമ്പങ്ങൾക്കു നേരെ ചെവിപൊത്തി നിന്നുകൊണ്ട്​ ചോദിച്ച ചോദ്യങ്ങളാണ്​ കോടതി വിശാല​െബഞ്ചിനു മുന്നിലേക്കായി വിട്ടത്. അല്ലായിരു​െന്നങ്കിൽ ശബരിമല വിധിയിലെ പെൺപക്ഷ ജനാധിപത്യ മതേതരരാഷ്​ട്രീയത്തെ അത്​ ഉയർത്തിപ്പിടിക്കുമായിരുന്നു. ഇന്ത്യയുടെ രാഷ്​ട്രീയസമൂഹത്തിൽ ഭൂരിപക്ഷ മതവർഗീയത വീണ്ടും ഉയർത്തിക്കൊണ്ടുവരുന്ന ഭൂരിപക്ഷ മതവിശ്വാസത്തിനു കീഴിലാണ്​ ഭരണഘടനയടക്കം മറ്റെന്തും എന്ന പ്രതിലോമ കാഴ്​ചപ്പാടിന്​ സാധുത നൽകാനുള്ള മാപ്പുസാക്ഷികൾ മാത്രമായാണ്​ ദാവൂദിബോറകളെയും പാഴ്സികളെയും മുസ്​ലിംകളെയുമൊക്കെ കൂട്ടിച്ചേർത്തുവെച്ചത്.
നിലവിൽ ശബരിമലവിധി നടപ്പാക്കുന്നത്​ സുപ്രീംകോടതി തടഞ്ഞിട്ടില്ല. അതായത്,​ വിധി ഇപ്പോഴും സാധുവാണ്. ഏതു സ്ത്രീക്കും ശബരിമലയിൽ പ്രവേശിക്കാൻ ഇപ്പോഴും സ്വാതന്ത്ര്യമുണ്ട്. ഭാവിയിൽ വിശാല​ബെഞ്ച് ​​ശബരിമല വിധി അസാധുവാക്കുന്ന തരത്തിൽ ഉത്തരം കണ്ടെത്തും എന്ന തീർപ്പ്​ സംഘ്​പരിവാർ ഇപ്പോൾത്തന്നെ പുറപ്പെടുവിക്കുകയും സ്ത്രീവിരുദ്ധതയുടെയും ജനാധിപത്യവിരുദ്ധതയുടെയും മുദ്രാവാക്യങ്ങളുമായി കേരളത്തെ വീണ്ടും സവർണ ഹിന്ദുത്വ ലഹളയിലേക്ക്​ വലിച്ചിടാൻ ശ്രമിക്കും എന്നു കൂടി കരുതിയിരിക്കണം. കടുത്ത മതേതര, പെൺപക്ഷ, ജനാധിപത്യപ്രതിരോധം ഇതിനെതിരെ ഉയർത്തിക്കൊണ്ടുവന്നേ മതിയാകൂ. 
(സുപ്രീംകോടതി അഭിഭാഷകനാണ്​ ലേഖകൻ)

A temple on contested site of mosque’s destruction departs from judicial counter-majoritarianism

Ashutosh Varshney

For the first time since Independence, an entirely new electoral prospect has been consolidating itself. This phenomenon can be conceptualised as the political irrelevance of Muslims. It came to life with the 2014 general elections, though some might drag it back further. Its implications, serious in any case, have become even more so after the Ayodhya judgment of the Supreme Court.

The Court has held Hindu mobs responsible for an egregious violation of the law on December 6, 1992 — when they destroyed the Babri mosque — but deploying the kind of legal reasoning that frustrates non-specialists of law, it has handed over the site, where the erstwhile mosque stood, to the Hindu community for the building of a Ram temple. In a display of religious equidistance that marks Indian secularism, the Court has also allowed a mosque to be built on a plot twice as large as the original site. But those who destroyed the mosque, according to India’s highest court, now have the right to construct a temple in its place.

If the Court intends to draw a distinction between the law-breakers, who ought to be punished, and the larger Hindu community, whose wishes should not be denied, it can still argue it has not abandoned the idea of justice. But given its lack of resolve to confront electorally enabled power, one cannot be too sanguine about whether it would punish those who violated the law but are currently in power. How the Court actually pronounces on the culprits of December 6, 1992, will, therefore, be carefully watched.

Admittedly, some Muslims will not mind the judgment, thinking it ends a seemingly interminable period of painful contention and provides an opportunity to move on. But many are likely to feel doubly marginalised. They are being made electorally irrelevant, and even the judiciary has not sufficiently protected them.

Two points should immediately be noted. First, in the 1940s, Jinnah’s argument for partition was precisely that democracy in a Hindu-majority India would serve the interests of Hindus, not of the Muslim minority. The argument was wrong, as both Nehru and Ambedkar painstakingly demonstrated. It is ironical that the argument, false then and for decades later, is starting to acquire credibility now, for the system after seven decades is threatening to generate Muslim helplessness. The trend is still not irreversible, but it is dire.

Second, a lot of democratic theory, and much of modern democratic practice, envisions the judiciary as a counter-majoritarian institution. In a multi-ethnic, multi-religious democratic polity, the electoral process can easily begin to reflect the wishes of the ethnic or religious majority. But the judiciary’s functioning is fundamentally based on constitutional principles, not the wishes of the majority. If the judiciary only replicated what governments, legislatures or political parties based on electoral victories did, we would not really need it as a separate and autonomous institution. That is also why minorities in a democracy have often looked up to the courts for protection, when popular electoral currents go against them. A small fraction of political/legal theory does say that courts could endorse majoritarianism, if it was legislatively approved, and some courts have historically done that. Legally, Blacks suffered a lot — and for decades — in America’s South. But most theorists would prescribe to the judiciary a majority-constraining role, should the majority or its representatives cross legal lines. A Hindu temple on the contested site after a mosque’s destruction departs from the principle of judicial counter-majoritarianism.

The distinction between the electoral and the judicial, towards which the SC judgment is pushing us, requires further elaboration. Let us begin historically.

Should India treat its Muslims the same way as Pakistan was dealing with its Hindus? This question repeatedly arose in the early years of freedom when India’s Constitution was debated. Supported by Ambedkar, Nehru argued: “Whatever the provocation from Pakistan and whatever the indignities and horrors inflicted on non-Muslims there, we have to deal with (our) minority in a civilised manner. We must give them security and the rights of citizens in a democratic state. If we fail to do so, we shall have a festering sore which will eventually poison the whole body politic.” Earlier, critiquing Jinnah, Ambedkar argued that constitutional and institutional safeguards could easily be devised to check majoritarianism and protect minority rights. That Hindus are a majority, said Ambedkar, does not automatically lead to Hindu rule.

India’s Constitution thus developed a charter of minority rights — educational, cultural, religious — and gave no special privileges to the Hindu majority. Secularism came to be defined not only as equal rights for all, regardless of religious affiliation, but also as comprising special minority rights on the assumption that minority numbers alone would not allow them to protect their interests in a democracy.

This constitutional settlement was further bolstered by the electoral realities of India. Until 2008, 81 parliamentary constituencies of India were more than 20 per cent Muslim (including 10 that were Muslim-majority) and 126 seats were 10-20 per cent Muslim. Thus, in 38 per cent of parliamentary seats, Muslim voters could play an important role. Even if mainstream politicians had anti-Muslim feelings, these electoral realities would partly check them. The 2008 redrawing of constituencies has most probably not significantly changed Muslim proportions.

This long-lasting electoral logic was fundamentally altered in 2014 and 2019. The BJP came to power with only 8 per cent of the Muslim vote each time, an outcome inconceivable under the earlier electoral calculus. The key to this transformation was the consolidation of the Hindu vote. The BJP received 37.4 per cent vote in 2019; roughly 35 per cent was Hindu. Compared to 2014, BJP’s vote went up in all caste categories, including Dalits. Muslims can play an important electoral role only if the Hindu vote is sufficiently caste-cleaved. Analytically, Hindu consolidation and Muslim irrelevance are two sides of the same electoral coin.

If Hindu consolidation goes further, Muslims will become electorally even more irrelevant. We can’t still be sure this would happen. But even if Hindu electoral consolidation remains at the current level, India’s Muslims would need the judiciary’s counter-majoritarianism to safeguard their interests. If the judiciary bows to the executive and legislature, supporting majoritarian logic, Jinnah’s fears will be affirmed, Ambedkar’s constitutional optimism nullified, and Nehru’s prediction about a “festering sore” might also come true. Production of Muslim helplessness is most unlikely to strengthen India, or its polity.

This article first appeared in the print edition on November 13, 2019 under the title ‘Majority, minority & temple’. The writer is director, Center for Contemporary South Asia, Sol Goldman Professor of International Studies and Social Sciences, Professor of Political Science, Watson Institute for International and Public Affairs, Brown University.