Guest post by ABHIK CHIMNI

The Citizenship Amendment Act, 2019 (CAA) is a legislation which along with the National Register of Citizens (NRC)  gives rise to a legal regime which is not consistent with the tenets of the Indian Constitution.

The CCA/NRC violates the basic structure of the Indian Constitution, primarily the equality clause and the principle of secularism embedded within the constitutional framework.

I further argue that Fundamental Rights are in fact dissenting rights.

The Indian Constitution – A story in three parts

The Constitution can be broadly divided into three parts.

The first accounts for protection of individual liberty through the fundamental rights chapter stipulated in Part III of the Constitution.

The second seeks to create independent institutions such as the constitutional courts, the Election Commission, the Comptroller Auditor General and the Governor’s office etc.

The third, at the centre of the Constitution and the first step in our constitutional democracy, is the right to vote guaranteed through universal adult franchise. This legal principle seeks to grant all citizens an equal say in electing their representative at the local, state and the national level. However, let me emphasize this – an elected Government and its policies implemented through Parliamentary legislation and executive orders are only the primary step towards a constitutional democracy. This is because our constitution provides for mechanisms through the chapters on individual rights and autonomous institutions not only

to seek remedy in situations where state-made law falls foul of the ideas on which the Indian Constitution is premised, but also

to seek opinion building through different forms of speech when the State fails to exercise its duty towards constitutionalism.

In the sections below I discuss the relationship between the three parts of the Constitution in creating Indian democracy.

Fundamental rights and independent institutions as Constitutional safeguards

The right to equality in the Indian Constitution has been one of the most relied upon clauses by citizens when challenging State made law. Right to equality is the soul of the fundamental rights chapter. The ambit and scope of the equality clause has expanded manifold through judicial review to protect individuals from unequal treatment by the State. Protection from discrimination on the grounds of religion and caste are essential fundamental rights. Finally, the right to speech, free movement and right to life complete the network of fundamental rights guaranteed against the State.

That Constitution has also created institutions such as the courts, Election Commission, the CAG, Governor’s office, the Speaker to act as checks and balances. The makers of our Constitution realised that those elected to power cannot be given unlimited power to frame the rights of the Indian peoples. Independent institutions were therefore created to help review the functioning of the executive and also to take decisions premised on domain expertise. The idea was to ensure that these decisions would be protected from the pressures of public opinion on elected representatives.

Since independence we have seen our institutions both succeed and fail in equal measure. The last 70 years have shown us why these rights were recognised as fundamental and were provided the highest protection within our constitutional framework.  Likewise, we have seen why our Writ Courts were granted exceptional powers under the Constitution to review decisions of the Parliament and the Executive.

Our political history since independence is replete with instances of the State exercising arbitrary power, tending to violate fundamental freedoms. The Judiciary being the final arbiter of constitutional disputes was often central to these disputes. The declaration of emergency and the violation of individual liberties seen between 1975-77 saw the Court having to safeguard for the first time, both individual liberty and institutional autonomy against an aggressive majoritarian political Government. The Supreme Court famously hollowed out the guarantees in the fundamental rights chapter through its judgement in ADM Jabalpur vs Shivkant Shukla by ruling that an individual under detention would not have locus to file a writ petition in the High Court, or a Habeas Corpus petition challenging the orders of detention issued by the Government.

In post emergency India (1980s onwards) we saw the Supreme Court, in an attempt to atone for its failure to protect individual liberty during the emergency era, seek to expand the scope of judicial review to provide social- economic justice. This was done by expanding the concept of locus standi. This meant not limiting access to Court only to the person directly aggrieved but also allowing for citizens to approach court for the interest of various Communities. The Court thereby moved towards ensuring that a citizen could approach the court without being handicapped by locus as understood in traditional civil litigation. This approach came to be popularly known as Public interest litigation and helped provide judicial protection of liberties for several individuals who otherwise would not find equal access to the Court. This nature of judicial power led to several people terming the Indian Supreme Court as the most powerful in the world. It became a bulwark against the arbitrary exercise of a majoritarian State.

Universal adult franchise and Fundamental Rights as dissenting rights

Now, to come to the most basic tenet of India’s democracy. Our country recognises every individual citizen as having the right to elect their local, state and national representative through secret ballot. Electing members to State legislative Assemblies and National Parliament is the first step towards setting up a democratic state.

The will of the people through majority choice (accumulation of votes) is assumed to be reflected through law – the passing of legislative Acts and amendments to pre-existing legislation by their political representatives. However it is not always the case that law is consistent with the Constitution. Though Parliament made law is legally binding on all citizens, the executive cannot infringe upon the rights of individuals and communities to disagree with such law. The Constitution provides individuals/ communities the right to challenge such law institutionally through courts, and also by raising questions through free expression in the public sphere through speech, including protests.

However, the NDA Government subsequent to the passing of the Citizenship Amendment Act, 2019 (CAA) in the Parliament, has sought to colour all opposition to this Act as being opposed to democratic consensus achieved through Parliamentary legislation. But in fact, the opposition to the CAA through speech (peaceful protests and writings) is a constitutionally recognised step, furthering the goal of achieving democratic consensus, which is an on-going process. Democratic consensus is not completed the moment a law is passed, and the government cannot claim democratic consensus to silence the grievances of millions of citizens, and criminalise dissent.

This is especially so when dissent has been fortified in the fundamental rights chapter of the Indian Constitution through the right to speech. In fact fundamental rights are to be claimed against the State; in effect fundamental rights are dissenting rights. When an individual fails to find relief through the Legislature or is adversely affected by State-made law, she can seek redress under the fundamental rights chapter along with her right to legal remedy in Court.

To deny the legal ability of citizens to ask questions of State-made law, is to attempt to dilute the democratic mechanisms provided in the Constitution, which buttress citizens’ rights to question the Government in our Parliamentary democracy.

Basic Structure Doctrine, Parliamentary Law and Democratic Consensus

The Parliament through the procedure established under Article 368 of the Constitution can seek to amend the Constitution. The extent to which the Legislature can seek to amend the founding document of India came up for review in the case titled Keshavanand Bharati vs Union of India.  A bench consisting of 13 Judges of the Supreme Court held that there are some parts of the Constitution including the fundamental rights chapter, the principle of secularism and the independence of the judiciary that cannot be amended by the Parliament. Therefore when we speak of building democratic consensus it extends beyond the framing of legislation by law makers. Building democratic consensus includes the right of citizens to seek from the Government a law which is consistent with the basic structure of the Indian Constitution.

What we are seeing today is political majoritarianism masquerading as constitutionalism.

In 2016 the Supreme Court struck down the Constitutional amendment making way for the National Judicial Appointments Commission (NJAC). The court was of the view that the NJAC would allow political representatives to have a say in the appointments to be made to the Constitutional Courts of India. This, the Court held, would directly influence and impact the constitutional promise of an independent judiciary. The late Arun Jaitley had tellingly remarked that the decision of the Supreme Court reflected the “tyranny of the unelected”. This remark reflects the BJP’s understanding that democracy is merely the will of the Party which has polled a majority of votes. On the contrary, institutional democracy as promised in the Indian Constitution is opposed to any form of majoritarianism. This has been reiterated by the Supreme Court through the basic structure doctrine.

It is extremely disconcerting that democratic opposition to a legislation is being coloured by the State as being pitted against the ideas of nationalism and constitutionalism. In fact both these ideas strongly propagate the right of citizens to demonstrate their views to the Government to ensure that the Constitution of India is not undermined through the actions of the State. It must be remembered that governments will come and go, but the premise that people will remain free and be treated equally in law, cannot become subject to electoral politics.

Abhik Chimni is a practising lawyer in the courts of New Delhi