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Even if the law passes the test of legality, it may still be repressive, can target communities

Legality on most occasions is divorced from reality. Discrimination is an ugly word. The Constitution abhors it, yet people both embrace and encourage it .

Written by Kapil Sibal | Updated: December 28, 2019 11:15:17 am
kapil sibal on CAA, kapil sibal on NRC, Citizenship amendment bill, CAA protest, National register of citizens, NRC protest, CAA violence, indian news, Indian express news A political party which has a discriminatory, divisive agenda cannot occupy the high moral ground because it won an election by including a divisive agenda in its manifesto. (File photo)

I am both saddened and concerned about the public discourse that we witness on television channels over the Citizenship Amendment Act, 2019.

Bhakts contend that since Parliament has cleared the legislation, those opposing it should await the outcome of the challenge in the court or come to power in 2024 to undo it, as if peaceful protests are not part of our constitutional vocabulary. History has witnessed, often enough, the tyranny of the majority. The minority is seldom oppressive. Majoritarian diktats can never be legitimised by the passage of bills in Parliament. These thoughtless denizens should know that courts have often delegitimised legislation by striking them down. Also, courts have on occasion erred in upholding laws that are unconstitutional. Remember, the right to protest peacefully is a fundamental right. No argument, no court, no majority can diminish it.

Bhakts then contend that this was part of the BJP’s manifesto, and having won by a bigger margin in 2019, the legislation is no more than honouring its commitment to the people. Again, the argument is a non-starter. A commitment cannot be clothed with legality merely because a majoritarian government got it passed in Parliament. Even if the law passes the test of legality, it may still be repressive, can instil fear and target communities. Remember, Section 377 of the Indian Penal Code was good law, and yet targeted communities. Even though it has been struck down, the community is still targeted. Legality on most occasions is divorced from reality. Discrimination is an ugly word. The Constitution abhors it, yet people both embrace and encourage it .

A political party which has a discriminatory, divisive agenda cannot occupy the high moral ground because it won an election by including a divisive agenda in its manifesto.

The most ill-conceived argument is that both the law and its makers are being unduly vilified. They only seek to clear the way for members of certain persecuted communities, including Hindus, to be conferred the status of citizens, even if they have illegally entered India from Pakistan, Bangladesh and Afghanistan. The assumption is that they illegally entered India because they were persecuted in these Islamic countries whereas Muslims who entered India without papers were mere illegal migrants.

There are serious fallacies in this argument. First, one wonders how the government knows of the individual intentions of all non-Muslim illegal immigrants. Two, none of them have claimed at the time that they entered India illegally that they were being persecuted. Nor have they made any such claim thereafter to any authority in India. They certainly are not refugees, since a refugee is one who seeks refuge and thus claims protection. One wonders how the BJP, and that too in 2019, came to the conclusion that all non-Muslims namely Hindus, Sikhs, Christians, Buddhists, Jains and Parsis were all persecuted when they illegally entered India. For Amit Shah to say that this was a part of the BJP’s commitment in the 2014 manifesto is a lie. Apart from a fleeting reference to welcoming Hindus, persecuted around the world, to seek refuge in India, being their natural home, the manifesto nowhere refers to persecuted non-Muslims as claimed. It only referred to the demands of refugees from Pakistan Occupied Kashmir (POK). The word “ refugee” is not mentioned anywhere else.

With reference to the Northeast, the manifesto refers to illegal immigrants (not “refugees”) impacting local people’s livelihood and employment. In the 2019 election manifesto, the BJP mentioned the problem of illegal immigration (not “refugees”) in the Northeast and committed to address that problem by initiating a National Register of Citizens (NRC) in Assam, to be expanded in phases to the rest of India. In it, the BJP also committed to enact a Citizenship Amendment Bill for the protection of individuals of religious minority communities from neighbouring countries escaping persecution and to also clear the apprehensions of those living in Assam who had agitated against all (whether “Hindu or Muslim”) illegal migrants’ entry into the state which threatened to destabilise their socio-cultural identity. There was no mention of limiting this exercise to Pakistan, Bangladesh and Afghanistan. In 2014, and prior thereto, the BJP never mentioned “persecution” of other religious minorities in the neighbourhood, with reference to the Northeast or to the rest of India, except for refugees from POK. How then did the BJP suddenly wake up to this problem only in 2019?

The answer perhaps lies in the fact that lakhs of Hindus were excluded from the NRC in Assam. An attempt was made, first in the Supreme Court, to reject the exercise and carry out a review. That did not work. For the BJP, to allow such exclusion of Hindus to continue, would have been politically suicidal. The only way out was to initiate the CAB to declare all illegal immigrants, other than Muslims, as having been persecuted in the three named Islamic countries through a legislative presumption. If this is allowed, the next step is an NRC exercise in the rest of the country designed to deny all Muslims with no documents the status of citizens. Others who also have no papers will be presumed to have been persecuted, and will therefore be granted the status of citizens.

This demonic political agenda must not succeed. If it does, our body politic will have been amputated and our Republic scarred. Those rejected will lose their homeland, and we, our brothers and sisters. A partition of exclusion is in the offing. If it happens, the outcome is anybody’s guess.

This article first appeared in the print edition on December 28, 2019 under the title “Legality is not enough ”. The writer, a senior Congress leader, is a former Union minister

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