The morning after CAB: It will be a mistake to rely just on Supreme Court

But where does politics go, after CAB? We look to the Supreme Court for a semblance of constitutional deliverance. We have no idea how a court will rule. But one of the lessons of our recent history is that we misunderstand how a Supreme Court functions in a democracy. The Supreme Court has badly let us down in recent times, through a combination of avoidance, mendacity, and a lack of zeal on behalf of political liberty.

We often explain this away as if this were the failing of individual judges. A particular judge might be compromised, or too scared to challenge the executive or they may simply be obtuse in their reasoning. In law as in politics, we carry on with the game, somewhere reassured that mistakes are idiosyncratic, and are possibly retrievable by the very processes that secured them.

But what makes this constitutional moment pivotal is that there is, somewhere, a looming air of irretrievable finality about the changes that are being enshrined. But we should recognise that this direction is not going to be set through the nice formalisms of law, or the contrived conventions we can adhere to in normal times. The direction is going to be set by the mob, by brute power, by mobilisation.

Much ink will be spilled over whether the CAB is unconstitutional or not. Learned minds will argue whether it passes the “reasonable classification” test, or whether it comports with “constitutional morality.” This argument is all to the good, and necessary within our protocols of adjudication. But we should be under no illusion that the final adjudication will not be a product of some self-evident normative idea, or some compelling logic within the law. As the joke goes, in law there is only one certainty: There is a case for and a case against. The final adjudication will be a product of what collectively citizens of India are able to convey about the kind of country they want to create.

The point of the idea of constitutional morality is exactly that it does not provide any legal standard for adjudication. Rather, it points to the fact that the work of constitutionalism has to be done outside of the formal process of the law: In building up an ethos that tolerates differences, in shaping a sense of self that is moved by the demands of equality, or perturbed by the attacks on liberty. So constitutional morality is not a doctrine we can appeal to, to settle our differences. It is what we bring to adjudication, not what we get out of it. Similarly, the term “reasonable classification.”

The term “reasonable” is one of the most vexed terms in law and political theory. Arguments over it often have an air of circularity. Societies have often found discrimination “reasonable.” When they cease to find it reasonable, it is often because larger social norms have changed, not because a court said so. If you took the CAB in isolation, detached it from the political context, and its possibly catastrophic alignment with the NRC, the government could make the argument that its classification is not unreasonable, even if not everyone agrees with it. Even the original NRC debacle was created in part by the Supreme Court, presumably in its own mind acting on reasonable classifications. So while the legal and philosophical work is necessary, don’t count on them to do our work for us.

This is a truth that the BJP has realised. It moves the law, not by appealing to it, but by changing the norms in politics and society that shape our imaginations of the law. It did this in the Ayodhya case literally by changing the facts on the ground, and demolishing the Babri Masjid, and altering our historical imaginations. So much so, that while the judges acknowledged that the demolition of the Masjid was illegal, the fact that there was a structure there seem to have no meaningful bearing on the final claims of who has possession.

Similarly, whether the NRC was the right thing to do was shaped less by law than by a historical and sociological imagination of the problem in Assam or a sense of the capacities of the state. Similarly on Kashmir, the delay in hearing habeas corpus and other petitions was guided neither by logic, nor law. It was most likely guided by deference to what was perceived to be public sentiment, pure and simple.

Given that so much constitutional adjudication mixes both normative (what is the right thing to do) and statistical meaning (what is perceived public sentiment), the BJP has colonised the law by conveying a different sense of what public sentiment is.

The lesson here is that we can rely on the courts, if at all, only if we do a lot of work outside the courts. If the public accepts the Home Minister’s Orwellian statement that Kashmir is “normal,” don’t be surprised if that definition of normalcy becomes a de facto standard that allows the court to postpone its day of reckoning in Kashmir. If our entire public discourse is pervaded by an exaggerated bogey of illegal immigration, don’t expect the court to call the bluff on a discriminatory NRC.

This is why it will be a mistake to rely just on the Supreme Court. The political challenge is to make sure that one party’s diabolical version of what is reasonable is not mistaken to be common sense. It will require using the BJP’s tactics: Political and ideological mobilisation outside the law to convey the sense that Indian citizens will not stand for a Republic that is discriminatory, fearful and panders to its own worst instincts. Only then may even the judges move.

This article first appeared in the print edition on December 12, 2019 under the title ‘The morning after CAB’. The writer is contributing editor, The Indian Express.