Citizenship Amendment Act- A perspective 

Nelson Mandela in his speech on an Annual Children’s Celebration at Bloemfontein on 27th September, 2003 said, “Good wise leaders respect the law and basic values of their society”. 

Nothing in today’s world stand black and white, rather I believe that everything is grey. The sole distinction perhaps is of the shade. As more of black and less of white would turn into dark grey and less of black with more of white would form light grey similarly, textuality of law with morality, consistent with societal righteousness form different shades of justice. Justice has many folds which are inconsiderate to individuals as it is human tendency to see the right and wrong in accordance with personal definition of same.

No book or papers of agreements can resolve such dilemmas as the biggest question still stands, who is RIGHT and who is WRONG? This paper entails such disparity and possible clarification on viewpoints representing both sides of the coin strictly in the ambit of law. 

Keeping the politics out of the current discussion, who are these representatives (especially of law)? When one hears the word ‘JUSTICE’, what is the first thing that appears in our minds? To me and basing the following view on the study of Law’s art and Art’s Law, it is popularly the image of justicia. And who are said to be responsible to maintain the ‘integrity and legitimacy’ of that pious figurine? The said formally dressed people in black and white, who go to those government buildings where ‘justice’ is supposedly served. As formerly mentioned, that interpretation of word Justice is variant and forthrightly mutable. Let’s consider the example of shifting meaning of justicia. For over 2000 years people have interpreted and modified the image of justicia and the denotation accreted to it. From the ‘clear-sighted’ depiction on coins of Tiberius’s reign, the earliest kind of Roman incarnations on which a woman with sword in one hand, said to represent the power of the state, and scales on the other, representing her considering the merits of the case before her ‘clear-sightedly’2, passing through, “Ship of Fools” by Sebastien Brant in 1494, where blindfolded by a fool symbolises justicia being robbed of her ability to judge or measure through her scale (The blindfold was given negative attribute as blindness exemplified ignorance, abandonment and impaired judgement in both Hebrew bible and New Testament)3, till its current annotation of positive attribution to blindfold epitomising impartiality, sword to symbolises the authority (to punish) and power of reason & justice and the weighing scale to weigh the evidence to conclude ‘just’ decision. 

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Interpretation of law has always existed in our societies. This brings me to the three circle of law which similar to the preceding interpretation of ‘act of judging’, correspond to maximum lawyering. The inner most solid black circle represents the textual limitation which most judges and lawyers restrict themselves to.

The second dashed circle represents the basic interpretation usually done by some legal servants which entails the limited interpretation of statutes. The outermost circle is the interpretation of law altered via social issues such as casteism, racism, discrimination, inequality, economics etc. Conventionally, legal servants are usually absent from political issues pertaining to the societal unrest unless their doors are knocked, following which originates their involvement in the most orthodox way of filing cases which are then resolved via judges deciding over the ones questioning law, by reason of textual knowledge or the limited interpretation till the second circle.

We have heard citizens demanding more indulgence of law and justice with society, righteousness and morality before which let’s decide who are citizens? As per the Nottebohm principle upheld in Liechtenstein v. Guatemala [1955] ICJ 1, “the national must prove a meaningful connection to the state in question” which implies that a person is a citizen ipso facto the bond between the state and the individual, which extends constitutionally bestowed rights and immunities on the individual.  

The current debate over the Citizenship (Amendment) Act, 2019 arises out of the said exclusion of one religion, on purpose, from the consideration of allowing citizenship. CAA is the best example to consider the three circles aforementioned. The inner most circle being ‘THE LAW’ entails the legal perspective of Citizenship Amendment Bill, 2019. Moving onto the second circle comes in the interpretation. Whilst the popular opinion holds the interpretation of CAB as violative of article 14 i.e. Right to Equality and basic structure of constitution as discriminatory on the ground of religion, nonetheless there also exists contrasting interpretation. Bare reading of the Bill concludes that it entails procedure to be followed to legalise the ‘persecuted’ individuals from neighbouring three states, Bangladesh, Pakistan and Afghanistan. The communities mentioned hence are, Hindus, Buddhist, Jains, Sikhs, Christians and Parsi. Where one interpretation is that it calculatedly excludes Muslims as BJP is rather an incompetent government, the other, relatively more neutral (without biases) interpretation can merely be, the ‘persecuted minorities’ from the three states, who came before 31st December, 2014. Sarbananda Sonowal v. Union of India, AIR 2007 SC 1372 quoted The Citizen and the Migrant where it was stated that, ‘In recent times England have been invaded not by enemies, not by friends rather those who seek England as a haven. In their own country there is poverty, disease and no home. In England there is social security, a national health service and guaranteed housing to all without paying or working for it.’ where personally India is no heaven however sincerely, there are worse off countries. Today we thus deal with no enemy or friend (on name of religion) rather preys of inequalities or lack of livelihood from their native states. When there are two types of immigrants weighing on the scale of justicia as they stand today, who would be preferred, minorities persecuted for not belonging to same religion i.e. Islam or immigrants from different countries in hope of a better place. Where on the humanitarian ground both shall be allowed nonetheless given the current poverty and unemployment of the country, either none shall be admitted or the victims to unfair persecution shall, as the loss of livelihood without there being any fault of theirs and them not welcome in any other nation, moves my heart slightly more than the latter. Moreover, where Islamic states are being intolerant of other religion, why isn’t UNHRC resolving the said issue, as they would surely give asylum to the fellow Muslims in search of a better livelihood or communal differences but not ‘other religions’. Where this might be called the smaller-restrictive interpretation of facts, moving on to the larger circle (third circle) which brings in its ambit the factors such as discrimination, equality, morality and social righteousness does also have certain claims to be pointed out. 

The biggest circle brings in the factors effecting law since the beginning of societal existence. Laws were made for the civilised co-existence. Society has been bifurcated if not by religion then in accordance with profession. Peaceful co-existence can be attained where there is ‘equal treatment’. How can equality be attained? Studying a. 14 tells us that equality exists between equals. How can persecuted minorities be equated to other immigrants considering that “Migration, like domicile, is also a question of fact and intention” Hidayatullah in Kulathil Mammu v. State of Kerala, AIR 1966 SC 1914 (Seven-judge Bench),conversely persecuted individuals were intentionally expelled.

It is a customary law that nationality can be obtained by an alien by virtue of a naturalisation process usually involving a minimum period of residence, nevertheless the conditions under which this takes place vary considerably from country to country.4 This present law is aimed to bring all such people on paper and make them a human resource in our country rather than keeping them as parasites on our resources that too without identification. People without ID are always a threat to law and administration or to our citizens. Where the constitution stands for the citizens and claim of discrimination and violation of at. 14 is against the ‘yet to be citizens’ stands challengeable.

The law is aimed at bringing order by preventing secular India from conservative religious thoughts of any religion. If a particular community desired to be separated on religious grounds, how can that community claim to be part of a secular state. another similar claim of current Muslims being stateless under this act due to unavailability of documents is also cleared by Union Law Minister, Ravi Shankar Prasad effectively cleared all misgivings on CAA in Rajya Sabha, stating no new document would be required for NPR and there would be no ‘doubtful’ category, clearing the pertaining fear of NCR being implemented verbatim rather new rules would be made for the upcoming register. The interpretation thus goes both ways and the credibility of both claims can be given benefit of doubt. 

Several cases have been filed in the court of justice alleging the aforementioned claims. Post Utter Pradesh government challenging Allahabad High Court’s order regarding removal of hoardings of miscreants indulging in protests with their details, SC started reacting to the injustices irrespective of pro-government and against. The court’s reply has not been limited according to me rather have been as neutral as was required. SC directed Delhi HC to take up the lea seeking actions against Hate Speeches of Political leaders. Nearly 100 petitions were filed which were collectively referred to SC where SC took a stand that Hight Courts did not have jurisdiction to address the same. The petition read that CAA is allegedly violative of basic structure of constitution, to which response from the government was sought by CJ S.A. Bobde, J B.R. Gavai & J Surya Kant. As reported by India express, a 129-page reply was submitted by B.C. Joshi, Director in the Ministry of Home Affairs, to those petitions, clarifying the claims made by Indian Union Muslim League, that ‘no unguided and arbitrary’ power would be granted to the administrative. He also claimed that there was no question of act being violative of constitutional morality. 

This brings us to how legal servants have resorted to unconventional ways such as clubbing the claim of morality with constitutionality. It was seen for the first time in my knowledge that mediators were appointed to understand the point of view of protestors, giving them the benefit of doubt and never has any lawyer risked their lives to go amidst people to form a report as was done by Sadhna Ramchandran and Sanjay Hedge. There have been productive views provided to the media by lawyers like Harish Salve to rule out the misunderstandings or mis-interpretations of the law. Lawyers have read out preamble loud in courtyards and have provided contacts for help in case of illegal confinement to help with bail of protestors around the whole country, attaining ‘maximum lawyering’.

What is maximum lawyering? Is it following what is not conventionally however is current popular belief or is it stepping out of unconventional practices to struggle to know the reality and support it legally? Law hence cannot rely on single point of view to see, or consider only single screen test; Law has to apply prudence. Ralph Waldo Emerson described prudence as central to human flourishing. It is fairly relevant for judges as it does not only strike association with investigation of situations and deliberation about action but also is related to the virtue of justice and amalgamated understanding of law. Where India has always been a welcoming country, and persecuted citizens of countries have found a place to live, the current population of India does not support acceptance of more stateless men. And even if this country finds a place for them, they shall be equally liable to legality of the land and even their illegal or prevocational propagandas and actions shall be equally scrutinised irrespective of religion and minority. Thus being maximum lawyer is to balance the morality and constitutionality within you and work over those principles, freeing oneself from the textual ambit of law. 

References

1. Dennis E. Curtis and Judith Resnik, “Images of Justice,” The Yale Law Journal 96, no. 8 (1987): p. 1727, https://doi.org/10.2307/796395)

2. Martin Jay and Martin Jay, “Must Justice Be Blind? The Challenge of Images to the Law,” in Refractions of Violence (New York: Taylor and Francis, 2013)

3. Shaw, Malcom N. 2008. International Law. New York: Cambridge Press.

4. Mishra, Atul. 2020. Clearing all misgivings on CAA . Thursday March . 

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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