Explained: Freedom of speech in India

Reading time: 6-8 minutes.

 “I disapprove of what you say, but I will defend to the death your right to say it.” So well, what do you think this quote means or say what does it signify!! Yes you guessed right it’s about right to freedom of speech. So basically, the right to freedom of speech and expression is a right to express our opinion freely and is granted to all the citizens of India as a fundamental right under Article 19 of the Constitution of India, 1949.

Recently, a similar issue on the topic, right to freedom of speech raised in which the Supreme Court Judge, Justice Deepak Gupta, in response to the amid protests at various parts of the country against the Citizenship Amendment Bill( CAB), National Population Register(NPR), and National Registrar of Citizens(NRC) ruled that “A dissenter is not an anti-national” which means that when one has dissent with the government or proposes some policy contrary to the policy of the government or have some view different to that of government, then he is not to be regarded as an anti-national.

As the person doing so enjoys his right of freedom of speech and expression which means that he may have his own opinion, and can articulate his idea or views without the fear of retaliation. He further said that it’s the right of every citizen, to question, to challenge, to verify, and to ask for accountability from the government and criticism of the executive, the judiciary, the bureaucracy or the armed forces cannot be termed as anti-national. 

There have been incidents where the people showing dissenting voices have been designated by the term anti-nationalists. He further said that “Majoritarianism is an anti-thesis to the democracy” which means that the it is not always necessary that the government is correct, and therefore the citizens have the rights to express their opinion and discontents against the same. Similarly a party who wins the election by 51% of the votes is not the only one who will rule and the other party with 49% of the votes’ is ought to keep silent or has no voice in ruling the country for the next 5 years. He stated that the “superior courts were the protectors of the right of the people and have a duty to ensure that the powers that be do not suppress dissent”.

In a democracy, the right to dissent is the most precious right one can have and the government in such a case has no powers or rights to stifle peaceful protests. It is not necessarily always, that the government should be right, there are some times at which the government may be wrong and thereby the people have the right to protest peacefully and express their opinion. Also having or expressing a contrary opinion does not always mean disrespecting the government or the country.

Further, he opines that Dissent and disagreement are human as well as the constitutional right of the citizens in a democracy and no one should be deprived of that right, especially for the holistic development of the society, where along with the economic rights, civil rights of the citizens have also been protected.  He concluded by his remarks “A free country is one where there is freedom of expression and governance by the rule of law”.

In India, a right to express one’s own opinion, ideas, and convictions freely by spoken words, by writing, through visual representation, or through any other mode can together be said as exercising the right to Speech and expression. When we see the hierarchy of liberty; freedom of speech and expression comes at the first and foremost place, it is the essence of a free and liberal society and therefore must always be safeguarded. Also it’s one of the most important fundamental liberties guaranteed against the suppression of the state.  Liberty to express one’s opinions, expressions and ideas freely without the fear of punishment plays a significant role in the development of a society and ultimately of the state.

Article 19(1)(a) of the Indian Constitution guarantees the freedom of speech and expression to every citizen of India and is the most essential article which embodies the basic freedom of the state. Apart from guaranteed freedom of speech under the constitution and statutes of various states, it is also guaranteed by various international conventions which explicitly talks about the protection of freedom of speech. Some of them are the Universal Declaration of Human Rights(UDHR), the European Convention on Human Rights(ECHR) and fundamental freedoms, International Covenant on Civil and Political Rights(ICCPR), etc.

Article 19 of the Universal Declaration of Human Rights, 1948 states that: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. Freedom of Speech is also required for the discovery of truth through the way of open discussion, fulfillment, and development of self, for expressing personal beliefs and political attitudes, along with active participation in the democracy.                                       

The right to freedom of speech which is enriched in the Preamble under Article 19(1)(a) is not without limitations and is not absolute. If the speech in India is given an uncontrolled license, it would tend to lead to disorder and anarchy in the country.

Thus, the right to free speech and expression can never be confused with a license to make unfounded and irresponsible allegations against the judiciary. Some reasonable restrictions are being imposed on some purposes on the exercise of this right under Article 19(2) of the Indian Constitution which is stated as ” Nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or concerning contempt of court, defamation or incitement to an offense”.  In the modern world, freedom of speech also includes the press. The reasonable restrictions would include internet information and censorship, which is an extension of speech and expression the only difference is the medium, which here is the internet.

The case of Romesh Thappar v. State of Madras(1950 SCR 594, 607; AIR 1950 SC 124), was one of the earliest cases to be decided by the Supreme Court in which it declared freedom of the press as a part of freedom of speech and expression. In which Justice Patanjali Sastri,  rightly observed that “Freedom of Speech and Press lay at the foundation of all democratic organizations, for without free political discussion, no public education, so essential for the proper functioning of the process of Government, is possible”.

In the case of Indian Express v. Union of India, (1985) 1 SCC 641, it has been ruled that the Press plays a very significant role in the democratic machinery of the country. The courts have to uphold the freedom of the press and invalidate all laws and administrative actions that abridge that freedom.

In the recent case of Kanhaiya Kumar v. State of NCT of Delhi, an event was organized by the students of Jawaharlal Nehru University, on the Parliament attack convict Afzal Guru, who was hanged in 2013. There were protests made in the event by various means i.e. through poetry, art, and music against the judicial killing of Afzal Guru. Several allegations were made regarding the students shouting anti-Indian slogans. Therefore there was a case filed against several students on charges under offenses of Sedition. After which Kanhaiya Kumar, the President of the Student Union of the University was arrested after allegations of shouting anti-national slogans. But was later released on bail by the Delhi High Court because of the unclear role and lack of reasonable evidence.

Therefore, in an independent country like India, it is really important for the holistic and healthy development of our country that one should have the right to express his/her dissent by peaceful means. There are 3Ds important in a democracy to run smoothly i.e. discussion, disagreement, and dialogue. One of the basic rights guaranteed in a civil society is the freedom to speak and express our opinion and ideas freely. Freedom and speech are being described as the bulwark of democratic government and is vital in the proper functioning of the democracy.

It is rightly said by Justice P N Bhagwati in the landmark judgment of Maneka Gandhi v. Union of India, that “Democracy is based essentially on free debate and open discussion, for that, is the only corrective of government action in a democratic setup. If democracy means the government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is essential.” It emphasized on the significance of the freedom of speech & expression in a democratic country like India. Thus, it is a human as well as a constitutional right which should never be taken away from the citizens.

Author: Bhakti Rathi from NMIMS Kirit P. Mehta School of Law.

Editor: Tamanna Gupta from RGNUL, Patiala

Supreme Court on CAA

Reading time: 6-8 minutes.

On 22nd January 2020, the Supreme Court, while dealing with the record 1444 petitions related to the Citizenship Amendment Act, refused to grant a stay on the Act, thereby declining to take note of the anti-CAA protests that are going on in the entire country.

The Centre has been given four weeks’ time period to file a comprehensive response. The court also said that the petitions will be heard by a five-judge Constitutional bench. The bench, however, agreed that the petitions from Assam and Tripura should be heard separately as the grounds of their agitation are different from the rest of the country.

Mr. Kapil Sibal, while arguing against CAA-NPR, also requested the court to postpone the process of conducting NPR by two months as it is bound to begin in April 2020. However, the court was of the opinion that “an interim order would be as good as a stay order”, therefore refusing to grant such order. The CJI said that the matter is “uppermost in everybody’s minds” and that “the CAA (law) will always remain subject to the outcome of the petitions”.

The controversy around CAA-NPR

The Citizenship Amendment Act benefits the people of Hindu, Sikh, Jain, Buddhist, Christian and Parsi religion who have sought refuge in India on or before 31 December 2014 after facing religious persecution from the countries of Pakistan, Bangladesh and Afghanistan. The Act, however, leaves out Muslim refugees.

The Act has been protested against and challenged on the ground of violation of the Fundamental Right to Equality guaranteed to every person in the territory of India and also on the grounds that it violates the principle of Secularism in India by discriminating against the Muslim refugees.

The NPR (National Population Register) is a register of the residents of India where the enumerator will collect the demographic and biometric data of the individuals living in India following which, a list of ‘doubtful citizens’ will be prepared. This would pave the way for the preparation of NRC (National Register of Citizens) which would, in turn, assess whether the ‘doubtful citizens’ are illegal migrants or not.

Whether there is a direct link between CAA and NPR depends on what the data for NPR will be used for. However, it has been inferred that if the people of the aforementioned religions, other than those from Islam, fail to prove their citizenship after the process of NPR-NRC, then they would easily be given Citizenship under the CAA, which would amount to discrimination against the Muslims.

Arguments in favor of CAA-NPR

The BJP leaders, including the Home Minister Amit Shah and Prime Minister Narendra Modi, time again replied to the criticism received by the CAA by stating that the CAA is simply a law of giving citizenship. It does not deprive any citizen of their citizenship. Moreover, the religions as mentioned in the Act have been given citizenship because these are the minority religions in the countries of Pakistan, Afghanistan, and Bangladesh and have been persecuted since long ago.

Similarly, Sadhguru in an interview also said that at the time of partition of India and Pakistan there were approximately 23% of Hindus residing in West Pakistan whereas 30% of Hindus residing in East Pakistan or Bangladesh. This number has come down to merely 3-4% over the years due to their religious persecution. In his words, “it was about time that India showed some compassion” towards them.

As regards, the NPR, Prime Minister Modi has time and again assured the people of India that NPR-NRC has never been discussed by the party leaders and is not going to be implemented any time soon. However, Amit Shah has on many occasions confirmed in his speeches that the NRC for the whole country is on its way.

In conclusion, the protests and the nationwide agitation are still premature as there is no certainty whether the NPR or the NRC would be linked with the CAA or not. The guidelines or dates to conduct the NRC- NPR have not yet been finalized. Hence, it is wrong to assume that these would be a threat to the country.

Arguments against CAA-NPR

The CAA was challenged before the Supreme Court on three grounds. Firstly, it was contended that CAA violates the Right to Equality as the principle of reasonable classification of three countries mentioned in the Act is not sufficed. Secondly, the date i.e. 31 December 2014 is arbitrary and has no legitimate reason. And thirdly, the discrimination against Muslims has violated the principle of a secularist state of India embodied in the Constitution.

Apart from this, the Act itself nowhere mentions the word ‘persecution’ as has been used by BJP leaders for justifying the move.

The process of NPR-NRC is perhaps an unplanned move as was demonetization. The fact that both Amit Shah and Narendra Modi have given contrasting statements regarding the conduct of NPR-NRC is the testament to the same. Moreover, Amit Shah has confirmed that documents like Aadhar Card, Passport, Voter Card and Pan Card etc. would be not applicable for proving the citizenship of the doubtful citizens. Therefore, the citizens, especially poor people, would have a hard time proving citizenship. The people who voted for the government are now being questioned about their citizenship, which is highly illogical. According to a report by OECD, India has already suffered a loss of 2.8 lakh crore rupees last year due to economic slowdown. Furthermore, the government has allocated 4000 crore rupees (approx.) for the conduct of NPR, adding to India’s sinking economy.

Significance of this development by the Supreme Court

“The CAA will always remain subject to the outcome of the petitions”, said CJI Bobde while hearing the case. The court refused to grant a stay on both CAA and NPR as was requested by the petitioner’s counsel.

The Court said that granting an interim order is not the solution to the issue. Even if this case is put on stay, the petitions are being continuously filed and each of those cannot be subject to an interim order. Furthermore, refusing to pass any order without the Centre’s response, the Court has directed the Centre to file a reply within four weeks.

Therefore, till any decision is reached upon by the Supreme Court, it is safe to assume that the NPR would not be postponed or halted and the process will likely begin at the scheduled time, beginning in April 2020.

Probable future

Given the circumstances, if CAA and the NPR get implemented, then it could lead to an upsurge in the protests causing unrest throughout the country.

The poor people would be adversely affected as was the scenario at the time of demonetization. The population of India would expand giving way to furtherance of the economic slowdown of the country.

This might also prove as a way to deport the Muslim population of the country and lead one step towards the BJP’s dream of converting India into a ‘Hindu Rashtra’.

However, from a positive outlook, it would perhaps rule out the illegal immigrants from India and would provide citizenship to the minority religions of Pakistan, Afghanistan, and Bangladesh.

Conclusion

All in all, the Citizenship Amendment Act and the National Population Register have been implemented and are valid until the Supreme Court rules otherwise. The Anti- CAA protests have caused huge unrest in the country and are nowhere near the end. In this scenario, all eyes are on the Supreme Court to do justice to the people of India.

On one hand, the CAA has been alleged as discriminatory towards the Muslims whereas, on the other hand, the NPR is a whole new challenge for the people. The Supreme Court is yet to decide the constitutionality of both the acts but for now, these pose a great threat to the peace and safety of the people of the country.

Author: Prachi Gupta from University Institute of Legal Studies, Panjab University, Chandigarh.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

Analysis: States challenging Central Acts

Reading time: 6-8 minutes.

The Legislature of State of Kerala passed a resolution at the State Assembly against the Citizenship (Amendment) Act, 2019 (“CAA”) on December 31, 2019. The official stance of the State was never unclear. They have since the beginning opposed the CAA.

However, their stance on the Central Act was further made crystal clear when on January 14, 2020, the State through Adv. G. Prakash invoked the original jurisdiction of the Supreme Court under Article 131 of the Indian Constitution, to file a suit challenging the constitutional validity of the CAA.

The State of Kerala prayed not only for the CAA to be scrapped, but also that the amendments brought to the Passport (Entry to India) Rules and Foreigner’s Order, 2015, be held invalid on the grounds of being ultra vires the Indian Constitution.

The state also expressed its amazement at the way in which the word “persecution”, which appears in the text of the CAA’s “statement of objects and reasons”, does not reach the main body of the law.

Now, the SC stands head-on with not only multiple private suits filed against CAA, but also the suits so initiated against the Act by various states of the country.

On 22nd January, 2020, the Supreme Court said that the petitions challenging the constitutional validity of the CAA will be heard by a five-judge constitutional bench. The court also gave the Centre 4 weeks to respond to the petitions and further stated that it will not grant any stay on the CAA and the exercise of the National Population Register (NPR), till the Centre replies.

This article analyses precedents and the current scenario to deliberate upon the situation wherein states challenge central acts, which according to the Constitution, they mandatorily have to abide by.

Article 131 – Original jurisdiction of the Supreme Court of India

Article 131 of the Indian Constitution enshrines the original jurisdiction of the SC. It lays down that in case of any ‘dispute’ between the Government of India, and State(s) or between two or more States, wherein, no other court has jurisdiction, the SC shall hear and decide upon the said matter. Therefore, in cases of any dispute between the above parties, the SC has the authority by law to adjudicate upon the matter first-hand.

It is necessary to understand the difference between the authority of the SC to adjudicate under Article 32 and 131. Article 32 is the ‘writ jurisdiction’ of the SC, by which it has the authority to pass orders of the five writs. However, under Article 131, the SC follows a civil suit procedure and has the authority to pass a decree and not a writ.  

Where, Article 32 is a fundamental right and no maintainability of a suit is required to be argued upon, Article 131 is not a fundamental right and the parties in dispute must plead maintainability before the Court for the suit to be admitted/disposed.

Therefore, Article 131 is a remedy available for any ‘dispute’ to be decided upon, between the Government of India and the State(s). However, the point of interpretation is the scope of the term ‘dispute’. Since the Indian Constitution does not explain the same, it is left for evolution and interpretation at the hands of the SC.

State of Madhya Pradesh v. Union of India (2012)

Usually, the State Legislatures do not differ in opinion w.r.t. need of laws, from the Parliament. This is because ultimately the objective of both the institutions is welfare of the people. Therefore, in the case of State of Karnataka v. Union of India (1977), the SC opined that whenever the state(s) or the Union differ on a question of interpretation of the constitutionality of a law, the said dispute can be brought forth to the SC under Article 131.

However, in the case of State of Madhya Pradesh v. Union of India (2012), the term ‘dispute’ was brought to extensive discussion to understand whether the states had the authority by law to challenge a central act, if in its own opinion, the said act violated the Constitution.

The SC in the 2012 case held that since, constitutionality of a law can be challenged by the state under Article 32 and 226 of the Constitution, there was no requirement to interpret the same within the scope of ‘dispute’ under exclusive original jurisdiction of the SC within Article 131. Hence, the SC overruled the 1977 precedent to establish the new position of law.

However, in the case of State of Jharkhand v. State of Bihar (2015), a two-judges bench of the SC opined in their order that it was unable to accept the view wherein a dispute upon constitutional validity of a law between the Centre and the State could not be raised in a suit under Article 131. Thus, the bench referred the said issue to a five-judges constitutional bench of the SC.

Therefore, as of now, the issue of whether challenge to constitutional validity of a law comes within the scope of Article 131 or not, is unclear and yet to be decided by the SC of India.

Significance of the current petition

The significance of the current petition lies w.r.t. the urgency of the restoration of the basic tenets of our Constitution: secularism and democracy.

Several states, politicians, NGOs, advocates and law students have filed petitions challenging the constitutional validity of the CAA. The petitioners argue that the law selectively welcomes “illegal immigrants” to India based on their religion and expressly excludes Muslims.

The CAA shares an “impure link” with the National Citizens Register (NRC) and is contrary to the principles of secularism, the right to equality and dignity of life enshrined in the basic structure of the Constitution.

Arguments presented by Kerala

The State of Kerala has submitted in their plaint that the CAA and the amendments so brought to the Passport (Entry to India) Rules, 2015 and the Foreigner’s Order, 2015 are violative of Article 14 (Right to Equality), 21 (Right to Life) and 25 (Freedom of conscience and free profession, practice and propagation of religion) of the Indian Constitution.

According to the petition, the amendment also violates India’s international obligations based on:

        Article 14 of the Universal Declaration of Human Rights (which states that everyone has the right to seek and enjoy asylum of persecution in other countries).

        Article 15 of the Universal Declaration of Human Rights (which states that everyone has the right to a nationality and that nobody will be arbitrarily deprived of their nationality or denied the right to change their nationality) and

        Article 26 of the International Covenant on Civil and Political Rights (which establishes that all people are equal before the law, that all people have the right without discrimination to equal protection of the law and that the law prohibits any discrimination and guarantees all protection equal and effective of people against discrimination for any reason, such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth or other state).

They state that the said amendments are ‘unreasonable, having no rational nexus with the object sought, apparently and manifestly discriminatory’ to a minority class of individuals which follow Muslim religion. Such a discriminatory law is against the very basic structure of the Indian Constitution as well as the International law.

The Central Government in no time submitted that there has been no ‘legal right’ violation of the State of Kerala and therefore the suit does not stand on merits. However, Kerala stands firm on their argument that since it shall be compelled by the Central Government under Article 256 of the Indian Constitution to comply and implement the CAA, which is inherently an arbitrary and discriminatory law, the State does not support the same.

The State has argued that the dispute under Article 131 includes not only the legal rights of the states but also the fundamental rights of the individuals to be protected by the state and thus, consequently it has filed the present suit.

Conclusion

Therefore, it is concluded that the constitutional validity of States challenging Central Acts under Article 131 is yet to be decided by the SC. However, this jurisdictional issue of the SC might become a major delay-causer in deciding the suit filed by the State of Kerala against the CAA and the other amendments made by the Parliament.

Authors: Harshita Kapoor from Symbiosis Law School, Pune and Aman Srivastava from ICFAI Law School, Hyderabad.

Editor: Farsana Sadiq from Faculty of Law, Jamia Millia Islamia.

Implementation of Parliamentary Acts: The story of the CAA, 2019

Reading time: 6-8 minutes.

The Citizenship Amendment Bill (CAB) created quite a stir in the country and now when the bill has been ratified as the Citizenship Amendment Act (CAA), it has not failed to create nationwide hullabaloo. Some States went to the extent of outrightly refusing the implementation of the act.

The chief minister of Kerala, Pinarayi Vijayan who is a member of the Politburo of the Communist Party of India (Marxist) party, vehemently opposed the act brought in by the BJP government. Citing the principles of secularism embedded in the Indian constitution, he refused to implement the Act in the state of Kerala.

Apart from Kerala, Punjab also refused the ‘unconstitutional’ Bill”s implementation. Amarinder Singh, the chief minister of Punjab and a member of the Indian National Congress (INC) party, also declared that Punjab was reluctant in implementing the CAA.

Lashing out at the BJP-led central government over the amended Citizenship Act, Banerjee, who is also TMC chief, said the saffron party cannot bulldoze the states to implement the law.

Subsequently the States of West Bengal, Madhya Pradesh and Chattisgarh also refused to implement the law claiming that it divides the nation on religious basis.

“We will never allow the NRC exercise and Citizenship Act in Bengal. We will not implement the amended Act, even though it has been passed in Parliament. The BJP can’t just bulldoze the states to implement it,” said Mamta Banerjee, the chief of Trinamool Congress (TMC) and chief minister of the State of West Bengal. Her government led a rally on 16th December in protest against the implementation of the CAA.

Background:

Before the CAA 2019 there existed the the Citizenship Act, 1955. This Act, and its subsequent amendments until 2019, prohibited illegal migrants from obtaining Indian citizenship. The Act defined “illegal immigrants” as citizens of other countries who entered India without valid travel documents, or who remained in the country beyond the period permitted by their travel documents.

The 1955 law provided provisions to deport or jail the illegal immigrant. The 2019 amendment directed that citizenship should be given to the Hindu, Sikh, Buddhist, Jain, Parsi and Christian immigrants from the neighbouring countries of Pakistan, Bangladesh and Afghanistan who are a minority in those countries and faced religious persecution there.

The amendment does not mention the Muslim immigrants of these countries, nor does it mention immigrants facing religious persecution in other neighbouring countries.

 The BJP govt. had introduced the bill in the Lok Sabha in 2016 and it was passed therein, but it stalled in the Rajya Sabha. One of the major reasons was the problems that could arise in the states like Assam. The same government in its 2019 general election Manifesto promised to give citizenship to religious minorities of its neighbouring countries. 

Legal principles involved:

The parliament of India is the supreme legislative body consisting of the President, the Lok Sabha and the Rajya Sabha. The two houses work for formulating and discussing of bills proposed. Once a bill is passed in both the houses, it is sent to the President for his assent.

Once the President signs the bill, it is ratified as an Act. In the present context, the Citizenship Amendment Bill was ratified as the Citizenship Amendment Act when the President of India, Sri Ram Nath Kovind gave his assent and signed it on 13 December, 2019.

Federalism in the Constitution

Federalism is the compound form of government where the power is not located or vested not in a single government but is divided. It consists of a dual machinery, that is, a central government that takes care of the affairs and matters of national interest and the most important problems of the country at hand ; while the state government or the local government authorities take care of matters that are important and pertain to certain specific problems existing at the state level or local level.

Indian Constitution says that India is a Federal country. Hence, at the centre we have the Union Government and State Government at the State level. The Indian constitution has borrowed this principle from the Canadian Model of Federalism.

Part XI of the Indian constitution talks about the distribution of executive, administrative and legislative powers among the Central government and the states of the country. The legislative powers are divided into Union list, State list and Concurrent list.

The Union list, under the Seventh Schedule of the Constitution of India,  consists of 100 items on which the only parliament can legislate. The list contains particulars like – railway, defence, armed forces, foreign trade etc.

The state list consists of 61 topics such as electricity, healthcare, transport etc. These items are specific to the concerned states.

Can states reject the implementation of central laws?

The Acts passed by the Centre which constitute the central laws result in being implemented in the whole of country unless the Act says otherwise or has certain exceptions. As mentioned earlier, under the seventh schedule of the Indian constitution, only the parliament has rights over the union list.

Hence, any Act pertaining to those items cannot be rejected by the state governments. The most they can do is delay its implementation or implement it poorly. Article 256 of the constitution also talks about the obligation of the states to implement the parliamentary acts.

Important precedents

Apart from, CAA which saw backlash by various states, there have been other enactments by the Parliament that have been refused by the states. For example – the Motor Vehicles (Amendment) Act, 2019. The West Bengal Government refused to implement this law, while the State of Gujrat drastically reduced the fine.

Conclusion

The Parliamentary Acts or laws are meant for the well-being of the country but often so happens that it creates mass unrest. The CAA is the best current example. The implementation process is even more difficult than the formulation because of the divided opinions, cultures, ideologies that too in a country like India.

It is the responsibility of the Parliament to enact laws after much deliberation, proper analysis etc and on the other hand the citizens’ work is to understand the current political scenario and most importantly the act or law that has been enacted. Misunderstandings and misinformation can lead to more issues than the issue that the Act intended to tackle in the first place.

Author: Aditi Mishra from ILS Law College, Pune

Editor: Anna Jose Kallivayalil from NLU, Delhi.

Analysis: CAA in Supreme Court

Reading time: 6-8 minutes.

The Supreme Court, on the 18th of December, decided to examine probes which challenged the constitutional validity of the controversial Citizenship Amendment Act.

The act states that “any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan (subject to certain conditions) shall be deemed a citizen of India”.

This act and the bill which gave rise to it, both, were in the limelight due to the harsh criticism they faced for being in the critics’ words “patently unconstitutional”, “non-secular” and “a threat to equality”.

The apex court of the nation has issued a notice to the Centre to respond to the plaints by the second week of January. A bench comprising of the Chief Justice SA Bobde, and honourable Justices B R Gavai and Surya Kant would be hearing the 59 petitions on January 22nd, 2020. They did not stay the law because, as explained by them, an Act once passed and notified as a law cannot be stayed.

Upon the court’s suggestion, the Centre made a video explaining the Act and its complicities for the ordinary citizens to make them aware of it.

Background: Why was CAB introduced?

The Citizenship Amendment Act was initially introduced as the Citizenship Amendment Bill in the Parliament. The CAB was introduced with the aim of providing citizenship to illegal immigrants from Pakistan, Afghanistan and Bangladesh who have been residing in India for the past 5 years, rather than the earlier requirement of an 11 year stay in the country, belonging to the Hindu, Parsi, Jain, Sikh, Buddhist or Christian community. The legislation is applicable to groups who arrived in India on or before December 31, 2014.

 The bill states that it will not only grant citizenship to the said people but will also exempt them from all legal proceedings and action against them for illegal immigration. The bill exempts the tribal areas of Assam, Meghalaya, and Tripura from its applicability.

It also exempts the areas regulated through the Inner Line Permit, which include Arunachal Pradesh, Mizoram, Nagaland and Manipur. The amendment has exempted those Overseas Citizens of India (OCIs) who, in any act, violated the provisions of CAA and also gave them a right to be heard before doing so.

The main reason for introducing this bill was to safeguard the minorities of these countries from the years of physical, mental and social suffering they’ve bared. The bill was criticized by the opposition for being divisive and something which could lead to communal violence. However, it was passed in Parliament on December 11th with a clear majority.

Grounds on which CAA is being challenged:

The CAA faced and continues to face harsh criticism from both ordinary citizens along with people in power including politicians, reporters, legal professionals, tech pioneers and many others. It has been starkly criticized and some of the main grounds challenged are enlisted.

The Indian Union Muslim League has challenged the CAA, contending that it violates the Fundamental Right to Equality guaranteed under Article 14 and 15, stating that it grants citizenship to a part of illegal immigrants while excluding others, here, Muslims.

It explicitly discriminates against Muslims, according to them, and only benefits Hindus, Christians, Buddhists, Jains and Sikhs. It is violating the Fundamental Right to Equality by placing people belonging to the Muslim community and others on different pedestals and in a way also violates the Right against discrimination by discriminating them on the basis of primarily religion in a country which is secular, i.e., has no official religion and welcomes all to profess, practice and propagate their respective religions.

Congress leader Jairam Ramesh has filed a plea challenging the amendments of the act to be “a brazen attack on core fundamental rights” and claimed that it treated the “equals as unequals”.

Jairam has challenged the two bases for classification made in this act, which are geography and religion, neither of which are, according to him, logical to take into consideration and a rational nexus to the aim of the act which is providing shelter, citizenship and security to innocent refugees who face torture, discrimination and bear the brunt of belonging to a community which their home nation does not associate itself with.

A group of civil rights activists have filed a plaint in the Supreme Court censuring the Act for not only threatening equality but also the Right to Life and Personal Liberty which is a Fundamental Right granted under Article 21 of the Constitution.

The Act, in a way, debars those persecuted minorities that do not belong to the aforementioned countries and communities not mentioned as they would be deprived of enjoying a life of human dignity solely on the basis of their religious affiliation.

Many have come forward to condemn the legislation for exclusion of Sri Lankan Hindus from this bill as they have been facing serious human rights violations, violence and discrimination for years and many of them have fled to India to seek safety but now, with only the persecuted minorities of Pakistan, Bangladesh and Afghanistan being considered, the Tamil Hindus in Sri Lanka remain in the dark.

The same goes for the long-suffering Rohingya of Myanmar, a Muslim-majority ethnic minority in their home nation which endlessly deprives them of their rights, going as far as excluding them from their nation’s census.

Arguments favoring CAA by eminent personalities:

According to an IANS-CVoter poll, about 62.1% of the citizens of India support the CAA while 36.8% don’t. This data excludes Assam which had a separate poll conducted according to which 31% are in favour of the act and approximately 68.1% are against it.

The results of this poll makes it clear that a huge chunk of the nation’s citizens form the supporters of the act as compared to the smaller chunk of those against it. The protests, media coverage and social media make it seem the other way around, however, the poll gives the true picture, which then again can be questioned for how truthful it is indeed.

Amongst this community of supporters are some very notable personalities with immense knowledge and experience. A group of around 1100 research scholars and pioneers in academics have come forward with a signed statement of support to the controversial bill.

They’ve touched the facets of the bill which came into light for being problematic and explained how they are far from that. In the statement of support they accolade the government for securing the forgotten minorities and upholding the civilizational ethos of India” and “providing a haven for those fleeing religious persecution”.

They bring to notice that this feat, which had earlier tried to be achieved by other parties through failed attempts such as the Congress-led Liaquat-Nehru Pact of 1950, could finally now be fulfilled. The statement went on to convey that the Act in no way stops or exempts any members of a particular community, here Muslims, from accessing citizenship.

They could still acquire citizenship through any of the other prescribed methods of acquisition of citizenship in the Act. It has not, in any way, changed the mandates for becoming a citizen but rather provided a special expedited redress, under special circumstances, for minorities fleeing religious persecution from the said nations.

This group of scholars includes some well-known personalities such as Journalist and MP Swapan Dasgupta, Chairman of IIM Shillong and Industrialist Shishir Bajoria, Vice Chancellor of Nalanda University Sunaina Singh, Senior Fellow, Institute of Peace and Conflict Studies and journalist Kanchan Gupta, and J Sai Deepak, Advocate, Supreme Court.

Similar law in other countries:

Pew Research Centre conducted a survey on religion and its play and power in different nations. The survey brought to light the substantial influence religion has over various nations, either clearly by having an official state religion (43 nations) or by other means such as preferential treatment of certain religious communities over others by giving them an advantage through tax status, ownership or real estate (40 nations).

Russia belongs to the latter group of nations. It recognizes Christianity, Islam, Judaism and Buddhism as the country’s “traditional” religions, yet emphasizes the “special contribution” of Russian Orthodox Christianity to Russian history.

Members belonging to the recognized religions shared the following benefits: Students choosing to take a religious education course may choose between courses on the four traditional religions or a general course on world religions, and a government program funding military chaplains is restricted to chaplains of these four religions.

Yet, the government passively favours the Russian Orthodox Church particularly. For example, the State provided the Church patriarch with security guards and access to official vehicles, and an investigation found that major presidential grants given to organizations controlled by or associated with it provide more proof for the allegation.

Though this is not in every way the same to the CAA of India, it is in a way quite similar as both of them do not affiliate themselves with a particular religion but passively favour one over the other, there Christianity and here the others over Islam.

Conclusion:

The nation has been divided into groups, one favouring the Citizenship Amendment Act, the other dissenting it for its supposed discriminatory nature and yet another group which is still lost amidst the chaos.

The only probable solution here being informing the nation’s people of what the Act and its intricacies are and how it will affect each person, after that it is ultimately upto the people and our honourable Supreme Court would soon be giving its stance and most probably handling the situation in such a manner that peace prevails. Till then, we citizens must remain informed.

Author: Aastha Mittal from National Law University, Odisha.

Editor: Tamanna Gupta from RGNUL, Patiala.

Police in university campus: Legal angle

Reading time: 6-8 minutes.

The whole nation is burning over the issue of The Citizenship (Amendment) Act enacted by the government. The country is divided into two groups i.e. the people who oppose it and the people who support it.

The said Act aims to amend the concept of illegal immigrants from Pakistan, Afghanistan, and Bangladesh for Hindu, Sikh, Parsi, Buddhist, and Christian immigrants who have resided without documentation in India. They will be granted fast track Indian citizenship in six years.

The normal age criteria for naturalization have been 12 years of residency so far. Now here the bone of contention is that Muslims were not included in this classification. The government states that the Act seeks to protect the minority groups that have come escaping persecution in Muslim-majority nations.

Dissent forms the basic part of any democracy. The Preamble of the Indian Constitution defines India to be a secular nation and according to some section of the society CAA violates the concept of secularism. Following all this, violence and protests have erupted in many parts of the country.

This time the country has also seen strong protests in various university campuses. One such was done in Jamia Milia Islamia University campus which was aggravated to a level where police intervention ensued. 

Delhi’s Jamia campus remained the centre of agitation by students against the Citizenship Act, which was amended by Parliament passing the Citizenship Amendment Bill. It was objected by university students as discriminatory and divisive.

The students of JMI protested in this regard. In such demonstrations, the high intensity of protests and violence emerged from fear and anger. In the protest called by JMI students, people from outside the campus joined, buses were destroyed, police lathi-charged students and lobbied tear gas into the university library, and students from other universities marched in the city.

Many people in hospitals, including police, JMI students, and Jamia Nagar residents were injured. The police entered the university campus when the protests became violent and outsiders created a raucous.

Right to protest in campus

Campus demonstration or student protest is a form of student activism taking in the university campus. The right to peaceful protest is enshrined in the Indian Constitution under Article 19(1) (a) and Article 19(1) (b) which guarantees freedom of speech and expression, and right of people to assemble peacefully without arms, respectively.

There is no law prohibiting protests in university campus but it is evident that protests should not go beyond limits and disturb the law and order situation. No person is entitled to take law in their own hands and no one is allowed to damage the public property.

Justice Bhagwati said in Maneka Gandhi vs. Union of India, “If democracy means people’s government, it is clear that every person must have the right to participate in the democratic process. Students in all colleges and universities be it public or private, have right to express their dissent in a lawful manner.

Does police need permission of University officials to enter campus?

The 2016 recommendations on the safety of students on the campus, the University Grant Commission do not address any limits on the entry of police into a university campus.

According to a Supreme Court lawyer Atul Kumar, it is irrelevant even if a university frames a law that forbids police from accessing the campus without authorization. The CrPC will take precedence over any other rule.

The Criminal Procedure Code provides police with or without a warrant from a magistrate with detailed powers of arrest. Section 41 of the CrPC typically authorizes police to make arrests. Section 46 of the CrPC allows police to use force to arrest a person who resists police action by force.

Sections 47 and 48 of the CrPC empower police officers to “pursue such person into any place in India” who the police have reason to believe the person has entered or is hiding anywhere.

Myth v. Reality

It is a fact that there is no legislation in the country which prohibits cops from entering anywhere when the law and order situation is disturbed. Though police generally doesn’t enters in university campuses but there’s no such law of the land like that.

In the recent protests, in the universities campuses apart from college students some outsiders were also present and in reality these outsiders provoked violence.

Things to keep in mind while protesting

The time right now in the country is very crucial. The situation is very sensitive and the political and emotional sentiments of the people have taken control. It becomes requisite to understand that in such situations, protests should not become violent. For every individual it is important to work according to their prudence and should not get carried away by peoples’ opinion.

People should try to maintain law and order

In a democratic country, everyone has their freedom of expression and opinion. The use of this should be done in a proper and legal way. For the sake of law, one should express their opposition but in a peaceful manner. While doing public demonstrations, people should be cautious and should follow the protocol of public authorities.

Be creative to make more impact and not violent

The change in the society will only come when it will impact the minds of people. Know your legal rights while protesting and abide by the law. Bring out innovation in your protest rather than violence.

Cooperation with authorities

People these days get agitated when they see interference of public authorities in peoples’ movement. One should keep in mind that whenever such protests are organized their presence cannot be denied so instead of opposing them, we should cooperate with their regulations.

Carry things for your protection

Very sensitive situations might lead to stone-pelting and tear gas attack from police. Just to protect yourself you should carry things like eye-mask and goggles.

Conclusion

For past some days, everyone is aware of the dreadful situation our country is facing because of violent protests. It is not just the duty of the government to reach to an amicable situation but every individual should take action which will not harm the law and order situation.

The youth should make the right use of their education and the public authorities should make sure that the fundamental rights are ensured to every student protesting in university campus.

Author: Muskaan Jain from NLU, Odisha.

Editor: Tamanna Gupta from RGNUL, Patiala.