Understanding the Grammar of Anti-CAA 2019 Protests through Ambedkarite Constitutionalism

By Aniruddha Babar

“Say what you want but you NEVER say it with violence!” ― Gerard Way 

One of the most recent debates that took place within the social and political arena of India is the debate around the Citizenship (Amendment) Act 2019 (CAA). This Act was passed in the Parliament of India on 11 December, 2019. One of the most significant aspects of this Act is that it brings the amendment to the Citizenship Act 1955, under which the Government of India provides citizenship to the Hindu, Sikh, Buddhist, Jain, Christian and Parsi religious minority groups from the neighbouring countries like Pakistan, Bangladesh as well as Afghanistan, who fear religious persecution. However, as we can observe, the Act faces criticism because of the exclusion of the Muslim community from the benefit of getting citizenship on the basis of religious persecution. There was a significant protest across the country regarding such a discrimination, which is also considered as unconstitutional. The most conspicuous symbol of this protest is the portrait of Dr. B.R. Ambedkar, the father of the Indian Constitution, held high, waved, as an enduring image of resistance by the protesters. The visuals of protesters carrying Ambedkar’s portrait in large numbers on streets can be considered a major departure from India’s conventional history of political resistance movements.

In the aforementioned context, this essay examines, analyses and discusses the problems with the CAA and explores whether it is against the democratic and secular vision of Ambedkar. It further explores the manifestation of the very idea of ‘protest’ through the Ambedkarite spectrum. Ambedkar believed that every citizen living in India should have all the fundamental and equal rights regardless of their caste, creed or religion. He also believed that it was the most necessary condition for establishing a democracy and promoting secularism in a diverse country like India. However, as we have seen in various media reports, the CAA has increased unrest and agitation among people in different Indian states, although their concerns related to the CAA may vary. In this context, it is important to examine and discuss whether the CAA fits in with the thoughts, ideology and vision of Ambedkar in the light of the various provisions of the Constitution of India.

The CAA has brought a change in the citizenship of the migrants and refugees, who enter India because of the fear of religious persecution in their own countries. One of the significant features of the new Act is the preference accorded to some of the religious minorities, such as the Hindus, Sikhs, Parsis, Jains, Christians and even Buddhists. These minority groups who have migrated to the Indian soil till 31 December, 2014 on the basis of fear of religious persecution can obtain Indian citizenship. Such migrants and refugees can receive a fast-track citizenship in India and for them the period of continuous residence (as a necessary legal condition to be eligible for citizenship) in the country has been reduced from eleven to five years. This new Act does not include the Muslim population in its provisions, which has resulted in various protests across the country.

According to the Ministry of Home Affairs, the CAA does not affect any of the individuals with existing citizenship in India. All the individuals have the freedom of enjoying their fundamental rights in the country whether they are Hindus or Muslims. It has also been said that no statute or Act of Parliament can take away the fundamental rights provided under the Constitution of India. The new Act does not include Muslims, because, as has been hypothesized, they are not minorities anymore in Pakistan, Afghanistan and Bangladesh, as there are few chances of Muslims facing religious persecution or violence. The new Act also states that any foreigner or Muslim that have migrated from any country other than the three countries mentioned in the Act would not be able to avail the benefits of fast-track citizenship.

Most of the criticism against the CAA are associated with the exclusion of Muslims from their right to obtain citizenship and with their freedom of fundamental rights. Despite the fact that the new Act has given preference to some of the specific religious minorities for the purpose of awarding citizenship, it may be pertinent to note that the new Act does not bring any change to the existing Section 5 (Citizenship by Registration) and Section 6 (Citizenship by Naturalisation) of the Citizenship Act 1955. These two sections are still operational and will not affect any of the existing citizens or communities regardless of their caste or religion. It is also important to note that hundreds of the Muslim migrants from the aforementioned three countries have been granted Indian citizenship in the last few decades and they will still receive the citizenship if they are found eligible regardless of their religion.

Some of the critics of the CAA have also stated that the Act is formed on the basis of religious discrimination, which is against the provisions of the Indian Constitution. Some believe that Muslims will be deported from India to other countries, if they fail to prove their citizenship. However, the Indian government informs that no individual or the group can be deported from India nor has the CAA to do anything with the deportation of any foreigner, because the decisions of deportation are governed only under the Foreigners Act, 1946 and/or The Passport (Entry into India) Act, 1920. These two laws are the only statutes that govern the stay, movement or the deportation from India.

One of the most significant rights that Ambedkar fought for, which now every individual in India avails, is the Right to Equality, which is provided to all the individuals and citizens through Article 14 of the Constitution of India. This Article states: “State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” This also means that law in the country that directly includes all the Acts or statutes, shall not create a barrier for any individual living within the Indian territory (either citizen of India or non-citizen) to enjoy their right to equality.

Ambedkar also believed that the right to equality is the most fundamental right for every individual. His work was not limited to Dalits, adivasis and other oppressed castes and classes, as he also worked for the rights and freedom of the minority groups and believed that every individual should enjoy equal position in the country. However, the provisions identified under the CAA are contrary to India’s consistent global position in relation to respect towards human rights and minority rights. In his final speech to the Constituent Assembly in November 1949, Ambedkar had also warned everyone against diluting the provisions of the Indian Constitution in order to achieve all the economic and social objectives. He also believed that the methods of revolution and protest must be prevented. He stated in his speech that the bloody methods of civil disobedience, satyagraha as well as movements like the non-cooperation must be abandoned. However, he had further stated, “When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods.”

Ultimately, the aim of the Indian Constitution of which secularism is a core principle, is to build a nation based on the principles of Justice, Equality, Liberty and Fraternity. Ambedkar’s goal of establishing democracy and secularism in India could only be achieved by sticking to the constitutional provisions of equality, equity and freedom. It has been argued that the CAA is a significant threat to the diversity, unity and specific identity of India. It also poses a great challenge to the doctrine of ‘Basic Structure’, which was specifically developed by the Supreme Court in the case of Keshvanand Bharti (1973). As explained by the Supreme Court of India in Keshavananda Bharthi Vs State of Kerala, Chief Justice Sarv Mittra Sikri, writing for the majority, indicated that the basic structure consists of the supremacy of constitution, a republican and democratic form of government, the secular character of the constitution, maintenance of the separation of powers, and the federal character of the constitution. Moreover, in S.R. Bommai Vs Union of India, the Supreme Court observed, “Notwithstanding the fact that the words ‘Socialist’ and ‘Secular’ were added in the Preamble of the Constitution in 1976 by the 42^nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy…” The observations that the Supreme Court of India makes us reflect on the true character of the constitution. Secularism is not simply a dead word; rather, it is a spirit that should form a part of every action that the government takes in the name of ‘The People of India’. Secularism must be understood as a basic feature of our Constitution.

It has been argued that the words and the clauses in the CAA, 2019 do not reflect the secular spirit of the Constitution of India. This Act does not stand constitutional scrutiny with the defense of the doctrine of ‘Reasonable Classification’. The Article 14 of the Constitution of India does not forbid reasonable classification of the target population (for the purpose of legislation) which must not be ‘arbitrary, artificial or evasive’ but based on some real and substantial bearing. A just and reasonable relation to the object sought to be achieved by the legislation, the yardstick of reasonable classification needs to be in conformity with the constitutional scheme and policy. It has been often articulated that there is sufficient legal ground to believe that the CAA fails to satisfy the test of reasonable classification. The Supreme Court has made this point emphatically clear in Nagpur Improvement Trust Vs Vithal Rao & Ors (AIR 1973 SC 689). “In this connection it must be borne in mind that the object itself cannot be discriminatory, for otherwise, for instance, if the object is to discriminate against one section of the minority, the discrimination cannot be justified on the ground that there is a reasonable classification,” the Supreme Court had ruled. Moreover, when the Indians adopted the Constitution, they opted for positively inclusive citizenship, for a free, liberal, progressive and equitable nation as imagined by Ambedkar and this has been the national aspiration for over 70 years. Therefore, meddling with this basic premise on the basis of which the entire nation has been constructed with constitutional machinery is not expected to yield any positive outcome.

Ambedkar always strived for justice and an egalitarian society, which could be developed on the principles of ‘liberty, equality and fraternity’. He also believed that such values and principles are important for developing an effective social structure within India and for establishing the principles of humanism. However, the CAA goes against the constitutional ethos of an egalitarian society and can significantly push India towards majoritarianism which of course was not part of Ambedkar’s vision of India. At this juncture it may be pertinent to quote Ambedkar, “It is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution.” Whether the prophecy of Babasaheb has already become a reality or not will be known when the Supreme Court delivers its final judgment on the constitutional validity of the CAA, 2019.

Discrimination in any form in the name of religion is prohibited as it goes against the tenets of secularism. However, the CAA has resulted in placing emphasis on religion and has given preference to some of the specific religious communities, while leaving out Muslims completely. Therefore, the CAA is seen as a threat to the primary democratic and secular character of India. Apart from the significant protests in the western and the northern states of India, considerable number of protests was held in the eastern and north-eastern states, which was based on the assumption that the CAA would result in increasing the migration of people to the eastern and north-eastern states, affecting their lands, resources and natural demography. Moreover, as per media reports especially from Assam, it has also been argued, especially in the context of the northeast states, that the CAA is nothing but a political tool to create ‘favorable constituencies’ amassed by people from specific religion to influence cultural, economic, social and political dynamics of the region. However, in other parts of India, people believe and consider the CAA as a tool to specifically target the Muslim communities, thus violating the constitutional principle of secularism.

Despite the claim of the Indian Government that the CAA is not meant to target a particular religious community, it indirectly impacts Muslim migrants to India because they would not be protected by the provisions of the new amendment. Granting citizenship on the ground of religion significantly violates the principle of secularism and hampers the establishment of an egalitarian society, as envisaged by Ambedkar in his writings and speeches.

According to Ambedkar, social formation or the social reformation must be based on the principles and values of equality and liberty. He, therefore, emphasized on justice, which he believed to be the most important element for establishing an egalitarian society. Justice is the main ‘value principle’ which integrates the concepts of equality, equal rights, freedom and liberties. The government of India has amended the existing law in order to provide citizenship to the non-Muslim immigrants from Pakistan, Bangladesh and Afghanistan, which displays a peculiar contradiction and deserves to be placed under legal scrutiny. Therefore, the CAA could not be considered as reasonable and appropriate under the provisions of Article 14, 15 and 21 of the Constitution of India. Moreover, Article 2(1) of ICCPR, 1966 states that state party to the covenant requires to display respect and equality towards every individual within its territory and its jurisdiction and no distinction could be made on the basis of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Therefore, any form of discrimination on the basis of religion could not be considered as constitutionally acceptable. Fundamental human rights are important to ensure so that every individual achieves an equal place in Indian society.

The relevance of Ambedkar to the CAA protests can also be studied and understood from the approach that was adopted by him to champion the cause of Dalits and other downtrodden communities. As we know Ambedkar was also an activist, who used various means and modes to achieve the rights of the oppressed people. Kalaram Temple Satyagraha for the right to temple entry for untouchables or Chavdar Pond Satyagraha for the right to drink water can be cited as Ambedkar’s activism. Therefore, it is not surprising to discover that while drafting the constitution Ambedkar was very meticulous about making provisions for ‘Right to Protest peacefully’ which is enshrined in Article 19(1)(a) that guarantees the freedom of speech and expression and Article 19(1)(b) assures citizens the right to assemble peaceably and without arms. Furthermore, Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without arms. The right to protest peacefully, to publicly question and force the government to answer, is a fundamental political right of the people that flows directly from a democratic reading of Article 19 which is a gift of Ambedkar to the nation. There was never an iota of difference between Ambedkar’s preaching and action. The drafts of the constitution not only reflect his master statesmanship but also his heart as a social activist for which Ambedkar became a symbol of struggle and justice in the mass movements against the CAA in 2019. The affinity of the people to the constitution which guarantees them their rights, is what drew the protesters to Ambedkar, and that may be the reason as to why we see more photos of him in various Anti-CAA 2019 protest rallies. When the world was busy constructing a Hindu vs Muslim binary narrative, the protesters remembered Ambedkar’s idea of fraternity, along with liberty and equality, in saving democracy. As he wrote, “In an ideal society…there must be social endosmosis. This is fraternity, which is only another name for democracy…Democracy is not merely a form of government. It is primarily a mode of associated living, of conjoined communicated experience. It is essentially an attitude of reverence and respect towards fellow men.”

It was reported in the media that the Preamble to the constitution of India was being read during protests. What is the Preamble? What does it signify? Each and every word of the Preamble has a sufficient spark to remind each and every Indian citizen of Ambedkar’s struggles, thoughts and vision for this great country and the people. Hence, whenever and wherever there is a protest in any part of India or world in defense of human values, humanism, constitutional rights, equality, equity and justice, Ambedkar would emerge by default as the ultimate symbol of protest.

Ambedkar died more than six decades ago. Yet he continues to inspire Dalits, adivasis, women, minorities and all other socially deprived communities across India. He has also become a symbol of hope to all those who have been engaging in a battle for equality, self-assertion, self-respect and justice in different parts of the world. The legacy of Ambedkar will continue to influence the present and future generations of the world to struggle for their own survival as a human being.

Photo: Reddit

Bio:
Dr. Aniruddha Babar (PhD, MA, LLM, DHRL) is a trained Lawyer and a former Advocate, also a columnist, poet and writer. He is currently teaching Political Science and International Law at Tetso College, Dimapur, Nagaland, India.

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