Jurists are agreed that the newly introduced Citizenship Amendment Act, 2019 violates the Basic Structure of the Constitution of Indian. In this article, the author discusses origins of the theory of Basic Structure and explains why this Act is in violation of the spirit of the Constitution
[dropcap]W[/dropcap]HEN I decided to pursue law in 2015, the Modi Government had been in power for already a year. Most of my classmates did not care two hoots about politics and had an abysmal understanding of history or any discipline for that matter, but they still wanted to make a point. When it came to Modi, those who argued the loudest were also the most smitten. They were downright bigoted and unapologetically ignorant. There was no excuse for their youth. This was the largely upper-class, upper-caste, the privileged millennial generation who wore its attitude on its sleeve and had no reticence showing off its dumbness. I hated them but I despaired even more. These young men and women were going to be our future judiciary. But deep in my heart, I knew we were the guilty ones. I knew that for all my idealism our generation and the generations before us had somehow failed and our systems lay terribly broken.
When college ended I was most relieved. A few months before Modi made his full-blown return in 2019, I had written the All India Bar Exam and had cleared it. The dumb days were truly over. I could get myself an actual education now and I was fortunate to meet some other young people, very different from the set I had encountered in college. These young men and women cared to begin with. They were not always informed but they got one thing right, and the only thing that actually matters for any conscientious law student of our country to imbibe. They were innately in tune with the Basic Structure of our Constitution and they had deep regard for the man who was the Chairperson of its drafting committee. One inspired student and now a newly minted advocate has gone on to form the Maharashtra Students Law Association and the Maharashtra Students Union.
Today, in the ongoing charged atmosphere surrounding the Citizenship Amendment Act, 2019 (CAA), the basic structure doctrine that is said to preserve the soul of our Constitution has met its toughest challenge since the Emergency. The doctrine was first expounded by the Supreme Court in the famous Kesavananda Bharati case in 1973. Now this, any law student will know. The case has been relegated to one of those classic textbook questions that are almost unfailingly asked in law exams. The history leading to Kesavananda Bharati and the case law following it that upholds the doctrine in a number of cases is significant as well. A lot has been said about this momentous case and the groundwork it laid for judicial review.
Think about the basic structure doctrine as the human spine. When you extend the analogy to a billion people of many tongues, tribes, ethnicities, communities, and to many who are rendered faceless even, it is a very long spine indeed. The recognition of this incredibly diverse swathe of people in a deeply unequal society is the ethos that led to our Constitution in the first place. The majority of the judges in the Kesavananda Bharati case gripped the ephemeral and made it real. Besides they gave it a name: The Basic Structure. They were effectively saying, Parliament for all its power to amend the Constitution, cannot do away with the Constitution’s spine. The case also affirmed that the Supreme Court will step in as the ultimate arbitrator of our Fundamental Rights.
The CAA not only impinges on our Fundamental Rights but is also an underhand ploy to destroy the Basic Structure of our Constitution via The Citizenship Act. Never before in the history of this country has citizenship been defined on religious grounds. But if there is one thing that the Modi-Shah government has been adept at, is playing the law, and playing its supporters. The (dis)ingenuity has been best displayed in Kashmir by the reading down of Article 370. The CAA may, however, prove to be the beginning of the end for this unbridled power. National security notwithstanding, the situation in Kashmir and the Northeast has made India one of the most internally insecure countries today. All signs are indicative of the situation only worsening in a slowing and rudderless economy.
Yet what is immensely worrying today is that independent institutions are compromised and brave judges are rare. Maybe they always were. Perhaps we also learn little from history as one well-known truism goes. But even with the “Idea of India” being caught up in a sandstorm of carefully cultivated lies and deceit, it is difficult to imagine that the polity of India can be stifled. If the protests against the CAA are anything to go by, we at least know that resistance is well and alive. As the expected petitions against the CAA make their way into our Apex court, the bench has both a legal and moral responsibility. It has great precedent too.
Two law students are among the petitioners. Many students across disciplines have organised themselves for protest along with other people from a cross-section of our civil society. I may have had an uninspiring time in law college but I am assured that there are young people across the country who will defend the Basic Structure of our Constitution in court and outside.
Will we, or will we not have the spine to be in solidarity?
Or will we be failing again?
*A nationwide protest against CAA has been planned on 19th December 2019 which will include several students and student organisations.
Deepa Punjani is keenly interested in the dialogues possible between the judiciary and civil society and in the intersection between law, politics, and culture.