“Once you are entitled to citizenship, you are entitled to the protection of all other rights which then accrue to you under the Constitution. Perhaps that is the rationale behind the CAA read with the NPR to deny to certain sections of people the right to citizenship and the empower other based on religion”, expressed senior Lawyer Indira Jaising.
She was speaking on ‘Citizenship, Democracy and Rights’ at the launch of the book ‘Citizenship, Rights and Constitutional Limitations’, authored by senior advocate Dr. K. S. Chauhan and published by Mohan Law House. The event was also attended by former Vice President of India Hamid Ansari.
“Given the history of partition in the country, citizenship is linked to the birth of an individual in the undivided territory of British India, making religion for citizenship totally irrelevant”, continued Ms. Jaising.
She continued to canvass how, after the 2004 amendment to the Citizenship Act, 1955, citizenship can be acquired by birth only if one of the parents is an Indian citizen – “And therein lies the critical mischief of the 2004 amendment, that it denies citizenship on the basis of birth on the soil of
India, except for the precondition that one of your parents was born in India. It appears that the origin of the CAA dates back to this period”.
“In the US, today they have introduced the Dream Act, which grants citizenship to the undocumented migrants whose parents had migrated to the United States of America for the purposes of work. Contrast this with our CAA coupled with the NPA process”, she pointed out.
Discussing the NPR process, she urged how it reverses the burden of proof on an undocumented person to prove his citizenship, contrary to the rule of law. She explained that as per the existing law, if the government says that one is not a citizen, it is the government which has to go to the court, to the Foreigners Tribunal, to prove the same.
“We need to safeguard against the gradual erosion of the principle of innocent until proven guilty and the ordinary principles of burden of proof, which always lies on a State which says that you and I are not citizens”, she cautioned.
“The enshrinement of the rights in the Constitution does not guarantee their enjoyment. The Constitution of India was the result of a political process and thus, the only guarantee of the implementation of the rights is our own political process. It is we who must speak up, it is we who must dissent, it is we who must resist an unjust government to actually actualise the rights”, she explained.
“We have seen two very important movements by citizens for their rights – the CAA movement, which started and ended in Shaheen Bagh, and the ongoing farmers’ movement. The right to organise, the right to associate, the right to protest and the right to resist must come to us naturally, as naturally as we breathe, as naturally as we survive”, she said.
“Democracy is a participatory process- participatory in lawmaking, participatory in giving inputs in bills and laws which are introduced in the Rajya Sabha and the Los Sabha, participatory in our rights as citizens. These participatory rights are being taken away by laws which are introduced as money bills, by laws which are not introduced in the Rajya Sabha, by laws which are introduced as ordinances and then passed in law as if totally constitutional”, continued Ms. Jaising.
“The defining moment of the present situation is that this government uses law to defeat the law, resulting in a state of lawlessness. When a democracy fails, our courts also fail us”, stated Ms Jaising.
Giving an example of how citizenship rights have come to be negotiated away, she indicated how a bill has recently been introduced in the Lok Sabha which amends the NCT of Delhi Act of 1991, seeking to redefine ‘government’ as ‘lieutenant governor’ – “This may have also happened on account of some faulty decisions of the Supreme Court. It may surprise some that the Supreme Court has held that the right to vote is not a fundamental right. Then how can we call ourselves a republic? How can we call ourselves citizens? Saying that the right to vote is only a statutory right is to deny of a fundamental element of citizenship!”
“Why must I vote for a nominated Lieutenant Governor when I as a citizen of Delhi cast my vote? When I cast my vote, I cast it for a representative I have chosen as my representative. This is patently unconstitutional… We have mastered the art of defeating law by the law. Just change the goalposts, replace ‘government’ by ‘Lieutenant Governor’ and by a magic wand, we have lost all citizenship rights!”, she said.
Ms. Jaising embarked on a discussion of the continued existence of section 124A, on sedition, in the IPC.