Mohammed Rashid
Wide unrest have erupted in different parts of the country, against the undemocratic citizenship amendment act (CAA) and against the national register of citizenship, 2019(NRC) which is explicitly intended to ethnically and racially expatriate Muslims, which constitute 20%of the total Indian population. Along with Muslims, students, the civil society and several NON-BJP ruled states have extended their support to the protest against this discriminatory act and have spread it around that their states won’t implement CAA and NRC. Although different sections of the society are in protest against CAA and NRC, the prime minister and the union home minister themselves have annunciated that the Govt. will go forward with CAA and NRC.
Since the bill was passed in the parliament, that’s on 11 December, 2019 intellectuals, lawyers, human right activists across the globe, political observers, different organizations for the protection of minorities, that include The federal commission on international religious freedom, students from various universities, inside and outside India, and a part of civil society have took stance against the discriminatory nature of CAA.
While discussing about CAA and NRC, it’s quite important to understand the legal aspects of this act and the history as well as the politics of Brahmanical fascism, and its connection with the CAA and NRC. Along with this, the role of legislature, judiciary and media in such a catastrophic exigency.
Eminent lawyers, retired judges from various high courts and even from the supreme court, national and international human right organizations for the protection of minorities have apparently made it clear that the CAA and NRC, both are discriminatory in its very nature, and is against the fundamental character and foundation of the Indian constitution, and to say that this act is a direct result of Islamophobia and a step forward for a Hindu Rashtra., and have expressed their concern regarding the politics of Brahmanical fascism.
Historically, the very problem of CAA, cannot be solved mere by legal procedures and judicial battles. But obviously, when an authoritarian nation state, for which Brahmanism, Brahmanical morality and Brahmanical culture stand as an epistemological foundation, enact laws, which is intended to usurp all the political and social rights of the Muslims, which has been granted by the constitution of India, and to ethnically expatriate Muslims into detention centers, as a second class citizen without any political or social rights, we will have to legally defend this nefarious bill in the court to establish and to protect our legal rights, which has been granted by the constitution, and to uphold and protect our right to live, which is our constitutional right, and obviously not any ones benevolence. So the legal developments and legal resistance is quite important in this battle against the Brahmanical fascism and its flagitious penchant. But still we cannot consider the law and judiciary as a sole refuge to overcome such a perilous situation, because there are much more elements in the politics behind this law, which should be dealt politically and historically.
To begin with law itself, according to basic structure of the Indian constitution, the very nature of CAA is Anti-Constitutional and cannot pass a judicial scrutiny. Article 14 of the Indian constitution, which prohibits the state from enacting any laws or policy which discriminates the people on the basis of religion, race, caste, sex or place of birth clearly states that “The state shall not deny to any person equality before law or the equal protection of the laws within the territory of India, prohibit of discrimination on grounds of religion, race, caste, sex or place of birth.” The supreme court have explicitly made it clear that the foundation of this very article is to legally protect every citizen irrespective of their religion, race, caste, sex or place of birth and with an intention to halt and restrain the state and government from enacting any law which is discriminatory in its nature, in its landmark judgement in the case “Shayara Bano vs the union of India.” Along with article 14, article 15 also directs the state to be secular in its nature, which prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
The supreme court have upheld the importance and the relevancy of this very provisions and the importance of the “basic structure of the constitution” in its most famous case “Keshavananda Bharathi vs state of Kerala”, where the court unambiguously made it clear that secularism, equality and democracy is a part of the basic structure of the constitution and the parliament cannot amend the basic structure of the constitution, and the courts have insisted on the importance of natural justice and the importance of its perseverance while enacting law and while implementing it.
While scrutinizing the NRC AND CAA, the first which is intended to create a register of Indian citizens and the later one to grant citizenship to the immigrants or refugees from Hindu, Sikh, Buddhist, Parsi, Jain and Christian community from Pakistan, Afghanistan, and from Bangladesh, and exclude Muslims without naming the community. According to NRC, there are 14 documents which can be used to prove that a person is an Indian citizen. When the NRC list was declared in Assam state on 31st august 2019, approximately 19 lakhs of people were excluded from the list, which means that the excluded 19 lakhs of people won’t be Indian citizens anymore until proved otherwise in foreign tribunals. The ruling party, the BJP, was targeting the Muslim community in the state and was expecting the majority in the NRC list will be Muslims, but unfortunately when the NRC list was declared, majority of the excluded people were from the Bengali Hindu community. To overcome this issue and to undermine a huge and mass protest from other minorities other than Muslims, CAB was introduced. According to CAB the people from this country and community, will be granted citizenship if they can prove their presence in India from 2014 December 31st. But for Muslims, they will have to provide any of the 14 document which is mentioned in the NRC list to prove their citizenship that is to provide documents to prove the ancestors of Muslims were Indian citizens from 1971 or before that. This bill and law, which is explicitly discriminatory and derogatory in its very nature, is a clear violation and a vicious attack on the constitution and on the Muslim community and against the secular concept of the constitution. It demands separate documents and enacts separate laws for the people on only the basis of their religion, which is a clear violation of article 14 of the Indian constitution.
So while scrutinizing the CAA on judicial grounds, there is no dearth of evidence to naturally and technically conclude that this bill will be declared void and unconstitutional by the court. But a huge number of people, who reside in and out of the property and the experts from different countries, have expressed their pessimism regarding the capability and the courage and the enthusiasm of the court to uphold justice and the courts capacity to protect the constitution and the constitutional morality.
While discussing about natural justice, the pessimism over the judiciary regarding the perseverance and distribution of natural justice, is a considered as a symbol of the declining importance of natural justice and the proclivity of the judicial and legal system. If a vast number of people are pessimistic regarding the courts role and determination in a democratic country like India, where the constitution is the supreme authority and the decisions of the legislature is subject to judicial scrutiny, it’s not at all a good penchant or development in a democratic country.
When a government with a totalitarian predilection, who’s ideology is solely based on Brahmanism, is enacting such nefarious and discriminatory bill with an overwhelming majority in the parliament, the courts are legally obliged to prevent the essence of the constitution and it should use its full power to prevent the tendency of Brahmanical fascism. But instead, the country is witnessing for a weak judiciary, which succumb in front of the government without great efforts. The reason for this debilitation of the judiciary is the courts are also using the cultural and social paradigm of Brahmanism to analyze the social and legal developments and movements in India. While in such a dangerous situation, no one can reasonably assume that the judiciary can rise in to the situation and will show a capacity to protect the constitution and the constitutional safe guards for its citizens, but in such a perilous situation, the judiciary will have to, because if the judiciary cannot find racism and Islamophobia in this bill and if the this bill passes judicial scrutiny, then that means it’s the death warrant for the constitution and for the constitutional morality, and obviously for the concept of natural justice too.
But here, in this specific case, even if the apex court struck down the CAA, that doesn’t mean it’s an end for this problem. While going through the commission reports, which was formed to study the problems of Muslims and about their identity crisis as a Muslim, especially the “Sachar committee report”, it is apparently clear that the Muslim and Dalit community particularly, are facing different kind of identity related problems which have different facets. For us, it’s important to defeat the CAA in court, because we have to fight as long as we can to protect our constitutional safe guards and our dignity as citizens. The Muslim and the Dalit community should courageously declare that we are not ready to be second class citizens or to live as a slave in this country at all, that the importance of this battle.
But along with this battle, it’s equally important to understand the importance for a social revolution and a social fight against Brahmanism and against Brahmanical patriarchy system, which still prevails in our country intact. Dr. Baba Saheb Ambedkar have made it clear that “we cannot create a political democracy until and unless we create a social democracy.” The Brahmanism and its very foundation that is caste system, is totally anti-democratic and against the overall development and betterment of human being. The very basic concept of caste system include the concept of purity and impurity, untouchability, and unique way of nefarious oppression. But still, Indians are great admirers of caste system and enjoys its privilege, a majority of people suffers inhuman oppression and treatment because of their identity as Muslims or Dalits. In such an undemocratic society, the fight for justice, democracy, secularism, equality, and for socialism doesn’t end with a legal battle.
It’s as true fact that our fight for right to life, for dignity and for our legal protection is very important, but it’s equally important to understand the role of social revolution for democracy, and for democratic values, because, the ruling party, that is BJP, and its mother organization RSS, have insisted on the expatriation of minorities and communists and their ethnic cleansing from the day one of its foundation.
Mr. M.S.Golwalkar, who was the second sarsang chalak of RSS, have clearly made it clear that Muslims, Christians and Communists are the three internal threats and enemies of India. According to him, Muslims, Christians and Communists have to be ethnically cleansed or should adopt the culture of India, or to say the culture of Brahmanism. In his famous book “we or our nationhood defined,” Golwalkar admires the Nazi pogroms against Jews and asks the Indian people to follow that path against its internal enemies.
The ruling party, that is BJP, have apparently made it clear that they will implement NRC, will abrogate Article 370, etc. in its election manifesto, and have proved that even the implementation of CAB & NRC is being done according to the consent and will of the majority, in fact it’s a common and a quite usual output of Brahmanism. So in such a derogatory situation, judiciary cannot be our first and last hope, but just one way to fight and defeat Brahmanism.
So in such a stance, the role of social revolution, especially the role of identity politics in preventing Brahmanical fascism is quite important. Because when Brahmanical fascism explicitly provokes the Muslim identity in particular and enacts laws which is clearly intended to debilitate the legal rights and legal safeguards guaranteed by the constitution to the Muslims as a religious minority and as citizens, and to expatriate and to ethnically cleanse Muslims and to make their identity and presence invisible, historically the way to prevent such fascist movements is by resorting in the same way. If the Muslim community is being suppressed by the Govt. and by the Brahmaness just because of their Muslim identity, the way to prevent and defeat this Brahmanical advancement is by giving more visibility to the Muslim identity and for Muslimness. When Mr. Narendra Modi, the Prime Minister of India, himself makes a very much communal statement that “The protesters can be identified by their clothes” which clearly indicates the Muslims, it’s equally important to understand how important it is to resist Brahmanism by the visibility of Muslimness and Dalitness. That’s the importance of “JAI BHIM, ALLAHU AKBAR” slogan. Such slogans are religious and political, simultaneously.
So it’s time to prevent Brahmanism and Hindutva fascism by upholding our own identity and ideology, and should courageously declare that we stand against Brahmanism and its cultural and its social morality, and we stand for our constitution, for its concept of justice and society, for individual rights, for the rights of communities, we stand against Brahmanical patriarchy and against Brahmanical Hindu capitalism, our demand and fight should be for social justice , dignity for all, distribution for wealth, for the economic and social prosperity for all, and we are against the nefarious caste system.
Mohammed Rashid is a law student at Regional Institute of Management and Technology in Punjab
