Citizens of India’s north-eastern states have been protesting vigorously against a proposed new citizenship regime that they claim will “destroy their culture” in the region. The protests have been diverse and dramatic – petitions, hunger strikes, effigy-burning, a rebel militant group threatening to end talks with the Indian state.

The source of their anger is the Citizenship Amendment Bill, first tabled in the lower house of the Indian Parliament in 2016. It is set to change the Citizenship Act of 1955, which has formed the basis of India’s citizenship regime since it gained independence from the British Empire in 1947. The amendment seeks to allow select “persecuted minorities” (Hindus, Christians, Parsis, Sikhs, Buddhist and Jains) from the neighbouring countries of Bangladesh, Pakistan and Afghanistan citizenship status in India after six years of residency. Other groups must wait 11 years to become naturalised citizens.

In the north-eastern states, the fear is that this amendment would legitimise migration of Hindus from neighbouring Bangladesh in particular, potentially affecting the demographic make-up of the region.

When the bill’s parliamentary committee began touring the north-east in May, protests grew steadily larger, stronger and more widespread. As almost 99% of their boundaries are international borders, the citizens of these states have been quick to point out that they would be the first “victims” of the new amendment if it makes it easier for minority immigrants to travel across the border, settle in and become full citizens. The complaints are loudest in the state of Assam, which has waged a four decade struggle against the Indian state to prevent what some there call “unchecked infiltration” from neighbouring Bangladesh.

The committee’s decision to visit the north-east – and the media coverage of the protests – have framed this as a north-eastern issue, not a national concern. But in fact, the Citizenship Amendment Bill will change the character of citizenship not just for this region, but for India as a whole.

Birthright and blood

When India achieved independence, its citizenship regime was established on the basis of jus soli (birth within a territory), meaning that people were members of the political community regardless of their religion or ethnicity. While mistrust of Muslims has persisted into present-day India, particularly in recent years with growing Hindu right-wing populism, the law has so far upheld the secular, non-religious character of the Indian state. The Citizenship Amendment Bill would fundamentally alter this basic tenet, shifting the basis of citizenship towards jus sanguinis (by right of blood).

But, as historians such as Joya Chatterji and Ornit Shani have documented, there have been frequent challenges to the principle of citizenship by birth – especially in the period immediately after the partition of India and Pakistan in 1947.

In contrast to Muslims, Hindus were from the start considered “natural citizens” of India. Muslim citizens of pre-independence India were ostensibly given a choice between the two countries, but in practice they were subjected to arbitrary processes to “prove” their loyalty to the Indian state. Similar demands were not made of Hindu citizens crossing the border from the newly-formed Pakistan back into India.

Regardless of which states or regions would be most affected by a sizeable influx of migrants, the bill changes the character of Indian citizenship and the basis on which it is granted, moving from secular to overtly favouring specific groups – particularly Hindus. It opens the door for the creation of second-class citizenship for non-Hindus and most of all Muslims – not just in the extra-legal practices of discrimination and violence that exist today, but in the law.

Slipping away

Given that India repeatedly fails its own minorities, perhaps it’s not surprising that it is only prepared to offer refuge and asylum on the basis of ethnicity, not humanitarian need. It’s no coincidence that this amendment was introduced by the ruling Bhartiya Janta Party (BJP), led by the prime minister, Narendra Modi, which has an abysmal track record in protecting India’s minorities, whether they are Muslims, Christians or Dalits. Nor has it shown any inclination to help rehabilitate South Asia’s largest persecuted minority, the Rohingya.

Furthermore, the bill also leaves out Muslim minorities in Pakistan, such as Shias and Ahmadis. There is also speculation about whether the bill is a means to appease India’s Hindu diaspora abroad – an important funding base for the ruling party.

Even the relatively hardline BJP is not immune to public resistance. The protests in the north-east prompted India’s government to backtrack and table discussions to address what it euphemistically referred to as “people’s concerns”. But by framing the amendment as a regional issue, the government has managed to confine public opposition to the people of the north-east. Because the region is already marginalised in Indian politics, the rest of the country is often apathetic about its concerns, which rarely become pan-Indian ones.

Still, that the citizens of the north-east are protesting so vehemently – whatever their precise grievances – is currently the only sign of dissent. Unless it feels the heat of visible and vocal public outrage, the Indian state is likely to continue its slide towards becoming a very different, less inclusive, and increasingly more unjust country.

Saba Sharma, PhD Candidate in Geography, University of Cambridge

This article was originally published on The Conversation. Read the original article.

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The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries.

The Collegium system which takes a call on the appointments and transfers of judges in the higher judiciary is once again in the news. In this age of 24×7 connectivity, it is getting increasingly difficult for it to ward off valid criticism over its functioning. Supreme Court (SC) of India in State of U.P. vs. Raj Narain (1975) 4 SCC 428, observed:

In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil secrecy the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.

The SC collegium comprising of Chief Justice of India and its four senior most judges is perhaps the only institution which appears to have shown utter contempt to its own observation in Raj Narain case. The institution of collegium, as of now, is beyond public scrutiny. Secrecy is the norm. One may hazard to call it a Five Judges Private Club. Not only its functioning is opaque but even its decisions have at times intrigued one and all.

Justice J. Chelameswar in the National Judicial Appointments Commission (NJAC) verdict mentioned that the records related to collegium’s proceedings are absolutely beyond the reach of any person including the judges of SC not lucky enough to be the Chief Justice of India. Such a state of affairs does not auger well for Indian judiciary, and especially the SC, which otherwise holds an exalted place in the eyes of Indian public. People rightly look at it with awe and admiration. But the obstinacy surrounding the affairs of the collegium is taking its toll.

Though the SC bench in NJAC case struck down the 99^th Constitutional Amendment Act that attempted to tinker with the collegium system, the majority, however, opined that it needed to improve its functioning. Unfortunately, from the day said judgment was pronounced; it appears that no stone has been left unturned to resist transparency and accountability. The proverbial carpet cannot accommodate any more dust. The collegium system is now facing huge credibility crisis. Numerous recent decisions have further contributed to it.

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The recommendations of the collegium to transfer Justice M R Shah of Gujrat High Court, and the other one from the Delhi High Court and subsequent withdrawal of the recommendations has led to allegations of collegium succumbing to extraneous pressures from the executive. The government sat on the recommendations of collegium in these two cases for more than a year which prompted the then CJI, T S Thakur to threaten withdrawal of judicial work from the two judges while hearing a case on the judicial side. CJI Thakur, in the meantime, retired and the collegium headed by the former Chief Justice J S Khehar apparently gave up the matter. Ultimately, the collegium had to withdraw its earlier recommendation of transferring the two judges.

In yet another case, Justice K. M. Joseph, serving Chief Justice of Uttarakhand High Court, sought his transfer from Uttarakhand to Andhra Pradesh High Court. Collegium acceded to his request and recommended it to the Government. However, even a year after the recommendation was made, his transfer is still ‘under consideration’ of the Central Government. To add to the woes, in February 2017, Justice Chelameswar, questioned the decision of the collegium, of which he himself is a member, to not elevate the highly competent Justice K. M. Joseph to the top court.

The recent controversy surrounding the ‘proposed’ transfer of Justice Jayant Patel of Karnataka High Court to Allahabad High Court followed by his resignation has sparked a fresh debate and brought the collegium system under scanner once again. The Gujarat High Court Advocates Association (GHCAA) has vehemently condemned the move of collegium in transferring Justice Patel. It has also decided to challenge the same before the Supreme Court.

Nobody knows the true reasons for this transfer at a time when Justice Patel was supposed to discharge duties of acting Chief Justice of Karnataka High Court in the next month. GHCAA seems in no mood to let this matter rest and therefore it has written to the Supreme Court, Allahabad High Court and Karnataka High Court seeking details of notes of recommendation made by the collegium pursuant to Justice Patel’s proposed transfer. Justice Ruma Pal once called collegium the best kept secret in India.

Now, the question crops up, what is the way out? The executive has very little role in the appointment and transfer of judges in the higher judiciary. Yet, it appears to be successful in pulling the strings to the extent that collegium at times had to withdraw its recommendations. The executive’s audacity to sit over the recommendation of the collegium for years together is not a healthy sign and grossly undermines independence of the judiciary in a vibrant democracy like India.

It may be noted that there is a stay on the providing of information related to collegium and CJI office, by two judges’ bench of the Supreme Court in CPIO, Supreme Court of India v. Subhash Chandra Agarwal. In this case Agarwal, the RTI applicant, sought a copy of complete file (s) (only as available in Supreme Court) inclusive of copies of complete correspondence exchanged between concerned constitutional authorities.

He had sought information along with file notings related to appointments of Mr. Justice HL Dattu, Mr. Justice AK Ganguly and Mr. Justice RM Lodha superseding seniority of Mr. Justice A P Shah, Mr. Justice A K Patnaik and Mr. Justice VK Gupta as allegedly objected to Prime Minister’s Office.

On 26.11.2010, two judge bench of the SC while staying the decision of a division bench of the Delhi High Court bringing office of the CJI under the RTI Act, 2005, framed the following questions of law for the larger bench:

-Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary?

-Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision?

-Whether the information sought for is exempt under Section 8(i)(j) of the Right to Information Act?

After six years, the case came up before the bench of three judges on 17.08.2016 which in turn referred it to a Constitution bench. Now more than a year has passed, nothing has moved as the bench is yet to be constituted.

Transparency being an aspect of rationality, its need is felt even more acutely in issues pertaining to appointments. As of now, proceedings of the collegium are absolutely opaque and yet the former CJIs, on the administrative side, have treated this case unworthy of being given priority. I hope that the present CJI constitutes a bench that may hear and decide on this case of immense national importance. The decision may, hopefully, remove the shroud of secrecy which presently surrounds the proceedings of the collegium.

Let there be a debate in an open Court on the above listed issues framed by the two judge bench. It is high time the SC respects the verdict in Raj Narain case. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries.

Views expressed by the author are personal.

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Chief Justice Khehar and Justice Abdul Nazeer, both, have written for themselves. Justice Rohinton Nariman has written judgment for himself and Justice U U Lalit, while Justice Kurian Joseph has written judgment for himself, wherein he has agreed with the judgment of CJI in part, and also that of judgment by Justice Rohinton.

Chief Justice, Khehar (minority judgment) has held that Triple Talaq is an integral part of the religion. The same is part of faith, having been followed for more than 1400 years, and as such, has to be accepted as being constituent of ‘personal law’ thereby enjoying constitutional protection. He has also rejected the argument of petitioners that Triple Talaq is covered by the Muslim Personal Law (Shariat) Application Act, 1937, ceased to be ‘personal law’, and got transformed into ‘statutory law’. Hence, the same does not come within the meaning of “law” under Article 13 of the Constitution so that this practice can be tested on the touchstone of Fundamental Rights in Part III of the Constitution.

He has further held that Triple Talaq does not violate any riders such as public order, morality and health in the Article 25. On this plinth, in the operative part of his judgment, he has invoked Article 142 to direct the Union of India to consider appropriate legislation, particularly with reference to talaq-e-bid’at and issues an injection on the practice of Triple Talaq for six months.

It is interesting to note that minority judgment by CJI and Justice Abdul Nazeer is self contradictory. They averred Triple Talaq is fundamental to Islam yet stayed the same for six months in order to give time to the government to consider legislation in the matter. The vital question of law here is whether exercise of Fundamental Rights can be put on hold even in exercise of power under Article 142? Justice Kurian Joseph in his separate judgment has seriously doubted the same. Judgment by CJI, therefore, is sans merit or authority in its favour.

In his brief judgement, Justice Kurian reiterates the findings in Shamim Ara case wherein ‘instantaneous triple talaq’ was held invalid under Islamic law. He disagrees with CJI that Triple Talaq is an integral part of religious practice.

He, however, has agreed with the CJI that the 1937 Act is not a legislation regulating talaq which is in disagreement with the view taken by Justice Rohinton. Justice Kurian ends stating what is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.

Coming to the judgment rendered by Justice Rohinton (for himself & Justice U U Lalit), he is of the view that plain reading of Section 2 is that, after 1937, the shariat was accorded statutory sanction in India. He, therefore, holds that all forms of talaq recognized and enforced by Muslim personal law are recognized and enforced by the 1937 Act. This would necessarily include Triple Talaq when it comes to the Muslim personal law applicable to Sunnis in India.

After having reached to this conclusion, he has examined this practice on the touchstone of Part III since the same would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency. He reaches to a conclusion that fundamental right has been violated by the 1937 Act insofar as it seeks to enforce Triple Talaq as a rule of law in the Courts in India. This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of talaq, must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution.

The court has once again missed a golden opportunity to examine whether personal laws can be tested for violation of fundamental rights. There was no reason for the court to not do this. The Court has, therefore, failed to discharge obligations cast upon it under the Constitution. There is nothing efficacious in the judgment which can be celebrated, except that the majority has somehow set-aside Triple Talaq.

The judgment is far away from the Constitutional values, and gender equality. It further makes it vivid that religious belief and practices can override constitutionally guaranteed fundamental rights. The judgment, therefore, is not at all a progressive one, as being projected by media and some writers. It has left a sense of disappointment.

It may be noted that issues like Halala and Polygamy are still to be heard by the Court. One may expect the debate to reopen again on the issue of Personal Laws when these practices would be examined by the Court along-with a case of women’s entry in Sabrimala Temple.

Views expressed by the author are personal.

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In India, people have the right to life, but fake encounters and mob lynching happen. In spite of the right to free speech, publications feel compelled to withdraw articles critical of government or corporates. There is a right to equality but discrimination is still rampant.

When the mention of fundamental rights in the Constitution is not able to ensure their full implementation on ground, one wonders what will happen if privacy is not recognised as a fundamental right. In such a situation, citizens may not have protection against surveillance and even profiling by the state, the state could target those who speak against it, even voting preferences may be influenced, telephone tapping could be routinely resorted to and our mails intercepted. This is indeed a terrifying prospect.

The right to privacy is not explicitly mentioned in the Constitution. But then the right to “due process” too was not there and, in fact, was dropped by the framers of the Constitution. Yet, the apex court read it into the “right to personal liberty”. The court, in fact, silently brought about what may be called a “rights revolution” by judicially creating several fundamental rights.

When the democratic state turned totalitarian under Indira Gandhi and started abusing its powers to amend the Constitution, the Supreme Court as protector of civil liberties stood firm and applied the brakes first, in 1967, by denying Parliament power to amend the Constitution and then, in 1973, through the “basic structure” doctrine which too is not there in the text of the Constitution.

If the text of the Constitution alone is going to determine the nature of the right to privacy, then the collegium system, the right against arbitrariness and the freedom of press too could go soon. Voluntary surrender of personal information to private entities cannot be equated with mandatory data collection by the state. The right to privacy judgment will be a litmus test for the apex court.

Will the court follow the rich traditions of 1967 and 1973 and rise to the challenges of the information age? One hopes there would not be another ADM Jabalpur (1976) kind of decision where the majority accepted the government’s argument that when the right to life and personal liberty is suspended, citizens have no remedy against illegal detention.

It is erroneous to believe that eight- and six-judge benches have authoritatively held that there is no right to privacy. In the Satish Chandra case (1954), the fundamental question was whether the state’s power of search and seizure violated the right against self-incrimination under Article 20(3). In a positivist mould, the court refused to read right to privacy under this provision.

Then came the Kharak Singh (1963) case where a dacoity accused was released and put under surveillance. Police constables would knock at his door, wake him up during night and disturb his sleep. The majority conceded that “everyman’s home is his castle” and struck down domiciliary visit regulations. But without any elaborate discussions, the court yet again said that there was no fundamental right to privacy in India.

But there was the powerful dissenting judgment of Justice Subba Roa, with whom Justice J.C. Shah concurred. They argued that even though the right to privacy is not specifically mentioned in the Constitution, it is a necessary ingredient of the right to personal liberty. In the Gobind case (1975) the minority opinion of Kharak Singh case became the majority opinion. The court has recognised right to privacy as an integral part of right to personal liberty. Today, liberty is a part of the basic structure of the Constitution.

Despite the recognition of privacy as a fundamental right, the government will continue to have powers to impose “reasonable restrictions”. It is no body’s case that the right to privacy is an absolute right. Moreover, global experience shows that the denial of privacy neither promotes national security nor curbs terrorism, it merely takes away citizen’s freedom to be left alone and curtails his/her choice in personal decisions.

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SAHMAT
Safdar Hashmi Memorial Trust
29 Ferozshah Road,New Delhi-110001
Email: [email protected]
Tel-23381276/23070787
30.6.2017

We have received with great dismay the recent news report that the Union Cabinet has approved amendment to the Ancient Monuments and Archaeological Sites and Remains Act 2010 and that it has been decided to allow centrally funded projects to be set up in the prohibited area of the nationally protected monuments.

The act that was passed in 2010 has the stated objective ‘ to preserve, conserve, protect and maintain all ancient monuments and archaeological sites and remains declared of national importance, and their surrounding areas up to a distance of 300 Mtrs ( or more as may be specified in certain cases) in all directions’. The act replaced the ordinance, AMASR (Amendment and Validation) Ordinance promulgated by the President of India on 23 January 2010. The rationale for preservation of the monuments and sites of national importance is brought out very appropriately by John Ruskin and quoted in the committee report that formed the basis of the 2010 amendment ‘it is no question of expediency or feeling whether we shall preserve the buildings of past time or not. We have no right whatever to touch them. They are not ours. They belong to those who built them, partly to all the generations of mankind who follow us’. Constitution of India, in seventh Schedule declares built heritage as a significant public good.

If the amendment is given effect, new construction will take place in the immediate vicinity of protected properties of National importance, i.e. ‘prohibited areas’, that is, within hundred metres of their delineated boundaries. Historic structures and archaeological remains are considered to be the most susceptible to heavy vibrations, chemical effects or mechanical stresses in this zone. In most sites, un-excavated structural remains that open up avenues of further research also fall within these prohibited zones. Construction activity of any nature will inflict irreversible damage to the monument as well as to the prospect of future study and understanding of the historic context of the site.

We the signatories seek indulgence of the Central government and demand that the amendment as above may not be pursued . We also appeal to the parliamentarians belonging to various political parties to show their continued resolve to preserve and protect the monuments and sites of national importance. These are significant part of the soft power of India as also collective universal cultural assets and physical memories of our glorious past.

Signed;

1. M Saleem Beg, former director General Tourism and Member National Monuments Authority (NMA).
2. Meera Das, former member NMA
3. Bharat Bhushan, former member, NMA
4. Shalini Mahajan, former Member, NMA
5. Pukhraj Maroo, IAS, rtd and forme rmember, NMA
6. Padma awardee Mr SK Misra, former chairman INTACH.
7. Rakesh Mathur, former President, ITC,Welcome Heritage Hotels,Co-Founder & Hon. Secretary, Ecotourism Society of India.
8. Romila Thapar, Historian
9. K. M. Shrimali, rtd Professor, D.U.
10. AGK Menon, Conservation Professional
11. Ram Rahman, Photographer, Designer
12. M. K. Raina, Theatre & Cinema Personality
13. Geeta Kapur, Art Historian
14. Irfan Habib, Historian
15. Sucheta Mahajan , Historian
16. Nadeem Rezavi, Historian
17. Shireen Moosvi, Historian
18. Mridula Mukherjee, Historian
19. Suvira Jaiswal, Historian
20. K.L.Tuteja, Historian
21. Nagendra Sharma, Historian
22. Raj Rewal, Architect
23. Parul Kiri Roy,Assistant Professor, Architecture, SPA
24. Anuradha Chaturvedi ,Associate Professor ,Department of Architectural Conservation , SPA
25. Priyaleen Singh, Professor, SPA
26. Anisha Shekhar Mukherjee ,SPA
27. Vishal Dhar, Architect
28. Kanishka Prasad, Architect
29. Vertika Chaturvedi, Architect
30. Dr. Aruna Ramani Grover, Architect-Planner, Noida
31. Amar Farooqui, Historian
32. P K Shukla, Historian
33. Sohail Hashmi, Historian and Heritage Expert
34. D. N. Jha, Historian
35. Bhairabi Prasad Sahu, Historian
36. Ranjit Hoskote, Art Historian and Critic
37. Soumya Sahai , Historian
38. Ishrat Alam, Historian
39. Narayani Gupta, former member of Delhi Urban Art Commission and Heritage Conservation Committee of Delhi
40. Vikramjit Roop Rai, Founder ,Youth for Heritage Foundation
41. Suneet Mohindru,Principal,ORACLES Landscape Design, Planning & Conservation
42. Vishwa Mohan Jha, Histotian
43. Vikramjit Singh Rooprai, Founder, Youth for Heritage Foundation
44. Nikhil Kumar, Communications professional
45. Tazeen Hussain
46. Vivan Sundaram, Artist
47. Parthiv Shah, Photographer Designer
48. Monalisha Choudhury
49. Shubham Acharya
50. Chavvi Malik
51. Prabhat Patnaik, Emeritus Professor JNU
52. Ira Bhaskar, Professor, JNU
53. Kavita Singh,Professor, School of Arts and Aesthetics, JNU
54. Mishty Varma, Journalist and public affairs specialist
55. Zartab Haider Jafri, Managing Director-Maksus Mimer Energy Solutions India Pvt. Ltd
56. Seher Agarwala, Columbia University
57. Arjun Dev, Former professor NCERT
58. Saili Malpani, Architect

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