An Unconstitutional Act, a Disappointing SC and a Misused Law: Justice A.P. Shah on India’s Ills

Is the Citizenship Amendment Act unconstitutional? Are BJP MPs and ministers ignorant of the sedition law? And has the Supreme Court let us down?

These are three key issues that former Chief Justice of the Delhi high court and former chairman of the Law Commission, Justice A.P. Shah addresses in his special interview with Karan Thapar, for The Wire.

Below is the full text of the chat. Watch the video here.

Justice Shah, let’s start with the Citizenship Amendment Act. The preamble of the constitution has a firm commitment to secularism, and secondly the court has ruled that secularism is part of the basic structure of the constitution, so when the CAA discriminates against Muslims, is it breaching the constitution’s commitment to secularism and is it also breaching the basic structure of the constitution?

In my view, the CAA completely negates the ideals of secularism, equality and justice enshrined in the constitution. In 1973, in Keshavanand Bharti, the Supreme Court ruled that secularism is the basic structure of the constitution and it cannot be altered by the parliament.

There is a mistaken belief that the word secularism was added in the constitution in 1976 and therefore the constitution was not secular prior to 1976.  Our constitution is actually founded on the ideals of freedom of religion faith and belief, so secularism is the very basis of our constitution and this law which consciously excludes Muslims from the list of religions listed in the in the CAA clearly violates the basic structure.

Now on that particular point, the Prime Minister said this act illustrates India’s centuries-old culture of acceptance harmony, compassion and brotherhood. Do you agree?

I agree with the latter part of the prime minister’s statement that we have a centuries-old tradition of brotherhood and compassion. India always welcomed all religions from outside with open arms.

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Our constitution, our founding fathers, and the framers of the constitution did not use religion as a identifier for determining citizenship, it was consciously kept away from caste religion and language. So the basis of citizenship is shared identity. In fact, in my opinion, with great respect to the prime minister, I feel that the CAA is a betrayal of our rich traditions of compassion and brotherhood.

So, far from the fact that the CAA is part of our centuries-old tradition of harmony and compassion, it contradicts that tradition?

Yes, yes I agree with you.

It lets down the traditions…

It lets down India’s great traditions

Now, quite separately, home minister Amit Shah has said, I’m going to quote him, “Hindu, Sikh, Buddhist and Christian refugees from Pakistan have as much right over India as you and I they are the sons and daughters of India.” Does the constitution accept that these religions have a greater claim over India than Islam?

The home minister is not right, the constitution has not assigned the country to any particular religion. As I said, religion is not the determining factor of the of citizenship, therefore religion cannot be an identifier and for the first time, religion is being used as a condition for granting citizenship and therefore in my view, this this law cannot be justified on the ground that these persons of these particular religions are also sons and daughters of this soil.

All of them, all persons belonging to different religions, are also sons and daughters.

Can I put it like this: if Hindus Sikhs Buddhists and Christians from Pakistan are considered sons and daughters of India because they were all part of the same country before Partition then surely that logic applies to Muslims? They were also part of the country before Partition and Pakistani Muslims have as much right as Pakistani Hindus or Pakistani Christians?

Of course, if a Pakistani Muslim is persecuted by the Pakistani government for some reason, maybe because he’s Shia or Ahmadi or whatever, India should give him refuge and he should be entitled to the same benefit as that which is given to other religions.

This brings me to the second issue about the CAA. So far we’ve discussed and you’ve explained that you believe the Act contradicts and contravenes the constitutional commitment to secularism.

The second concern is, does it violate Article 14’s guarantee of equal treatment under the law and that of course depends on whether one considers these six religions from Pakistan, Bangladesh and Afghanistan to constitute a reasonable classification or an arbitrary one. What’s your opinion?

Let me begin with this: a basic thing is that Article 14 is applicable to all persons. It’s not restricted to citizens and as you said, a classification is permitted under Article 14, so some people or subjects can be excluded, included, etc. but there are three important conditions in Article 14. One, that classification has to be reasonable, two, such classification has to be rational and it should have a nexus with the objective there.

So the objective has to be rational and lastly it has to be non-arbitrary. Now let us examine this particular law the government has chosen. How our legislature has chosen these three countries is beyond anybody’s comprehension.

Afghanistan was not a part of British India, so if you are looking at the selection of countries as a part of the old British-India, clearly is it’s not that. Then, if you are only looking at the religious states which persecute minorities then there are other countries like Sri Lanka or Myanmar. Sri Lanka is a Buddhist state and it has history of persecution of Tamils, so why are these neighbouring states excluded?

The next point is why these six religions? Muslims are excluded on a wrong presumption that Muslims are always persecutors and not persecuted so this completely erroneous belief is irrational because Ahmadia Muslims, Shia Muslims, Hazaras, are all persecuted by Pakistan and there can be persecution because a person is atheist or he’s a liberal.

For example, Taslima Nasreen, a Bengali writer, is a good example of persecution by the government not because she belongs to a minority but because she is a liberal.

So this is completely irrational, completely arbitrary.

There are two more things which you must note.  I do not understood this cutoff date December 31, 2014. Does it mean that these states stopped persecuting their minorities after after that date or we don’t care if they do?

North Eastern states like Assam, Mizoram, Meghalaya, etc., are excluded from CAA. Now take for example a Buddhist or a Hindu takes refuge, comes to this part of India, he will not be entitled to citizenship. So in my view, looking at it from any angle, the the law is completely irrational and arbitrary and is not reasonable either. So it’s violative of Article 14.

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So, on multiple counts, it violates Article 14. BJP and government spokespersons, in trying to claim that it is a reasonable classification, say that the choice of the three countries, Pakistan, Bangladesh in Afghanistan, is because they’re neighbours. They claim that Afghanistan is a neighbour. If you believe that you have a claim to Azad Kashmir on that ground, they say all three are neighbours. Secondly, all three have a state-specific religion.

They claim that Sri Lanka doesn’t, they claim that Myanmar doesn’t, they may persecute their minorities but they don’t have a state specific religion so this is the ground for claiming these three countries are special and their ground for claiming that the six religions are special is that these are the only religions that are minorities in these three countries. If they were to present this argument in court do you think it could convince the Supreme Court that this is reasonable?

I cannot say as to whether it would convince the Supreme Court. What do you think? What I personally feel is that this law not only violates Article 14 but this law is incompatible with the vision of the framers of the constitution.

They envisioned a secular country this very deeply actually reflects the philosophy of Mr. Sarvarkar who believed that the that this country belongs to only only Hindus and the non-Hindus like Christians or Muslims whose religion originated outside India, they don’t belong to this country. So this is a philosophy which has, according to me, influenced this creation of this legislation. Remember that in the Constituent Assembly, 80% of the members were Hindus and they rejected this philosophy, that of assigning the country to any particular religion.

So you’re saying that this Savarkar philosophy and its belief that India is a Hindu country is really the basis for this law?

Yes, government is pushing this agenda of this Hindu Rashtra. It is so blatant that you may say that this is one of the initial steps towards that goal of Hindu Rashtra.

So you’re saying even more important than the fact that the Act completely negates and contradicts Article 14 is the fact that it completely contradicts the constitution’s commitment to secularism and as you pointed out, it means it contradicts the basic structure of our constitution has laid down by the Supreme Court?

This is obviously so because this is the first time I’m seeing protests all over the length and breadth of the country. It is not only the Muslims, I mean there are many young people, there are the civil rights activists…everyone is rising against this law. Why? Because the people believe that this law is against the constitution which they feel is their duty to protect.

One more question about the CAA before I move to another subject and in a sense you hinted at it…The original Indian concept of citizenship is based on birth and parentage. As you pointed out, the CAA has now introduced citizenship on the basis of religious identity. In your eyes, is this damaging the original Indian concept of citizenship?

Originally, citizenship was based only on birth. Everybody born in this country was entitled to citizenship. This was amended in 1986 and again in 2003. Now, blood relation has to be proved, so one of the parents must be an Indian. So, that is reasonable, but this is the first time in 2019 or 2020 that a law has been introduced which links citizenship with religion and this linkage itself, according to me, violates the basic structure of the constitution.

And this would also deeply upset the constitution makers who consciously chose to create citizenship on the basis of birth, not on the basis of religious identity?

The basis was shared identity as Indian, and not a religion caste or language.

So this would really upset the constitution makers?

Of course, of course, of course.

Let’s come then, at this point, to sedition, a charge that is hurled regularly by BJP MPs and BJP ministers both at student protesters as well as Shaheen Bagh protesters. My first question is a very simple one. Am I right in saying that as far back as 1962 the Supreme Court and the Kedarnath Singh case read down Section 124, the sedition section, and now that section only applies if there is a clear incitement to violence?

See, the sedition law, which was introduced by the British in India was abused for convicting and sentencing freedom fighters including Gandhi and to record examples. And now our own government is using it against university students, civil rights activists and against anyone who is critical of the government. Now in Kedarnath, the court made it clear because this was to be tested on the anvils of Article 19 (1) a which offers right to free speech and expression, so the court said that unless the act has intent or has a tendency to incite violence or create disturbance in law and order, then alone such an act would amount to sedition.

So they restrictively read Section 124(a). According to me, these are peaceful protests where some people are reading the preamble of the constitution, some are raising flags and I mean Indian flags, and some are chanting ‘aazadi’. These protests cannot be termed as sedition certainly in the light of the law laid down in the Kedarnath Singh case.

Can I go one step further? You’ve just accepted that in 1962 in the Kedarnath case the Supreme Court read down Section 124 (a) and it now only applies if there is incitement to violence. That was reiterated by the Supreme Court in 1995 in the Balwant Singh case, when the Supreme Court even said that shouting ‘Khalistan zindabad’ is not sedition.

Then, most importantly, just four years ago in 2016, the Supreme Court explicitly repeated this again and on that occasion the Supreme Court said and I’m quoting, “We are of the considered opinion that the authorities while dealing with offences under Section 124 (a) of the Indian Penal Code shall be guided by the principles laid down by the constitution bench in Kedarnath Singh vs State of Bihar”.

Doesn’t that mean that the Supreme Court has made it (at least on three occasions) clear that sedition is read down and therefore the law of sedition today is what the Supreme Court said it was in 1962, there can be no doubt about that?

Just let me give you the facts in Balwant Singh’s case. This was after the assassination of Prime Minister Indira Gandhi and two Sikh young persons shouted these slogans, ‘Khalistan Zindabad’ and ‘Raj Karega Khalsa’, in front of a movie theatre. Nobody responded and they went away. They were later arrested and and processed for sedition.

Now the Supreme Court said that there was nothing to show that the that their sloganeering had incited violence. If this intention was not shown, nor was there any response to it from anyone they said that the persons could not have been charged for sedition and this legal position, if this is the only interpretation of Section 124 (a) which really protects it from the eyes of above arbitrariness or unconstitutionality. So this reading in the light of Article 19 1 (a) is the only possible interpretation.

And this was repeated in 2016?

Yes.

And so, am I right in saying that there is no doubt, there is no question that the law on sedition has been laid down by the Supreme Court in 1962 and reiterated many times? There can be no doubt in anyone’s mind, sedition only applies if there is incitement to violence?

I know. It is very unfortunate that though the Supreme Court has made the position clear three times, not only this government but various governments misuse this provision 124 in prosecuting, I mean beside protesters, civil rights activists and any critics of the government.

So this is very important…the sedition law is repeatedly misused by governments and police forces.

Of course, of course.

Let me ask you two test questions. Doesn’t it therefore follow that peaceful, nonviolent chanting of aazadi is not sedition and Yogi Adityanath is completely wrong when he says it is sedition?

It seems that Mr. Yogi Adityanath is inventing his own law of sedition. This chanting aazadi cannot be sedition by any stretch of imagination, as peaceful protest against CAA is not sedition, so there the chief minister with all respect to him is completely wrong.

The second test question may be a bit more difficult, does it follow that Sharjeel Imam’s called for a peaceful, nonviolent blockade of the roads connecting Assam to the rest of India is sedition? Is the police right to charge him with sedition? Again because it’s peaceful and nonviolent. Does it fail the test?

It is difficult to answer this question for two reasons. One is the matter is sub-judice, secondly for I’m not really aware of the facts of the case but I’m taking the facts as stated by you.

So this boy gave a call that there should be peaceful protest and the road should be blocked….all roads to Assam should be blocked. Now I remind you that that Rasta Roko was used by many leaders, even non-political parties. Sharad Joshi, I just remember his name, used it as a weapon to get the demands of the farmers heard. It is an Indian tradition for peaceful protest.

I see two things. One is that he insisted that such protests should be peaceful and secondly nobody responded to his calls. Nothing happened on the ground, therefore there was no blockade. So if you take the totality of the case perhaps it may not be a case for sedition.

But then as you said the police regularly, repeatedly and not just at the Centre but even in the states keep charging people with sedition, when clearly what they’ve done is not sedition. A couple of days ago nine-year-old students in Karnataka were charged with sedition for acting in a play and this is clearly misuse of section 124(a). How do we stop it?

See, first we must understand the effect of this provision. It operates as some sort of an unauthorised self-censorship because it has a chilling effect on free speech. I can give one more example. There was a protest against a power project in Tamil Nadu.

So a complaint of sedition was filed against thousands of persons – unknown, unnamed persons. So a simple a peaceful protest against the power plant was also regarded as a as sedition.

Now, the British brought this law to this country. In Britain, it was repealed. It was not used for a long time but the Law Minister’s speech at the time of repealing it is very interesting. He said that Britain is repealing this law consciously because it prevails in many other Commonwealth countries and it was noticed that those governments were misusing this law. So this was the reason why it was repealed!

This is very, very interesting. The British repealed the law, not because they were using it or misusing it. It actually hadn’t been used in England for many years, but they repeated it because they were aware that the law existed in Commonwealth countries and it was being misused there? So they hoped that if they repealed it then perhaps other countries would repeal it…

Let me ask you one more question. There was a shocking incident that we all saw on live television. A young man…fired a gun and injured a Jamia Millia student while shouting, “Yeh lo aazadi” many people say this is a direct consequence of what Anurag Thakur was encouraging rallies to say just three days earlier…do you accept that what happened on Thursday is a direct consequence, a direct incitement of what Anurag Thakur was involved in?

It appears to be so. The slogan was “Gaddaro ke saath kya karo?” to which the reply was, “Goli maaro.” So there was a clear incitement to shoot people and if this was a speech and if what I read in the newspaper today…his Facebook or his blog and what he said just before the occurrence, he said something like “Yeh lo aazadi” and fired at them.

So it seems to be a direct consequence of not only the speeches but this agenda. This policy of polarisation is ultimately leading to this situation. It’s causing great anguish that in a democracy there would be firing on peaceful protesters, on the students and the political leaders are inciting to attack the protesters.

In fact, you made a very important point, it’s not just Anurag Thakur’s speech in those slogans which he repeated many times that have incited this man, but it is also, one could say, speeches like Amit Shah’s where he said to people, “Press the button when you vote in Delhi so hard a current goes to Shaheen Bagh”. Or when Ravi Shankar Prasad says repeatedly that these are the “tukde tukde gang,” they are building up an atmosphere of vilification, of animosity against Shaheen Bagh and encouraging people or inciting people to take the sort of violent action.

When you say “this use the language,” I’m really taking exception to the vocabulary. I mean, you cannot a brand all protesters, all those who are critical of the government policies as anti-nationals. This is a trend today and this is what has finally led to this particular incident and i don’t know where it it is going to go hereafter.

Let’s come back for a moment to Anurag Thakur. If, as you say, that what happened in Delhi on Thursday is a direct consequence of his incitement to violence, are there grounds for the police to act against Mr. Thakur?

Oh that’s for police to decide but the if you ask me I’m completely against this law of sedition, but who asked me? If there is an incitement that people should shoot all those anti-nationals or gaddars then this may amount to, this may fall in four corners of that section.

So this is very interesting. If there is a charge to be made of sedition it’s probably best weighed against Anurag Thakur, because he was inciting violence.

I had not seen even the video clip but I was rather surprised  that this was chanted many times at this particular election meeting.

One more thing. The Election Commission has barred Mr. Thakur from campaigning for three days but Mr. Thakur wasn’t simply indulging in hate speech as you said. Very possibly Mr. Thakur was himself inciting violence which is much worse and it’s produced, anyway, a shooting on Thursday. It might have produced much worse. Is a three day bar from campaigning sufficient?

Election Commission is a reluctant regulator. This is what I feel. The way first they were only removed from the list of the star campaigners, thereafter this action is taken…three days, I mean these are extremely provocative speeches which  completely violate the law laid down by the Supreme Court in a recent seven-judge judgment. The Election Commission is very slow in taking action against these.

I am not talking only about this particular incident. Even Election Commission is no longer an effective body which it used to be in at one time.

Let’s come at this point to the Supreme Court. How do you view the fact that the Supreme Court for five months delayed looking at the Article 370 cases. It’s not going to look at the CAA cases for at least another four weeks and as far as I can tell, it doesn’t seem to be at all bothered about the habeas corpus cases. What do you make of that?

This prioritisation is very disappointing. Lately, the Supreme Court is not really giving priority to the cases involving violation of civil rights or fundamental rights. I mean the habeas corpus cases particularly, which you mentioned.

Take for example Tarigamis’s case. A petition was moved by Mr. Sitaram Yechury challenging his detention. Now, Chief Justice Gogoi told Mr. Yechury that he is permitting him to go to Kashmir and meet him, but he should not indulge in any political activities and report back to them.

There was no prohibition against travelling to Kashmir but the Chief Justice said that they are “permitting” him. The case is not taken up and thereafter they said they decided they’re becoming infructuous or I am not sure whether it was sent back to Jammu and Kashmir.

I quote, but this is just one example. There’s a legal scholar, Mr. Gautam Bhatia, he recently wrote an article where he makes a very, very important point. He says that there is a drift of the Supreme Court from being a rights court, to an executive court.

The Supreme Court is speaking the language of the executive, it is becoming indistinguishable from the executive. He gives some example for sealed cover procedure and cites the [Assam] NRC conducted by the Supreme Court. But he is, of course, talking about the about the period of Chief Justice Gogoi, but this is a very serious criticism of the Supreme Court’s role as a protector of the fundamental rights.

So today, instead of protecting the fundamental rights of the Indian people, the Supreme Court behaves as if it’s protecting the rights of the executive. The power of the executive…that’s what you mean when you say the public support?

I would say I would quote Lord Denning that the Judge is becoming more executive-minded than executive.

So you are deeply disappointed by the way the Supreme Court is prioritising cases, failing to take up fundamental cases to do with civil rights and habeas corpus delay in taking up Article 370 cases. It still hasn’t bothered to take up CAA cases…this disturbs you.

I’m really disappointed but I feel that this criticism was mainly directed against the previous CJI Ranjan Gogoi. There’s a new chief justice and I hope and expect that the judges should be conscious about the about the criticism of many people of this court. About the court ceasing to be a rights court and they should really rise to this occasion and be more proactive.

You’re laying some hope on the new Chief Justice Bobde, but he is the one who has pushed back the CAA cases, they won’t be heard for another four weeks and we’ve just discussed that the CAA completely violates the constitution.

I wish that he had taken the CAA cases on some priority because the case was originally filed in December and then we are in almost end of January and the whole country is is polarised on this issue.

In fact the answer he gave us, that he will take up these cases after protests stopped…normally you take up the case to ensure the protesters get some sense of relief.

Good conduct cannot be a condition for access to the court. I don’t think that it would be right to say that unless the protest stops, the court would not take up the matter but I believe that this law is completely immoral and whatever view the Supreme Court might take, the struggle against this law must continue because with this law should not remain on the statute book of this country.

Let me for a moment focus on the Supreme Court ruling of January 10, on the restriction of internet in Jammu and Kashmir and the use of Section 144. After enunciating  what it believes is the law and after giving its opinion about the extent to which it can be restricted, the Supreme Court actually failed to reverse the government’s restrictions and it refused to give any verdict on the validity of what the government had done. What do you make of that?

See there is a Latin maxim it says ubi ius, ibi remedium. Wherever there is a right, there is a remedy. Now, the judgment reads like a magnificent Charter off of the civil rights and different types of rights. And it made some significant findings on the right to internet being of a fundamental right, etc.

But finally, it has not given any relief. It has not tested the validity of these orders. Not only that, after rejecting the government’s argument that the government has the right to keep these orders secret and confidential, the court did not ask the government to produce those orders.

It merely expressed anguish of a government’s action of not producing the orders. So there is no relief to the citizens and just imagine…I mean I read somewhere that to get Internet even for a few minutes people have to travel for hundreds of hundreds of kilometres and then find some cyber cafe and get internet for a few minutes.

I mean there’s a tremendous hardship cost to the people and I wish that the Supreme Court would have given some relief to them or have kept the petition pending. If it has sent back the matter to the review committee then there is a precedent which is called the continuous mandamus, which could have kept the petition pending and then after examining the subsequent events it could have passed appropriate orders one or one.

So would I be right in concluding from your answers that by failing to give relief, the Supreme Court’s ruling of January 10 is not just inadequate but it also doesn’t live up to its own grand laying down of the civil rights that I talked about earlier. It’s sort of self-contradictory.

I believe that this is an abdication of the duty as a protector of the constitution. The Supreme Court, right from the beginning, took a stance that it is the sentinel. The court is the sentinel vis-a-vis the fundamental rights and and today I’m sorry that it has really fallen short of performing its role fully and in true spirit.

Many people say that the Supreme Court today is showing the same pusillanimity, it showed in 1975. Would you agree?

That’s a criticism by many, but I still believe that this history will not be repeated. I hope that the original status as a civil rights protector would be restored.

All of us share that hope but let me put this to you, you’ve been Chief Justice of Delhi you’ve been chairman of the Law Commission, your entire career has been in law and a lot of it as a judge. How do you explain to yourself the fact that an institution that exists to protect the rights of the Indian people is failing to do so?

How to explain? It’s difficult…I can’t explain it but the I can only express my deep anguish and disappointment on the turn of events in the recent times.

You know people say that there is no institution in India that has more autonomy and more protection than the Supreme Court. It even appoints itself and there’s nothing the government can do to affect that tenure or the standing of judges. They’re completely protected and yet the judges seem to be – forgive the word – “cowardly”.

The Supreme Court of India is considered to be the world’s most powerful court. I mean, this is the only Court which has arrogated the power to itself to make the appointment, which has a power to strike down the constitutional amendments and  virtually giving legislative directions akin to legislative directions.

And yet with all this power, it seems to lack the spine or the strength to stand up for rights.

God will give them that strength.

If God doesn’t, what’s the future of our democracy?

This is the last resort, the last hope for the people. Therefore it is considered the sentinel. But if the sentinel fails, I don’t know what the future would be…

If the sentinel fails, the future looks dim, dark and weak.

Very dim and dark indeed

On that rather sorry note, Justice Shah, thank you very much for speaking to us.