Why all this Ruckus
   16-Jan-2020

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 A bus set ablaze after a scuffle that broke out between Delhi Police
and Students of Jamia Millia Islamia in New Delhi on Dec 15, 2019
 

Once a bill is passed by the Parliament after obtaining the requisite majority, the Act can be challenged only before a court of law that too only before the Constitutional Courts and not by demonstrations in the streets 

 
Justice (retd) D.V. Shylendra Kumar
 
 
The turmoil in the aftermath of Citizenship Amendment Act, 2019 (Act No.47/2019) and the maintenance or otherwise of the National Register of Citizens (NRC) between the ruling BJP and its allies and the other non-BJP political parties has resulted in considerable violence, damage and unrest in the country.
 
 
The violence across the country resulted in two deaths in Mangalore city, injuries to innumerable police personnel and a good number of demonstrators. It has also resulted in senseless violence, and burning of public property and loss of human life.
 
 
This is the most unfortunate development. The demonstrators do not even know what for they are protesting/demonstrating? How the Citizenship Amendment Act, 2019, to the Citizenship Act 1955, if at all affects them is not even known to the protestors. They are not even aware of whether it affects them at all. Citizens are complaining that police have committed excesses in lathi charging them, in teargas shelling and even resorting to shooting at some places. The so-called intellectuals or literate persons are claiming that they are demonstrating in a peaceful manner and their right to peaceful demonstration, which is a fundamental right given to them under the Constitution is affected by the police action. They claim, it amounts to curbing of their voicing and views and protesting in a peaceable manner against the changes brought about by the Act. Passions/tempers are running high and even well-meaning knowledgeable persons are being carried away by the momentum of the protest and some of them have become victims.
 
 
In a country where a good number of the population lives below the poverty line without sufficient means and income, in a country where even after a lapse of about seven decades since Independence, we are not able to provide food, shelter, clothing, education and such other basic facilities to all citizens of our country; protesting in the name of equality even to non-citizens and illegal immigrants in the name of human rights is the height of hypocrisy, in my opinion.
 
 
The purpose of this article is not to analyse the pros and cons of such demonstrations either on political lines or party affiliation; but to objectively analyse the changes that have been brought about by the recent amendment to the Citizenship Act, 1955. It is high time that laypersons are educated about the reality of the situation that has been brought about in the changes in the law, in an objective and dispassionate manner. I shall make an earnest and humble effort in the following lines:
 
 
The first change brought about by the amending Act of 2019 is making an exception to the definition of an “illegal migrant”. By adding a proviso to the definition of an “illegal migrant” by sub-section (1) of Section 2, a person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan who entered India on or before the 31st day of December 2014 and who had been exempted by the Central Government under Section 3(2)(c) of the Passport (Entry into India) Act, 1920 (i.e., Act 34/1920) are any rule or order made thereunder is not to be treated as an “illegal migrant” for the purpose of the Citizenship Act, 1955.
 
 
De-horse the legal language the simple meaning of the definition is a Hindu, a Sikh, a Jain, a Christian or a person belonging to Parsi community coming from the three countries viz., Afghanistan, Pakistan and Bangladesh and if they are exempted by other provisions of Central Acts and if they have entered India on or before the 31st day of December 2014, they are not to be treated as “illegal migrants”. That means, they are ‘migrants’ entitled for the benefits that our country may confer on valid migrants. It is to be noted here that no one’s existing right or benefit has been taken away by this amendment.
 
 
The second change brought about by the amending Act of 2019 is the conferment of some benefits that are covered by the first change that is brought about in changing the meaning of an “illegal migrant”.
 
 
The change brought about by the Third Schedule which prescribes the qualification for Naturalisation is to reduce the gestation period for Naturalisation from the earlier 11 years to the period of 5 years in favour of such persons belonging to Christian, Parsi, Jain, Buddhist, Sikh or Hindu community from Pakistan, Afghanistan and Bangladesh. For them, the period for Naturalisation required now is not less than 5 years instead of the earlier 11 years.
 
 
These are all the changes brought about by the amending Act of 2019.
 
 
It is obvious from a reading of the above paragraphs that no person is deprived of the benefit or right existing nor is discriminated. But instead, the amending Act, affect a little favourably with regard to persecuted communities from the three countries mentioned above by changing the definition of “illegal immigrant” and reducing the minimum waiting period for granting citizenship by the Naturalisation method.
 
 
The further controversy is a compulsion regarding maintaining of the National Register of Citizens comprising the names of all citizens of our country in a register meant for such purpose. This is not a new provision. Only such a register had not been maintained earlier for the entire country of the Indian Republic. It has been selectively confined to certain areas. Except for the State of Assam, it has not been implemented in all other parts of India. Now, there is a proposal to maintain it throughout India, at the discretion of the States within their respective territories. This is not by a change in the law, but based on the law that already exists in the country. The only question what will happen to persons who have not figured in the National Register of Citizens? Only effect on them could be they may be treated as “illegal migrants”. Possibility of manner or treating persons not figuring in the Register is only speculative and guesswork. An “illegal migrant” remains “illegal migrant” and what consequences would have followed or what outcome would have been followed on an “illegal migrant” earlier, continues to be so even now, nothing more? Then, why all this ruckus!
 
 
Perhaps, if a meaningful and an educative debate should have taken place in Parliament before passing the Citizenship (Amendment) Bill, 2019, if parliamentarians should have discussed and debated the Bill in its fullness and if parliamentarians had realised the actual pros and cons of the Bill and then through them the citizens of the country also should have been made aware of the changes that are being brought about by the Bill, all these chaos and confusion could have been avoided. Alas! Meaningful and purposeful debates are not the order of the day any more in our Parliament and Assemblies. Only interruptions of the Speaker, out shouting of the speaker and sloganeering takes place in our Parliament now a days. No political party behaves or conducts in a responsible manner, debates about the subject matter of the Bill is no more the order of the day but only number of votes. The number of votes though no doubt is the ultimate test for the Bill to become law but a meaningful, effective and educative debate should precede such voting. One can only be optimistic and at least in coming days, all such Bills will be preceded by proper debate.
 
 
In a democratic system where the rule is by a majority if there is a dissent when the minority has a view to present, the minority also should be heard and not muffled. A brute majority should not ride roughshod over a helpless minority. Trust there will be better days ahead and ugly scenes will be avoided henceforth.
 
 
The proper remedy against legislation which the minority thinks is suspect or unconstitutional is by seeking judicial review of legislative action before the Constitutional Courts of our country viz., the High Court and the Supreme Court as provided for in our Constitution. Taking the fight to the streets, inciting the people into violence and trying to score a political point by illegal methods is a shame for any democracy. It can only be by helpless exploited industrial workers and not by powerful parliamentarians. The only method by the parliamentarian is by an informed debate and discussion on the floor of the Parliament and not a fight in the streets. It only erodes the efficacy of the Parliamentary system of democracy if one resorts to street fights. At any cost, this should be avoided. It also renders nugatory or meaningless the judicial system which has to perform the duty of judicial review of legislative action, i.e., testing an Act on the legal and constitutional touchstones.
 
 
Protests outside the Parliament that too peacefully can only be before a Bill is enacted and made a law. Once a Bill is passed by the Parliament after obtaining the requisite majority, the Act can be challenged only before a court of law that too only before the Constitutional Courts and not by demonstrations in the streets.
 
 
(The writer is former Judge, High Court of Karnataka)