By- Shaurya Raj.
Published on: May 28, 2022 at 18:25 IST
The freedom to protest is incorporated in the Indian Constitution as a basic right. However, the Shaheen Bagh decision has significantly curtailed the rights granted. As a result, it’s critical to examine the judgement in detail and understand why the principles used in it, while provided in good faith, set a hazardous precedent that authorities can readily use to suppress dissent.
The protest had The Citizenship (Amendment) Act of 2019 (CAA) and National Register of Citizens (NRC) at the backdrop. There was a large debate around the country about the government’s citizenship amendment, and the majority of individuals who were agitating on various grounds were those who misunderstood the Act. The Citizenship (Amendment) Act of 2019 aims to change the fundamental framework of how citizenship is conferred to some unlawful immigrants.
The Act will cut the lengthy twelve-year residency requirement for Indian citizenship to a six-year residency requirement. However, there are a few requirements to qualify for the benefits of this Act, including that the illegal immigrants must be members of Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious minorities who fled persecution in neighbouring countries such as Pakistan, Bangladesh, or Afghanistan before December 2014.
Except for Muslims, who can obtain fast track citizenship after six years of residence in these countries since they are Islamic-majority states or have an Islamic State written into their constitution. The CAA was signed into law on December 12th, while protests against it began far before.
The NRC is a matter involving active participation on the part of the government and the Supreme Court of India, as well as the most important legal minds and the responsibility for preserving the rights and interests of the Indian people, this huge error was the least expected of all. The NRC was determined to be in breach of the Citizenship Act of 1955, which specifies that everyone born in India on or after January 26, 1950, but before July 1, 1987, is considered an Indian citizen.
Facts of the Case.
The Shaheen Bagh protest was iconic and started in December 2019 by women, children, and the elderly against the CAA. The demonstrators were mainly Muslims. Their main point of contention was that persecuted minorities from Afghanistan, Pakistan, and Bangladesh would receive citizenship from India through the CAA, but not persecuted Muslim minorities. This unfair way of distinguishing by religion is entirely contrary to the fundamental principle of secularism enshrined in the Indian Constitution.
Along with the much-discussed NRC, the CAA has been seen as a method of disenfranchising Indian Muslims. The protest took the form of a mass gathering in Kalindi Kunj-Shaheen Bagh in north-eastern Delhi and resulted in the closure of the entire stretch of highway.
Due to the blockade, numerous petitions were submitted calling for the street to be cleared. The petition on which the court decided to give judgment was Amit Sahni v. Police Commissioner and Ors. . The written petition was originally lodged with the Delhi High Court, where the petitioner argued that closing a public road was against the Indian Constitution and that the court should take action to clear the road.
However, judges at the Delhi High Court decided not to rule on the matter, leaving the decision to the Delhi Police and other authorities. The Delhi court also warned authorities that when making a decision, they must consider the greater public interest. Maintaining law and order was also important. The court held that a proper arrest warrant could not be issued until the reality on the ground had been assessed and the best person to do so was the Delhi Police.
However, the situation remained the same and subsequently an application for special permission was made and everything was challenged in the Supreme Court of India. Two other court submissions were “dismissed because of withdrawals“. Before the verdict was announced, the court had ordered mediation between the petitioners and the demonstrators. However, no one could reach a consensus.
Before moving further let’s dwell into what is CAA and NRC.
In the year 1950, the Indian Constitution came into effect, guaranteeing legal rights, powers, and responsibilities to all citizens of India. The 1951 UN Refugee Convention and the 1967 Protocol did not include India. Anyone who entered India without sufficient documents was considered an illegal immigrant. The NDA-led government modified the Citizenship Act in 2003, making it illegal for illegal immigrants to get Indian citizenship.
In 2016, a bill to alter this bill was introduced and passed in the Lok Sabha. However, it was rejected in the Rajya Sabha due to considerable opposition from North-Eastern states, who believed that the amendment would jeopardise their indigenous cultural and political rights. In 2016, the Citizenship Amendment Bill was introduced, and a Joint Parliamentary Committee was formed, with its report due on January 7, 2019. The bill lapsed due to the dissolution of the Lok Sabha.
The Home Ministry introduced the Bill in the Lok Sabha on December 9th, 2019, and it was subsequently passed in the Lok Sabha, as well as the Rajya Sabha. On the 12th of December 2019, the Citizenship Amendment Bill became an Act under the guidelines set down in the Indian Constitution.
The Government of Assam published the second version of the National Register of Citizens (NRC) on July 30, 2018, in accordance with the 1985 Assam Accord. The purpose of the Register, according to reports, is to identify illegal migrants who have entered Assam. The NRC, which has denied citizenship to 4,000,000 persons, as well as the planned Citizenship (Amendment) Bill 2016, have raised serious concerns regarding the rights of minority populations in India’s northeast. The combination of the two instruments is not permitted.
Despite the Central Government’s claims that the final NRC version was published solely for the purpose of identifying and deporting illegal migrants, the exclusion of more than 4 million persons who normally dwell in Assam violates international nationality and human rights norms.
Only people whose names appeared on the 1951 NRC, on any voter list up until March 25, 1971, or who could establish they were descendants of the foregoing categories were eligible to register for the NRC in Assam. The year 1971 was chosen as the cutoff year in accordance with the 1985 Assam Accord, which was agreed by the Government of India and the all Assam Students Union (AASU).
This means that those who have emigrated to Assam in the last 47 years and have lived since then do not meet the eligibility criteria. Assam’s turmoil is further complicated by the 2016 Citizenship (Amendment) Bill. The law amends Section 2 of the Citizenship Act of 1955 to treat it as an illegal immigrant belonging to the Afghanistan, Pakistan and Bangladesh Hindu, Sikh, Buddhist, Jian, Parsi and Christian communities. We are proposing to exempt.
Illegal immigrants are aliens who entered India without a valid passport or travel documents in Section 2 of the Citizenship Act, or as foreigners who entered India with the required documents but stayed longer than permitted. It is defined.
Judgement regarding Shaheen Bagh.
The Supreme Court ruled in October 2020, despite the COVID-19 pandemic and subsequent blockade hampering the progress of the protest. The Supreme Court has determined that more written judgment is needed on this issue.
Implications of Shaheen Bagh Judgement
First of all, a very important aspect of the ruling is that the court has added reasonable restrictions as stipulated in the Constitution. Article 19 states that “India’s sovereignty and integrity, national security, foreign friendship, public order, dignity or good morality, or Contempt of court, insults or incitement to crime are rational. We accept restrictions. “.
However, the Supreme Court further stated that the basic rights were “subject to the relevant restrictions of police authorities.” This claim greatly expands the scope of the restrictions and may prove dangerous to the right to challenge. The drafters of our Constitution included restrictions in the hope that they could not be extended by the executive branch and the legislature and that the same would be guaranteed by our judiciary. However, the judiciary limits its rights here because of “commuter complaints.”
The Supreme Court is Anuradha Bhasin vs. Union Of India distinguishes between “law and order” and “public order and morals” and finds that there is a higher threshold for enforcing restrictions on public order and morals. Mere inconvenience cannot pose a reasonable threat to public order and morals. However, the court did not explain in its ruling why it determined that this inconvenience was a reasonable reason for the reasonable restrictions to come into effect.
From the above discussion, it is clear that the judgment needs to be clarified. As properly said, “Constitutional issues need to be dissected with a sharp surgical knife. In the Shaheen Bagh case, the Supreme Court used a hacksaw instead.” Immediate correction of the passed sentence is very important to prevent unpredictable behavior by the authorities. It also gives an insight on how India will always recognize a person’s right and try to uphold these very rights in most of the situation.
Edited By: Advocate Ramsha Shaikh, Associate Editor at Law Insider