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Judicial review overdue

Judicial review overdue

Constitution has stood the test of time. 70 years down the vision laid for us by our founding fathers has been a glorious period in India's history irrespective of obstacles. In these years, a variety of obstacles have been overcome by the integral amendments made to our Constitution. And, through crucial cases like Keshavananda Bharti V. State of Kerala (1973), Supreme Court has largely defined the contours of amendments that can be made, strictly keeping out any alterations to its basic structure. That Supreme Court judgment has been referred numerous times whenever any complex question regarding amendments to the Constitution has arisen and for one simple reason: it provides for an absolute verdict by the custodian of the Constitution over the legality of the amendment or law. So, when the question of the contentious Citizenship (Amendment) Act or the CAA arises, the Supreme Court solely assumes the responsibility of deciding upon it. While there has been no notification of when the legal proceedings against CAA will resume, protests, led by women and students, have continued unabated. Deep polarization of society has occurred as a hazardous byproduct of the contentious legislation. Much to everyone's horror, even a tipping point was reached when violent clashes occurred in the northeastern part of the national capital. Watching the country once again suffer due to the colonial evil of communalism despite the glorious efforts of our founding fathers, and that too over a question of law that can be well-settled through judicial review expeditiously would be agonising in principle. Yet, as matters stood, around 58 lives were lost and several injured as independent reports and eye-witnesses underlined police laxity. The state machinery plunged into an immediate call to action and relative calm prevailed thereafter. While impunity so far to the inflammatory speeches remains unexplained, more concerning is the question of government's stance to the anti-CAA agitation. The Centre has not initiated any dialogue with the protestors despite multiple incidences of law and order failure over the CAA. It has maintained that the CAA has been legislated following the due procedure — by the mandate of Parliament — and hence remains a law of the land that requires adherence and not opposition. The central government's muscle over the Parliamentary mandate, however, has not have got the absolute federal backing. With few states passing a resolution against the CAA–NRC–NPR with nearly the same majority as the Lok Sabha passed the citizenship bill, the federal polity of India has come alive albeit in essence. If one examines the law, the resolution passed by these states opposing the CAA does not amass much merit. But, as a collective protest, the resolution serves as an important message of dissent which bears a heavy character. Even if the Centre can quash these resolutions, directing the states to implement the law, their very existence adds weight to the question posed in front of the Supreme Court: Is CAA constitutional? With Telangana added to the list of states with such resolution, the contents of the same are similar in nature. Except for Bihar that has taken a fairly diplomatic stance by supporting CAA but opposing NRC–NPR, all other state legislatures of West Bengal, Kerala, Rajasthan, Punjab and Delhi state that the CAA goes against the basic structure of the Constitution. The resolution brings to its argument the principle of secularity that is enshrined in the basic structure of the Constitution. Resolutions mark the collective protest of several state assemblies that underline the Centre's legislation as unconstitutional and therefore dangerous to India's future.

No doubt Parliament's legislation is enforcing but one must understand why the founding fathers of the Constitution went for the American system of judicial supremacy as a balancing factor against the British principle of Parliamentary sovereignty. The power of judicial review was installed to prevent any misadventure from the basic structure of the Constitution. The only drawback we face today is the delayed judicial review of CAA. But as the law will take its course, the only apprehension is the dangerous turns that society has witnessed in the wake of CAA agitations. The sooner Supreme Court answers the question of the constitutional validity of CAA, the better it is for a society that has witnessed multiple rifts in its secular fabric. It should be realised that as the country remains engrossed in the question of citizenship norms, the economy limps and unemployment remains. If those were not enough, the Covid-19 pandemic appears as the greatest threat. Public health emergency will have to be dealt with all attention but a societal introspection on hovering concerns is necessary.

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