Interview with Advocate M.R. Shamshad

M.R. Shamshad is a New Delhi based Advocate-on-Record at the Supreme Court of India. His practice spans a wide range of constitutional, civil, arbitration, matrimonial, and personal law matters in the Supreme Court and various High Courts in India. He represents one of the petitioners challenging the Citizenship (Amendment) Act, 2019 – Mr. Asaduddin Owaisi, Member of Parliament from Hyderabad (a copy of the Petition can be accessed here). The Citizenship (Amendment) Act, 2019 received presidential assent on 12 December 2019, shortly after which ~200 petitions were filed before the Supreme Court challenging its constitutionality. More than two years after the petitions were filed, the challenges are yet to be substantially heard.

This interview has been edited for length and clarity.

Md. Tasnimul Hassan: You represent one of the petitioners who has challenged the Citizenship (Amendment) Act, 2019 (CAA). What prompted you to challenge it and why do you see it as unconstitutional?

M.R. Shamshad:  I am representing the petitioner in my professional capacity, but I feel from my heart that the CAA is arbitrary, unreasonable, discriminatory; a law which will ultimately hit all those who are politically inconvenient to the regime which has brought this law. A reading of it may look very innocent, but it has very serious consequences.

Prior to the CAA, the Citizenship Act, 1955 (‘1955 Act’) had undergone about 9 amendments between 1957 to 2015, but it remained region and religion neutral. In the CAA, for the first time, the government chose religion and region as the basis for granting citizenship to a foreign national. The CAA primarily aims to alter the current 1955 Act to provide for the acquisition of Indian citizenship for a certain category of ‘illegal immigrants’ from only Afghanistan, Pakistan, and Bangladesh. In doing so, it lays down qualifying criteria that fail to pass the tests laid down for such laws in Part III of the Constitution, as interpreted in numerous landmark judgments of the Supreme Court.

MTH: One of the main grounds for alleging the CAA to be unconstitutional is that it welcomes migrants from certain religious communities while rejecting migrants from others. By having such manifestly arbitrary standards, you argue that the CAA in some form is encouraging (and to some extent, necessitating) religious conversion. Could you elaborate on this?

MRS: As I said earlier, CAA brings elements of region and religion. The Amending Act, particularly Section 6, offers an incentive to persons from Afghanistan, Bangladesh, and Pakistan to change their faith so as to avail the relaxed requirement of only five (5) years of residence for obtaining Indian citizenship, down from eleven (11) years prescribed under the Third Schedule to the 1955 Act.  The present legal regime is that a Hindu coming into India from a war-torn country (like Afghanistan) will be granted a long-term visa and will be put on the fast track for citizenship to be granted after 5 years of residence in India. Whereas a Muslim from the same country seeking refuge will not be eligible for a long-term visa and will have to reside in India for 11 years before he/she can even apply for citizenship.

On the face of it, this way of creating rights on the basis of specific religions (by excluding one religion) is contrary to the legislative policy in India. We have seen various legislations being passed by States defining ‘forcible conversion’ to include an offer of ‘better lifestyle’ & ‘divine pleasure.’ Here the State is granting ‘citizenship’ based on religion. That is why we say that the present framework under CAA is nothing short of incentivizing conversion by the State, in gross violation of Article 25 of the Constitution. I can also say that this is action by the State to glorify the concerned religion(s).

MTH: India is not a signatory to the UN Convention relating to the Status of Refugees, 1951. The CAA has been justified as a law for protecting refugees from minority communities from Afghanistan, Pakistan and Bangladesh. Why do you think India has simply not adopted the UN Convention, and chosen to go down this path?  

MRS: Well, as we know, the original Refugee Convention of 1951 was Eurocentric, emanating from the Second World War and thus explicitly related to a particular geographical area. However, the 1967 Refugee Protocol expanded the scope of the 1951 Convention to all countries.

India is not a party to the 1951 Refugee Convention. However, it is important to remember that India is a signatory to several other human rights conventions like the UDHR, ICCPR, ICESCR, CERD, CTCIDTP. Indian courts can also give directions to implement these international laws as it was done in the famous Vishaka (1992) case. The principle of non-refoulement, which states that no persecuted refugee must be deported to any country where they are liable to face persecution, has been recognised as a part of international law. It has become imperative that India does need a refugee law, however; even in the absence of India not being a party to the Refugee Convention, India must follow the other human rights treaties that it has signed and our country’s actions viz. CAA cannot be justified on the sole ground of it not being a party to the Refugee Convention.

MTH: You assert in your petition that CAA offends the principle of constitutional morality. What in your view should be ‘constitutional morality’ apropos of immigration?

MRS: The concept of ‘constitutional morality’ was conceived by Dr. Ambedkar as the shield of the minority against the tyranny of the majority. Recently, the concept has been defined by the Supreme Court in the Navtej Singh Johar case (2018) where the court has said that “‘constitutional morality’ which strives and urges the organs of the State to maintain such a heterogeneous fibre in the society, not just in the limited sense, but also in multifarious ways.” The court also said that it is“the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality.” Regarding the CAA, this principle read with what Dr Ambedkar said is the answer to the question. In the present case, we witness that the State, instead of curbing the majoritarian sentiment, has very much legalized and institutionalized the ‘tyranny of the majority’ and populist ideas, and in doing so has adopted a standard apropos of immigration through certain notifications and the CAA, which clearly violates the concept of constitutional morality as adopted by the Supreme Court and as conceived by Dr. Ambedkar.

MTH: The CAA presumes religious persecution for persons belonging to certain communities. Some commentators have speculated on a CAA-NRC (National Register of Citizens) nexus, by which the CAA allows a pathway back to citizenship to a section of people left out of the NRC in Assam. When the Supreme Court adjudicates on the constitutional validity of the CAA, do you think it is important for the court to take the NRC exercise into account as well?

MRS: It is true that in the absence of a requirement to prove or even claim persecution to apply for citizenship, the CAA clearly appears to have an ‘unholy nexus’ with the NRC, aimed at identifying ‘illegal migrants’ residing in India. While the NRC exercise would result in identification of persons as ‘illegal migrants,’ the CAA seeks to simultaneously offer citizenship to illegal migrants who are Hindu, Sikh, Buddhist, Jain, Parsi or Christian on the presumed ground of persecution.

The other aspect is that the state has, in a way, placed the onus upon the individuals concerned to prove their citizenship by giving extraordinary power to the person who will scrutinise the documents, although it should be the other way around. Only those persons against whom the State has doubt of not being a citizen of India, should be called upon to produce the documents and not every ordinary Indian. We live in a system where making of documents inter alia ration card, income certificate, death certificate makes you run from one table to another, involving severe administrative hurdles – all that without any accountability of the officers concerned. Do you think the issue of citizenship will be easy for a lay person? Don’t you think religion, money, connections, education, etc. of the individual will play a crucial role in the process, which is undesirable, to say the least?

MTH: The NRC has been seen as one of the most ambitious judiciary-led bureaucratic exercises in the country. How do you see the role played by the Supreme Court in overseeing the preparation of the NRC list? Do you believe that the court acted in consonance with its constitutional mandate?

MRS: Firstly, it was a court-initiated drive. There can be a difference of opinion as to whether the Court should have taken initiative on this or not. Definitely, the Supreme Court has a role to play in this process. The Supreme Court bench presided by Justice Ranjan Gogoi (who himself came from Assam, and after demitting office as Chief Justice of India became a nominated Member of Parliament) passed various directions while undertaking the exercise of NRC in Assam. The Court gave validation to the set of documents which could be the basis for inclusion of names in the NRC. It fixed deadlines for this process. It appointed administrators to carry out this process. It recorded the provisions of funding for this purpose: obviously the government had to bear it. All this happened in the Supreme Court. In my opinion, there were severe complications involved. Many people did not understand the consequences of this process as a substantial number of people in that area are extremely poor and illiterate. Moreover, geographically, it is a flood prone area where houses keep shifting. However, the Supreme Court moved very fast to achieve this complicated exercise. And now, after this exercise was announced to be completed, the Executive appears to be saying that it shall be re-done. Why? Why after spending time—including the Supreme Court’s time and a huge amount of public money, this process needs to be re-done?

MTH: Now that the NRC is in action, what do you think the top court’s role should be in deciding the fate of 1.9 million people whose citizenship is in limbo as they are excluded from the NRC list? Also, there have been reports on how the NRC process disproportionately affects people from marginalized communities. Has the judiciary responded effectively to these structural barriers people face in the process of proving their citizenship?

MRS: Firstly, in view of the fact that this initiative of the Supreme Court has led to a serious political issue, as an institution, the Court must intervene to protect the outcome of the process. Secondly, the persons suffering due to non-inclusion of their names in the NRC must be given a fair chance, on priority basis, to agitate their grievance in front of the appropriate authority manned by people who do not carry prejudice on the basis of religion. Moreover, as the Assam NRC is an outcome of the Supreme Court regulated exercise by a dedicated bench, the best way would be to dedicate a bench of three judges to deal with the issue of those aggrieved persons. The Bench should take up the matter fortnightly and see how the administrative process handles attending to their grievances.

MTH: The Supreme Court in Sarbananda Sonowal (2005), called ‘illegal immigration’ no less than an act of ‘external aggression,’ and held that the Centre had a duty under Article 355 of the Constitution to protect states from illegal migration – how has this reasoning impacted India’s approach to policy and legislation on citizenship and immigration?

MRS: Many times, terminologies used in judgments create lots of concern in the public domain. It is not very unusual in our system. However, I must say that the directions issued from time to time in this regard were used by a set of political groups, in coordination with the media, to exploit them for their vote bank politics.  

MTH: What, in your opinion, has been the role of the Supreme Court in the CAA-NRC process? Has the Supreme Court played a broader role in furthering exclusion and statelessness since independence? Has this role changed (or possibly amplified) in the past few years?

MRS: The legality of the 2015 notifications and CAA are sub judice in about 200 writ petitions in the Supreme Court. They did not get substantive hearings, much like challenges to other major legislations like the criminality of triple talaq, amendments to the UAPA, the Kashmir issue etc. On the other hand, it is noticeable that the Supreme Court has taken up other urgent and non-urgent matters of national importance by prioritizing the hearings of matters at the administrative level or by passing judicial orders for their listing on an urgent basis. A few examples are issues relating to the Central Vista, Maratha reservations, the Tata & Mistry dispute, the contempt action against lawyer Prashant Bhushan, the issue of permanent commissioning of women in the army.

The active role of the Supreme Court is very crucial at this juncture. Right now, a citizen expects the most from the Supreme Court over any other institution. Incidentally, many of the pending issues relate to anti-Muslim rhetoric by the Executive. Conversely, at present, hearing of matters of constitutional importance itself has become an issue.

We thank Advocate Nabeela Jamil for her support in conducting this interview.