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There are lots of good and vital ethi…

Gautam Bhan
19 hrs ·

There are lots of good and vital ethical, moral, and

political arguments against the fundamental injustice
of the #CAA. This note lists other arguments and
forms of resistance that focus on procedural and
institutional challenges. Writing this so that we
remember that our forms of resistance must be as
varied and diverse as the forms of exclusion we face.
The courage of today's protestors deserves pathways
tomorrow to grow and sustain.
In a nutshell: the CAA constantly seeks to separate
from the NRC. Former is the "Act", latter only an
"implementation mechanism." This will make legal
challenges focus on CAA and less on NRC which will
appear procedural and apolitical. Yet it is the NRC that
will not just perform but embody exclusion. The NRC is
not implementation mechanism. It is the main end of
all this. The making of a list itself delegitimises
citizenship even if no one ever acts on it, even if
hypothetically everyone "passes," because the NRC
shifts the onus on proving citizenship onto the citizen
and away from the state. We have seen this move in
anti-terror law: we wont prove you are a threat, you
prove to us that you are not. This despite the fact that
the ability to do so rests only with the state and not
with citizens.
How do we challenge the NRC procedurally? First,
documents cannot evidence citizenship just as their
absence cannot deny it, let alone in a country where a
dominant majority work outside the world of paper
forms of birth, death, home and work. This means that
most people are being asked to do something they
cannot even if they wanted to. This itself makes the
NRC not just unviable but unjust and illegal. Imagine a
government programme that required people to be
able to read to access a basic good. To escape this,
the regime will ensure that the form and threshold of
proof will be kept -as it is now - deliberately vague and
open to interpretation. This will help it resist
challenges yet also make it vulnerable because a
vague process is prima facie unviable in law: you
cannot punish someone for something they don't even
know how to do correctly.
Second, there is no evidence that any state capacity
exists to be able to do an NRC without error rates of
20-40%. Aadhar/PDS show this. Three implications:
(a) they will at some point lean on other archives and
the National Population Register is likely one. Inclusion
within it will become paramount as a practice of
everyday procedural resistance crucial in case legal
challenges all fail. (b) everyday resistance can also use
tactics of bureaucratic undoing: mass refusal or
systematically incomplete forms will break the
system's ability to function; (c) given that the
consequences of errors will be different for citizens of
different religions, there is a case to be made. If a
Hindu is erroneously excluded, they can still naturalise.
If a Muslim is, they have to depend on being a "case by
case." Put together likelihood of error with religiously
determined differential impact of that error, and you
have a mechanism that is unconstitutional in its
implementation even if not in its plain form as an Act or
law.
This is then a different set of arguments. You can
support or decry CAA but still find that the NRC is
ethically unjust, politically dangerous and legally
arbitrary. We must not forget this. We must use it. We
must challenge the CAA-NRC not only on basic
structure and fundamental rights alone but on
procedure, rules and practice. With these, we could
still stop or derail NRC-CAA even if this first set of
cases filed in the SC now fail to win. Our resistance
must play the long game, and must play all its
registers. Each will require struggle, but in different
forms. It is crucial that we do.

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Reet Kapur and 268 others

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Manav Kapur
Kapil Kapur
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Saba Hasan
Aman Hasan Kumar
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Raajorshi Choudhury
Syed Fahad Kamal
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Juthika Nagpal
Thank you for detailing this! It's been non
trivial to articulate clearly to those who've
asked. 1

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Ashutosh
Sameer Kashyap 1

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Shivang Singh Bisht

cant the same be challenged in supreme
court? 1

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Abdul Basith
Ameen Hassan Anoop Vr
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Jyotsna Siddharth
Jatin Thacker please see some logic here in
this post coming from one of the most
logical people i know.
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Malavika Thirukode
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Sattam Ghosh
Barnik Dutta to help with your patience
with pet trolls maybe, who seem to
deliberately not understand. 1

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