Gautam Bhan lists the arguments against CAA

There are lots of good and vital ethical, moral, and political arguments against the fundamental injustice of the #CAA. This thread 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 from protest to civil disobedience to bureaucratic undoing. Each will require struggle, but, crucially, in different forms.

– Gautam Bhan

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