Your argument for CAA is sophistry, Mr Salve
Dear Mr Harish Salve:
As a leading opinionmaker of this country, what you say and write have a significant influence on public opinion. This distinguished position obviously brings with it a huge responsibility, which means saying it like it is, unaffected by partisan considerations. Unfortunately, your recent piece “CAA is Necessary” in a national newspaper justifying the Citizenship (Amendment) Act 2019 is an exercise in instrumental reasoning that, to say the least, is inaccurate and misleading. At this most critical juncture in our country’s history, when the idea of India envisaged by our founding fathers lies in tatters, misinformation on a momentous issue like the CAA must be called out.
At the very outset, you state that “the law that requires Muslim migrants from Pakistan and Bangladesh to be deported is the law of 1946 (the Foreigners Act) and 1955 (Citizenship Act)”. This gives the erroneous impression that these laws have slotted migrants according to religious affiliation and specifically name Pakistan and Bangladesh, whereas in their pristine form there is no mention or hint of identifying foreigners or migrants by their religion or targeting migrants from certain countries. And needless to say, Pakistan did not exist in 1946 and Bangladesh came into being decades later. The unembellished fact is that these laws originally applied equally to foreigners and migrants of all countries.
You have rightly pointed out that common principles govern grant of citizenship in democratic countries, and our Citizenship Act 1955 reflects this universal approach. The problem with the CAA 2019 is that, far from endorsing universal egalitarian principles, it has not only injected religion into the mix but has blatantly taken recourse to what the incomparable George Orwell described so incisively: “All are equal but some are more equal.” Even as you feign to express incomprehension at the outcry against the CAA, you certainly know why the dadis in Shaheen Bagh have been punishing themselves for the last three months. The CAA has quite simply denied Muslims the citizenship rights offered to the followers of other religions
On the widespread criticism of the CAA discriminating against Muslims, you wonder how “a law which is designed to confer the benefit on an identified class of persons, and which identification is based on a rational criterion, can be condemned as being discriminatory”. Do you seriously believe that it is rational to confer benefits selectively among a common group of migrants on the basis of religion? Doing so amounts to religious apartheid.
You argue that “the principle of equality does not take away from the State the power of making classifications. If a law deals equally with members of a defined class, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons”. This line of reasoning that champions the unfettered power of the State to pick and choose beneficiaries is consonant with how authoritarian regimes justify discrimination. The crux of the problem is that the CAA pointedly excludes Muslims from among the defined class of persecuted migrants and hence is a blatant case of treating equals unequally, which runs foul not only of our Constitution but also the UN Charter on Human Rights. Is it any wonder then that the UN high commissioner for human rights has filed an application with our Supreme Court to join the plea challenging the CAA?
In justifying the exclusion of Muslims, you state that “classification on the basis of religion is not per se unconstitutional”. You then elaborate your point by invoking the special rights conferred upon members of minority religious communities. This is an inappropriate and fallacious analogy as it equates the issue of the fundamental right of equality among individuals enshrined in Articles 14 to 16 of the Constitution, which the CAA allegedly violates, with Articles 29 and 30 which bestow certain collective rights for linguistic and religious minority groups to help them preserve their language, religion and culture This is false equivalence. As a legal luminary of international repute, perhaps your most astonishing contention is that the government must be free to “determine which of many possible schemes is the best” without interference from the Supreme Court even if the court thinks there are other methods better for the nation. Stated in the context of the constitutional challenge to the CAA, this assertion of
You elaborate your point by invoking the rights conferred upon minority religious communities. This is an inappropriate and fallacious analogy.
You have shrugged away the apprehensions about the NRC/NPR and their implication for Muslims with a caveat that only a procedure that is more onerous for Muslims than for others would be unconstitutional
yours affirms the supremacy of the executive government over the courts even in matters impinging on constitutional values. Your prescription is ideally suited to an oligarchy, not a democracy.
Without assigning any reasons, you have contemptuously dismissed the criticism that the CAA is inter alia discriminatory as it does not cover migrants from all countries who have suffered religious persecution. Similarly, you have shrugged away the widespread apprehensions about the NRC/NPR and their implication for Muslims with a general caveat that only a procedure that is more onerous for Muslims than for others would be unconstitutional. You conclude your defence of the CAA by taking a swipe at secular liberals and their effete ideology, accusing them of inciting the antiCAA protests. But the ongoing conflict is not about the politics of the Left or the Right but about the fears of the women in Shaheen Bagh and other protest sites and their fight against a law which they perceive to be unjust and discriminatory. In making our judgment of this tumultuous time, we would do well to remember Albert Einstein’s sage advice: “Remember your humanity and forget the rest!”
Regards,
Abdul Khaliq
The writer is a former civil servant and the secretary-general of the Lok Janshakti Party. The views expressed here are personal.