Deccan Chronicle

Your argument for CAA is sophistry, Mr Salve

- Abdul Khaliq

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.

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