Harish Salve’s defence of CAA legally sound, but eminent lawyer’s arguments forego humanity in endorsing the Act

Will the courts take cognisance of the CAA being only one link in a chain of three? The proverbial jury, of course, is still out.

Santhosh D'Souza March 08, 2020 17:58:06 IST
Harish Salve’s defence of CAA legally sound, but eminent lawyer’s arguments forego humanity in endorsing the Act
  • When it comes to the arguments he makes to dismiss objections to the CAA, Salve chooses to ignore humanity.

  • However, it appears that he believes we cannot do without the CAA in its present form.

  • If true, it is a position that can be contested.

Edmund Burke, notable parliamentarian and philosopher, has said “It is not what a lawyer tells me I may do; but what humanity, reason, and justice tells me I ought to do.” If you are unfamiliar with Burke, you might hazard a guess that he belonged to some ancient era. The laws that legislative bodies worldwide enact today seem to be tailored to ensure that lawyers can defend them plausibly enough to pass judicial muster, their true purpose plain for all to see but couched in language that cannot be struck down.

Ten days from now, Harish Salve will take silk in the United Kingdom, after the January announcement of his being appointed Queen’s Counsel. Salve needs no introduction in India, and his views on law, particularly constitutional matters, are keenly absorbed.

Viewed purely from a legal standpoint, his article, "CAA is Necessary", delineates with exactitude the various legislations, from 1946, 1955, 1983, 2003 and 2016, that come into play when analysing the Citizenship Amendment Act, 2019 (CAA).

When it comes to the arguments he makes to dismiss objections to the CAA, Salve chooses to ignore humanity. Perhaps he is right to do so – he might merely be pointing out the legal thickets the anti-CAA petitioners will have to wade through.

However, it sounds from the title of the article (and from previous statements too) that he believes we cannot do without the CAA in its present form. If true, it is a position that can be contested.

Harish Salves defence of CAA legally sound but eminent lawyers arguments forego humanity in endorsing the Act

File photo of anti-CAA protests. PTI

Salve makes three substantive points in the article. He asserts that “If a law deals equally with members of a defined class (emphasis mine), it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.”

This is an interesting point. Can a law be contested because it apples to an irrationally defined class? Are there legal limits to how the government can phrase inclusions such that those it excludes turn out to be from one religion alone?

He also addresses what he calls the loudest argument – “the supposed intention of the government to throw all Muslims out of India.” He believes the argument to lack merit as “There is no law, rule or notification (emphasis ours) published – or even a draft circulated – that would suggest that the government has any such intent. The Prime Minister has denied (emphasis ours) it.”

Salve makes two distinct claims here. The first is misconstrued. No one asserts that the intention is to throw all Muslims out of India. The contention is that laws and procedures combine to strip citizenship from and disenfranchise undocumented Muslim residents in the country, whether born here or migrated from elsewhere, while simultaneously letting undocumented residents of six other faiths retain citizenship and voting rights even if they migrated from elsewhere. This intention is a little easier to infer than the one Salve posits.

The second claim is harder to contest. Would the court constrain the petitioners to laws, rules or notifications to establish the government’s intention? Would a prime ministerial denial be sufficient grounds to reject the petitioners’ claim? Would a home minister’s public statement, not to speak of the legendary chronological narrative, be negated by a prime minister’s denial? We will know soon enough.

The third point questions how the amendment, "designed to confer the benefit on an identified class of persons, and which identification is based on a rational (emphasis ours) criterion, can be condemned as being discriminatory on the ground that the legislation could have created a wider class, arrived at by applying a broader criterion for identifying the class of those who would benefit by the legislation."

While the sharpest legal acumen, like Salve’s, will weigh in on this when the hearings begin, we do think that the rationality of the criteria is questionable. We can ignore the second half of his argument: we do not plead for a wider class of persons to be benefited by the CAA.

Our principal arguments (and, we suspect, those of the overwhelming majority of those objecting to the CAA) are:

  1. The criteria currently applied by the CAA are not rational by any definition of the word.
  2. The discriminatory effect of the CAA manifests only when other, publicly declared and/or notified, actions of the government are viewed in concert with it.

The government might, in court, present new justifications for rationality but the ones it has advanced so far are woefully inadequate. To the best of our ability, we have summarized the government’s explanations below:

  1. Afghanistan, Bangladesh and Pakistan have a state religion.
  2. India has a land border with these three countries.
  3. People of the six faiths are minorities and persecuted in these countries.
  4. Undocumented people of these faiths from these countries fled persecution to India.
  5. Muslims by definition are not persecuted in these countries as state religion is Islam.
  6. The Indian National Congress divided the country on the basis of religion.

The first four are statements of fact but fail as rational criteria because each one is an incomplete list of qualifying entities, and when put together, they effectively constitute a targeted exclusion. The last two are falsehoods. The last one has been rebutted effectively in Parliament and outside it, and in any case will be laughed out of court.

The Act defines its class of “illegal immigrant” beneficiaries based on 4 criteria:

  1. They should be from Afghanistan, Bangladesh and Pakistan.
  2. They should be Buddhist, Christian, Jain, Hindu, Parsi or Sikh.
  3. They should have fled from their country due to religious persecution or fear of it.
  4. They should have entered India before 31 December, 2014.

Several questions arise:

1. Why are Afghanistan, Bangladesh & Pakistan the countries the Act applies to?

a. Because they are neighbours? Why exclude Bhutan, China, the Maldives, Myanmar, Nepal and Sri Lanka? Virtually all are accused of systemic religious persecution too.

b. Because we share land borders? Why exclude Bhutan, China, Myanmar and Nepal? Why include Afghanistan, when the 66 mile land border has never been a de facto border since October 1947, due to Pakistan-Occupied Kashmir?

c. Because they were involved in Partition? Why include Afghanistan? It was never part of British India and was a sovereign nation since 1919. Why exclude Myanmar? It was part of British India until 1937.

d. Because they have state religions? Why exclude Bhutan and Sri Lanka which have state or “foremost” religions, or the Chinese State that persecutes believers irrespective of religious affiliation?

2. Why does the amendment benefit Hindu, Buddhist, Jain, Sikh, Christian & Parsi undocumented immigrants who fled religious persecution?

a. If the aim is to aid refugees persecuted for religious beliefs, Ahmadis, Hazaras, Shias, Sufis, Rohingya Sunnis, Chinese and Tibetan Buddhists, Uyghur Muslims, Bhutanese Hindus and Buddhists, Chinese, Bhutanese & Burmese Christians are also persecuted, with the first four being persecuted in the very three countries specified by the amendment.

b. If the aim is to aid refugees whose religions emerged in India, why include Christianity (apart from a cynical bid to mute criticism by the West) and the Parsi faith? Why exclude Bhutanese Lhotsampa (Hindus, Buddhists and Animists), Sri Lankan Hindus and Tibetan Buddhists from its ambit?

c. People of six faiths from three countries are not the only undocumented refugees to have entered India. However, the government repeatedly claims that it does not have related statistics. Why does the government not transparently inform us how many benefit from the amendment and how many are excluded?

d. Incidentally, if the aim is to legalise refugees who fled persecution from only three countries, people are persecuted there for other reasons: atheism, “blasphemy”, gender, political views, sects, sexual orientation…

3. Why is this Amendment of the Citizenship Act required now?

a. India has previously offered refuge and citizenship on humanitarian grounds without a law that uses religious criteria to include or exclude beneficiaries.

b. If persecution of Hindus, Buddhists, Christians, Jains, Parsis and Sikhs in “Islamic” countries is the genuine reason, why impose a cut-off date of 31 December, 2014 when the government simultaneously claims on-going persecution?

4. How will the government separate refugees fleeing religious persecution from undocumented migrants when implementing this amendment?

a. Since the amendment is solely for those persecuted for their religion who fled from three countries, how will the government determine if each applicant was persecuted or not?

b. Why do the reported draft CAA rules omit any need to prove religious persecution? Instead, applicants will merely have to show an official Indian document issued before 2014 that states their religion as one among the six faiths in the CAA.

c. What prompted the home minister to tell Parliament that this Act benefits “lakhs and crores” of people, when the Intelligence Bureau director testified that only 31,313 illegal immigrants will benefit?

It is hard to avoid the conclusion many have reached. The Act is meant to exclude Muslims from gaining citizenship if they are undocumented. That is why these three countries were chosen and others not included – it provided the fig-leaf of “Islam as state religion”.

That is why minorities like Ahmadis, Hazaras, Shias and Sufis are conflated into a homogenous Muslim denomination. Narendra Modi, for example, is now mum about the Ahmadis who he campaigned so heavily for when he was chief minister of Gujarat. The beneficiary count mentioned by Shah that runs into lakhs and crores only makes sense in the context of undocumented non-Muslims avoiding exclusion in the NRC via the CAA. In a country where, according to the UNICEF, even as late as 2016, 20 percent of all new births were undocumented, millions of people will indeed have trouble providing the right documents.

The next step, the National Population Register, obtains data about all residents. The new questions introduced in the 2020 NPR when compared to the exercise conducted in 2010 relate to the birthplace and birth dates of parents of individuals, etc. The answers provide no information of value unless used to categorise some citizens as doubtful.

The third is the National Register of Citizens through which undocumented Muslims would be filtered (using the CAA as the sieve), disenfranchised and incarcerated. A denial by the prime minister or even back-tracking by the home minister notwithstanding, the 2018-19 Annual Report of the home ministry clearly declares (Chapter 15; Page 262) that the NPR is the first step towards the creation of the National Register of Indian Citizens.

Will the courts take cognisance of the CAA being only one link in a chain of three? The proverbial jury, of course, is still out. The arguments Salve outlines, and more, will no doubt be presented; here is hoping that we hear legal arguments and the court’s conclusions soon.

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