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Harish Salve's arguments expose fault lines in 'unconstitutionality' of CAA; narrative against Act built on a mythical NRC

Author: Sreemoy Talukdar
Publication: Firstpost.com
Date:  March 7, 2020
URL:      https://www.firstpost.com/india/harish-salves-arguments-expose-fault-lines-in-unconstitutionality-of-caa-narrative-against-act-built-on-a-mythical-nrc-8129021.html/amp?__twitter_impression=true

In his written testimony at the USCIRF hearing on citizenship rights and religious freedom — held in Washington on Wednesday to haul India over the coals on Citizenship Amendment Act — professor Ashutosh Varshney of Brown University submitted that anti-CAA protests that “raged in cities and towns virtually all across the country” have apparently “been primarily non-violent, and have continued for over two and a half months” till such time “Hindu-Muslim riots broke out in the National Capital”.

The professor goes on to claim in his submission that CAA may render a “large of number of existing Muslim citizens stateless”, and once their basic rights including citizenship are taken away, “the community (will be) highly vulnerable to oppression and discrimination”.

The forecast over the CAA in India is pretty grim, except that it’s nonsense. First, let’s highlight the factual errors in Varshney’s testimony. The anti-CAA protests that broke out at the initial stages in Assam were violent, marked by wide scale arson and vandalism.

The situation was even more riotous in West Bengal. Over two days and more, arsonists set fire to 20 trains and 19 platforms, pelted missiles at passing coaches, ransacked counters and vandalised Central Government property worth several crores. Several buses were also burnt, with some putting at the figure at 70.

It takes quite a bit of skill to remain blissfully unaware of these recent, documented events. But even if we ignore the inaccuracies in Varshney’s testimony, the focal point of his argument is wrong. By his own admission, Varshney focuses on three issues.

He proceeds to laboriously claim that the CAA is unconstitutional (based on his argument that religious classification cannot be a criterion of citizenship), castigates the legislation for keeping outside its ambit persecuted minorities in other South Asian nations except Afghanistan, Pakistan and Bangladesh, and builds a case against the legislation based on a hypothesis that a combination of CAA and NRC will make “stateless a large number of Muslims, even if they were born in India and have lived in the country for decades".

Worth noting that the professor was among a panel of “experts” interpreting India’s legislative act before a hearing held by USCIRF, a federal government body that has in the past accused India of disenfranchising Muslims through CAA. These hearings go a long way in shaping global discourse. When misinformation and half-baked arguments get a validation through such mechanisms, it isn’t difficult to understand why the narrative around CAA is ill-informed, misleading and distorted.

Varshney’s first contention is that the CAA is unconstitutional. This is a specious argument. In his Times of India column, titled ‘CAA is necessary: Why the many arguments about it being unconstitutional don’t hold water’, senior Supreme Court advocate Harish Salve points out that “classification on the basis of religion is not per se unconstitutional”. The Indian Constitution makes positive discrimination in favour of religious minorities in India and allows the communities some special rights.

If we accept one positive discrimination conferred by the Indian Constitution on minorities based on religious classification, it is spurious to claim that allowing for a similar positive discrimination in favour of another identifiable group is unconstitutional.

As Salve, the former solicitor general of India and Queen’s Counsel for the courts of England and Wales reminds us, “CAA’s avowed objective is to enable conferment of Indian citizenship upon members of minority communities who hail from Afghanistan, Bangladesh and Pakistan. Do we really need proof that minorities are persecuted in these Islamic republics? How can Parliament be faulted for coming to a conclusion that such minorities in the three named neighbours need to be protected?”

Varshney also overlooks the fact that in Lautenberg Amendment (Public Law 101-167) 1989-90, the US identifies and confers certain religious persecuted minorities from the erstwhile USSR and later from Iran (through Specter Amendment 2004) with US citizenship.

The CAA has no provision for rendering anyone stateless, be it Indian citizens or migrants. Its objective is to give expedited citizenship to persecuted religious minorities from the three neighboring Islamic republics and there is nothing in the amendment that can be called “unconstitutional".

Varshney’s second contention, that the CAA is not wide or inclusive enough in its ambit, also fails to stand up to scrutiny. Once again, as the CAA or the Lautenberg Amendment (brought by US Senator Frank Lautenberg has shown), principle of equality does not militate against the power of classification.

Once again, Salve weighs in by pointing out that “a law which is designed to confer the benefit on an identified class of persons, and which identification is based on a rational criterion”, cannot be held as discriminatory “on the ground that the legislation could have created a wider class". Why? Salve also provides the answer: “principle of equality does not mean that every law must have universal application… 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.”

Varshney’s biggest charge, submitted through his testimony, is that in combination with NRC, CAA would make Muslim citizens stateless. It is sad that such a spectacular charge is based entirely on hypothesis. The prime minister has made it clear that pan-India NRC has never been on the table.

The exercise that critics of CAA has frequently cited while putting forward their CAA-NRC hypothesis is based entirely on the NRC in Assam that arises from a specific context (Assam Accord), is the culmination of a long struggle by ethnic communities against demographic distortions caused by large-scale, decades-long infiltration from Bangladesh, and was monitored by India’s highest court.

To equate that with an unborn NRC is travesty enough, to argue that Muslims in India may not possess the kind of papers that a hypothetical NRC may require, and therefore build up a fear-psychosis that legitimate Muslim citizens in India might become stateless is an incredible argument that dives deep into the nether regions of fantasy. Sadly, Varshney’s testimony is by no means exclusive. It has become the de facto narrative on NRC.

Once again, we return to Salve who points out that “there is no law, rule or notification published – or even a draft circulated – that would suggest that the government has any such (throwing all Muslims out of India) intent…” It is quite obvious that if any such procedure that requires “Muslims alone all over India to prove their citizenship in a manner more onerous than that applicable to any other community”, then it shall be “unconstitutional".

It is conceivable that Salve, who argued India’s case successfully at the International Court of Justice on Kulbhushan Jadhav, knows his law. If the CAA seeks to make a positive discrimination in favour of certain persecuted peoples and if such a classification isn’t unconstitutional, if it is not linked to any mythical NRC and has no power to render anyone stateless, then the question arises why has such an elaborate narrative been constructed, and why has it found wide acceptance in the West whose institutions have acted as force-multipliers for perpetuating misinformation?

The answer to these vexing questions become clear if we perceive anti-CAA protests as a political project led by brokers who have — to borrow from Salve again — enjoyed the perquisites of power for decades. The democratic validation of a government (twice over) that disenfranchised these brokers has infuriated this class. This amorphous group of influential power peddlers have found in CAA an opportunity to test India’s demographic and communal fault lines to see if an unrest may be created, that may further their end — invalidation of Parliamentary democracy through a popular discontent.

How such a discontent may be manufactured? Fear is a powerful motivation and potent political force. By telling Muslims a convenient lie — that CAA will eventually deprive them of their citizenship and basic rights — a fear-psychosis has been created. A large section of Muslims truly believe that the BJP government will throw them out of India. While the perpetrators of such a narrative were quite clear that CAA carries no such threat and is not unconstitutional, the political end (upending democratic fiat through a community-led upheaval) justified the means (lies and obfuscations).

The western media readily bought into this narrative led by its intrinsic distrust of a “Hindu nationalist government” (the western motivation has been discussed in this piece) and resolutely kept at the spurious narrative despite overwhelming evidence to the contrary.

Politics is temporal. The deep gash on India’s polity caused by such cynical politics will be permanent.
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