Co-Written by Karen Gabriel and Prem Kumar Vijayan
The following is a message that has been doing the rounds on WhatsApp and other social media forums. It is apparently a summary of the arguments made by ‘Harish Salve, well known Lawyer, who successfully argued India’s case, in International Court of Justice’, in defence of the CAB (now CAA), in the electronic and other media.
The message purports to shed ‘light on very many misinformation [sic] being spread’, and ‘gives clarification about CAB.’ It is organised as a series of points of ‘Mis-information’, to which the ‘clarifications’ are offered. We have followed the same principle of organisation here: the quotes used here are from the message, and are our point-by-point clarifications on these alleged ‘clarifications’ from ‘Salve’.
We cannot be absolutely certain that the arguments in that message were actually all made by ‘Harish Salve, the well known Lawyer’; hence, we have chosen to keep the name ‘Salve’ in quotes. We have also edited the original message a little for the sake of brevity; anyone interested to see the entire message, may please feel free to contact us.
Before coming to the points of ‘Mis-information’, the message begins with the question:
‘What is CAB and what clarifications for the questions raised against CAB ?’ [sic]
The answer provided is:
‘THE CITIZENSHIP (AMENDMENT) BILL, 2019 is […] not a full fledged bill but a narrow-tailored law specifically meant for religiously persecuted minorities in the 3 specified countries namely Pakistan, Bangaladesh and Afghanisthan [sic].
‘It says that “Any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan and who has entered into India on or before the 31st day of December, 2014 and staying here to safeguard their lives, shall not be treated as illegal migrant.”’
It then proceeds to the various points of alleged ‘misinformation’.
‘Mis-information [hereafter, M] 1: Citizenship Amendment Bill is against Indian Muslims, they need to get their papers ready to continue living in the country.’
‘Salve’s’ Clarification [hereafter, SC] 1: ‘One of the WORST LIES…. Citizenship Amendment Bill HAS NOTHING TO DO WITH PRESENT INDIAN CITIZENS Muslim or otherwise.…People belonging to Hindu, Jain, Buddhist, Sikhs, Parsi or Christian communities from [Pakistan, Bangladesh and Afghanistan] who have come to India before 31/12/2014 for Religious persecution and already living in India will be able to apply for citizenship.… No Indian citizen will be asked to produce any document to prove citizenship after the CAB is passed, it is just FALSE propaganda.…’
Response [hereafter, R] 1: It should be noted that, except for the last sentence, this is just a reiteration of the explanation of the Bill/Act, given above. The last sentence, however, is the deception: it – and in fact, the entire set of ‘clarifications’ – does not reveal the fact that the CAB/CAA does not stand in isolation but is designed to work in tandem with the National Register of Citizens (NRC), which is now going to be implemented across the country. The NRC, in fact, WILL ask residents of India to produce documents to prove citizenship. If found wanting, the Hindus and others noted above will only have to show that they have been in India for the last five years, to be deemed citizens. The Muslims – the lone targets of the CAB and the NRC (for now) – will be deemed illegal immigrants, under CAA.
M2: ‘Muslims from other countries can’t become Indian citizens after CAB is passed.’
SC2: ‘CAB [….] does NOT cancel the existing Naturalisation Laws. Any person from any foreign Country seeking to be Indian citizen can apply for the same under the Existing Laws.
‘There is NO BAR on Muslims from anywhere in the world, to seek Indian citizenship under existing laws, and CAB does NOT prohibit that. They can apply for Indian citizenship under section 6 of the Citizenship Act, which deals with Citizenship by Naturalization.’
R2: This seems reasonable enough – except, it’s not! Firstly, no person of non-Indian origin (whether Muslim, Hindu, or any other denomination) has any automatic or irrefutable claim to Indian citizenship, under ‘the existing Naturalisation Laws’. Their application for citizenship must be granted, by and at the discretion of the Indian government. The CAA, in contrast, clearly provides AUTOMATIC, IRREFUTABLE claim to all non-Muslims ‘from Afghanistan, Bangladesh or Pakistan’ who have ‘entered into India on or before the 31st day of December, 2014’, and specifies that they ‘shallnot be treated as illegal migrant’ (emphasis added). Which means that only Muslims will suffer the discretionary power of the government of India, in their desire to become Indian citizens. This is a clear and patent violation of the fundamental rights enshrined in the Constitutional provisions of equality.
M3: ‘Muslims from Pakistan, Bangladesh and Afghanistan can’t apply for citizenship or refuge in India.’
SC3: ‘Although Muslims from these countries have been excluded from the CAB, it does NOT mean the door is shut forever for becoming Indian citizens. [….] the USUAL NATURALISATION LAW remains available to them. …CAB does NOT undermine or interfere with the Existing rules of ASSYLUM [sic] and Muslims can continue to seek assylum [sic] or apply for citizenship under the existing rules.’
R3: This is really just another repetition of the lie in SC2, and the same response – R2 – therefore applies to it. We may add, however, that from R2 it is clear that CAB/CAA in fact, DOES interfere inevitably and intensely with the provisions of the ‘Existing rules of ASSYLUM’, de facto, if not de jure.
M4: ‘Illegal Muslim immigrants living in India will be deported after CAB is passed.’
SC4: ‘CAB…does not deal with the DEPORTATION of illegal immigrants. Although it protects Hindus, Jains, Buddhists, Sikhs, Parsis or Christians who had entered India illegally from deportation by giving an opportunity to apply for citizenship, it does not say anything on DEPORTATION, which is the subject matter of another law, the Foreigners Act, and not the Citizenship Act which the current bill seeks to amend.
‘The process of DEPORTING anyone entering and living illegally in India is an ONGOING process, UNDER FORIGNERS’ [sic] ACT and the CAB does not change that.’
R4: Here again, the ‘clarification’ seeks to separate the Foreigners Act from the CAB/CAA. In actual fact, they are distinct but related legislations that cannot be treated independently, let alone separated. The very opening section of the Foreigners Act, 1946, under ‘Definitions’, states that ‘“foreigner” means a person who is not a citizen of India’ (Section 2[a]; emphasis added). Amendments to the Citizenship Act, like the CAA, will obviously and inevitably affect the determination of ‘who is not a citizen of India’. Under the CAA, it is the Muslims who will be immediately marked as potential illegal residents.
Further, under Section 9 of the Foreigners Act, ‘the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description…shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.’ This brings us back to the CAA and the NRC – which is why the provisions for deportation in the Foreigners Act will apply almost automatically to anyone excluded under the CAA.
Now, since large-scale deportation is not financially and logistically feasible, the solution is ‘detention camps’, or to use the more accurate label, ‘concentration camps’. What will happen in those camps history alone will tell. But for now, we can see clearly clarification SC4 given above is a blatant and patent lie.
M5: ‘Any Hindu can become Indian citizen after CAB is passed.’
SC5: Hindus, Jains, Buddhists, Sikhs, Parsis or Christians from only from Pakistan, Bangladesh and Afghanistan, who are already living in India for at least five years can apply for citizenship. It does NOT give automatic citizenship to Hindus, they must have lived in India for at least five years, and after that, they HAVE TO APPLY for citizenship. It is not particularly biased in favour of Hindus as BEING ARGUED BY MANY. [….] For example, there are lots of Sri Lankan Tamil Hindus living in camps in Tamil Nadu, but they have not been included in CAB….
R5: Firstly, the Hindus and other non-Muslims specified under the CAA may not automatically get citizenship – they ‘HAVE TO APPLY’ for it – but the law clearly states that, regardless of whether they apply or not, whether they are granted automatic citizenship or not, the ‘shall not be treated as illegal migrant’(emphasis added). But if Muslims do not apply, they WILL BE treated in that way.
Secondly, there are four other immediately neighbouring countries besides Sri Lanka, which also have Hindus, Christians, Buddhists, etc, who constitute part of their persecuted populations, besides Muslims. These are China, Nepal, Burma and Bhutan. The fact that the CAA is not extended to the non-Muslims from these countries, combined with the fact that none of these is a Muslim country, tells us clearly that the CAA is designed to import a particular kind of non-Muslim – the non-Muslim who has experienced religious persecution by so-called ‘Islamic regimes’. Other kinds of non-Muslims – like Tamils in Buddhist Sri Lanka – are not useful for them.
This is a devious form of social engineering, aimed in the final analysis at sharpening and exacerbating communal tensions – and not at providing humanitarian relief. It is, rather, nothing more than a diabolical, cynical abuse of faith and humanitarian sentiment, to push a deeply chauvinistic and violent communal agenda.
M6: ‘If CAB is about religious persecution, why Shias, Ahmediyyas, Hazaras, Balochs and Rohingyas are not included.’
SC6: ‘Shias, Ahmediyyas, Hazaras all these groups are Muslim ethnic groups, they are not recognised as separate Religions anywhere in the world. As Muslims, they are Not minorities in Pakistan, Bangladesh and Afghanistan, which are either officially Islamic Countries OR have a very high Muslim majority. Therefore, it is Not possible to include these Muslim groups in the bill as it is specifically made for Religious Minorities in those Countries.
‘Harish Salve’ stated [….] that Islamic majority nations identify their people as per who follows Islam and who does not.
[….] Still, if any Muslims are being persecuted in these Islamic countries for practising their version of Islam, they can apply for asylum in India. [….]
‘Moreover, Balochs and Rohingyas are not Religious groups, they are ethnic groups. Baloch people are not wanting to migrate to India or any other country, they are demanding an independent nation in the Baloch region.[….]
[…] Rohingyas […] fled Myanmar after they were allegedly targeted by the military.… Rohingyas were targeted in retaliation after they had attacked people from other communities, including Hindus, in Myanmar. Rohingya groups are conducting terror activities in Myanmar for a long time. [….] Therefore, the Rohingya groups remain a security threat to India, and they can’t be given any blanket relaxation for citizenship.
[….] ‘Salve’ [also] stated that Tamils in Sri Lanka are not religiously persecuted.
R6: Deceptions, hidden agendas and lies abound in SC6:
a) Shias and Ahmediyyas are not ethnic groups, they are religious sects facing severe persecution on religious grounds in the very same three countries identified in the CAB/CAA.
b) ‘Salve’ refers obliquely to the fact that they are not recognised as Muslim in these countries (which is why they face religious persecution); yet, without any sense of contradiction, he maintains that ‘As Muslims, they are Not minorities’, in these three countries. Meaning that, although their own countries don’t recognise them as Muslims, the CAA WILL do so – just so it can exclude them!
c) The astounding claim is made that Balochs simply don’t want to migrate to India! Assuming that ‘Salve’ somehow has some insider knowledge of the Baloch mind, that still cannot be a legal reason for denying them the option of applying for Indian citizenship under CAA, if they can legitimately claim religious persecution.
d) The Rohingyas were ‘allegedly’ targeted by the military; but there is nothing ‘alleged’ about the conviction with which ‘Salve’ speaks of their ‘terror activities’, in order to justify the military action against them (which, incidentally, is no longer ‘alleged’ but accepted and defended). And this ideological sleight-of-hand, by which the victims of the Burmese military violence become ‘terrorist’, in turn becomes the reason for denying them the benefits of the CAA.
e) The arguments made in R5 above also apply again to the question of Tamils in Buddhist Sri Lanka.
The larger point to note here is the desperate attempt to obfuscate and muddy the contradictions and deceptions, to facilitate the passage of a fundamentally flawed legislation.
M7: ‘CAB is against the Indian Constitution as the constitution prohibits discrimination in the name of religion.’
SC7: ‘[…] CAB aims to provide the persecuted minorities in these 3 countries a special status in the naturalisation process […] for other communities the rules of general asylum process will be followed. So there is no violation of Article 14 here.
‘Article 21 of the Indian Constitution […according to ‘Salve’…] provides a right to life for those who live in India, NOT for those who want to enter India.
‘On the question on whether specifying Hindus, Sikhs, Jains, Parsis, Buddhists and Christians is discriminatory against Muslims, ‘Salve’ explained that the laws of equality does not mean having the same law for lions and lambs. He added that since the CAB has ‘religious persecution’ as the basis and is aiding those who are being religiously persecuted ([…] in the specified Islamic countries) then the community which belongs to the majority Religion in these Countries cannot claim ‘religious persecution’. And since the CAB is not about political or economic asylum seekers, Muslims do not feature there.
‘Another argument is that the Constitution of India is for citizens of India, and the CAB is a special provision for people who are NOT citizens of India. Therefore, it is incorrect to say that CAB violates the constitution.
‘Moreover, our constitution and laws already have several discriminatory provisions. We do not have equal law for every citizen, the constitution allows different laws for different Religions in several matters.
‘As the constitution already allows discrimination among even the citizens, it CAN’T be said that excluding Muslim citizens from Pakistan, Bangladesh and Afghanistan violates the Constitution of India.
R7: Again, multiple points of deliberate confusion, obfuscation, disingenuousness and deception:
a) To say that there is no violation of Article 14 (Right to Equality) is to deliberately overlook the wording of the said Article: ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’ The law here makes no discrimination in any terms; thus, to discriminate in terms of religion, as the CAA does, is a patent violation of this Article.
b) To say that Article 21 of the Indian Constitution provides a right to life only for those who live in India, and ‘NOT for those who want to enter India’, is flawed at multiple levels. First, it is to ignore the terms of Article 14, about the applicability of the Constitution to all persons ‘within the territory of India.’ Second, CAB/CAA provides for those who have been in for five years – they are not outside India, seeking entry. Third, it shows the sly shift in register with which ‘Salve’ uses the term ‘India’: the first ‘India’ is a geographical territory; while the second ‘India’ seems to be an idea – of a nation without Muslims.
c) The argument that religious-majorities do not persecute members of their own religion on grounds of religion is flawed logically and historically (think of Martin Luther, Galileo, Mirabai, among so many others). Specifically in the case of the persecution of Muslims, the fact that they are rejected as non-Muslims in their home countries, and as Muslims by the CAB/CAA, is a doubly damning indictment of the inhumanity of the discrimination of the new law.
d) To say that the Constitution is for the citizens of India, but the CAB/CAA is for non-citizens, is to effectively place the CAB/CAA outside the purview of the Constitution of India – which is itself a violation of the Constitution. And a profoundly dangerous move with deep legal implications.
e) To argue the validity of the CAB/CAA by analogy with the provisions for religion-based personal laws and caste-based reservation – which is what ‘Salve’ implies by saying that the ‘constitution and laws already have several discriminatory provisions’ – is nothing short of diabolical. First, it is to imply that the provisions for personal law and reservation deny equality – when in actual fact, they are designed and intended to rectify systemic social, cultural and economic inequalities (their success or failure in doing so is not the point here). Second, by doing so, ‘Salve’ is arguing that, since the Constitution is already ‘violated’ in these provisions, the exclusions undertaken by CAB/CAA are also not violations – when in actual fact, these exclusions are designed and intended to create inequalities in the religious demography of the country.
Finally, the reference to ‘lions and lambs’ is pathetic, to say the least, in its implicitly macho invocation of strength and weakness. Mixing subtly affective arguments of this kind with apparent attempts at reasonableness, however, is a highly effective discursive strategy, and therefore also truly, disturbingly, dangerous.
M8: ‘People in North East are opposing CAB because it is discriminatory.’
SC8: ‘Although it is true that some people in north-eastern states, particularly in Assam, are protesting against the Citizenship Amendment Bill, their reason is completely different from the left-liberals and opposition parties. People in north-east are against giving citizenship to illegal immigrants from Bangladesh or anywhere, regardless of religion, and that’s why they are opposing it. People in the northeast don’t want any foreigners to be given citizenship, while outside northeast the opposition to the bill is over the exclusion of Muslims. Both the groups are actually on completely opposite stands in their opposition to the bill.’
R8: This is a devious attempt to divide the opposition to the Bill/Act. ‘Salve’ is certainly right in saying that the opposition to CAB/CAA is from different directions: but that does not mean they are ‘opposite’, suggesting thereby that they are contradictory. In fact, they complement each other perfectly. In the northeastern states, there is a very legitimate concern that the influx of non-Muslim immigrants (mainly Bangladeshi ‘Hindus’) will alter the ethnic profile of the region irreversibly, to the point that the current ethnic majorities will become minorities in those regions. Assam and Manipur in particular have historically suffered this attrition, so they speak from experience. It is very much part of the larger Hindutva agenda to ‘Hinduise’ the northeastern states – through such demographic engineering, if not through ideological indoctrination.
‘Salve’s’ arguments are therefore a revelation of the ‘other’ side of Hindutva thinking on how the CAB/CAA must be used – and the northeastern states have brought that flamingly to our notice.
This message must be seen as the ideological justification of the CAA. Its target is the Hindu liberal, the ‘thinking Hindu’, the one who tries to find ‘intellectual’ and ‘historical’ reasons why the Hindutva project should not be resisted, because s/he is too elitist to allow himself/herself to be seen as blindly swallowing the garbage trotted out by Sanghi ideologues like this ‘Salve’; but too cowardly to resist its machinations either. This message helps them find the crutches they are desperately groping for, by couching the brazen assault that the CAA is on the Constitution, in a language of apparent reasonableness and ‘liberalism’. But the challenge before us is not just to expose this two-facedness: it is much bigger. It is to overcome our anger, even contempt at them, and to win them over – to help them find the courage to join the fight against fascism.
Karen Gabriel, St Stephen’s College; and Prem Kumar Vijayan, Hindu College