Harish Salve, one of India’s biggest names in national and international law, has written an article in the Times of India, explaining the importance of the CAA and how the arguments against the law are baseless.
In the TOI article, Salve has written that though much has been said against the law and a lot of controversies has been generated, even leading to a communal riot in Delhi, he has hopelessly failed to comprehend what the controversy is all about.
Salve writes further writes, “Illegal migrants are deported under the Foreigners Act 1946 and the Citizenship Act 1955. The procedure to identify illegal migrants in the Northeast was criticised and for good reason. But the law that requires Muslim migrants from Pakistan and Bangladesh to be deported is the law of 1946 and 1955. If the CAA goes away, Muslims from Bangladesh (and elsewhere) who are illegal migrants would be liable to be deported as would illegal migrants who are Sikh, Buddhist or Christian.”
salve further explains that the citizenship laws in most countries are based on similar principles all over the world. One acquires citizenship by birth, descent, naturalisation, or by the acquisition of territories. Those who enter a country without permission are illegal immigrants.
Salve furthers that after the Bangladesh war, the Northeastern states faced demographic consequences and eventually resulted in the Assam Accord. The Illegal Migrants (Determination by Tribunals) Act had made it practically impossible to identify illegal migrants and was challenged in the Supreme Court. Salve then writes that the SC had slammed the government for failing to deport illegal migrants and it was then that the idea of detention centres was mooted.
Harish Salve then adds that the Citizenship Amendment Bill was introduced in the Lok Sabha in 2016 and was then referred to a joint parliamentary committee. The committee had presented its report in January 2019, recommending the Bill.
He adds further that the rules formed in 2003 had provided for the creation for a National Register for Citizens, by conducting house-to-house enumeration, identifying cases that needed separate inquiry. He adds that even after 16 years, the rules are yet to be operationalised.
Countering the ‘liberal’ argument that the CAA is against equality, Salve writes, “The principle of equality does not mean that every law must have universal application. 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.”
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?
Salve further added that classification on the basis of religion is not per se unconstitutional for our constitution itself confers special rights upon members of minority religious communities in India. “If the law was broader and allowed members of all religious communities from Pakistan, Bangladesh and Afghanistan to migrate into India, we could as well do away with our borders.”
Slamming the ‘loudest’ allegation against the CAA, that it is designed to ‘throw out all Muslims from India’, Salve writes that there is no law, rule or notification published, or even a draft circulated, that would suggest that the government has any such intent. He says that if there is any procedure for citizens to prove their citizenship, it would be equally applicable to all Indian citizens, irrespective of their religion and any procedure otherwise will be unconstitutional.
Discussing the polarisation in Indian society, Salve says that the polarisation between castes and religions is at least as old as the notion of modern India. He adds that there is also polarisation between those who have enjoyed the perquisites of power over decades and between those who have replaced them.
Hinting at the communist ideologies that are hailed by the so-called ‘intellectuals’ in India, Salve adds that certain ideologies which are but dust on the bookshelves of political history in the countries of their origin continue to be romanced by intellectuals, some of whom dominate civil society and civil discourse. He adds that all this has proven to be the fertile ground for protests and aggressive debates and the people who ‘romanticize’ such movements have not bothered to let ‘the truth’ spoil their ‘good stories’.