Lawyer Harish Salve has pointed out those criticising the Citizenship Amendment Act (CAA) do not fully understand the objective of this law or the context behind why India decided on notifying the CAA.
In an exclusive interview to NDTV on Saturday, Mr Salve explained the CAA is in harmony with constitutional morality and constitutional legality.
The CAA will help minorities from three neighbouring Islamic nations fast-track their Indian citizenship process if they fled due to religious persecution.
“The Home Minister has explained the context of the law, and the context of the law is that there was an Indian subcontinent prior to 1947. Afghanistan, Pakistan, India, and what is now known as Bangladesh were very much a part of it. And this was liberal. Of course there were principalities, but India was liberal. My wife comes from Afghanistan. She grew up there in the 60s and 70s. She says it was a very liberal society. Their understanding was first the family, then community, then the religion. Now, things have changed,” Mr Salve told NDTV.
“Things changed in Pakistan which has declared itself an Islamic state. Bangladesh also calls itself an Islamic republic. And we all know Afghanistan’s misfortune with the Taliban,” he said.
“In a situation like this, the Home Minister has said, how the non-Islamic population in these countries has dropped dramatically. So if India says people who are of Indian ethnicity, of the Indian subcontinent, the Zoroastrians, Sikhs, Christians, Hindus… They will get fast-track citizenship since they are not allowed to practice their own religion freely in these Islamic states. A theocratic State by definition has a State religion,” Mr Salve said.
“So, if we fast-track their citizenship, if we say we will fit them into Indian society, I don’t see where the constitutional morality gets affected by this?” the top lawyer told NDTV.
On why India did not include communities like Rohingya as they too are persecuted, Mr Salve said this is where the question of constitutional legality comes in.
Giving an example, he said people pay different rates of taxes depending on their income, but that is not discrimination.
“People below a particular income level are given so many things which are not given to others. An ideal welfare state would give fully free healthcare and education. Would India want to do that someday? Of course, India would. But today you have to be below a particular income level to get them because it’s a question of resources.
“The argument of discrimination is about what if you discriminate between people? This is what we constitutional lawyers call over-classification. That if people of the same class are left out of benefits being given, then you call it discrimination. For this, it becomes very necessary to define a class.
“If you make differential treatment, that must be in a nexus with the object to achieve. What is the class? The class is the minorities in the three neighbouring Islamic states. That is the class. What is the object to achieve? That the minorities in Islamic states are by definition of theocratic States treated differently from the majority or the State religion.
“The object to be achieved is these are minorities of Indian ethnicity, who are discriminated against, and the class is them, therefore we fit them in… It is perfectly constitutionally permissible in my point of view,” Mr Salve explained.
Referring to the Rohingya issue, he said it is possible that even within a theocratic State, people of the State religion are treated differently.
“But can you deny the fact that in a State religion, there is a State religion and there are religions discouraged by the State. These are the classifications. We are not fixing the problems of the Islamic faith. We would be stepping out of line if we were to do that,” Mr Salve told NDTV.
“How would somebody like if Pakistan said certain communities of Hindus are not properly treated in India, that it would give free citizenship and money. We would then say, ‘don’t poke your nose in our affairs’. Islam is a religion. And if Islam is not being properly administered, it is for the people of the Islamic faith to fix it,” he said.
The CAA’s implementation was a major campaign platform for the BJP before the 2019 election. Home Minister Amit Shah has accused West Bengal Chief Minister Mamata Banerjee – who has long been one of the CAA’s fiercest and most vocal critics – of deliberately misleading the people of her state on this topic.
