Dear Mr Salve,
This open letter is with reference to your recent appearances on two English News’ channels: Times Now
where your legal acumen was sought on the Citizenship Amendment Bill (CAB), now the Citizenship Amendment Act, 2019
On both these news channels, you were asked to put forth your views on the constitutionality of the Bill with regards to Articles 14, 15, 21 of our Constitution.
The NDTV programme hosted by Sreenivasan Jain went some steps further to include Article 25
, the "Basic Structure” doctrine
, the idea of secularism, constitutional morality, and morality in the larger sense of the word.
Your legal opinion can be said to be consistent on both the channels, though you spell out your views differently, no doubt we assume, given the differences in the manner in which the two news’ channels approach their news. You seem to know these distinctions well enough Mr Salve to calibrate your response.
Unfortunately, the average layperson, whose lingering attention span lingers even further on Social Media forwards, has little or no idea about the legal callisthenics that lawyers are capable of.
Hence for the sake of our attention-deficit yet curious fellow persons (by which we mean natural persons of course, and to be specific, citizens and otherwise), as well as for the sake of our continuing legal education, we wish to seek more clarity on your avowed legal opinion concerning the CAB.
For the sake of brevity, we will touch upon the core issues emerging from your reading of the contested Bill.
Let us begin with your reading of the Articles 14 and 21 in context with the CAB’s constitutionality, or the lack of it.
You are at pains to point out the legal-speak of ‘reasonable classification’
and ‘intelligible differentia’
, but you do not say that under Article 14 no person, and not only a "citizen”, shall be deprived of equality before the law
and of equal protection of the laws
. This is the essence of Article 14
we would think before we even get into the nitty-gritty of the law.
While you are quick to dismiss Article 15
, because it concerns "citizens”, we wonder why you do not say that Article 14, and for that matter even Article 21
, is applicable to all persons
, and is not restricted to citizens.
We are not experts like you, Mr Salve, but even a layperson when properly acquainted with our Constitution would know that the fundamental rights enshrined in our Constitution, of which Articles 14 and 21 are part of, are essentially inalienable human rights and are therefore not restricted to the citizens of India.
Moreover, in the Times Now interview, you brush away Article 21, which is the cornerstone of modern civil law by which no person’s life and liberty
shall be deprived without the due process of law
You say, and we quote (Article 21) "does not apply to people who enter India.” We would imagine Mr Salve that if that were indeed the case, your foreign clients would probably never set foot in our country.
Let us now come to the core of the Bill. According to you, the Amendment has a specified object, that is, to address religious persecution of minorities in Pakistan, Afghanistan and Bangladesh. An amendment that glaringly leaves out Muslims is not discriminatory according to you. Or to put it legally, it satisfies the test of reasonable classification and intelligible differentia according to you.
In this scheme of things, we gather that the Ahmadiyas in Pakistan is not a persecuted religious minority. In your view, they are a sect. You imply this as sectarian violence and not religious persecution.
But can this labelling and muddying of sect and religion indeed take away the very element of persecution? Is it so intelligibly different after all? Even Wikipedia with its rudimentary but nevertheless collective intelligence, suggests otherwise. The same can be said of the Hazaras or the Baháʼís in Afghanistan.
And, what about the Jews? At least one Jew dubbed the "last Jew
” in Pakistan has openly spoken of persecution ever since his true identity found its way into the country’s National database and registration authority.
Judaism is still a religion, the last we confirmed.
Burmese Rohingya Muslims? Sri Lanka’s Ceylon/Jaffna Tamils? The same government wants to deport the Rohingya Muslims though they are being heavily persecuted by the Buddhist majority in Myanmar.
But you know all this. You relegate the narrowing of the Bill to the realm of policy.
Perhaps reasonable classification
has no bearing on the choicest pickings of country and religion. The persecuted can indeed be turned into a tribe with the right
religion, and who must surely be dazed at the luck that has fallen their way. They are already dreaming perhaps of better lives outside their impoverished and ill-maintained camps; the poor souls blissfully unaware that rights are often denied even to those whom the State has classified as its citizens.
In your explanation of how religious persecution in Pakistan, Afghanistan and Bangladesh needs to be viewed from the point of view that all three are theocratic states (Islamic Republics), we have no option but to correct you.
Bangladesh is a parliamentary democracy.
But indeed if we claim that our democracy is holier than thou with the noble aim of offering protection to the persecuted, how can we then have an amendment that is clearly on a religious ground to begin with? Does that not seem a tad ironical, Mr. Salve? Or outrightly, illogical?
Also, as an expert lawyer, please let us know where in our Constitution or in The Citizenship Act, 1955
has our idea of citizenship ever been coloured by religion, but until now? Would not this be a question entirely impinging on the Basic Structure
doctrine? Or would it simply be allowed as the Central Government’s prerogative to decide or terminate Citizenship?
Maybe your argument would rest there.
At the outset of your interview with NDTV, you spoke about looking at the CAB without its emotive underpinnings. You are not wrong.
Politics is 99% emotion. Especially these days. As our nation’s story is being re-written, we have only the rule of law and one master book left to counter the hyper histrionics. Our Constitution’s inherent promises to our mind-bogglingly pluralistic nation (however much we pretend otherwise), is at the heart of what we define as constitutional morality.
You and we, Mr Salve may indeed have our own views on what is moral and what is not. But when we speak of morality that gave you and us our legal identities or the citizenship we cherish, and today for many of us, who have also come to look upon it as cursed, our arguments will be as much in the realm of the moral, as it will be legal. This is a fine balance that our Constitution sought to achieve.
But we imagine you will say, "We can agree to disagree.”
The Maharashtra Students Law Association (MASLA) and the Maharashtra Students Union (MASU).
*MASLA is an apolitical organisation for the welfare of law students and to improve standards of legal education. MASU was subsequently formed to organise students across Maharashtra in the larger interests of education and to uphold the democratic and secular values enshrined in the Indian Constitution. This open letter is being published here, courtesy The Leaflet. For the curious, Harish Salve is the son of a chartered accountant and prominent politician N. K. P. Salve, and doctor mother Ambriti Salve; grandson of a hugely successful criminal lawyer; and great-grandson of a munsif (subordinate judge).
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