Why Harish Salve’s Defence of the CAA Is Wrong in Law

Crafty obfuscation can never trump constitutional morality.

I read Harish Salve’s opinion piece a week ago in the Times of India, defending the constitutionality of the Citizenship (Amendment) Act, with dismay.

No matter which way you look at it, the CAA is a manifestly perverse piece of legislation. It creates an arbitrary distinction between illegal immigrants on the basis of their religion – by granting benefits to some communities while entirely excluding Muslims.

Consider the scenario where Asad and Amit have both entered India illegally. Under the Citizenship Act as it existed till December 2019, both would have been considered “illegal migrants” under Section 2(1)(b). If they had produced any offspring in India, even if with an Indian spouse, their children too would be considered “illegal immigrants” under Section 3(1)(c).

But with the amended Citizenship Act, legal proceedings against Amit and his children shall abate and they will be rewarded with fast-tracked Indian citizenship. Poor Asad, who too left his home and made the arduous journey to a foreign land, would never be eligible for Indian citizenship since Sections 5(1) and 6(1) of the Citizenship Act which provide for citizenship through registration or naturalisation say that an illegal migrant cannot become Indian. In other words, the Muslim migrant and his children must suffer this injustice – and the plight of perpetual statelessness if no country is willing to accept them as their citizens – simply because they are Muslim.

With such manifest discrimination writ large on the face of this twisted piece of legislation, is it any surprise, then, that Muslims in India would wonder why adherents of their religion have been singled out for exclusion in this way and feel a sense of betrayal and alienation for the government’s decision to treat all religions as citizenship-eligible except theirs?

Also read: Despite What Harish Salve Says, We Can’t Dismiss the Legal Challenge to the CAA

As a lawyer I can say that Salve’s written arguments closely mirror his style of advocacy in court.

He is economical with facts and even the law, relying entirely on an imaginary criterion that is actually absent in the final draft of the law itself – religious persecution. Rather, Salve argues vehemently that India has the sovereign right to protect incoming migrants who are victims of persecution in neighbouring Islamic theocracies. And yet, he fails to mention, conveniently in my opinion, that this is a precondition that finds no mention in the amended law. I state this because persecution does not depend on religion alone. Human beings and governments typically have a variety of ascriptive factors to choose from when they wish to persecute an individual or group: race, religion, sect, gender, sexual orientation, language etc.

Salve’s argument that the CAA is not discriminatory because Indian law permits classification on the basis of religion is grossly misleading. No doubt, he would have been correct if he had defended a law that premised religious classification on the basis of rational criteria – which is totally missing in the case of the CAA. At the risk of repetition, let me emphasise that the CAA arbitrarily distinguishes between the same class of people only on the basis of their religion – something no fair-minded person would countenance, let alone the Supreme Court of India.

Also read: CAA Is Mired in Troubling Half-Baked Assertions and Partial Truths

I say this because the Supreme Court’s most recent judgments have unequivocally upheld the principle that laws can be declared unconstitutional on the grounds of arbitrariness. Perhaps Salve forgets that it was the constitution bench in Shayara Bano (2017) which held that the arbitrariness doctrine inherent in Article 14 would certainly apply to negate legislation. In this case, the bench affirmed its earlier decision in Ajay Hasia (1981), which had held that Article 14 forbade discrimination unless (a) such classification were founded on intelligible differentia which distinguishes persons which are grouped together from others left out of the group or if (b) that differentia has a rational relation to the object sought to be achieved by the legislation under challenge.

Now, it does not take a constitutional genius to comprehend the court’s approach to such legislative challenges – which is rooted firmly in common sense that an unfair and unreasonable law cannot survive constitutional scrutiny. It is obvious that the CAA creates a distinction between individuals of the same group – ‘illegal immigrants’ – on the basis of a criterion as arbitrary and illogical as religion. Interestingly, ‘persecution’ as a condition finds no mention in the operative portion of the law.

Deep down, Salve must realise that he has no footing to defend the legality of the CAA. I am convinced of this fact because he concludes his hurried argument by switching to an advocacy strategy that is a favourite of many leading lawyers – if you can’t convince your audience, prejudice them into believing that those opposed to you have a malicious agenda.

That is why his concluding remarks make desperate, rambling references to ‘TV anchors’ and protesting members of ‘civil society’ who, in his opinion, follow ideologies found in dust-ridden books.

I do hope he’s not talking about the Constitution of India that’s gathering dust on his bookshelf.

Jai Dehadrai practices in the Indian Supreme Court. He tweets at @jaidehadrai.