A Year On, Govt Still Hasn’t Shown How CAA Protesters Are ‘Misled’

Every time the government finds itself under fire, it claims the opposition doesn’t understand its intentions.

The farmers protesting against the farm bills are misled. The workers criticising the labour law amendments are misled. The activists raising their voices against the changes to environmental impact assessments are misled.

Essentially, the Venn diagram of those who are being misled in this country and those who disagree with the Modi government’s various legislative and policy misadventures is a single circle.

Every time the government finds itself under fire, it has found the easiest solution is to claim that those opposed to it are only doing so because they don’t really understand what the government is doing, the poor dears.

Let us for a moment assume that this narrative is correct. This would mean that the government actually has sound reasons for any legislation/policy it enacts, and that this can be established by them with some degree of ease.

This is, of course, where the narrative hits the skids, because even when the government has put out a fair degree of clarifications and explanations, these have still failed to offer any real justification for their shiny new toy.

From demonetisation to electoral bonds, the explanations offered to us have either had to constantly shape-shift, and have been rendered baseless by the evidence and independent experts.

But perhaps the most interesting example of how this misleading narrative has failed is the Citizenship (Amendment) Act 2019.

A Failure to Engage

Opposition to the CAA didn’t just magically begin on 12 December 2019, when the President approved it. There had been vociferous opposition to the original idea when the government floated it in 2015-16, then again in the North East when they floated it again towards the end of Modi 1.0, and in the weeks leading up to its enactment.

One would have thought, therefore, that the logical thing to do would be to get out a solid set of explanations and justifications and clarifications to allay those fears and criticisms before passing the law. So of course, the government chose not to, and instead just resolutely pressed on.

The massive protests were inevitable as none of the concerns raised by, well, anyone, had been addressed by the government till that time. And thus began the steady stream of attempts to show that the protesters were misled, and that all the concerns about the CAA were just ‘myths’.

It began with a ‘fact sheet’ released by ‘government sources’ to ANI on 19 December, which urged people to “Read, understand and form your own judgment regarding this issue, rather than falling prey to vested interests”.

Why the government itself couldn’t just release this fact sheet, we’ll never know, even though that would certainly have seemed like a good idea.

This first attempt didn’t exactly prove to be the slam dunk they were hoping for, not just because it was hastily revised, and still ended making a reference to an annexures that wasn’t included with it.

It also went on to include untruths about there being no announcement to begin a nationwide NRC process (the updation of the NPR, which is first step under relevant rules for the NRC, was notified on 31 July 2019), and that no person would need to provide details of the birth of their parents (which is a requirement for those born after 1987 to establish citizenship).

The main problem with this fact sheet was that it actually said nothing about the CAA itself and the criticisms of the legislation, focusing almost entirely on the NRC (and even there either getting facts wrong or presenting misleading arguments).

Ignoring Questions About CAA Sans NRC

Now, while the most emotive issue with the CAA is that it has long been advertised by no less than Home Minister Amit Shah as part of a one-two punch along with the NRC – and therefore viewed as a threat to the citizenship of Muslims – there are also entirely separate arguments about the arbitrariness and constitutionality of the CAA as well.

The Press Information Bureau subsequently sought to release various briefs on the CAA such as this set of 12 points about the CAA that we should all remember. Again, none of these points addressed the key questions about the CAA itself, leave aside the NRC.

Let’s think again about what these are:

1. The first question is that while offering some special measures to help people from religious persecution is a noble pursuit, why restrict it only to people from Afghanistan, Bangladesh and Pakistan? What about Myanmar, or Sri Lanka, or China?

2. The next, and the key question, is that if the objective is to protect those facing religious persecution, then why restrict it to non-Muslims? What about the Ahmadis in Pakistan, who are not considered Muslim but are not also considered to belong to any of the six religions that the CAA covers? What about atheists, who face severe trouble in Bangladesh?

3. If the objective is to protect against religious persecution, then why impose a cut-off date of 31 December 2014 for these protections? Did religious persecution in these countries stop on that date?

4. Why isn’t the condition of religious persecution expressly written into the CAA itself? Why does that only get baked in indirectly through secondary rules – which can be amended any time the Executive wants to get rid of it as a condition entirely?

If there are no satisfactory answers to these questions, if the CAA makes no objective sense, then how can you blame Muslims in the country from seeing it as part of a plan for exclusion, when coupled with the nationwide NRC?

The NRC itself doesn’t have to exclude Muslims for this fear to be valid – all you need is to see that for some reason there is a vague law which can be utilised by everyone except Muslims to avoid the negative consequences of being left out of the NRC when it is compiled.

And we all know with the kind of documentation that most people have in this country, and the mess that any such nationwide exercise will be, that people will be left out of that list.

If the CAA could stand a test of objective scrutiny, then that would go a long way to counter that argument of the CAA just being a lifeboat for non-Muslims. And that is precisely what the government has failed to do in the whole year since the CAA was passed.

The Vacuous Supreme Court Affidavit

The extent of this failure is best summed up by the government’s best chance to finally put all these criticisms and questions about the CAA to bed – in its counter-affidavit to the Supreme Court defending the CAA, submitted on 17 March 2020.

It is a 129-page document (excluding annexures) which sets out its responses to all the arguments raised against the CAA in the nearly 200 petitions which have contended that the Act is unconstitutional.

And it fails spectacularly to answer those four questions set out above, which are key to the argument on whether or not the CAA violates Article 14 of the Constitution, which guarantees equal treatment under the law to all persons.

On the issue of why it selected the three countries that it did, the primary argument is that the constitutions of Afghanistan, Bangladesh and Pakistan recognise a particular state religion, which sets them apart from other neighbouring countries.

This perhaps ignores the fact that Sri Lanka’s constitution specifies that Buddhism has the “foremost place” among the religions in the country, and a 2003 Sri Lankan supreme court decision held that the state is only required to protect Buddhism, not other faiths (even though it is supposed to be a secular country).

It also ignores the fact that Myanmar’s 1982 Citizenship Law excludes entire ethnic groups such as the Rohingya which are broken down on religious and racial lines.

While attempting to justify why only the six non-Muslim communities from these countries were selected, the government provides a list of documents which they claim make the case for religious persecution of these communities.

Leaving aside the fact that none of these documents deal with Afghanistan (except for Indian government orders on treatment of migrants from there), these documents do not actually provide evidence of the persecution of these communities per se. At most, some of them indicate the persecution faced by Hindus in Pakistan, but little else.

On the issue of groups like the Ahmadis, the government insists that those are intra-religious issues rather than cases of religious persecution and provides no justification for why the persecution of a particular sect of a religion should not count as religious persecution.

The entire concept of religious persecution is based on whether the victim is being discriminated against because of their religion or religious affiliation – the religion of the persecutor is entirely irrelevant to that determination.

This is, for instance, the basis on which the UN High Commission for Refugees assesses claims for asylum on the grounds of religious persecution. It also ignores the issue of atheists, Jews, Bahais and other non-Muslim communities which, even if numerically small, remain at risk of persecution.

While attempting to justify the 31 December 2014 cut-off date, the government affidavit only notes that those who come to the country after that can still apply for citizenship – which actually proves the point that the CAA was never needed in the first place.

No justification whatsoever is provided for why the CAA doesn’t expressly refer to religious persecution.

The disingenuousness of this affidavit can also be observed in how, when trying to answer the charge that it is making a religion-based citizenship requirement, which goes against the secular spirit and basic structure of the Constitution, it tries to create an analogy with the original citizenship requirements under Article 6 of the Constitution.

While Article 6 deemed migrants from Pakistan whose parents/grandparents were from undivided India to be Indian citizens, it made no mention whatsoever of religion.

So, Who’s Really Misled Here?

On top of all this, let’s also remember that the CAA Rules, to actually implement the act and provide citizenship and protection from illegal migrant status to those who need it, have still not been framed or notified.

To sum up, despite having a year to demonstrate to us that the CAA was in good faith, despite having put out multiple fact sheets and briefing notes and statements to the press and even an affidavit in the Supreme Court, the Centre is yet to answer several key questions about this divisive law.

Its insistence, therefore, that opponents of the law were misled, and the continuing crackdown against those who raised their voices against it, remain desperately disingenuous, and a danger to dissent and democracy.