Thinking Aloud

Rohit Dhankar

The country is on the boil on the issues of Citizenship (Amendment) Act 2019 (CAA), possible National Register of Citizens (NRC) and National Population Register (NPR). We need to think carefully in forming our judgment on these issues. The current protesters certainly do not seem to be thinking either clearly or consistently.

Clear thinking demands looking carefully at your facts, assumptions, moral principles and constitutional provisions. If our assumptions happen to be factually wrong and/or morally unacceptable and/or unconstitutional; obviously whenever we use such premises in arguments the conclusions are likely to be unsound. Another possibility of conclusions becoming unsound is that they are logically invalid.

I make a distinction between sound/unsound arguments on one hand and valid/invalid on the other. Validity of an argument is a purely logical matter; and an argument which involves false premises can be logically valid. However, being sound requires that all the premises used should also be true, or at the least accepted as true in the context.

I also make a distinction between logical necessity and contingent factors. Contextual impact and intentions I consider contingent factors. It might be wrong but I first want to decide acceptability/unacceptability based on purely logical/rational grounds. If something fails at that level, one does need to go to the level of context, intentions and impact. If something passes the test of logic and reason; the second necessary part before accepting the conclusion is testing it for intentions, impact and context. If it fails in the second test then in spite of passing the logical test it cannot be accepted. But talking of intentions and impact first and coming to logical/rational correctness later is certainly putting the cart before the horse, an admittedly foolish act. To my mind that is wrong order if one really wants to understand things. This wrong order also opens up possibility of imputing motives and spreading lies; in other words gives full scope to demagoguery. Thus, I find it necessary to examine intentions and impact but am not in favor of mixing the two.

This is the bare minimum and broadest characterization of the style of thinking which is necessary, as far as I can understand. Those who are shouting slogans and repeating others judgments without this minimum work are running the risk of being misled by people with vested interest.

Rational thinking operates on some content—facts, assumptions, principles etc.—all of them cannot be generated by logic or reason alone. They come from various sources of our experience, history, previously agreed upon principles and so on. Below I will try to list the premises relevant in this context, i.e. thinking about CAA, NRC and NPR; and base my conclusions on them. There is a possibility of human error in listing as well as arguments, if that is pointed out and proved one must be ready to correct. I would do the same.

This article begins with CAA. As said above; first on rational grounds and then I will try to look into intentions. But we should not forget that while BJP and RSS may have nefarious intentions that can be understood from their pronouncements and actions; the so-called[1] liberals themselves have to be subjected to the same criteria of looking into intentions. No one can be placed above nefarious intentions; and yes, nefarious.

My premises and arguments

Part One: Moral obligation

1. All thinking on these two issues should first happen in the framework if Indian Constitution. The values listed in the Preamble and Parts I, II, and III should be taken as primary guiding principles. However, the whole of constitution with all so far made laws under it through due process have to be taken in to accounts. Violation of these is not admissible. (Preamble state the values and vision of a democratic society very clearly, Part one defines India, its territory and importance of integrity, part two talk of citizenship and part three defines fundamental rights.)
2. We may have humanitarian moral consideration which go beyond the constitutional obligation. While considering them we have to make a difference. Not accepting the humanitarian moral obligation which are not demanded by the constitution may make us “lessor moral beings” but does not make our acts unconstitutional. We are not bound to accept such considerations. Therefore, we are not obliged to accept every illegal migrant or refugee who comes to India. We have the right to decide whom to allow and whom not to allow. Allowing one does not grants the same right to other foreigners.
3. India was divided on the basis of religion, a separate nation explicitly for Muslims. Finally, that itself divided into two Islamic republics. A religious state is by nature discriminatory, constitutionally discriminatory.
4. The demand was raised, pushed and finally brought to fruition primarily by Muslims under the leadership of Muslim League. (The idea of two nation theory was first expressed by Sir Syed Ahmad Khan in his lecture at Lucknow and then in another Lecture at Meerut. He also claimed that two nations cannot live on terms of equality in one country. One of them should necessarily dominate the other as Muslims dominated Hindus for more than seven hundred years. He used this argument to convince Muslims that it is better for them that they serve under the English rather than under the Hindus, as the English are at the least people of the Book. In the Lucknow lecture he argues against the Congress demand of competitive examination for jobs so that British and Indians can come to some government jobs on the basis of merit. His argument is that since the Muslims are not ready to compete at that time, therefor no Indian should be allowed. The demand for merit-based appointments was clearly in the national interest, but for Sir Syed national interest was subordinate to Muslim interest. These two things, two nation theory and national interest is subordinate to Muslim internist[2] set the tone of Muslim politics in India and elements of this thinking still persists in Muslims and so-called liberals.)
5. The Hindus who believed that Hindus and Muslims cannot live together peacefully with equal rights were marginalized and rejected by the Hindu masses. One can count Savarkar and Golwalkar etc. among them.
6. The Muslims who believed that Hindus and Muslims cannot live together peacefully with equal rights were overwhelmingly supported by Muslim massed and made their leaders. The overwhelming majority of Muslims voted for Muslim League in 1945-46 elections is a clear proof of this. The partition of India was a major election issue in those elections.
7. After migration from both sides and some going-and-coming back on both sides; by 1951 almost everything was settles regarding citizenship issues.
8. In the light of points 3, 4 and 7 above, the Muslim population of Pakistan became as good foreigners to India, as any other foreigners, say, Chines Americans, French or Saudi Arabian. India had no legal or moral obligation for their protection or wellbeing. They achieved what they wanted and were a free nation on which India had no claim or command.
9. The case of minorities in Pakistan was different. They were assured (by the leaders who later formed government of free India) that India will not be divided, so they need not migrate. Later when partition was inevitable, they were assured by the same leaders that they will be safe in Pakistan.
10. The Nehru-Liaqat Pact is formal recognition of the historical moral obligation of Indian state in 1950 towards the safety and persecution free life of minorities in Pakistan.
11. Bangladesh separated from Pakistan in 1971. The Indo-Bangladesh Friendship treaty does not specifically mention protection of minorities in respective countries, but does mention adherence to principles of equality between people. However, the historical moral obligation recognized in Nehru-Liaqat Pact remains to Bangladeshi minorities, as far as I can think.
12. Pakistan and Bangladesh both are constitutionally Islamic states. In both these countries minorities have faced persecution based on religion[3]. Most of the people belonging to minorities in these countries who have come to India came to avoid persecution. Thus, India has failed in fulfilling its historical moral obligation to minorities in these two countries.
13. The illegal migrants belonging to minorities in Bangladesh and Pakistan are thus due to result of this failure mention in 12 above.
14. Indian even now is in no position to ensure the safety of minorities in these countries; thus, they cannot go back. Therefore, India is under moral obligation to provide citizenship to these people, though not under constitutional obligation.
15. Due to premise 8 India is under no moral, historical or constitutional obligation to provide whatever support to Muslims illegally coming to India from Pakistan and Bangladesh. The obligation is only as much as to any other person from anywhere in the world coming to India illegally. Therefore, they have to follow the same path to citizenship in case they want it.
16. Thus, Rohingyas, illegal Muslim migrants from Bangladesh and Pakistan, Shias and Ahmadis from Pakistan, Hindus from Sri Lanka, all are in the same class as far as India’s obligation is concerned.
17. Minorities in Pakistan and Bangladesh constitute a class for which India has a historical moral obligation. India has no such moral obligation to others mentioned above.
18. As far as I can think the moral obligation of India to minorities who came from Afghanistan is only as much as to any other refugee fleeing persecution, they are not at par with the people coming from Pakistan and Bangladesh. The government argument is that people from Afghanistan came when there was Taliban regime there, and the Taliban was installed by Pakistan; therefore, they are also part of the Pakistani persecution. The argument is clearly weak and cannot be accepted.
19. That however, does not make the whole of CAA obnoxious to me. One, because it includes someone who we do not have a moral obligation but needs the protection, it does not take away anything from any one else. Two, see point 2 above. and three, if one want to oppose CAA in this basis, one should not call it all bad and against secularism; one should demand correction.

In the light of above understanding CAA makes sense and is a necessity for India if it has spine as a nation and moral fiber to fulfil its own admitted obligation to the persecuted minorities of Pakistan and Bangladesh.

Part Two: Constitutional Possibility for special treatment for persecuted minorities of Pakistan and Bangladesh

But this could be done only if the spirit of constitution allows it. If the law made to fulfil this moral obligation goes against the spirit of Indian constitution (of which secularism is a central principle) it should be opposed, repealed. Therefore, we will try to see the constitutional position on this issue. Once we are through with the constitutional position will start looking at the issue of intentions.

Two values of constitution most relevant in this discussion are secularism and equality, which are inseparably connected with each other. Secularism as a state doctrine means separation of state policy and functioning from religious considerations. This directly implies equality of all citizens irrespective of their religion. Therefore, rights, entitlements and protection of low accorded to citizens are not affected by religion of citizens. In other words, a secular state does not discriminate on the basis of religion in any manner.

India as per the constitution is a secular democratic republic. In connection with the CAA debate articles 14 and 15 are most often quoted to establish that CAA is discriminatory against Muslims (a religious minority) and therefore, is against secularism and violates the constitution. Clause 1 of Article 15 states “15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Note that it is about Indian “citizens” and that it prohibits discrimination on “grounds only of religion …”. Why is there this word “only” in this article? I am not a legal expert, but as a citizen it seems to indicate to me that there could be other grounds and the totality of grounds may include religion. Though, the basis of discrimination will not be a citizen’s religion alone. (I may be wrong here.) But reading the clause 2(5) of the same article with clause (1) of article 30 one comes to the conclusion that minority institutions established by religious minorities are granted exception from making rules regarding admission of students of educationally backwards communities in them. As we all know, several exceptions are granted to religious minority educational institutions in management, appointment of staff and religious instructions even when the institutions receive grant from the government.

Minorities also have their separate civil laws concerning marriage, divorce, inheritance of property etc. Such laws for Muslim community are: the Shariat Application Act, the Dissolution of Muslim Marriages Act, the Massalman Wakf Validating Act, the Wakf Act, and the Muslim Women (Protection of Rights on Divorce) Act.

All these are examples of provisions in Indian constitution and law of differential treatment on the basis of religion. And they are not considered as violation of the principles of secularism or violation of equality. This is because the principles of secularism and equality are not understood in a dogmatic or absolute sense. It is recognised that special provisions may have to be made for classes of citizens for their upliftment or protection or advancement. The same idea of positive discrimination is used in reservations for Scheduled Castes and Scheduled Tribes. In conclusion then, the idea of positive discrimination used for the benefit of a deprived or otherwise disadvantaged class of citizens which gives them benefits over and above others is considered neither against the ideal of equality nor against the ideal of secularism. This is the position with regard to the citizens of India. But the CAA is not about citizens of India, it is about illegal migrants coming from Pakistan, Bangladesh and Afghanistan. Now we shall consider their case in the light of admissibility of positive discrimination in case of Indian citizens.

For this we turn to article 14 which states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” This article is about persons, that is all who are within territory of India, be they citizens or not citizens of India. The illegal migrants from the three mentioned countries are “within the territory of India”. The first part of the act states that “the State shall not deny to any person equality before the law”, and it may look as if the Muslims are denied equality before the law through CAA. This is the version most people are getting agitated about. But the second part says that the “State shall not deny to any person … the equal protection of the laws within the territory of India”.

The idea of equal protection of law depends of equal treatment of equals, but allows differential treatment to unequals in terms of their circumstances. “The varying needs of different classes of persons require different treatment. In order to pass the test for permissible classification two conditions must be fulfilled, namely: (1) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) the differentia must have a rational nexus with the object sought to be achieved by the statute in question.”

The intelligible differentia demanded in the first criteria can be formulated as thus: Those to whom India has a historical moral obligation and who are a persecuted minority in Bangladesh and Pakistan. To my mind it is difficult to justify Afghanistan. Criteria two: the nexus with the objective is obvious—equal protection of law to those who pass criteria one.

Therefore, as far as I can think the CAA is all about providing protection to those for whom India has a moral obligation and there is no violation of the principles of secularism and equality in this. This brings us to the issue of intentions.

Part three: Issue of intentions of the BJP government

A fuller discussion on intentions will require lot of space and therefore will have to wait. This article is already longer than most people read. Therefore, here I will just raise a few questions to understand the issue of supposed to be evil intentions:

1. If the government is within the bounds of constitution why should it not try to find out how many and who are the foreigners living in this country? There must be an intelligible reason given by the protesters.
2. If there is some supposed to be legitimate objection to 1 above—is it in principle or dues to practical difficulties or due to intentions? It must be clearly spelt out.
3. Suppose the government goes ahead with CAA, NRC and NPR, and with very bad intentions for Muslims; what can it do? Try to imagine.
4. Presently we don’t even know who will be asked to show documentary evidence of citizenship and who will not be asked. Nor do we know what kind of documentary evidence will be demanded. Most of it is imagination of some people. But suppose three crore people living in this country are found to be without any evidence of citizenship of this country on yet to be defined documents. What do you think the government will or can do with them? Try to imagine the worst-case scenario. Can it send them back? Where? Can it eliminate them? Those who say yes to such an horrendous thought should think again. It is possible in todays world? Can it keep them in detention centres? How long?
5. When I think about it, I am incapable to think anything very bad. It seems to me that the government will be forced to come up with some scheme of citizenship for them.

The key in this kind of thought experiment is precision. One has to think in terms of actual acts of injustice rather than in nebulous terms like ‘they will be persecuted’. Try to think actual acts of persecution. If one cannot, then there is a possibility of being victim of some demagoguery.

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14^th January 2020

[1] In last about 10 years the liberals have proved to be the most intolerant to difference of opinion in India. Their proves in language cannot hide their intolerance of counter views. The people who talk the most about freedom of expression, right to dissent and questioning have been the most prompt in attacking and stifling dissenting voices. Since, the very first principles of liberalism is recognizes the freedom of every citizen to order his/her own life as s/he thinks fit, and which includes freedom of speech. Therefore, I will consistently refer to the this particular group of Indian liberals as ‘so-called liberals’.

[2] Those who want to understand this mindset in greater detail should refer to the following:

1. Speech of Sir Syed Ahmad at Lucknow (1887), http://www.columbia.edu/itc/mealac/pritchett/00islamlinks/txt_sir_sayyid_lucknow_1887.html
2. Speech of Sir Syed Ahmad at Meerut (1988), http://www.columbia.edu/itc/mealac/pritchett/00islamlinks/txt_sir_sayyid_meerut_1888.html
3. Presidential address of Rahimatulla Sayani to the Indian National Congress, 1896, particularly section 15 on Alleged Mohamedan Objections to the Congress
4. Sir Muhammad Iqbal’s 1930 Presidential Address (Muslim League), http://www.columbia.edu/itc/mealac/pritchett/00islamlinks/txt_iqbal_1930.html
5. Tiderbox: The Past and Future of Pakistan by MJ Akbar

[3] Those who doubt this can look at the population figures of Bangladesh and almost continuously coming reports of persecution of minorities in Pakistan. This persecution is very often with the tacit support of the state.

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