Union Home Minister Amit Shah
Union Home Minister and BJP president Amit Shah | Photo: Suraj Singh Bisht | ThePrint
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As the campaigner-in-chief for the Citizenship (Amendment) Act and the National Register of Citizens, Home Minister Amit Shah has been making, with his characteristic belligerence, a number of arguments both inside and outside Parliament in defence of his government’s initiative. These arguments have been echoed by a host of BJP ministers, MPs and supporters on social media. Those of us who oppose this divisive exercise in India need to face these claims squarely.

Here’s my point-by-point rebuttal, which also relies on legal expertise from constitutional lawyer Arvind Abraham:

1. The purpose of the CAA is to give refuge to persons who face religious persecution, in continuation of our ethos for thousands of years

Our millennial ethos was movingly articulated by Swami Vivekananda when he declared his pride in the fact that he hailed from a civilisation that had given shelter to the persecuted of all nations and faiths. The CAA betrays that ethos by limiting its generosity to some nations and some faiths only.

If the purpose of the CAA is to give refuge to those facing persecution, why is there a cut-off date in the Act, one that seems linked to the NRC exercise in Assam? The reason seems prompted by the fiasco in Assam: it has been reported that the RSS, alarmed by the exclusion of Hindus, had instructed the BJP to bring the CAB by December 2019. But even the RSS’ generosity is limited. If a Hindu faces persecution in 2015 and comes to India, she cannot claim any benefit under this law.

If it is about giving refuge, why is the Narendra Modi government resistant to a national refugee law, which I have been proposing for years? I even introduced a private member’s bill for a refugee law to establish an authority whose sole duty would be to determine who genuinely faces persecution. We remain the only major democracy without a national asylum law; but when I raised the issue in the Lok Sabha, Amit Shah declared he would never permit any such thing.


Also read: With CAA, Kashmir, NRC, Amit Shah has come out of PM Modi’s shadow


2. Indian Muslims are not affected by the CAA; they are not even mentioned

This defence needs to be understood in conjunction with Amit Shah’s avowed determination to follow the CAA with the NRC, which he says will be conducted throughout India, requiring people to show documentary evidence that they are citizens of India. In Assam, this has been implemented in a very strict manner, whereby even spelling differences in documents have caused rejections. This will disproportionately hurt poor, rural, marginalised, and tribal people because most do not have the required documents. Even ministers in PM Modi’s cabinet – most famously former Army Chief V.K. Singh – do not have reliable documentation of their date and place of birth. If the poor have no documents, they could be declared as illegal migrants and face imprisonment. Numerous stories of innocent people being excluded can be seen in this Caravan report. 

The CAA refers to the rules under the Passport Act, under which, since September 2015, a non-Muslim who enters India from any of the three specified countries – Pakistan, Afghanistan and Bangladesh – due to religious persecution, without valid documents, will not be considered an illegal migrant. Amit Shah, in an interview, clarified that under the CAA a persecuted person from any of the three countries does not have to provide any documents and will be immune from criminal proceedings. So, most excluded by the NRC can seek protection under these rules without documentary evidence – but no Muslim can do so. Only Muslims without documents will face punitive action. When the NRC comes, the onus will be on the Muslim resident of India to prove that she is indeed Indian; those without documents will then be stripped of citizenship, while an undocumented non-Muslim from a foreign country will not need documents to claim citizenship. What perverse logic is this?


Also read: What 2019 Citizenship Amendment Act says and why the outrage over it


3. The CAB meets the requirements of “reasonable classification” under Article 14

It was amusing to see Amit Shah using this legal argument in Parliament. Only one problem: it doesn’t work. There are three grounds that the test of reasonable classification must meet:

1) There must be an intelligible differentia, i.e. a distinction between classes of persons, on a reasonable basis;

2) There must be a nexus between the intelligible differentia and the object of the Act;

3) The Act cannot be arbitrary.

Amit Shah argues that these three countries have been selected because their official state religion is Islam and non-Muslims face persecution in these countries. The idea that Muslims cannot be persecuted in Muslim countries is absurd: just ask the Ahmadiyyas and Shias in Pakistan, or atheist bloggers in Bangladesh, or just individuals who disagree with Islamist communalism, like Taslima Nasreen or Daud Haider, both of whom were given refuge by India in more enlightened times.

A state’s official religion or lack thereof does not necessarily correlate with the degree of persecution. For instance, Rohingyas in Myanmar faced genocide, even though Myanmar (which has a Buddhist majority) is not officially a Buddhist country. Sri Lanka has been excluded, even though Sri Lanka’s official religion is Buddhism, and Sri Lankan Tamils, who are mainly Hindus, have faced religious and ethnic persecution. Nearly a lakh have sought refuge in Tamil Nadu, but it seems the BJP is only interested in Hindus who can speak Hindi. Since there is no consistent principle involved, and since the government has no asylum law to establish by individual assessment whether or not a person faces religious persecution, the Modi government has indeed made an arbitrary classification. That fails the test Shah claims his Act passes.


Also read: This isn’t just about Muslims, say anti-CAA protesters in Delhi, blame police for chaos


4. When asked about persecution faced by Muslims, Amit Shah responded that there is a difference between religious persecution and sectarian persecution. There can be no religious discrimination, he averred, for a denomination within a religion. That is why they are not covered under the CAA

International law recognises five types of persecution: race, religion, nationality, membership of a particular social group, or political opinion. There is no separate category known as sectarian persecution. In 2011, India decided to give long-term visas to persons facing persecution on these grounds as well as two additional grounds – sex and ethnic identity. The Modi government has not explained why one form of persecution has more importance than the other under this new law.

As explained above, the distinction between a Muslim facing religious persecution and a non-Muslim facing religious persecution is arbitrary. If the Modi government feels that Muslims in these countries don’t face religious persecution, then logically, the standard should be that only persons facing religious persecution can apply. If it is a general standard, then everyone’s claim of religious persecution can be assessed individually – but the CAA instead presumes persecution based on religious affiliation alone.

The plain fact is that the government has not thought through the implications of its Act. It seems another hasty and arbitrary decision, like demonetisation, which Prime Minister Modi declared would only hurt black-moneyed fat cats, but ended up hurting everyone else. The CAA’s declared purpose is one thing; its consequences will create victims right among innocent but undocumented Indians. No wonder our thoughtful young people are out in the streets to declare “not in our name”. Sadly, it may be too much to hope that our reckless and feckless government is listening.

The author is a Member of Parliament for Thiruvananthapuram and former MoS for External Affairs and HRD. He served the UN as an administrator and peacekeeper for three decades. He studied History at St. Stephen’s College, Delhi University and International Relations at Tufts University. Tharoor has authored 19 books, both fiction and non-fiction. Follow him on Twitter @ShashiTharoor. Views are personal.

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16 Comments Share Your Views

16 COMMENTS

  1. Unbelievable!! Deliberate lying despite knowing the Truth? I assume you heard what Harish Salvi had to say on the subject. How does giving citizenship to non -Muslim foreigners make Indian Muslims vulnerable? Also, if you want to give citizenship to Ahmadiyyas etc, 1. The provision still exists for them to apply. Instead of the 6 years, it is 10 years. They can still apply for asylum under the existing law. 2. You can bring another bill to grant additional facilities for different categories like the Ahmadiyyas. How does this make the current bill illegal? Citizenship by itself is not available to any, foreigner unless the rules allow it. How does How is an Indian Muslim affected by this anyway? Sowing fear deliberately, inspired of the repeated clarification by both Amit Shah snd Narendra Modi that the only religion of this Government is the Constitution, for narrow political gains is highly condemnable.

    • Assume Step by step:
      1. An Indian muslim lost his documents in flood or was poor and never kept any documents.
      2. He happen to be missing in the NRC list.
      3. CAA strips him off his citizenship and pushes him to detention camp.
      Same story, for a non-muslim Indian, step 3 will be
      3. CAA saves him and gives him citizenship.
      Why discrimination based on religion?
      Imagine going through this yourself while you are making your living being poor.
      It’s for sure that at least 1000s or more of Indian muslims will fall into this issue/tension.

  2. Shri Tharoor, So I guess by your logic even pervez Musharraf should be granted citizenship in India? Since he is being persecuted in Pakistan and has been given the death penalty!
    If the Muslims are so worried about “Muslim Minorities” like the Ahmadis and the Shias in Pakistan, Bangladesh and Afghanistan then let All India Waft Board, the Deobandis and other such groups issue a statement that the practices and faith of the Ahmadis, Shias are completely legitimate in Islam and accepted by them.

  3. Instead of just using adjectives and labels to condemn author and the rest of the world in general, why don’t you try refuting the article point by point just as Mr. Tharoor has done? That would be a better use of your time, don’t you think? And, perhaps a more productive outlet for your bile and angst?

  4. I have not seen Sashi Tharoor, if not vehemently, at least mildly demanding speedy investigation and justice in the case of his wife’s killing right from day one. He seems to be more bothered formenting trouble, coining India’s 2nd partition idea, just contradicting govt moves, and inciting and supporting vandalism, rioting and protests. How far one can believe a person who does not demand justice for his own wife’s death to protect nation’s interests?

    • Dear srinivas,

      Sorry to say your answer or comments is like Oranges to apple…. doesn’t make sense….
      When in public forum somebody is discussing a public issue ideally you shall provide your opinion to the same point in favor or against doesn’t really matter.

      After reading your comments I got confused 😂

  5. First things first, Respect for Honourable MP Dr Tharoor for your linguistic skills (and teaching Indian new words. )

    India as we know today was divided in 1947 on religious grounds, Hindu Majority regions.
    Israel, was created on religious grounds and that country welcomed all Jews from across the world, the victims of Holocaust and religious persecution.
    Isn’t CAA doing the same for Hindus?

    What is the core problem government is trying to solve?
    1. Curbing illigal immigration.
    2. Identifying illigal immigrants and ask them to go wherever they came from–> Specifically Bangladesh origin

    What were the efforts made by Congress to curb illigal immigration? Did previous govts attempted to solve this problem? Did previous government think of this as a problem? (may be not because of vote bank?)

    What I understand is NRC was ordered by Supreme Court of India and only for Assam which excluded a lot of Hindus from its list, who is going to take those Hindus? As a only Hindu Majority country, Government is attempting to protect the Hindu group. What is fundamentally wrong with it?

    I have seen bengali slum dwellers in Guwahati, Delhi and Mumbai…they were clearly illigal immigrants. As a country, is it alright to have them here? What do American or Europeans do to such people? Do we have better example in the world who solved this problem?

    Who are the subject matter experts on issues such as these? What are their opinions? Did anyone study the impact of illegal immigration on our country? Not just economic but social as well? As a citizen, I see only opinions on both sides.

  6. It is rather disturbing to find our educated citizens being blind to convincing arguments put forth by a dissenting party
    It is pure unadulterated prejudice which does not allow them to go through the points put forward by the individual.
    Anybody who gives an opinion which is against what we demand is an anti national and has to be summarily executed.
    One has to admit that we have within the shortest time reached the Germany of 1940s and one finds that it is nothing
    surprising if a whole generation of educated,god fearing citizens get convinced through media and social media that
    elimination of even innocent members of another community through the most diabolic means is in the interest
    of the nation.I am still unaware of the number of persons covered by the CAA or NCR and do not know whether it
    is so high to justify the bulldozing of the bill through the parliament overriding several other pressing problems
    like economy.food,drinking water,unemployment,education,health and infrastructure.

  7. Any news on the Print, Quint, NDTV for sure are biased and anti-BJP and Anti-Modi as they will find some critic to voice their opposite views through them and it is their intolerance and not journalism.

    Tharoor and all of his party are instigating people by twisting facts based on their own views and spewing venom , create scare among muslims knowing that using this divide only can get them back to power. It is actually these opposition parties who are instigating people dividing the nation and not Amit shah or Modi or BJP who have been repeatedly saying that there is nothing mentioned about Indians at all, forgtet indian muslims, but these crooks are hell bent in twisting and injecting their own perceptions and false narratives.

    Opposition parties are fighting for pakis, bangladeshis and afghanis now by using indian people, spoiling public property, while those from these countries are enjoying in their own country seeing stupid indians fighting for them without even having to do anything from their side.

    The mention of muslim has created havoc, but no one want to check which muslims. Do other countries allow pakis, bangaldeshi illegal muslim immigrants to live freely in their countries, including the so called muslim countries like Malaysia, Gulf countries. No way, because they are not idiots like Indians, like the print media or quint who for your petty politics do not care.

    If no religion to be mentioned, Why any benefits are then still continuing in the name of religion and why all of you are not fighting to abolish the religious based quota system.

    • Bro
      What’s ur incentives for msgs like these ?
      I want to switch my job and it looks like that this is much easy and productive one. Please, send me the details so that I can apply also. Help a bro out !

    • Dear Tony,

      1. Nobody is fighting for illegal immigrants. They are fighting against the havoc that CAA+NRC can cause on *Indian* muslims.

      2. Looks like you are confusing between cast and religion. The reservation in india is based on cast.

      3. See Mr. Barsode’s comment below – other countries do not allow illegal immigrants – of *any* religion. I hope you will appreciate the distinction. Where as CAA is actually allowing the illegal immigrants of certain religion – only to increase BJP’s hindu vote bank in NE.

  8. Shashi should first come clean on the facts on the issues of Assamese illegal migrants and refugees from West Pakistan. There is a massive disinformation and misinformation on these issues.

    Aside from the debate on CAA and NRC, one ought to note how Saudi Arabia dealt with the issue of illegal Muslims migrants in the recent past. Saudi announced a 3 month amnesty for all those who were staying illegally to disclose their identity and go back to their country, whether one is from Yemen, Sudan, Pakistan, India, Egypt etc. Once the amnesty period was over, police hounded out illegal migrants and they were deported. All of them were Muslims but not Saudi nationals or proper residency permit. If Saudi Arabia or similarly UAE can do this to those who come in and stay illegally, why not India adopt this model? There is no need for NRC, if that is what is the issue but just declare amnesty for 3 months to come clean and go back else be caught by the Police and be deported. This will be the proper course of action to take, now that there seems to be opposition to NRC.

    Modi should visit Riyadh and understand how Saudi sorted this problem and follow the same model so that our sickulars will not have any problems with it. So long as end is achieved, means may not matter. What do you say Shashi?

    • Ah ha at last a sanghi who is not afraid to actually state that India should become a bigoted country like Saudi Arabia….wonderful. you do realize the irony there right…!

    • Dear Surendra, I agree NRC is gud enough bill however documentation should be reasonable….like ration card, electricity bill, voter ID card, passport…not land ownership documents before 50 yrs …which is the problem…

      Bill is not the problem….problem is the process.
      There is no need for CAA bill ….to be followed with NRC excluding certain religion…if anyone asking asylum as per our culture we should provide if we are able

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