• Know key points made by advocate Abhinav C in favour of CAA, a Rebuttal that includes lawyer J Sai Deepak’s views on non-applicability of Article 14 and Differences in Partition of Punjab and Bengal.

After the notification of CAA, a 2020 video of CJI’s son Abhinav Chandrachud (AC) (advocate Bombay High Court, Harvard educated and author) went viral. To Hear

Some of the Key points made in video by Abhinav C

“Is CAA unconstitutional? Is it anti-Muslim? A compelling case can be made that CAA is unconstitutional. Question if it is anti Muslim or pro-Hindu needs to be investigated. Whether it violates the secular fabric of the Constitution needs to be investigated.

If Muslims want to come back to their property what happens to evacuee property. AC refers to a letter written by Sardar Patel to Nehru. Thus, Government of India introduced a Permit System for those Muslims who went to Pakistan and returned after 19^th July 1948. They needed a permit for resettlement. Thus, the government had a power to veto your return to India. This system was entrenched in the Constitution. Refer to Articles 5 to 7. Nehru said around 2000 permits for permanent resettlement were issued.

The Permit System was not introduced for East Pakistan (EP-modern day Bangladesh). There were app 7 or 8 lakh Hindus left in West Pakistan and 16 million Hindus in East Pakistan. If permit was introduced for EP in July 1948, it would prevent Hindus from coming back to India. (It is not clear from video if these Hindus had migrated from India to East Pakistan post 15/8/1947 or were already inhabitants of East Pakistan. The Permit System was for Muslims, essentially from North India, who migrated to Pakistan but chose to return.)

CAA is unconstitutional because it violates the right to equality granted by Article 14. It excludes certain category of religious groups like Jews, Bahais, Buddhists, atheists (people who do not believe in God), Ahmediyas etc. Just because a country has an established religion, like England, does not mean it is unsecular. A Parsi who flees religious persecution in Iran has to wait for 11 years but if the same Parsi is persecuted in Afghanistan it is 5 years.” 

I have taken extracts from AC video diligently. Errors if any are without malafide intent and unintentional. I declare that am a Chartered Accountant and child of Punjabi refugee Doctors parents, do not have the pedigree of AC.

This article presents an   integrated alternate view on CAA, not limited to AC’s video but also includes lawyer and author J Sai Deepak’s views on Article 14. Here are 8 pointers.

1. AC referred to secularism. 

The word has its origins in Europe and is not defined in the Constitution. Read  Why Secularism is not an Indian concept And Meaning of Secularism

2. AC referred to God, which again is a Christian concept.

Dr Subhasis wrote, “All Christians hold that God is external to human beings and it is God or, YHWH (Yahweh) who has created humanity from nothing. Our Shastras do not admit of an exterior God. Our Faith is not monotheistic but in all its various branches, our Dharma is monistic (Advaita).” Read  What is the concept of God in Christianity and Sanatana Dharma

Bulgarian Muslim learnt Kalbelia Dance in India. Jaisalmer 2013. 

3. The need for CAA would not arise IF – 

a. If India were not partitioned. So why was India partitioned?

In his book ‘Anatomy of a Flawed Inheritance’, former foreign secretary J N Dixit wrote, “The partition of the sub-continent, in a manner, has its roots in Islamic ethos. It goes back to the Prophet’s journey from Mecca to Madina in 622 A.D. in the face of persecution and harassment, known as Hezira. The concept of Hezira is generally acknowledged as a norm, to the effect that Muslims do not live in tyranny or oppression from peoples of other faiths.”

The British role in India’s division is summed up by Sardar Patel who said on August 9, 1945, “The British talk of Hindu Muslim quarrels but who has thrust the burden on their shoulders? If they are sincere let them hand over to the Congress, League or international arbitration. Give me just a week’s rule over Britain, I will create such disagreements that England, Wales and Scotland will fight one another for ever”. Patel –A Life by Rajmohan Gandhi Read  Why India was partitioned

b. Only Hindus, Buddhists, Jains, Sikhs and Christians were not persecuted in Muslim majority Pakistan, Afghanistan and Bangladesh–countries that were at some point part of the Indian Subcontinent unlike Iran. Read  Why are Hindu Bengalis celebrating notification of CAA

Persecution happened then too. Author Balbir Punj wrote in the Hindustan Times, “A N Gujral father of former PM I K Gujral stayed back in Pakistan and became a member of its Constituent Assembly. In a year he had to flee. So also J N Madal, a Dalit leader belonging to pre-partition Bengal who became law minister in Pakistan, facing religious persecution returned to India.

4. AC said the Permit System was not used for East Pakistanis?

Points 4 and 5 compare the situation then in undivided Punjab and Bengal. Short forms used–Before partition Bengal had East (EB) and West Bengal (WB). The former became East Pakistan (EP) post partition and on it’s  independence became Bangladesh. Punjab too had West and East Punjab.  

83 year old Tapan Ganguli wrote, “In Punjab, the city of Lahore was dominated by Hindus and Sikhs. When partition was announced, Hindus and Sikhs from West Punjab crossed over to East Punjab including Delhi. In Bengal, the landowners and gentry of EB were overwhelmingly Hindu but were given assurances by Nehru that they would be looked after post-independence. In 1950, a Nehru Liaqat Ali pact was signed by both heads of state that the respective minorities in India and Pakistan would be protected by the respective governments.” But Pakistan (East or West) never kept its promise.

Liaquat passed away in 1951. The Citizenship Act in India came in 1955. That practically ended the free-movement paradigm promised in the Nehru-Liaquat pact of 1950.

Hindus were persecuted continuously. Thus, “The population of Indics has continuously fallen in Bangladesh (formerly East Pakistan). It was 23 per cent in 1951, 14 per cent in 1974, 11 per cent in 1991, 10 per cent in 2001 and 9.3 per cent in 2011.”

On CAA not being applicable to Ahmadiyyas Punj wrote, “The Lahore Resolution calling for Pakistan was drafted by M Zafarullah Khan, an Ahmadiyya, who became Pakistan’s first foreign minister. Mir B M Ahmad, the community Caliph raised the Furqan Battalion from his community to fight for Pakistan against India in the first Kashmir War. ”

Aside, do you know that President of Bangladesh from 1982 to 1990 Gen H M Ershad’s father left Dinhata, in Coonch Behar (West Bengal), in 1949 for East Pakistan Pratim Bose wrote in Hindu Business Line. And, after Liaquat–Nehru Pact that offered safe return of refugees, Ershad’s father was all set to rejoin the family. But that plan got upset when Ershad joined the Army in 1952. His blog in Bengali on CAA

5. Some significant differences in Partition of West Punjab and East Bengal. 

Pratim Bose, author/columnist writes -

A. “The Islamisation of East Bengal (EB) (today Bangladesh) happened quietly but rapidly. Hindus didn’t guess that. An enumeration in 1885 clarified the dominant Muslim-majority. 

B. 25% Hindus owned 75% of the land in EB (reasons are beyond the scope of this article). The movement for political freedom/rights started in EB in the late 19th century. The proposed division of Bengal in 1905 was based on this. The division was abandoned leading to accumulation of public anger. See para after point J. 

C. Post-Partition, the mood all through EB was to grab Hindu properties by forcing them to move out. 

D. West Punjab (WP) saw large incidence of property exchange. EB saw that only in pockets like one between the princely state of Rangpur (EB) and Jalpaiguri (WB). (Rangpur was then Hindu dominated. Jalpaiguri was Muslim dominated. The demography reversed post-Partition.)  

E. Lack of property exchange might have prevented a WP like mass migration from East Pakistan. In WP migration was over by 1949. But in EP it went on and on. 

F. All those who migrated from Pakistan, between 1947 and 1949, were referred in official records as “refugees.”  Prof Avijit Dasgupta showed that after 1950, the government started understating the “refugee” number from EP by referring them as “displaced” or “migrated.” 

G. Historian Tapan Roy Chowdhury wrote how East Bengal Zamindars were made to lose their rights overnight. It is in his autobiography, “The world in our time.” 

H. Since migration almost stopped from West Punjab after 1949, the Nehru-Liaqat Pact was most relevant to East Bengal, which had become East Pakistan. 

I. There was a system of Migration Certificate from EP, which witnessed exclusive and sustained movement post1949. As per rules, a Hindu migrating from EP had to give undertakings to EP that he had no outstanding to the nation, was carrying no wealth and other details. Upon landing in India, he should report to the local authorities. The Nehru-Liaqat pact defined the amounts of jewels etc a migrant could carry. 

J.  Since the general mood in EP was to grab Hindu wealth, issue of migration certificate by EP was a strip-down experience. Many or most Hindus took the unofficial routes to India.”

 Briefly, the real reasons for partition of Bengal were to “curb the growth of national feeling in politically advanced Bengal by driving a wedge between Bengali speaking Hindus and Muslims. There was also the motive of creating placating the Muslims and creating a separate Muslim block against the Hindus in respect of political views.” 2 Pg 17-18  

Hampi Ruins give you an idea of what a Hindu city was like. 

6. Ask, why are Indics persecuted in these three Muslim majority countries?

The answer must be given by residents of these three countries.

A personal experience. Trinamool Congress MP Derek O’Brien wrote in the Indian Express, “In 1984, my brother Andy, then a sports journalist, travelled to Karachi for hockey’s Champions Trophy. He was determined to trace the lost O’Briens of Pakistan.” He found that his cousins had converted to Islam. 

Intellectually, you need to know what is common to Indic faiths. Next compare Sanatana Dharma with Abrahamic Faiths. Read  FAQ for a Comparison of Indic Faiths with Abhramic Religions

7. If Indics are persecuted across the world where will they go?

“India is the birthplace of dharma - Sanatan, Baudh, Jaina and Sikh (called Followers of Dharma) and the home of Eastern spirituality. For them India is where their Rishis, Munis and Gurus lived and their principal places of worship are. There is no other country they can call their own. There are many Buddhist countries say Thailand but for persecuted Buddhists of these three countries India is their natural home.

So when persecuted elsewhere, India is the country they return to for e.g. there was large-scale migration of Sikhs due to the violence that broke out after the Soviet invasion of Afghanistan in 1979. Ditto for Followers of Dharma from Pakistan and Bangladesh.

It is because of what unites the Followers of Dharma that Chairman of the Drafting Committee of the Constitution, Dr B R Ambedkar, while considering the conversion of his followers to Sikhism, declared, 'If the depressed classes join Islam and Christianity, they not only go out of Hindu religion, but they also go out of Hindu culture and it will denationalise the depressed classes'. 1

There are over forty Muslim countries where persecuted sub-continental Muslims can go to. After all political thinker Muhammad Iqbal (1873-1938) wrote, “Islam as a religion has no country”. 2 Pg 534 To read full article

There is a reason why the Supreme Court logo is, Yata Dharmastato Jayah - Where there is righteousness and moral duty (dharma), there is victory (jayah).

8. Article 14 of the Indian Constitution reads, “The State shall not deny any person equality before law or the equal protection of the laws within the territory of India.” The source of this Article is in the American and Irish Constitutions and perhaps the Government of India 1935, ss 275 and 298.  

“In a sense, the demand for equality is linked with the history of the freedom movement in India. Indians wanted the same rights and privileges that their British masters enjoyed. Similarly, in the statutory framework of India, one does come across provisions which introduced or maintain a certain amount of inequality between Government officers and citizens. Courts have followed the general principle that equal protection of the laws means the right to equal treatment in Similar circumstances.” 3 Pg. 17-18

a. Proponents of Article 14 - Why are Hindus denied equal human rights?

Here are two of many examples. The government manages and control their places of worship i.e. temples. Two, responsibility for education of poor children for free under the Right to Education Act is placed on Hindu schools only. Should not all Indian Women like Hindu women have Equal Inheritance Rights? Should there be one law for all Charities?  Read Laws that government must change to give Hindus equal human rights And Tax Laws should be the same for all citizens

b. J Sai Deepak on Article 14 – Right to Equality. Video of 11 minutes Excerpts, “Whether principles of equality under Article 14 are applicable in the context of allowing people access or entry into Bharat. Principles of equality under this Article when sought to be applied in the context of the right of foreigners to enter India takes away the sovereign power of the Government of India to take a decision and apply its own security considerations, as part of this process. Then, the GOI reserves the prerogative depending on its own considerations. Here security plays an important consideration. Going by the pure language of the article one should not have reservations, personal laws by religion, schemes for certain communities.

When you speak of equality it has to be application of a law to a specific context. In different contexts different outcomes emanate. Equality in the eyes of the law is for equals, not all refugees not all people coming from different backgrounds are to be grouped under the same class.” For another video 13.5 minutes by Sai Deepak

Also read    The use of Article 14 in CAA is a flawed argument    

J Sai Deepak wrote in the Open, “A 1955 Constitution Bench SC order stated, “The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.” Source

Taking the cue from and extrapolating from Derek O’Brien quoted above, had my forefathers lived in Pakistan, my name would be Abdul Nayyar or I could be a persecuted Hindu refugee in India today.

Read and decide for yourself. Errors if any are without malafide intent. . There is nothing personal against any individual. This is an academic discussion and is not meant to defame any individual, community or organization. Cover pic courtesy CNN-news18, article pics by author. 

References

1 Dr Ambedkar: Life and Mission by Dhananjay Keer pg 279.

2 The History and Culture of Indian People Volume 11, published by the Bharatiya Vidya Bhawan.

3. The Constitution of India by P M Bakshi, 2002 updated reprint.  

Also read

1. The reason behind excluding Sri Lankan Tamils from CAA

2. Issues in legal challenge to CAA law

3. India is the only home of Hindus, Buddhists, Jains and Sikhs

4. Bangladeshi Infiltration into India

5. Righting the wrong of decades CAA rules

6. CAA redeems historical promises

7. Supreme Court seeks Centre response to plea on CAA rules