With due respect to Mr. Shivshankar Menon, his concerns over CAA are unfounded

That a learned man like Mr. Shivshankar Menon must raise concerns over the Citizenship Amendment Act (CAA) is quite surprising.

While addressing a public hearing organized by the Constitutional Conduct Group and Karwan-e-Mohabbat, Shivshankar Menon is reported, by The Hindu, to have said the following:

Global public opinion on India has shifted if you see the international press. It’s a self-inflicted goal.

Mr. Menon does not appear to remember that the international media has hardly found it of consequence to laud India. Be it the New York Times or the Washington Post, such influential platforms have always criticized India.

The following, for instance, is a piece in the New York Times that formulates its heading with the provocative words: “India Plans Big Detention Camps for Migrants, Muslims Are Afraid.” https://www.nytimes.com/2019/08/17/world/asia/india-muslims-narendra-modi.html?action=click&module=RelatedLinks&pgtype=Article

Yet another, that says, “Under Modi, a Hindu Nationalist Surge Has Further Divided India.” https://www.nytimes.com/2019/04/11/world/asia/modi-india-elections.html?action=click&module=RelatedLinks&pgtype=Article

New York Times would do well to invest further time in research, and realize that the BJP-led NDA, in fact, had cut across all barriers of caste in the 2019 Lok Sabha Elections, and had not lost its Muslim electorate despite the relentless propaganda against the government and fear-mongering of it being against the Muslims.

One could quote several such instances, but it would suffice to say that there has never been any love lost between India and the international press. For now, it is of greater significance to look at the other objections raised by the former top diplomat.

Scroll.in (https://scroll.in/latest/948707/on-caa-and-article-370-former-nsa-shivshankar-menon-warns-india-of-international-isolation) reports that the former Foreign Secretary and NSA went further to say:

There has been no meaningful international support for this series of actions, apart from a few committed members of the diaspora and a ragtag bunch of Euro MPs from the extreme right.

This statement has left me bemused. Two questions bother me, which are as follows:

1. Why is it of consequence for India to receive international support on its internal matters?
2. Is the French envoy, Emmanuel Lenain, a “ragtag MP”? For he did say to the media that it was not for them (the French) to comment on India’s internal matters: https://www.financialexpress.com/india-news/cab-indias-key-ally-france-calls-caa-countrys-internal-matter/1795662/

Further statements made by him are disconcerting. In the context of the Hon’ble Minister of External Affairs, Dr. Subrahmanyam Jaishankar cancelling the meeting with the House Foreign Affairs Committee of the United States due to the presence of Congresswoman Pramila Jayapal, Mr. Menon said, “We seem to know that we are isolated.”

I have three questions that bother me:

1. Wouldn’t isolation, conventionally, be indicated by their refusal to meet our delegation, and not the other way round?
2. Dr. Jaishankar’s meeting with the Senate Foreign Relations Committee went according to schedule. How, then, does this indicate India’s isolation?
3. Notwithstanding that it was impeachment day for Donald Trump, he went beyond his schedule and spent, in person, about 40 minutes with Dr. Jaishankar and the Hon’ble Minister of Defence Rajnath Singh. Sources tell India Today that in light of the same, the meeting with the House Committee would not have materialized anyway (Source: https://www.indiatoday.in/india/story/jaishankar-2-2-meeting-pramila-jayapal-1630880-2019-12-23). How does this even remotely indicate isolation?

Mr. Menon then tried to explore the constitutionality of the CAA. He said:

We seem to be in violation of our international commitments. You must consider the political and other consequences of being perceived as violators of international law.

I submit the following observations:

1. There does not appear to exist any international law or agreement or commitment whereto India is a party, prohibiting India from making amendments to or introducing new citizenship laws.
2. In an interview to NDTV, top legal expert and India’s former Solicitor General, Harish Salve, had the following to say:

Persecution can be on account of political beliefs, on account of religious beliefs, on account of social beliefs. We have, through this Act, recognized one form of persecution, which is constitutionally valid. Whether or not we recognize other forms of persecution is a matter of policy. These countries are indeed Islamic republics, so we allow migration to those who are declared minorities in these countries. The classification is legal. Should others be allowed? It is a matter of policy.

What he meant is that while the exclusion of other persecuted groups such as Ahmadiyas can be a matter of policy argument (and therefore may be debated upon either in Parliament or otherwise), it cannot be a matter of argument of Constitutional Law. Legally, therefore, the Act is sound.

Some critics also quoted 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.”

However, they forget that reasonable classification is allowed if (a) the classification is based on an intelligible differentia and (b) the differentia has a rational relation with the object sought to be achieved. This is in accordance with the decision of the Supreme Court of India in Shri Ram Krishna Dalmia vs. Shri Justice S R Tendolkar, 1958. Source: https://indiankanoon.org/doc/685234/

“Minorities in a country which have a declared state religion”, says Mr. Salve, “constitutes intelligible differentia.” He further states that the provision has a nexus with this differentia, in the sense that these minorities are allowed migration (i.e. the differentia is related to the object sought to be achieved: giving citizenship). That is where the Article 14 inquiry must end, because Courts do not second-guess this form of legislative wisdom.

Thus, the unfounded concerns of Mr. Menon as regards the constitutionality and legality of the CAA stand addressed.

Finally, Mr. Menon raised apprehensions of India being seen as a religiously driven and intolerant country. He said: “We have gifted our adversaries platforms from which to attack us.”

But who are these adversaries? He does not make it clear. Let us take a look at our enemies today:

1. The first, understandably and overtly, is Pakistan. Is Mr. Menon concerned that Pakistan may activate its overseas machinery to lobby foreign governments to raise concerns over CAA? If yes, I seek to allay his concerns with the news of Imran Khan himself blaming the “powerful Indian lobby in America for strengthening New Delhi’s narrative against Pakistan.” (Source: https://www.firstpost.com/world/imran-khan-blames-powerful-indian-lobby-in-america-for-playing-key-role-in-strengthening-new-delhis-narrative-against-pakistan-7836781.html).
2. The second is not so much an arch-enemy as much a rival on account of conflicting geopolitical interests: China. Both India and China recognize each other as vast markets. It would not escape the eyes of a seasoned diplomat like Mr. Menon that China’s foreign policy is driven by two factors: (a) economic interests (b) desire to establish itself as a superpower.
   My natural question, therefore, is, “Why would China concern itself with India’s citizenship laws when they cannot affect Sino-China trade in any manner?” Mr. Menon also does not elaborate on the kind of attacks that he himself warns India about.

Is he, then, referring to internal enemies, such as those engaged in violence over CAA? The law-enforcement, I think, has sufficiently shown its power, and shall unhesitatingly do so again. By now, it should be clear that the government does not take anarchy lying down.

What bothers me is that Mr. Shivshankar Menon must make such statements in spite of being, as said earlier, a very learned individual. He comes from a family of diplomats. He commands respect in the diplomatic circles. He has authored an excellent book, “Choices: Inside the Making of India’s Foreign Policy”. After retirement, he is working as a Trustee of the International Crisis Group. He, however, appears to have a left-wing bias, something that would not be concerning had it not clouded his statements.

Ironically, he had, himself, commended Prime Minister Modi’s foreign policy posturing in 2015: https://www.hindustantimes.com/india/modi-s-foreign-policy-better-than-upa-s-says-shivshankar-menon/story-Ke8NVz3BAvDRMyUlrINMRN.html

Barring a day, Mr. Menon, at 70, is five decades elder to me. That a layperson like me must so easily repudiate a learned ex-bureaucrat like him does no justice to his own knowledge over foreign affairs. He must not let, as I said earlier, bias cloud his analysis.

It is hoped that his concerns have been allayed by way of this post.