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CAA is a ‘benign’ law, scope for judicial review is limited, Modi govt tells SC

Home ministry’s counter-affidavit in Supreme Court says citizenship falls squarely within the domain of Parliament, and cannot be challenged through PILs.

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New Delhi: The Narendra Modi government has informed the Supreme Court that the Citizenship Amendment Act, 2019, is a “benign” piece of legislation, and that there is limited scope for judicial review on a law passed on the issue of citizenship by Parliament.

Over 160 petitions have been filed in the Supreme Court challenging the constitutionality of the amended Act, which seeks to make it easier for Hindus, Sikhs, Christians, Buddhists, Jains and Parsis from Afghanistan, Bangladesh and Pakistan to get Indian citizenship.

“CAA is a benign piece of legislation which seeks to provide a relaxation in form of an amnesty to specific communities from specific countries with clear cut-off date. The CAA amendment targets specific countries where persecution is on the ground of religion in light of undisputable theocratic constitutional position in those countries,” states the preliminary counter-affidavit filed by the MHA.

Also read: SC says there is no law to back UP govt on ‘name and shame’ posters of anti-CAA protesters

‘Natural place of return’

The Ministry of Home Affairs, headed by Amit Shah, has told the court the countries and communities were selected on the basis of persecution of minorities.

The government has clarified that there are three classifications made in the CAA:

– The first tier of classification is the identification of six communities, i.e. Hindus, Buddhists, Sikhs, Jains, Parsis and Christians.

– The second tier of classification is the identification of three countries in the subcontinent — Bangladesh, Afghanistan and Pakistan.

– The third tier of classification is exclusion of the application of Section 6B to tribal areas of Assam, Meghalaya, Mizoram or Tripura, as included in the Sixth Schedule to the Constitution, and the areas covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873.

The government has contended that all those for whom the citizenship cut-off date has been relaxed are those whose “natural place of return” was India, and that the CAA recognised a “historic fact”.

“CAA is a recognition of a historic fact and ensuring that the communities which are in numerical and religious minorities in the three countries and whose natural place of return would be India in case of a displacement are granted citizenship which is a sovereign function to be exercised by the competent legislature,” the government states.

Also read: How anti-CAA protests in Meghalaya are different from those in the rest of the country

‘Limited scope for judicial review’

It has also argued that the power of the court to interfere in this matter by way of judicial review is limited in this case.

“Scope of judicial review is limited in this case. In both first tier of classification of communities and second tier of classification of countries, the scope of judicial review is narrowly tailored,” the home ministry states.

It has also said that the power of exclusion of immigrants is, therefore, an “incident of sovereignty belonging to a duly constituted Nation-State and immigration policy, which has an impact on the foreign policy of a State”, and thus, has an effect on the security apparatus of the state and “would fall squarely within the domain of the Parliament”.

Since a majority of the petitions challenging the CAA are in nature of public interest litigations, the government has submitted that since the law in question deals with “sovereign plenary power of Parliament”, it cannot be challenged by a PIL.

“Matters concerning the sovereign plenary power of the Parliament, especially in regard to citizenship and the contours thereof, cannot be questioned before this Hon’ble Court by way of a public interest petition,” the MHA affidavit states.

Also read: UN human rights body moves Supreme Court over CAA, govt says it’s internal matter

‘Not an omnibus solution’

The CAA has also received flak for excluding other persecuted minorities like Ahmadiyyas, Rohingyas and Sri Lankan Tamils. However, the government has rebutted this point, saying that the “Indian Parliament, which doubtlessly has the legislative competence, is not required to take into consideration as to which other communities are treated as minorities in the said three named countries”.

It has also said the CAA is not meant to be an omnibus solution to issues of persecution all over the world.

“CAA is not meant to be an omnibus solution to issues across the world and the Indian Parliament cannot be expected to take note of possible persecutions that may be taking place across various countries in the world,” the affidavit states.

Also read: No country says everybody is welcome: foreign minister Jaishankar hits out at CAA critics

‘NRC a necessary exercise’

The government has also stated that the proposed National Register of Citizens is a necessary exercise, something even other countries maintain.

“Preparation of a National Register of Citizens is a necessary exercise for any sovereign country for mere identification of citizens from non-citizens. It is submitted that as per the existing statutory regime, there are three classes of persons residing in India — citizens, illegal migrants and foreigners on valid visas. It may not be out of place to mention that as per information available in open sources in many countries, there is a system of maintaining register of their citizens,” the affidavit states.

The response also makes it clear that government believes the CAA does not violate any fundamental rights, and that there is no question of violating constitutional morality.

Also read: From Babri to CAA, Javed Akhtar to Owaisi, Muslims are tested on the right adjectives

Timeline of the case

The Supreme Court, on 18 December last year, had decided to examine the constitutional validity of the CAA while refusing to stay its operation.

While hearing a batch of petitions, on 22 January, the top court had made it clear that the operation of the CAA will not be stayed, and gave the government four weeks to respond to the pleas.

The court had also said that pleas concerning Tripura and Assam, as well as the matters related to Uttar Pradesh, which is going ahead with the implementation of CAA without framing any rules, can be dealt with separately. The government has now stated that it will file a detailed separate reply on the impact of the CAA in Assam.

The Indian Union Muslim League, which is the lead petitioner in this case, had said in its plea that the CAA violates the fundamental right to equality, and intends to grant citizenship to a section of illegal immigrants by making an exclusion on the basis of religion.

The CAA hearing was supposed to take place after the Sabarimala hearing in March. However, after the COVID-19 outbreak, all Constitution and nine-judge bench matters have been deferred. The court is yet to set a tentative date for the CAA hearing.

Also read: From CAA to NRC, India’s high courts are setting higher benchmarks than the Supreme Court

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  1. Each institution plays an intermediation role between rulers and the governed. When it fails in its duty, the discourse moves to the streets.

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