Tuesday, March 28, 2023
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Why Supreme Court of India won’t strike down Modi govt’s Citizenship Amendment Act

The primary ground on which the CAA is being challenged is its ostensible violation and abuse of the ‘right to equality’ enshrined in the Indian Constitution.

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The Citizenship Amendment Act 2019 has undoubtedly driven a deep chasm into the heart of not only the Indian polity and the society at large. Although the challenge to the constitutional validity of the amendment is already before the Supreme Court, the popular sentiment against it has spilled over into the streets. Nevertheless, keeping the biases and opinions aside, it is highly unlikely that the Supreme Court will strike down the amendment as being violative of the Constitution of India.

Crucial changes in the Citizenship Act 1955, made through the Narendra Modi government’s 2019 amendment, have two distinct parts. The first pertains to special citizenship provisions for people belonging specifically to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities from the neighbouring Muslim-majority countries of Afghanistan, Bangladesh, and Pakistan; the second grants wide powers to the central government to cancel the registration of Overseas Citizenship of India (OCI) cardholders.

The primary ground on which the Citizenship Amendment Act (CAA) is being challenged is its ostensible violation and abuse of the ‘right to equality’ enshrined in the Indian Constitution. The petitions before the Supreme Court have urged that not only is religion-based discrimination arbitrary and unreasonable but that the amendment is also under-inclusive. It cherry picks only certain communities and ignores the persecution faced by millions of others who do not belong to the six religious groups specified in the CAA.

At the very outset, certain fallacies in the formal submissions made before the Supreme Court must be quelled. First, no constitutional court can question the intention or motive of any government in enacting any legislation; consonantly, the constitutionality of any lawfully enacted legislation has to be first presumed by a constitutional court before scrutinising it. Second, the mere possibility that a law may be abused does not render it unconstitutional ex facie and thereby, under-inclusivity of a statute does not become a ground for challenging its validity. Any such classification, therefore, does not need to be scientifically pure and all-embracing; a legislature is perfectly empowered to differentiate and classify between dissimilar groups/classes/batches/categories. Evidently thus, many of the grounds presented before the Supreme Court are liable to be rejected at sight.

Also read: Chandrashekhar Azad writes from Tihar: Every police bullet is aimed at the Constitution

‘Aliens’ must enter legally

The most crucial factor that would belie any challenge to the constitutional validity of the CAA is that, first, it pertains to ‘aliens’ rather than citizens; and second, the exclusive power to legislate vis-à-vis ‘foreign jurisdiction’, ‘citizenship, naturalisation and aliens’, ‘extradition’ and ‘admission into and emigration and expulsion from India’ rests with Parliament.

While considering the case of non-citizens – ‘aliens’ – the doctrinal approach of determining ‘intelligible differentia’, coupled with a ‘rational nexus’, need not be adopted at all. Undoubtedly, ‘person’ in Article 14 of the Constitution covers ‘aliens’ as well. However, a crucial distinction that must be specified here is that such rights would pertain only to those people who have lawfully and legally entered the Indian territory. Every sovereign State, and so too the Republic of India, has the exclusive right to allow, refuse entry, or expel any alien/non-citizen. The equality clause, as per Article 14 of the Constitution of India, insofar as it guarantees rights to every ‘person’, insofar as it pertains to aliens, would only operate where it is not subject to any other disability emanating by way of any provisions of the Constitution and so too a lawfully enacted statute/legislation/bye-law/rule.

In conclusion, it is apt to mention that the origins of the CAA 2019 can be traced back to the Nehru-Liaquat Pact of 14 April 1950, whereby both India and Pakistan agreed to protect minority rights. However, in light of the incessant persecution that minorities face in the three neighbouring countries, especially Pakistan, it befalls the Indian state to ensure the obligations of the 1950 pact are carried out.

Averments before the Supreme Court have also been made to extend the amendment to protect Muslim minorities such as Shias and Ahmadis and it is no one’s case that the Indian government must not consider that. However, the validity of the CAA cannot rest on India’s policy decision to exclude certain sections because, as already mentioned above, under-inclusivity does not render the 2019 amendment to the Citizenship Act unconstitutional. It must be highlighted that the amendment, when viewed in the context of the Nehru-Liaquat Pact, concerns itself with the minorities as existed back then, and Ahmadis were declared a minority group only as late as in 1974 vide the Second Amendment to the Pakistan Constitution. Shias, in essence, continue to not be considered as a minority group by the Pakistani government.

The authors are practising advocates in Delhi. Views are personal.

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  1. I believe that The Print really needs to go through the constitution of India 10 times before writing Trash articles on Citizenship amendment act 2019.
    I don’t know what is wrong with it, as it is clearly written as the Supreme Court held that “Where equals amd Unequals are treated differently Article 14 does not apply. Yes it is true that it forbids class legislation, but it permits Reasonable Classification of person and according to law the classification shoud be based on Doctrine of Intelligible differential and Substantial distinction.”
    I belive they missed this part.
    Bunch of Idoits with little knowledge are writing such articles.

  2. This Law is perfectly legal. If govt cannot provision special benefits to persecuted minorities, then providing minority quota is also wrong, even reservations are violative of article 14. Providing releiif to persecuted religious minorities from countries with declared state religion is not only legal but a moral, compassionate and just thing to do. Well done.

  3. There could not be a more flawed constitutional argument than this article. Article 14 applies to illegal immigrants too. So do all other articles that apply to persons. These articles are the reflection of India’s world-leading foresight about universal human rights. You might be an illegal immigrant, but if you are treated as an untouchable, or your children are exploited through child labour, the constitution protects you. I don’t know where these authors got their ideas about the constitution from. The argument is innocent and naive at best. It is another matter that the Supreme Court may uphold the law, but that does not make the argument right.

    • How that argument is naiive? The article clearly states that the bill seeks to address the issue of persecution of religious minority in non secular states. There is a clear intelligible differentia which has reasonable nexus with the object of the bill. There may be 100 other types of persecution be it political,ethnic, cultural,linguist or economic but this bill address a particular set of persecution. Just because we have introduced bill to redress one evil it does not in any way compel us to recognize others too. Also our leaders post independence time and again states that our doors will always be open for religious minority of Pak,Ban and Afgh if they face persecution since partition was done on basis of religion. Also Supreme court job is just to interpret law on basi constitutionality and not to advise government on policy decision.

    • No it does not, all it does is throw these leeches out of our country, and if they are actually persecuted( rohingya mulle are not), have them come in through the legal procedure. That is the end of all discussion. The hindus in pakistan like the hindus in afganistan will also go extinct soon enough if not given any help. They are our people, mulle who divided the country are not.

  4. In all countries with few exception, the executive, legislature and judiciary are more or less of same talent, power and know-how. They are from the same population.!

  5. How about the corresponding of dalits and muslims persecuted daily in India?..How about the duplicity of the ruling party that considers Dakota as hindus during election and as untouchables after elections? Why are the dalits and muslims under-represented in every institution? Why India does not invest in education especially the government run schools to provide level playing field? Will India ever accept a Dalit or a Muslim or a person from north east or a tamil as a prime minister? Is that not persecution?

    • No it is not, let me give you an example, search and read about “syed ata husnain”, read about “APJ abdul kalam”. And yes, dalits and muslims are not the only minorities in India, christian, jains, buddhists and pretty much all other minorities have much better education level even though muslims eat up most of the minority welfare money. They are not under-represented because there is a persecution, they are under-represented because they would rather learn a single book and fix punctures en masse, just go and check how many madarse are state funded, and what is the quality of education that is provided to them. We have given all kinds of extra rights to dalits, and the other so called “minority” aka mulle, and they still are the most illiterate, most violent and most intolerant out of all the communities in India. Tell me, does India only persecute these two “minorities” and not any other? like Punjabis, buddhists, jains, christians? When do you accept there’s a fundamental fault in the mulla religion that makes them “over-represented” in the number of terrorists per religion or should I call “allah ke bande” or mujahids, and why they are so illiterate even when given extra welfare money and reservations.

  6. If CCA is against right of equality, then what about different types of reservations given to the various sections of our people?

  7. Citizenship Amendment Act (CAA) is being challenged is its ostensible violation and abuse of the ‘right to equality’ enshrined in the Indian Constitution. If the petitioners think so, then where is the “Right To Equality “,when section of Indian population enjoys certain Reservations. Also if so, why the general population of reserved constituencies are not allowed to contest from these constituencies? It is also a discrimination. Also some seats are reserved for women in local bodies. Isn’t discrimination against Males? If SC strikes down the CCA on the basis of right to equality, it will open a hornest nest.
    To those who questione as why Afghanistan is included, they must remember that Afghanistan is the factory of Terrorism and Talibans, who are sent to other countries.
    The protesters against CCA are playing into the hands of ISI and ISIS.

      • Hey U got to know that he is talking about CAA dont make futile points stupid. He wrote CAA in beginning that makes clear that he is talking about CAA . He mistakenly wrote CCA and u made a issue. Shows lack of common sense

  8. How violation of nehru liaquat pact can be justification for violating article 14 and basic stracture

    Why CAA is problematic . I am no legal expert its an amteur opinion .I coud be wrong
    A matter so crucial as citizenship being based on religion goes against basic strcture of constitution . Besides if you are making exemption to article 14 you are required to have a strong reason ,Coherent well articulated puropse .Instead here grouping itself a violation of basic stracture of constitution and you use that to attack article 14 ,the foundational principles of not just Indain but every Constitution .Its double jeopardy .Here you violate the constitution not just once but twice with compounding effect since the two violations cant be seperated . One violation is stated as justification of the other

  9. A strong neutral Supreme Court would throw out this Act in a hearbeat. However, if you wish to take time and find reasons to let it stand you can reason away. Fact is, the Act is blatantly pursuing an agenda to tear apart the secular fabric of this nation, it is not based on anything Nehru envisioned. This country is a beautiful multicultural melting pot. Why the current Government wants to go back in history and recreate some ancient notion of India is a mystery. It is a tragedy that India is racing backwards fast.

    • A fair supreme court would not even touch this law. It is much needed and supreme court does not have an authority over law making if they can’t find any real faults in the bill

  10. I am not going to read the article, I can understand the basis of such observations by the author on writing this article. Supreme Court of India has to write on its walls… It has Supreme Responsibility to guard constitution and Constitutionalism of the country, independently. It is the bulwark of the constitution. It is the responsibility of the Supreme Court of India look at bigger picture when it is the matter of Constitutionalism. By looking at case by case piece by piece like in Writ petitions and PIL is not going to work for best interest of the country

  11. Few points to ponder

    1. What is Nexus of CAA and Nehru Liaqat Pact and how can origin/Genesis of CAA be traced to Nehru Liaqat Pact which was religious neutral ?

    2. Even if 1 above is explained away how come Afghanistan has been included in CAA when it was obviously not part of Nehru Liaqat Pact ?

    3. The case of General Manager , Uttaranchal Kal Sansthan is a service matter case pertaining to compassionate appointment. Nothing to do with citizenship and it’s relation to Article 14.

    4. Sarbanand Sonowal case is also on different set of facts ( validity of IMDT act ) and does not consider criterion of citizenship in relation to Article 14 of Indian Constitution.

    Let the courts take up the matter and not prejudge it. The basis of selecting the countries and communities and rational Nexus of such basis in achieving the objective of the CAA act has to be demonstrated by the Government in order to the said act be upheld as constitutionally valid.

    • Nehru Liaqat pact was religious in nature. It was meant for and explicitly mentions “minorities” in a religion state that has explicit majority. A simple test of this would be to change the language of CAA to say “religious minorities in respective countries”. That language will no match that of Nehru Liarat pact. Does that change make CAA more acceptable to our protesters now? I doubt.

      Afghanistan was added as an additional step (as claimed by Akalis). In contemporary situation, the same conditions exist there (as other two religious majority countries).

      For points 3 and 4, the argument is not that they reflect CAA debate in totality. The argument in that these cases went into the ability of state to treat illegality in context of equality and right of state to frame laws in certain areas.

      All that said, perfectly agree that courts need to decide and both sides need to reason in court.

  12. The comments of the former solicitor general Mr. Salve, available on YouTube, sound quite convincing on the constitutional validity of CAA. The experts arguing the case on the social media ought to do better than Mr. Salve if they want to get any traction, which does not appear to be the case at least with respect to the comments on this forum. As for NRC, the rules have not been published yet, those who are fearmongering based on speculation are just – speculating.

  13. A lot has been said about Article 14 being violated by CAA.
    There are multiple instances of laws and courts including SC upholding separate treatment of religious groups and as such accepting that such differentiated treatments do not interfere with article 14.
    If article 14 has to be strictly applied, then we should not have muslim personal law, for example. It sounds disingenuous to seek religion specific personal law on one hand and then cry religious separation in another.

  14. 1. The CAAct makes religion the basis for awarding citizenship, which is an antithesis to the basic structure of secular state enshrined in the Constitution.
    2. It also has the potential to disenfranchise a citizen- if a citizen was unable to provide documents of his citizenship for the reason that they were destroyed or they were not available in respect of a particular generation (as happened in Assam with some people), his citizenship comes under cloud. But if he is not a muslim the CAAct gives him an opportunity to keep his citizenship nevertheless and discriminates against a muslim in the same situation.
    For these reasons the SC needs to strike it down.

    • All that CAA does is allows a recognized set of minorities (which requires listing the countries in which they are minorities) who came to India before 2014 (not forever, only till 2014) to have a path to citizenship.

      There is no part of CAA that says how citizenship of existing people in India will be tested.

      Even if you remove CAA today, and someone has to go get a passport – they will need to show documents. And irrespective of their religion, they will get the same treatment if they dont have a document.

      You are perhaps discussing NRC and assuming that someone who fails citizenship test in NRC can then use CAA to gain citizenship. That is not correct either. CAA only applies if you can prove that you are from the said countries. i.e. It still requires documents.

      How NRC will treat someone who does not have documents is an NRC question. NRC (need for a register) has been talked of, not how something like this will be built and what procedures will be followed.
      The arguments are akin to taking offense to what a neighborhood kid said to your kid, before the said kid is born. Claiming that the unborn kids other sibling had said something similar and hence we apprehend that the unborn will also be like his sibling and we dont want you to have another kid for that reason.

      The Assam NRC was a disaster that even the present govt admitted to SC. SC wanted to continue with it. Trying to prefetch a debate on NRC before NRC has been drafted and using that to subvert CAA is infact “murder” of constitution.

  15. It seems not so far back that interventions in Uttaranchal and Arunachal Pradesh were held unconstitutional. After Ayodhya and various other developments around Kashmir, the idea that the apex court could actually strike down something the government considers important is looking a little quixotic.

  16. The supreme court will not strike down Modi’s act. Reason I will not say openly.You may call me a is OK

    • Not sure about the verdict, though a biased one would be no surprise. But, I’ll say what I assume you’re thinking – of late, the courts appear to be on the side of the government, not the people!

      Two very small incidents illustrate this. When Kanhaiya Kumar was beaten, and elderly women were manhandled on the court premises itself, they did nothing about it. Then CJI Ranjan Gogoi said, ‘We can’t flog a dead horse to life!’ If that logic was applied to every case concerning violence, there’d be no need to take it to a court itself. Recently, when the Delhi High Court refused to intervene with regard to the Jamia Millia violence, and adjourned the matter by more than a month, some lawyers chanted ‘Shame!’ For this, an enquiry was ordered! Whatever the technicalities of the two incidents may be, it seems like there is a bias at play here. The trend of ‘sealed covers’ also furthers this perception. After all, justice must also be seen to be fair.

      This seems like just another shoddy BJP PR piece. How the Nehru Liaqat Pact can be used to deny citizenship to persecuted Muslim minorities also beats logic. This article confuses way more than it convinces!!

      • Every Sovereign state has the right to deny citizenship to anyone its wants on whatever basis it wants and there is nobody, not even the Supreme Court of India that can stop it because this is exclusively the authority of the Executive Branch. The CAA isn’t awkward because of what it seeks to do but the language of it and the message it wants to send out. Had it been the Congress and if it had wanted to achieve the same ends, it would have simply passed a directive silently to this effect or used the word ‘Persecuted Minorities’ in the CAB while using its executive discretion to deny all Muslim applicants of citizenship. It wouldn’t have been controversial at all, except in the North East.Keeping out Muslims (persecuted or not) from Pak-Bang is the least we can do to affirm the reality of partition which many former PMs of India have done. There is nothing discriminatory about that at all.

  17. The argument in this article regarding Article 14 is rubbish. The Article applies to any person and by definition an “alien” – however they have entered – is a person. The Constitution does not say it only applies to people who entered legally – that would make its protections meaningless.

      • Can you quote in which case SC had the ruling?
        Also how can you differentiate a person who have legally entered the territory and stayed for same tenure as his/her counterpart who is non-Muslim and in one case you are giving citizenship and in the other you don’t.

        • The Supreme Court has held in General Manager, Uttaranchal Jal Sansthan versus Laxmi Devi & Ors, that:
          ‘Equality clause cannot apply in a case where it arises out of illegality.’

          two judgments of the Supreme Court in Sarbananda Sonowal versus Union Of India & Anr and Mr. Louis De Raedt & Ors verus Union Of India And Ors.
          “The power of the Government of India to expel foreigners is absolute and unlimited…”

          (quotes from Raghav Pandey’s analysis in Firstpost)

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