Earlier this week, the Union of India filed its reply in the Citizenship (Amendment) Act, 2019 (CAA) challenge. At the very outset in its reply, the Union makes it clear that it is yet to receive all the CAA petitions. Given this, it states that the reply is only preliminary and meant to answer the question of stay. It has also reserved its right to file a more detailed reply later.
Union has sought to counter the petitioners’ arguments in two broad ways. One, it argues that the selection of specific religious communities and countries for the purpose of CAA does not go against the equality guarantee under the Constitution. Such a selection, it contends, was made on the basis of sufficient historical reasons and considering the geo-politics of the region. Two, its sovereign powers allow it broad discretion to make legislative choices, such as the one made in CAA, and courts cannot question such wisdom.
CAA is limited in its scope and tailored to resolve a narrow problem
The Union devotes the opening portions of its reply to describe the nature and scope of CAA. It characterizes CAA as a ‘benign legislation’ which ‘seeks to provide a relaxation [..] to specific communities from the specified countries with a clear cut-off date’. It then goes on to elaborate the motive behind the enactment of the Act – to tackle religious persecution in certain countries with a theocratic constitution.
The counter-affidavit then clarifies that CAA is not meant as a panacea for all persecutions taking place across the world. In fact, it is only meant to redress a specific problem – the persecution of minorities in Pakistan, Afghanistan and Bangladesh - which India has been concerned with historically. In light of this, Union then requests that the object of the legislation and its constitutionality be viewed through this narrow lens.
A defence which comes up regularly in the affidavit is that CAA, by selecting a certain class of people, does not impinge on anyone else’s existing rights. Another argument which finds frequent mention is that the State’s power as regards conferment of citizenship is extremely wide. Given this, Union contends that the subject matter is outside the power of judicial review.
On the point of judicial review, it goes on to submit that constitutional courts may not have the expertise to look into the parameters on which the legislative policy is framed. Even if courts were to review it, such review should be limited. This is because the State has wide discretion in devising policies related to citizenship.
CAA corrects a historical injustice
One of the ways in which a law may be struck down by courts is if it arbitrarily prioritizes the interest of a person/group over that of others. In such situations, the State will have to show that no such arbitrary prioritization was done. More specifically, it will have to show that the group prioritized is different from those left out and that such prioritization was critical to achieving the object of the challenged legislation.
In the case of CAA, the State is saddled with the burden of proving why certain religious communities – Hindus, Sikhs, Buddhists, Jains, Parsis and Christians – from certain countries (Pakistan, Bangladesh and Afghanistan) have been given relaxations under the Act.
The Union in its affidavit has pointed out that all these religious communities covered under the Act share a common trait – they are minority religions in theocratic countries with a constitutionally recognized state religion. More importantly, members of these communities are historically persecuted because of their religious identity in these countries.
Given the persecution faced, they have historically migrated to India in large numbers. Thus, Union asserts that it is clear that these communities consider India to be their ‘sole rational and logically feasible place to seek shelter’. Thus, all that the CAA does is to recognize this historical fact and correct a historical injustice without whittling down the rights of anyone else.
Historical approach and Parliamentary Committee Findings
The Union also narrates how CAA is a culmination of a historically consistent stance that it has adopted towards these communities. In this regard, it points out that a liberal regime of granting Long Term Visas (LTVs) to specified minorities emigrating from Pakistan and Bangladesh has been in place. Moreover, a Joint Parliamentary Committee in 2016 had conducted a detailed factual survey to arrive at the present classification. It also points out that these issues have also been consistently raised in diplomatic correspondences with these countries (some of whicih are confidential in nature).
In conclusion, it argues that the classification under CAA is logically complete and made in light of the prevailing geo-politics in the region.
Issue of other minorities
Another important contention of the petitioners is that there are other persecuted minorities in these three countries, who are not covered under CAA. Specifically, they point to the example of Hazras, Atheists, Shias etc. This, they say, disproves the claim of the Union that CAA is meant to protect persecuted minorities from these counties.
Union counters this by saying that although there may be other minorities in these countries, Indian Parliament is not bound to take that into consideration. It reiterates the argument that conferment of citizenship is a sovereign function and it is upto the Indian Parliament to decide who it should confer it on. Moreover, it argues that intra-religious persecution, sectarian persecution within majority communities etc. cannot be equated to the persecution faced by the communities identified under CAA.
Finally, the Union makes the point that CAA is not meant to be an omnibus solution and Indian Parliament cannot be expected to take note of all persecutions across the world. By corollary, it asserts that if the under-inclusiveness argument is accepted, there will always be some countries which will be left out.
Second tier of classification - country
A similar line of logic as above is advanced to justify the selection of three countries. The affidavit notes that inclusion of one country and exclusion of another is within the legislative wisdom and courts cannot intervene in such matters. Also, circumstances in these countries – the military regimes in Pakistan, civil war in Bangladesh and invasions and civil wars in Afghanistan - have accentuated the persecution of these communities, notes the Union.
CAA is a restatement of India’s secular values
Another ground on which the CAA is challenged is that it goes against India’s secular values since it accords special treatment to a limited set of communities.
The Union addresses this by pointing out that CAA does not exclude people from any country in the world from applying for citizenship in India. Thus, those who legally migrate to India may continue to apply for citizenship and CAA does not operate as a bar on this. It also points out its track record of having granted visas to majority community members from these countries in the last few years.
As to the argument that Muslims have been specifically excluded, the Union notes that CAA excludes even Tibetan Buddhists from China and Tamil Hindus from Sri Lanka. Therefore, the argument that it is designed to exclude Muslims is unfounded, contends the Union.
Finally, it goes on to assert that giving protection to persecuted minorities is a restatement of India’s secular values rather than an abdication.
No other rights violated
Petitioners have also claimed that CAA violates a number of other fundamental rights, including Article 21 (right to life and personal liberty), Article 15 (prohibition of discrimination), Article 19 (right to freedom). They also argue that it goes against India’s commitments related to refugees under international law.
The Union has denied all these claim in its affidavit. As to Articles 15 and 19, it points out that they are available only to citizens and won’t be applicable in the case of non-citizens, who are the subject matter of the Act.
As for its international law obligations, the Union points out that judicial review cannot be based on international conventions and that international law cannot take precedence over a domestic law made by Parliament. In any case, it asserts that it has unfettered discretion to detain and deport an illegal foreigner and that it has not signed or ratified the Refugee Convention, 1951 or its protocol.
The Union concludes its reply by asserting that since no fundamental rights are violated, the question of constitutional morality being violated does not arise at all.