The Ministry of Home Affairs (MHA) has filed a 130-page long counter affidavit to the petition filed by Indian Union of Muslim League (IUML) challenging the constitutional validity of the Citizenship Amendment Act (CAA). The MHA has made detailed submissions against all the issues raised in the petition opposing the CAA.
LiveLaw reporrts that in the counter affidavit, the government states that CAA is “a benign piece of legislation which seeks to provide a relaxation, in the nature of an amnesty, to specific communities from the specified countries with a clear cut-off date”. It further states that CAA seeks to tackle the problem of persecution on the ground of religion in light of the undisputable theocratic constitutional position in the specified countries, the systematic functioning of such States and the perception of fear that may be prevalent amongst minorities as per the de facto situation in Pakistan, Afghanistan and Bangladesh.
The affidavit also states that the jurisdiction of the court in conducting judicial review is restricted since the question of citizenship comes within the plenary domain of the legislature. The affidavit asks the court to not examine CAA on the touchstone of Article 14 of the Constitution in a public interest jurisdiction like this one, considering the “legislative policy making in certain subjects and the enhanced scope of question available to the competent legislature in such matters”.
It also states that “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.” This statement was not, however, backed by any legal provision or interpretation.
Le us now look at the various aspects in detail.
Article 14 and the exclusion of Rohingyas
The MHA states that the classification based on religion is based on intelligible differentia as they are persecuted for practicing different religion than the one recognized in these countries. For proof of persecution, the government relies on Parliamentary Committees as well as other contemporaneous official record and the debates in the Indian Parliament. It states that the parliament need not take into consideration as to which other communities are treated as minorities in the said three named countries while conferring citizenship.
It justified the non-inclusion of Rohingyas of Myanmar under the provisions of CAA by stating that their persecution is based on ethnicity and language which is to be differentiated from persecution on religious grounds alone and submitted that Rohingyas are not on the same footing as the religiously persecuted minorities who have fled into India from the particular neighbouring countries.
Religion vs Religious persecution
The government submitted that the Indian Parliament has, on numerous issues, recognised religion as a distinct criteria and made classification on the basis of the same. Merely because religion is the starting point of any classification [and not the sole basis of classification], would not imply such classification falls foul of the principles of secularism. It said that legislative recognition of religious persecution in a limited geographical area with established non-secular states cannot be termed to be against the concept of secularism. The said recognition, in a different manner, resonates in legislations across the world and is in no manner a novel or an immoral form of classification as alleged.
It further submitted that the CAA does not classify or differentiate on the ground of religion rather it classifies on the ground of “religious persecution” in countries functioning with a state religion.
Article 21
The MHA states that Central Government has unfettered discretion in matter concerning deportation of illegal migrants whilst following a due process of law. Powers of Central Government to detain & deport an illegal foreigner have been entrusted since 1958 to State Government under Article 258(1) of the Constitution of India.
The affidavit further states that expanse of Article 21 is extremely wide in India and it cannot be argued that the whole expanse would be available to illegal migrants. It added that identification of illegal migrants in the country, as a principle of governance, is a sovereign, statutory and moral responsibility of the government and is in conformity with Article 21.
Article 15 and Article 19
The government has made it clear that since Articles 15 and 19 do not apply to non-citizens, and since citizens do not stand to be affected by CAA, these Articles cannot be invoked in this case.
Section 14A of the Citizenship Act
This section deals with the provisions of issuance of national identity cards to Indian citizens which was inserted by an amendment in 2004. The government submits that even Afghanistan and Pakistan have a system for issuance of such cards and the assertion of the petitioners that this section results in excessive delegation by Parliament to the Executive is erroneous as the only delegation contemplated in Section 14A is the delegation of power to frame rules with regard to the procedure to be followed.
Cut-off date
The MHA states that the country cannot have an open-ended provision for citizenship and hence a cut off date had to be decided. It states that there is no estoppel on the legal migration in the country.
Violation of constitutional morality
The MHA submits that the principle of constitutional morality cannot be invoked in isolation and must in fact be located within the fundamental right provisions. It states that CAA does not violate any fundamental right provisions of the constitution and therefore, the question of violation of constitutional morality does not arise. It further submitted that constitutional morality is not an unruly horse and cannot become an independent basis for challenging the constitutionality of validly enacted legislations.
Through this counter affidavit, the MHA has denied every allegation of abrogation of constitutional principles or fundamental rights. The proceedings in the case will further decide how the petitioner’s stance plays out and how the courts put the arguments of both parties into legal perspective basis the plethora of precedents already at its disposal for determining whether a law is ultra vires the Constitution.
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