CAA may not be within scope of judicial review, govt tells SC

The government asserted that issues concerning the sovereign plenary power of parliament, especially in regard to citizenship, cannot be questioned by way of filing PILs.

The legality of the 2019 Citizenship (Amendment) Act (CAA) may not be within the scope of judicial review since matters of citizenship and foreign policy fall squarely within the domain of parliament, the Union government told the Supreme Court on Sunday.

The clutch of over two hundred connected petitions have challenged various CAA provisions which aim at granting fast-track citizenship to non-Muslim refugees who came to India because of religious persecution in Pakistan, Bangladesh and Afghanistan on or before December 31, 2014

Submitting its affidavit in response to a clutch of public interest litigations (PILs) that would come up for hearing in the top court on Monday, the government asserted that issues concerning the sovereign plenary power of parliament, especially in regard to citizenship, cannot be questioned by way of filing PILs.

According to the affidavit, the power of exclusion of immigrants is an incident of sovereignty belonging to a duly constituted nation-state and immigration policy. The policy, it added, has an impact on the foreign policy of a State and by extension, affects its security apparatus and would therefore, fall squarely within the domain of parliament.

“In matter concerning immigration policy and citizenship in particular, it is the executive policy of the sovereign manifested by competent legislation, which would govern the decision-making. It is submitted that the legislative policies in this regard are designedly entrusted exclusively to elected representatives (to be carried out as per the procedure of legislation established by law),” said the government.

The clutch of over two hundred connected petitions have challenged various CAA provisions which aim at granting fast-track citizenship to non-Muslim refugees who came to India because of religious persecution in Pakistan, Bangladesh and Afghanistan on or before December 31, 2014. The law has been questioned on grounds of religious discrimination against Muslims and arbitrariness.

A bench, headed by Chief Justice of India Uday Umesh Lalit, will hear the matter on Monday. On September 12, the bench sought a fresh affidavit from the Union government to facilitate framing of legal issues in the matter.

Defending the legislation, the affidavit filed through the Union ministry of home affairs stated that the scope of PILs and their maintainability, especially in matters concerning immigration policy, must be decided as question of law by the Supreme Court since the question of entitlement and conferment of citizenship are subjects within the plenary domain of the competent legislature.

“The competent legislature devises its own legislative policy with respect to the issues concerning the citizenship. It is submitted that by the very nature of the question regarding citizenship of the country and issues pertaining thereto, the said subject matter may not be within the scope of judicial review and may not be justiciable,” it told the court.

“It is respectfully submitted that this hon’ble court has repeatedly held that in matters concerning foreign policy, citizenship, economic policy, etc, a wider latitude for classification is available to the parliament/legislature considering the subject matters of the challenge and the nature of the field which the legislature seeks to deal with,” it added.

The affidavit also sought to allay the apprehensions that CAA would incentivise influx of illegal migrants, pointing out the migrants who are entitled to citizenship under the law are already living in various parts of India.

The MHA emphasised that the presence of inhabitants of the classified communities – Hindus, Sikhs, Buddhists, Jains, Parsis and Christians -- from the three neighbouring countries does not amount to “external aggression” or “internal disturbance” and therefore, does not violate Article 355 of the Constitution. Article 355 obligates the Centre to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of the Constitution.

“The future grant of citizenship rights to persons of these prosecuted minority communities will not compromise the political rights of the existing citizens of India...CAA does not impinge upon any existing right that may have existed prior to the enactment of the amendment and further, in no manner whatsoever, seeks to affect the legal, democratic or secular rights of any of the Indian citizens,” underscored the affidavit.

The Centre further informed the court that it has shared with the Bangladesh government a draft agreement on ‘Nationality verification and Return of Indian and Bangladeshi nationals’.

“The agreement once finalised and signed with Government of Bangladesh will streamline the process of nationality verification and is expected to facilitate the return of illegal migrants from each other’s territory,” it added.

The affidavit also responded to a category of petitions which complained that grant of citizenship to migrants from Bangladesh would tinker with demographic and cultural identity of Assam and other north-eastern states.

“There is no provision in CAA which would affect the distinct language, script or culture of citizens of Assam and other north-eastern states...CAA only makes eligible a class of foreigners who had taken shelter in India on or before December 31, 2014 due to persecution faced by them in three specified countries on grounds of their religion. CAA does not encourage any future influx of foreigners into India as it applies to past events and has no application in future,” it said.

The Centre also pointed out that CAA protects from expulsion only those migrants who are already protected under the Assam Accord under the Immigrants (Expulsion from Assam) Act, 1950, on account of civil disturbances or the fear of such disturbances in any area forming part of the then Pakistan (now including Bangladesh).

The petitioners challenging the validity of the law include Congress leader Jairam Ramesh, the Indian Union Muslim League, and its MPs, Lok Sabha MP and AIMIM president Asaduddin Owaisi, RJD leader Manoj Jha, TMC MP Mahua Moitra, All Assam Students’ Union and Tripura royal scion Pradyot Kishore Deb Barman.