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CAA outside the purview of judicial review: Govt to SC

Centre presented a point-to-point rebuttal to the arguments of over 150 petitioners who have petitioned the court against the CAA, calling it discriminatory.

Updated: Mar 18, 2020 01:44 IST

By HT Correspondent, Hindustan Times New Delhi

The CAA was passed in December last year. (Sunil Saxena/HT File Photo)

Questions on citizenship and issues arising out of it fall outside the scope of judicial review, the Centre told the Supreme Court on Tuesday as it defended the contentious Citizenship (Amendment) Act (CAA), maintaining it was necessary to address religious prosecution in three neighbouring countries and that it does not violate the right to equality.

In a 129-page affidavit defending the law that has triggered widespread protests, the Centre presented a point-to-point rebuttal to the arguments of over 150 petitioners who have petitioned the court against the CAA, calling it discriminatory.

“It is submitted that such decisions are the result of Parliamentary legislative policy based upon the executive – foreign policy decision making for which the constitutional courts may not have the requisite expertise to examine the parameters based upon which such legislative policy is enacted,” the affidavit said.

The CAA was passed in December to fast-track the citizenship process for non-Muslims, including Hindus, Christians, Buddhists, Sikhs, Parsis and Jains, who entered India from Afghanistan, Pakistan and Bangladesh before December 31, 2014. Opponents of the law insist it is discriminatory and unconstitutional as it leaves out Muslims and links citizenship to faith in a secular country.



Critics say it could result in the expulsion or detentions of Muslims unable to provide the documentation if the law is seen in the context of a proposed pan-India National Register of Citizens (NRC). A process carried out in Assam to detect undocumented immigrants led to the exclusion of around two million people from the NRC in 2019. The government has maintained it has no immediate plans for implementing a countrywide NRC.

In the affidavit, the Centre called preparation for the NRC “a necessary exercise for any sovereign country for identification of citizens from non-citizens”. It added that legal provisions regarding the NRC can be found in Section 14A of the Citizenship Act, which mandates the government to compulsorily register citizens and issue them national identity cards. It also empowers the Centre to maintain a National Register of Indian Citizens.

The affidavit cited the provisions and said it was the Centre’s responsibility to “identify/detect illegal migrants and thereafter, follow the due process of the law”.

The Supreme Court agreed to examine the CAA’s constitutional validity on December 18 but refused to stay its operation.

The Centre submitted that the existing system for obtaining Indian citizenship by a citizen of any country is untouched by the CAA and it remains the same. “The CAA is a specific amendment which seeks to tackle a specific problem prevalent in the specified countries i.e. persecution on the ground of religion in light of the undisputable theocratic constitutional position in the specified countries,” the affidavit said.

The CAA only ensures that communities, which are religious minorities in Afghanistan, Bangladesh and Pakistan, and whose “natural place of return” would be India in case of displacement, are granted citizenship, it added.

“The history clearly depicts that persecuted minorities in the said three countries were left without any rights and the said historical injustice is sought to be remedied by the amendment without taking away or whittling down the right of any other person,” the affidavit said.

The petitioners have cited the religious segregation that the CAA entails and said it was without any reasonable differentiation and violates the right to equality under the Constitution’s Article 14.

The Centre argued that India being a secular country, with a large population of people belonging to the classified communities residing as Indian citizens, it is “the sole rational and feasible place” to seek shelter for the communities whose citizenship process has been fast-tracked

It submitted classification by the CAA based on religion will not fall foul of the right to equality.

The Centre contended the CAA was merely a classification for relaxations in qualifications of otherwise settled principles of citizenship. The regime concerning the deportation of persons who may be classified as “Illegal migrants” is governed by other statutes and not the CAA, it added.

“The CAA does not result in expulsion, deportation or refoulement of any person who may be classified as illegal migrant,” it said.

The petitioners include Trinamool Congress Lok Sabha member Mahua Moitra, the Congress’s Jairam Ramesh, All India Majlis-e-Ittehadul Muslimeen’s Asaduddin Owaisi, various non-government organisations, and the Indian Union Muslim League, among others.

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