CAA a specific amendment to tackle persecution on the ground of religion in specified countries: Centre informs Supreme Court

The Central government has informed the Supreme Court that the Citizenship (Amendment) Act, 2019 (CAA) is a specific amendment which seeks to tackle persecution of the minorities on the ground of religion in specified countries.

"...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 systematic functioning of such States and the perception of fear that may be prevalent amongst minorities as per the de facto situation in the said countries", the affidavit reads.

Supreme Court has been further informed that the Parliament, after taking cognizance of the said issues over the course of the past seven decades and having taken into consideration the acknowledged class of minorities in three specific countries, has enacted the CAA.

Arguing that immigration policy and citizenship in particular, is the executive policy of the sovereign manifested by competent legislation, the Supreme Court is informed that an incident of sovereignty belonging to a duly constituted Nation-State and immigration policy, which has an impact on the foreign policy of a State and by extension, affects the security apparatus of the State and would fall squarely within the domain of the Parliament.

Central government has further submitted that the constitutionality of such a legislative measure ought to be tested within the legislative domain and cannot be conflated to extend beyond that object.

Filed through Sumant Singh, Joint Secretary, Ministry of Home Affairs, Government of India, the affidavit submits 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.

The treatment to be given to the classified communities in the neighbouring countries has been attracting the attention of successive governments but no government took any legislative measure and merely acknowledged the problem and took some administrative action through executive instructions regarding entry, stay & citizenship issues of these classified communities, the court has been told.

It is further submitted that 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.

Supreme Court has been informed that legal migration, on the basis of valid documents and visa, continues to be permissible from all countries of the world including from the three specified countries.

On the challenge to CAA for violating Article 14, the affidavit submits that classification under the impugned legislation is not novel and there are numerous Central legislations which are limited in their territorial application.

The Centre's response adds that the Court would consider exercising its power of judicial review, as such review would be very restrictive and limited considering wider width of the legislative policy and legislative wisdom available to the competent legislature.

"...the legislative policy making in certain subjects and the enhanced scope of question available to the competent legislature in such matters has been recognized by the courts across the world which may not be examined on the touchstone of Article 14 of the constitution and that too in a public interest jurisdiction", the Centre has added

CAA, which was passed on December 12, 2019, amends Section 2 of the Citizenship Act of 1955 which defines “illegal migrants”. Now, persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from the neighboring countries of Afghanistan, Bangladesh or Pakistan, shall not be treated as “illegal migrants” and shall be eligible to apply for citizenship under the 1955 Act.

Consequently, over 200 petitions were filed challenging the introduction of the Amendment Act in 2019, which were taken up by the Supreme Court. Notices in the pleas were issued in January 2020, but the matter could not be taken up for hearing.

Last month, the Supreme Court had remarked that it will refer the pleas challenging the Citizenship (Amendment) Act, 2019 (CAA) to a three-judge bench. Court added that more instructions on the matter will be issued on October 31st, i.e., today.