New Delhi: On Tuesday, the Central government filed a counter affidavit in the Supreme Court, rebutting the petitions challenging the constitutional validity of the Citizenship (Amendment) Act.
More importantly, it came out clean on its pan-National Register of Citizens (NRC) agenda and mentioned in the affidavit that NRC is a necessary exercise for any sovereign country “for identification of citizens from non-citizens” while claiming that it has been part of the Citizenship Act, 1955 since December 2004.
A nationwide NRC was part of the BJP’s manifesto in 2019. However, after the Modi government faced criticism over the NRC, both Modi and Shah put out statements about not having any plans on conducting an NRC, apart from Assam.
“There is no need to debate this (pan-India NRC) as there is no discussion on it right now. PM Modi was right and there is no discussion on it yet either in the cabinet or parliament,” Shah had said in December last year.
In a point-wise manner, it specifically denied all the constitutional violations that were prayed by the Indian Union Muslim League, the petitioner in this matter.
Challenge to violation of equality before law
The fundamental right in Article 14 of the Indian constitution declares that the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India.
The equal protection of laws does not mean that all laws must be general in character and apply to all persons. Therefore, Article 14 forbids class-legislation, not reasonable classification.
The classification must be just and reasonable and fulfil two conditions:
i) it must be founded on an intelligible differentia which distinguishes things grouped together from others left out,
ii) the differentia must have a rational relation to the object sought to be achieved by the Act.
The central government, in its counter affidavit, submitted that the first tier of the classification is the qualitative selection of Hindus, Buddhists, Sikhs, Parsis, Jains and Christians as a class in themselves in the particular neighbouring countries.
It submitted that the classification is based on the religion practiced by these communities than the one recognised by the constitution of those countries.
“The said classified communities are persecuted in the particular neighbouring countries as has been acknowledged and recognised by Parliamentary Committees as well as other contemporaneous official record and during the debates in the Indian Parliament,” the counter affidavit mentions.
Responding to the fact that the amendment applies only to six communities in three countries when there are other minorities in these countries, the Centre put forth that the conferment of citizenship is a sovereign function. “The Indian parliament, which doubtlessly has the legislative competence, is not required to take into consideration as to which other communities are treated as minorities in the said three named countries,” reads the affidavit.
The affidavit also enumerates that the memoranda collected by the Joint Parliamentary Committee constituted in 2016 to examine the Citizenship (Amendment) Bill, 2016 to arrive at the classification.
“(i) Most of the immigrants in Refugee colonies in Jodhpur had come from Rahim Yar Khan city in Punjab province and Tando Allahyar town in Sindh province of Pakistan. They used to be farmers in Pakistan and are now working as casual labourers.
(ii) Migrants were forced to convert their religions. Girls were forcefully converted to Islam.
(iii) Untouchability was practiced in Pakistan. Hindus are suppressed in Pakistan. Ladies have to wear muslim dress and gents have to wear skull cap.
(iv) Discrimination towards Hindu children was very common in Pakistani schools. Students were subjected to mental torture in schools/colleges. They were forced to study Islam. Urdu language was their medium of study.
(v) Hindus were tortured irrespective of their castes (Meghwal, Bhil, Adivasi, Raika, Rajput, Kumar). They were called Kafir.
(vi) Snatching, theft, dacoity, kidnapping were very common. No Hindu was in Government service.
(vii) Temples had been destroyed specially after Babri Masjid demolition in India. No facilities for pujas, kirtan etc. were available.
(viii) No cremation ground was available,” reads the affidavit.
The central government identified the People’s Republic of Bangladesh, the Islamic Republic of Afghanistan and the Islamic Republic of Pakistan within the Indian subcontinent as the second tier of classification. “It is submitted that these countries are a class in themselves, which is centred on a recognition of countries with a specific state religion within the neighbourhood of India,” it said.
It also highlighted that inclusion of one particular country in the list and non-inclusion of other(s) is not a subject-matter of judicial review.
The Centre has submitted that the classification of foreigners into categories and the selection of theocratic states with a state religion is a reasonable and rational classification and therefore, does not offend Article 14.
It also submitted that “every classification is likely in some degree to produce some inequality.”
Challenge to non-identification of certain communities
Responding to the exclusion of Ahamadis, Shias, Bahaiis, Hazras, Jews, Atheists or Baloch communities from the first tier of classification, the government submitted, “…intra-religious persecutions cannot be equated with the persecution of religious minorities practicing a different and completely distinct religion than the majority religion in particular neighbouring countries.”
It also added that the legislation enacted for the achievement of a particular object or purpose need not be all embracing.
On exclusion of the Rohingya community in Myanmar, the Tamil community in Sri Lanka and the Buddhist community in Tibet, the counter affidavit said:
“Classification of particular neighbouring countries is directly relatable to the foreign policy of the nation and cannot be questioned on the ground of under-inclusiveness. The CAA is not meant to be an omnibus solution to issues across the world and the Indian Parliament cannot be expected to take note of possible persecutions that may be taking place across various countries in the world.”
Challenge to violation of secularism
The Centre responded by saying that “the recognition of religious persecution in the particular neighbouring states, which have a specific state religion and long history of religious persecution of minorities, is actually a reinstatement of Indian ideals of secularism, equality and fraternity.”
Challenge on violation of Article 21 by NRC
The Centre claimed that preparation of a national register of citizens is a necessary exercise for any sovereign country for mere identification of citizens from non-citizens.
“As per the existing statutory regime, there are three classes of persons residing in India – Citizens, Illegal migrants and foreigners on valid visas. It is therefore, the responsibility entrusted on the Central Government, on a combined reading of the Foreigners Act, The Passport (Entry into India) Act, 1920 and the 1955 Act to identify/detect illegal migrants and thereafter, follow the due process of law.”
On the violation of international covenants that may encompass such rights, the Centre said, “The standard for judicial review of legislation in India is the constitution and not on the basis of international conventions.”
Challenge to cut off date
After the amendment to the Citizenship Act, 1955 in 1986, for those born on or after July 1, 1987, the law set out a precondition to obtain citizenship, that one of the parents must be an Indian citizen.
In 2003, after further amendment, for those born after December 3, 2004 needed one parent as Indian citizen and other not a illegal immigrant.
Responding to the cut off date challenge, the central government submitted that the country does not have and has never had an open ended provision for citizenship.
“Merely because one date is mentioned in a legislative enactment and not some other date, does not mean that the said date is arbitrary,” the affidavit states.
Challenge to violation of constitutional morality
To this, the affidavit reads, “The principle of constitutional morality cannot be invoked in isolation and must in fact be located within the fundamental right provisions. The CAA does not violate any fundamental right provisions of the constitution and therefore, the question of violation of constitutional morality does not arise.”