Stating that the Citizenship Amendment Act 2019 is a "benign piece of legislation" which does not affect the "legal, democratic or secular rights" of any of the Indian Citizens, the Central Government on Tuesday filed a "preliminary counter affidavit" in the Supreme Court in response to the petitions filed challenging the constitutional validity of the Act.
The 130-page affidavit filed in response to the petition filed by Indian Union Muslim League has one-by-one responded to each of the grounds of constitutional violation urged by the petitioners.
At the outset, it states that the CAA seeks to provide a relaxation in the nature of amnesty to specified communities with a clear cut-off date.
"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..:, states the affidavit.
"The 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", says the affidavit sworn to by Mr B C Joshi, Director, Ministry of Home Affairs.
On contention that CAA is violative of Article 14
The Centre asserts that the two-tier classification made by the Act for selection of communities and selection of countries pass the test of reasonable classification under Article 14. The third tier of classification made to exclude "Inner Line Permit" areas from the CAA is also reasonable, the affidavit states.
Historic records are cited in the affidavit to state that minorities in the countries of Pakistan, Afghanistan and Bangladesh have been facing persecution for long. India represents the sole rational and logically feasible place to seek shelter for the said communities.
"It is further submitted that unlike the particular neighbouring countries, India is a constitutionally secular country and further has a large population of persons belonging to the classified communities already residing as Indian citizens. It is therefore submitted that the said classification is logically complete and made as a legislative policy strictly in light of prevailing geo-political and other allied reasons which would not be justiciable.
In totality of the above mentioned factors, it is submitted that the first tier of classification is just, fair and reasonable and has a reasonable nexus with the object sought to be achieved by the Act", the plea states.
As regards the selection of countries, it is stated that Pakistan, Bangladesh and Afghanistan form a "class in themselves". The theocratic nature of these states which have adopted Islam as state religion, their history of military rules and civil wars are highlighted.
"It is submitted that the intelligible differentia in the three countries is in fact, enshrined in their respective Constitutions, their geographical locations and systematic functioning of their organs of State".
"It is 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 so does not, on the authority of this Hon‟ble Court‟s previous decisions, offend Article 14".
On exclusion of countries and communities
With respect to the petitioners' contentions based on exclusion of other persecuted groups such as Ahamadis, Shias, Bahaiis, Hazras, Jews, Atheists or Baloch communities , the affidavit states that "intra-religious persecutions or sectarian persecution or persecution due to non-recognition of particular sects to be within the fold of majority religion in the said countries, cannot be equated with the persecution of religious minorities admittedly following and practicing a different and completely distinct religion than the majority religion in particular neighbouring countries".
It is also stated that inclusion of one particular country in the list and non-inclusion of other(s) cannot be subject-matter of judicial review as the same is in the domain of legislative decision making and the legislative wisdom.
"The classification of particular neighbouring countries is directly relatable to the foreign policy of the nation and cannot be questioned on the ground of under-inclusivenes".
The Centre asserts that CAA does not affect the secular character of Indian constitution and does not affect any one's right to freedom of religion.
"It is submitted that the 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 is submitted that the Indian secularism is not irreligious rather it takes cognizance of all religions and promote comity and brotherhood between all. It is further submitted that across subjects, the Indian Parliament and State Legislature, have made classifications on the basis of religious identities of Indian citizens as a starting point", the affidavit states.
"Not only partition of undivided India was based on religion, even cross border migration took place based in religion", Centre said regarding the nexus of religion with CAA.
NRC a necessary exercise
Responding to Section 14A of the Citizenship Act inserted as per 2003 amendment, the Centre states that it merely lays down the procedure for National Register of Citizens and National Identity Cards.
"It is submitted that the preparation of a national register of citizens is a necessary exercise for any sovereign country for mere identification of citizens from non-citizens. It is submitted that 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."
"It may not be out of place to mention that as per information available in open sources in many countries, there is a system of maintaining register of their citizens. In fact, national identification cards are issued based upon the exercise of identification of citizens in these countries. In Afghanistan, Bangladesh and Pakistan also there is a system of issuance of such cards", the affidavit adds.
It is also denied that Section 14A results in excessive delegation. Section 9 of the Foreigners Act regarding the burden of proof of citizenship is defended citing the Sarabandana Sonowal decision of SC, which held that onus should be on the individual to prove citizenship.
The Centre also tells the SC 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".
On cut-off date
The dates mentioned in the Constitution in Article 6 or the dates mentioned in Section 6A of the 1955 clearly represent that the Parliament or the constitution makers have never intended the grant of citizenship or the criterion governing the citizenship to be open ended. Merely because one date is mentioned in a legislative enactment and not some other date, does not mean that the said date is arbitrary.
It is also said that the question of entitlement and conferment of citizenship and issues related thereto are within the plenary domain of the competent legislature, over which the Courts have limited judicial review.
"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. Such decisions are the result of Parliamentary legislative policy based upon the executive – foreign policy decision making for which Constitutional courts may not have the requisite expertise to examine the parameters based upon which such legislative policy is enacted", the Centre states.
The Centre clarified that it is filing a separate counter-affidavit in response to petitions concerning Assam, Tripura and North Eastern States.
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