Union (almost) bares its cards in CAA

It has been an unusually silent week at the Supreme Court. Since March 16th, the Court has been functioning at a reduced capacity in light of the emerging COVID-19 situation. It is only taking up matters of extreme urgency and fewer benches are sitting every day. Amidst this, the Union of India filed its reply to the petitions filed against the Citizenship (Amendment) Act, 2019 (CAA). By its own admission, the reply is not final, since it is yet to receive copies of all petitions filed in the matter.

The CAA grants illegal migrants belonging to the Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities from three countries, namely, Pakistan, Afghanistan and Bangladesh, a pathway to Indian citizenship if they have migrated to India before the cut-off date of December 31st 2014. Petitioners have challenged the law on various grounds, including that it makes an unreasonable classification of its beneficiaries. By arbitrarily excluding other persecuted minorities from India’s neighbouring countries, they argue that the law violates the equality guarantee under the Constitution. It is also argued that the exclusion of Muslims from the scope of the Act is not only antithetical to equality but also destructive of India’s secular ethos.

Despite the preliminary nature of its response, the Union’s approach to the matter is clear. It hinges on establishing that the classification is reasonable. The Union points out that the religious communities covered under the Act are historically persecuted communities from theocratic countries with a State religion. More importantly, it contends that these communities have always considered India to be their ‘sole rational and logically feasible place to seek shelter’. Thus, the Union asserts that all that the CAA does is to recognize and correct a historical injustice.

However, the Union’s strategy in the matter is not merely restricted to justifying the classification. It further claims that the CAA’s classification is immune from judicial review. It highlights that the Parliament enjoys wide discretion as regards the conferment of citizenship. So much so, it argues, that the CAA is outside the scope of judicial review, or at best, subject to limited review.

Will a Court, which has been averse to interpreting its powers narrowly, buy such a move? Given that the Court may continue to function at a reduced capacity till the COVID-19 situation eases, it may be a while before we find out.

Stay Tuned,
SC Observer Desk

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