The government submitted matters concerning immigration policy, citizenship and exclusion of immigrants lies within the domain of the parliament and cannot be questioned by way of public interest litigation petitions.
The Citizenship Amendment Act (CAA) introduced in 2019 does not affect the legal, democratic or secular rights of any of the Indian citizens, the Central government told the Supreme Court on Sunday.
The existing regime for obtaining citizenship of India by foreigners of any country continues to be untouched by the CAA and remains the same and legal migration on the basis of valid documents and visa, continues to be permissible from all countries of the world including from the three countries specified in the CAA, the government said in its latest affidavit filed before the top court.
“The CAA is merely a limited legislative measure, circumscribed in its application which does not affect the existing legal rights or regime concerning citizenship [falling outside the purview of specialized measure] in any manner,” the affidavit underscored.
The Centre also questioned the locus of the petitioners, stating that matters concerning immigration policy, citizenship and exclusion of immigrants lies within the domain of the parliament and cannot be questioned by way of public interest litigation petitions.
“It is the executive policy of the sovereign manifested by competent legislation, which would govern the decision making. Legislative policies in this regard are designedly entrusted exclusively to elected representatives [to be carried out as per the procedure of legislation established by law]. Power of exclusion of immigrants is, therefore, 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,” the affidavit said.
The affidavit was filed in response to a slew of petitions filed before the top court challenging the law.
The affidavit specifically dealt with issues arising out of the petitions filed with respect to the Assam and other areas of the north-eastern parts of the country.
The CAA, which was passed on December 12, 2019, amends Section 2 of the Citizenship Act of 1955 which defines “illegal migrants”.
It added a new proviso to Section 2(1)(b) of the Citizenship Act . As per the same, persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Bangladesh or Pakistan, and who have been exempted by the Central government under the Passport (Entry into India) Act, 1920, or the Foreigners Act, 1946, shall not be treated as “illegal migrant”. Consequently, such persons shall be eligible to apply for citizenship under the 1955 Act.
The CAA specifically excluded the Muslim community from the proviso, triggering protests across the country and a slew of petitions were filed in the Supreme Court.
The petitioners challenging the law have submitted that the CAA discriminates against Muslims on the basis of religion. Such religious segregation is without any reasonable differentiation and violates right to quality under Article 14, it has been contended.
Amid nationwide protests against the legislation, the Supreme Court in January 2020 had issued notice in a batch of over 140 petitions, without staying the Act.
The Court had later hinted that the matter may be heard by a Constitution Bench, but no order was passed to that effect.
The affidavit by the Union Home Ministry said that that CAA is a narrowly tailored legislation which seeks to address the specific problem which awaited India’s attention for a solution since several decades.
“It is submitted that 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 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 present amendment,” the government submitted.
At the same time, CAA does not seek to recognize or seek to provide answers to all or any kind of purported persecution that may be taking place across the world or that may have taken place previously anywhere in the world, the affidavit clarified.
With the regard to the contention of the petitioners that the law violates right to equality under Article 14 for being arbitrary, the government contended that the apex court itself has provided wide latitude to the parliament to legislate on subjects concerning foreign policy, citizenship, economic policy etc.
Specifically on Assam and other north-eastern regions, one of the petitioners had contended that certain parts within the country had been included under the ambit of the law while certain parts kept out.
This, the petitioners had argued, was in breach of federal structure of the country and violative of Article 14.
But the Central government in its affidavit said that such classification of regions within the country, wherein parts are included and certain parts are not, is not a novel form of classification and the same exists in numerous legislations in the country.
“It is submitted that the classification of the excluded areas is not a new classification rather is a reaffirmation of the classifications already made by way of the Sixth Schedule and “The Inner Line” as notified under the Bengal Eastern Frontier Regulation, 1873, and therefore, the question of the classification being bad on the ground that it excludes certain areas and includes the others, cannot be a subject matter of challenge,” the government submitted.
With regard to Assam and Tripura, parts of which fall under the excluded areas and parts which do not, the said classification cannot be said to be discriminatory, the affidavit maintained.
“It is submitted that the tribal areas of Assam and Tripura, which are the most vulnerable in terms of scant indigenous population, are falling within the excluded areas of the CAA. It is submitted that the said portions of Assam and Tripura are classified at par with the entire states of Mizoram, Manipur and Arunachal Pradesh and almost entire states of Nagaland & Meghalaya being equally placed. It is submitted that with regard to the avowed object of the exclusion of certain areas from the CAA in order to protect the ethnic/linguistic rights and to protect them from getting swamped by large scale influx of migrants, the inclusion of non-tribal areas of Assam and Tripura in the CAA is not discriminatory as the said areas are not as thinly populated as other excluded areas and would not face the same consequences in case of immigration of persons,” the affidavit underlined.
The matter will be heard tomorrow by a bench headed by a Chief Justice of India UU Lalit led bench.
The affidavit in reply was drafted by Advocate Kanu Agarwal and settled by Solicitor General of India Tushar Mehta.
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