CAA in SC: Can perception and strategy outrun questions of law?

The Supreme Court order on January 22 to adjudicate 143 petitions challenging the constitutional validity of the Citizenship Amendment Act, 2019 (CAA) is on expected lines.

The court heard some of the petitioners represented by senior counsels and later plainly expressed its desire to seek the response of the Central Government as well. Up to a point, all these aspects of the courtroom exchanges based on the so-called principles of natural justice are predetermined.

However, what matters more for all stakeholders is, more than the constitutional validity or invalidity of the CAA, the public perception it would create in a courtroom context.

This requires us to seek answers to some basic questions. Is the filing of 143 petitions a ploy to put pressure on the court? Is the court the last resort to tick down an enactment which is inherently unconstitutional? Both seem plausible as courtroom battles are not just about ‘pure law’ alone. These high-stake legal battles are also based on strategies from all sides. Obviously, all these 143 petitions, more or less, would be based on similar or overlapping legal arguments. At certain stages of hearing, the court itself will eventually conceptualize the points to be addressed in the case.

For now, the courtroom conversations are for public perception. On a given day, when this case is being heard, one could see huge media presence on the Bhagawan Dass Road on which the Supreme Court is located. To be precise, it is located near the busy junction of iconic Pragati Maidan and ITO (known in Delhi circles as Income Tax Offices). It is from ITO via Bhahadur Shah Zafar Marg that the journey towards the historic Laal Qila (Red Ford) and Chandni Chowk begins. The highest court of the land, in one sense, sits at the junction of the real world of Indian ethos, unlike the legislature or the executive which wields its unbridled power from the Raisna hills.

The Supreme Court, therefore, as one of the three powerful organs of the Indian Constitutional scheme (others being the Parliament and the Executive) has a special responsibility to preserve and uphold basic tenets of the Constitution against exercise of unbridled power by the two other organs. However, many senior lawyers and old-timers point towards the dark patches in the history of the Supreme Court referring to such cases as ADM Jabalpur and few other cases where the court justified and aligned with the assertion of State power. That happened more than four decades ago in a certain political context. The court while dealing with this kind of a case and the kind of heat it is generating across the country is acutely aware of this historical baggage and its role as the upholder of the constitutional majesty.

All our courtrooms, in particular our higher judiciary, considering the kind of media glare to which they are subjected to, are no longer insulated from such elated objectivity. In this sense, even our Supreme Court, in more ways than one, is part of the whole process. The court process by itself might look apolitical, but there is an abundant awareness in the echelons of higher judiciary about the political impact it could create.

Accordingly, even in all these decisions and utterances of the court, the battle of perception is latently prevalent. How could the highest court of the land have stayed the operation of a law adopted by the both houses of Parliament without looking at its various legal and constitutional dimensions?

To be fair to the court, despite such strong backing by Parliament, on many occasions it had held many such laws as unconstitutional.

Further, there are also questions that have been asked of the courts as to how far they should remain sensitive to the laws that seek to shake the socio-political and religious fabric of society.

Overtly, the highest court of the land cannot express any opinion on such issues. That, of course, is not the domain of the court. Having stated this, its opposite is also true as our courts, adored by eminent legal minds, are not completely insulated by what is happening in the nation. Two aspects are clear, going by the initial reaction of the Supreme Court.

One, it is contemplating the constitution of a five-judge bench. Two, it has frozen all CAA cases filed in other high courts. This is an indication that the court is preparing for a conclusive and long-haul hearing.

Filing of a suit before the Supreme Court under Article 131 of the Constitution by Kerala challenging the legal unviability of CAA has added another dimension to the conundrum.

Besides Article 32 of our Constitution, which is part of our fundamental right to take appropriate writ remedies for violation of any of the basic structures of our Constitution in governing our nation by the State or any of its instrumentality, there are other remedies that are available for States to invoke such as Article 131. This provision of the Constitution seeks to resolve legal questions and disputes that arise between the Central Government and the States or between States.

Kerala and Chhattisgarh decided to invoke Article 131, which embodies the core federal structure of our polity, to seek answers regarding the implementation of a law that strikes at the roots of the basic structures of our Constitution, in their view.

The spontaneous and large-scale protests against CAA are still continuing in different parts of the country. The ruling party, however, is in total disagreement. According to them, it is a law which seeks to grant citizenship, not it take away. They also claim that there is nothing to fear, especially Muslims, about this enactment as it only seeks to provide citizenship to ‘religiously persecuted’ minorities in Afghanistan, Bangladesh, and Pakistan. The CAA list of such minorities in these countries includes Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities. The list, according to the government, does not refer to Muslims as they are not minorities in these countries.

However, there is a widespread fear and uncertainty among Indian Muslims and a firm belief that this law along with the imminent implementation of the National Register of Citizens (NRC), as stated by the Home Minister on the floor of Parliament, is going to largely and solely affect them, not other communities.

If one takes a careful look at the interplay of provisions of our Constitution (Articles 5 to 11 in Part II), Indian Citizenship Act, 1955 (with all its periodic amendments in 1985, 1986, 2003 and now at 2019) Citizenship Rules (that seek to implement the main enactment), NRC and National Population Register (NPR) some of the concerns raised during the anti-CAA protests need serious consideration.

The basis of the Indian Citizenship law emanated from Part II of our Constitution which clearly took into account the situation that arose on account of partition. The Constitution also mandated that a citizenship law be enacted to formalise these details. So, in 1955, the  Citizenship Act was adopted. It detailed various aspects relating to acquisition, termination and other related issues concerning citizenship.

Following this, Citizenship Rules were also adopted to implement the 1955 Act. Later, amendments were incorporated to the Citizenship Act to give effect to the Assam Accord. Even the Vajpayee Government in 2003 brought in changes to the Citizenship regime by introducing several changes that included a definition of an ‘illegal migrant.’  Any person who entered India without valid travel documents or who overstayed would be regarded as an ‘illegal migrant’ and would be dealt under Foreigners Act, 1946, an enactment of colonial vintage.

Under this law, a person without proper papers or valid documents would be dealt as a foreigner and could be deported as well. If no country could be identified to send this so called ‘foreigner,’ the person concerned would become ‘stateless’ in India.

There are several hundreds of them who are living in detention camps in Assam and elsewhere who are ‘stateless’ and without means to prove that they are Indian citizens. The onus of burden of proof under the Foreigners Act lies with person who has been accused as an ‘illegal migrant,’ not with the State.

In this context, if one takes a quick look at the just two page CAA adopted by our Parliament on 12th December 2019, it just exempted Hindu, Sikh, Buddisht, Jain, Parsi or Christian communities from Afghanistan, Bangladesh and Pakistan who entered India on or before 31 December 2014 from the purview of the definition of ‘illegal migrant.’ So, the Foreigners Act, 1946 would not apply to them. They would not become stateless. The precondition is that they must be in India before 31 December 2014.

The CAA law does not include even the phrase ‘religious persecution’ of any of these communities in its text. It is also not clear as to on what rational and reasonable basis (classification) these communities have been named. The Supreme Court will have to address some of the larger concerns that go beyond the territorial limits of India. Under international law and also under many other national laws, including India the legal regime to be applied to a ‘migrant’ should be entirely different from those which should be applied for a ‘persecuted’ (whether religious, political or otherwise) person.

A ‘migrant’ in any country generally contributes to its economy. He is in search of livelihood and for that he or she crosses the border with all the attendant risks. Both national and international law regard a person as a ‘refugee’ if he enters another country with a ‘well-founded fear of persecution. Citizenship laws do not apply to refugees, unless of course a State decides otherwise.

There are no easy answers to this all. Most importantly, the Indian Supreme Court decisions are public documents once they are delivered and are subjected to scrutiny globally. It is a law made by the court through interpretation and analysis. The world beyond India, especially the legal fraternity in several countries, will be keenly observing the response of the court to all these complex legal issues that would eventually secure the majesty of India’s Constitution entering its 70th year this January 26.

(The writer is Professor of International Law at the Centre for International Legal Studies, School of International Studies, JNU, New Delhi).