Union of India defends CAA by filing preliminary counter affidavit, writes Dharmananda Deb

way2barak, Oct.31: The Supreme Court on Monday fixed December 6, 2022 as the date for hearing on a batch of petitions challenging the validity of the Citizenship Amendment Act, (CAA) 2019. A bench of Chief Justice U U Lalit and Justices S Ravindra Bhat and Justice Bela M Trivedi granted time to Solicitor General Tushar Mehta for filing responses on behalf of Tripura and Assam State in this matter.

The court also nominated advocates Pallavi Pratap and Kanu Aggrawal for making a common compilation of documents to facilitate smooth hearing in the matters arising out of more than 230 petitions. The court asked the counsel representing the parties to file a written submissions of not more than three-page and indicate the time required for arguments.

The Union Government in a late Sunday evening told the Supreme Court by filing a detailed 150-page 68-paragraph preliminary counter Affidavit that Parliament is competent to make laws for the whole or any part of the territory of India as provided in Article 245 (1) of the Constitution of India. “Citizenship” is a part of the entry number 17 in List-I (Union List) under the Seventh Schedule of the Constitution and under Article 246(1) read with Article 11 of the Constitution of India, the Parliament has the legislative competence to frame citizenship laws for the country. Therefore, Citizenship Amendment Act, 2019 has been enacted by a competent legislature.

Further, Article 5 of the Constitution made every person domiciled in India on 26th January, 1950 a citizen provided such person was either born in India or either of whose parents was born in India or he had been ordinarily resident in India for not less than five years preceding 26th January, 1950. Further, Article 6 of the Constitution deems all migrants in India from Pakistan (including present day Bangladesh) as citizens of India if such persons or their parents or grandparents were born in undivided India as per provisions of the 1935 Act or such persons had migrated into India before 19th July, 1948. If such persons had migrated after this date and got registered before a competent officer and had been resident in India for at least six months before the date of registration, then such persons were also deemed to be Indian citizens. It is obvious that the Article 6 deemed a special class of migrants post-partition (which clearly took place on religious lines and resulted in large scale migration on religious lines) as citizens of India due to their very special circumstances.

It is also submitted by the affidavit to Supreme Court that the CAA is a benign piece of legislation which seeks to provide a relaxation, in the nature of an amnesty, to specific communities from the specified countries with a clear cutoff date. 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.

It countered the objection that the law was discriminatory as Muslims have also faced persecution in several other countries. It is submitted that the 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. It is submitted that in that regard, the CAA is a narrowly tailored legislation seeking to address the specific problem which awaited India’s attention for a solution since several decades as elaborated hereinabove. It is respectfully submitted that the constitutionality of such a legislative measure ought to be tested within that legislative domain and cannot be conflated to extend beyond that object and the reasons behind the Parliamentary cognizance of the issue by which the competent Legislature has, in its wisdom, devised a legislative policy to deal with the acknowledged problem of persecution of the particular communities in the specified countries who are, by their very Constitutions, theocratic countries. It is very much evident from the statement of objects and reasons appended to the CAA.

Simultaneously, It is also submitted by the Union Government through Affidavit that the issue pertained to foreign policy, where the Legislature and executive have a wider latitude. 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. The existing regime for obtaining citizenship of India by foreigners of any country is untouched by the CAA and remains the same. The legal migration, on the basis of valid documents and visa, continues to be permissible from all countries of the world including from the three specified countries. It is submitted that as per Sections 5 & 6 of the Citizenship Act, 1955 all foreigners [irrespective of their religion] living in the said specified countries [or other countries] can legally migrate to India and subject to fulfillment of conditions mentioned therein, apply for and get Indian citizenship if found eligible. So, 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.

In paragraph 18 of the Affidavit, the Union of India said that the Assam Accord was signed in 1985 to tackle the unique problems arising out of influx of illegal foreigners from Bangladesh into Assam and the subsequent agitation against this influx. It is submitted that some parts of the Assam Accord were included in the 1955 Act as Section 6A by the Citizenship Amendment Act of December, 1985. This section provides a special provision dealing with the citizenship of persons covered by the Assam Accord. Sub Section 8 of Section 6A provides that provisions of Section 6A shall have effect notwithstanding anything contained in any other law for the time being in force. The provisions of the CAA operate on a different footing, designed for a specific purpose, to achieve a specific object.

The Union of India also said that that the Section 6A (2) provides that such Bangladeshis of Indian origin who entered Assam up to December 31st, 1965 and who are ordinarily resident in Assam since then, shall be deemed to be Indian Citizens with effect from January 1st, 1966. Similarly, such persons of Indian origin who entered Assam from territory of present day Bangladesh between 1st January, 1966 and 24th March, 1971 would also be treated as citizens of India. However, they would be disenfranchised for 10 years from the date of their detection as a foreigner. The CAA does not amend or offend any of the provisions of Section 6A. It applies to a particular category of migrants from specified minority communities migrating to any part of India from any of the three countries up to 31 December, 2014 on account of persecution on grounds of religion or fear of such persecution. It does not incentivize influx of illegal migrants since the aforesaid migrants are already living in various parts of India.

The inhabitants of the classified communities from the particular neighbouring countries and their presence does not amount to “external aggression” and “internal disturbance”, the two grounds cited in Article 355 of the Constitution & discussed by this Hon’ble Court in Sarbananda Sonowal versus Union of India, (2005) 5 SCC 665. It is also said that Articles 325 and 326 of the Constitution of India cannot be read in isolation and the future grant of citizenship rights to persons of these prosecuted minority communities will not compromise the political rights of the existing citizens of India.  Rights under Article 325 and 326 would accrue to such migrants only after they have become citizens of India.

In paragraph 20 of the Affidavit the Union of India also said that the unfortunate partition of India led to large scale violence and systematic oppression of Hindus& Sikhs in Pakistan including East Pakistan due to which they migrated to India including Assam. The Assam Accord was signed between the Central Government, State Government of Assam, the All Assam Students’ Union (AASU) and the All Assam Gana Sangram Parishad (AAGSP) on 15th August, 1985. Clauses 5.1 to 5.6 of the Assam Accord were incorporated into section 6A of the Citizenship Act 1955 and came into force on 7th December, 1985. Clauses 5.1 to 5.9 of the Accord provide the basis for detecting foreigners including their exclusion/deletion from electoral rolls as well as their expulsion.

It is submitted that Sub-Section (2) of Section 6A provides that all persons of Indian origin who came to Assam from Bangladesh before 1 January, 1966 are deemed to be Indian citizens as from that date. However, as per sub-Section (3) of Section 6A, every person of Indian origin who came to Assam from Bangladesh between 1 January, 1966 but before 25 March, 1971, who are ordinary residents in Assam since then, and, who are detected as a foreigner by a Tribunal constituted under the Foreigners (Tribunals) Order, 1964, shall be registered under the rules made under Section 18 of the Act. Further, if their names were included in the electoral roll for Assembly or Parliamentary constituency, the same shall be deleted for 10 years from the date of detection. Sub-Section 4 of Section 6A states that such person detected and registered as a foreigner under sub-Section (3) shall have the same rights and obligations as a citizen of India, except from being entitled to having his name included in the electoral roll for a period of ten years. It is submitted that as per sub-Section (5) of Section 6A, a person detected and registered as a foreigner under sub-Section (3) shall be deemed to be a citizen of India from the date of expiry of the ten years from the date of detection as foreigner. Section 6A of the Act is therefore, limited to making provisions regarding citizenship of persons of Indian origin who came to Assam from Bangladesh up to 25-03-1971.

The Union of India also said that the “law” which exists, even as per the Assam Accord is the Immigrants (Expulsion from Assam) Act, 1950. The said legislation has a specific proviso [unamended by the present Legislative actions] under section 2 of the Act which granted protection from expulsion proceedings to any person(s) who on account of civil disturbances or the fear of such disturbances in any area forming part of the then Pakistan (now including Bangladesh) has been displaced from or has left his place of residence in such area and who has been subsequently residing in Assam. The civil disturbance or fear of such disturbance would cover persecution on grounds of religion or fear of such persecution and therefore, persons belonging to the minority communities in Pakistan and Bangladesh who have taken shelter in Assam due to persecution on grounds of religion or fear of such persecution as covered in the Citizenship (Amendment) Act, 2019 are protected from expulsion in terms of proviso to section 2 of the Immigrants (Expulsion from Assam) Act, 1950. It is therefore union of India submitted that even the Assam Accord as a political settlement recorded the statutory protection guaranteed to such persons.

CAA provides an exemption to persons belonging to certain minority communities coming from Afghanistan, Bangladesh and Pakistan and has general application beyond the Assam Accord as it is intended to apply to the whole territory of India except excluded areas which include the hilly regions of Assam which are part of the Sixth Schedule. The Union of India said that there is required to be a harmonious construction of the Assam Accord and the CAA as the CAA is a beneficial legislation intended for benefitting persons escaping religious persecution in particular neighbouring countries. The Assam Accord or the Memorandum of Settlement signed between Government of Tripura and a Tribal Group of Tripura i.e. All Tripura Tribal Force(ATTF) cannot form the basis of judicial review of legislation before this Hon’ble Court. By the exclusion of certain regions of Assam and Tripura, Parliament has tried to balance the interest of the classified communities and the indigenous people of Assam and Tripura.

The question of entitlement and conferment of citizenship and issues related thereto are within the plenary domain of the competent Legislature. The competent legislature devises its own legislative policy with respect to the issues concerning the citizenship. 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. The Union of India said that such decisions are the result of Parliamentary legislative policy based upon the executive – foreign policy decision making for which the constitutional courts may not have the requisite expertise to examine the parameters based upon which such legislative policy is enacted.