Why Supreme Court faces a balancing act with Citizenship Amendment Act

The apex court's anodyne order has left the question of the constitutional validity of the CAA wide open.

 |  4-minute read |   24-01-2020
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By refusing to stay the Citizenship Amendment Act, or CAA, the Supreme Court has sent out mixed signals. Those protesting against the CAA will be disappointed that the apex court did not order an immediate stay.

But they will take heart from Chief Justice of India (CJI) SA Bobde's observation that the 144 petitions challenging the CAA will be heard by a larger Constitution Bench after the government responds to the pleas before the court within four weeks.

Needs close scrutiny

The Supreme Court's anodyne order has left the question of the constitutional validity of the CAA wide open.

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A larger constitutional bench will take time to set up after the government responds to the pleas within the stipulated four weeks. Testing the constitutionality of the CAA will be complex and time-consuming. Buried in the legalese, the CAA will now become a festering wound. The religion-tinged Shaheen Bagh protests have suited the BJP's playbook. Protesters blocking access roads to schools and hospitals have earned the wrath of parents and relatives of patients stuck in ambulances.

Religious polarisation benefits the BJP electorally. The Congress, Left and minority-led parties know this. The Left and minority parties have little to lose and have backed the anti-CAA protests. The Congress, still conscious of its mixed vote bank of minorities and self-declared secular, liberal Hindus, has been coyer. It backs the protests, but its senior leaders stay away from Shaheen Bagh should the party lose its shrinking Hindu base.

In this realpolitik, the merits and demerits of the CAA have not been fully decoded. Consider first what the gazette notification on the CAA issued by the Ministry of Law and Justice says. Here is the critical clause 2: "In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), in clause (b), the following proviso shall be inserted, namely:- Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act."

A simple remedy

Clause 3 makes the intent of the CAA even clearer: "After section 6A of the principal Act, the following section shall be inserted, namely: '6B. (1) The Central Government or an authority specified by it in this behalf may, subject to such conditions, restrictions and manner as may be prescribed, on an application made in this behalf, grant a certificate of registration or certificate of naturalisation to a person referred to in the proviso to clause (b) of sub-section (1) of section 2." In short, stateless and paperless refugees who entered India before December 31, 2014, will get near-automatic citizenship — as long as they belong to the six non-Muslim religions identified in Clause 2.

Whether Article 14 of the Constitution on the validity of classification of groups holds or not will be adjudicated by the larger Constitution Bench. One way of defusing opposition to the CAA is by simply replacing the following 10 words in Clause 2 of the Act: "…belonging to Hindu, Sikh, Buddhist, Jain, Parsi, or Christian community…" with the following four words: "…belonging to persecuted minorities…". The government, of course, knows this would take the wind out of the protests' sails. But it doesn't necessarily want to do that.

The electoral prize of polarisation is far too tempting. Union Home Minister Amit Shah said this week that the CAA will not be withdrawn under any circumstances - protests or no protests.

Future ramifications

The only Opposition leader who has seen the trap the BJP has laid and into which the Opposition has walked is the Aam Aadmi Party (AAP) leader Arvind Kejriwal. The Delhi CM has kept far away from the Shaheen Bagh protesters, refused to answer questions on the anti-CAA movement, and remained silent on the subject on Twitter.

But what about the National Population Register (NPR) and the National Register of Citizens (NRC)? The government has announced that providing information under the NPR is both a constitutional requirement and entirely voluntary. But won't the NPR lead to the ominous NRC? The government knows the nationwide NRC will not be approved in the Rajya Sabha with even allies JD(U) and the Akalis opposing it.

The NRC is designed to weaponise the CAA. Without the NRC, the CAA — especially with a modified wording — is neutered. Shah has said categorically that he won't withdraw the CAA. But if the Supreme Court nudges him, will he tweak those 10 key words? Once the anti-CAA protests have had their desired polarising effect over a sufficiently long period, he may. As for the NRC, though unworkable in practice, it will remain on the BJP's agenda like an electoral sword of Damocles right up to 2024.

(Courtesy of Mail Today)

Also read: Remembering Mughal prince Dara Shukoh in Modi era of Hindutva and Citizenship Amendment Act

Writer

Minhaz Merchant Minhaz Merchant @minhazmerchant

Biographer of Rajiv Gandhi and Aditya Birla. Ex-TOI & India Today. Media group chairman and editor. Author: The New Clash of Civilizations

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