A three-judge Bench of the Supreme Court led by Chief Justice of India (CJI) U U Lalit will hear the challenge to the contentious Citizenship (Amendment) Act on Monday.
The Citizenship Amendment Act, 2019 seeks to grant citizenship to a class of migrants belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Bangladesh or Pakistan.
The Act was passed on December 12, 2019 and was notified on January 10, 2020.
While the government claimed the amendment was sympathetic and inclusionary, critics said it was unconstitutional and anti-Muslim. The law provoked widespread protests in the country.
The law, an amendment to the Citizenship Act, 1955, was challenged before the Supreme Court under Article 32 of the Constitution. The lead petitioner is the Indian Union Muslim League (IUML); other petitioners include politicians such as Asaduddin Owaisi, Jairam Ramesh, Ramesh Chennithala, and Mahua Moitra, and political parties and groups such as the Assam Pradesh Congress Committee, the Dravida Munnetra Kazhagam, and the Asom Gana Parishad.
The challenge rests primarily on the grounds that the law violates Article 14 of the Constitution that guarantees that no person shall be denied the right to equality before law or the equal protection of law in the territory of India.
The Supreme Court has developed a two-pronged test to examine a law on the grounds of Article 14. First, any differentiation between groups of persons must be founded on “intelligible differentia”; and second, “that differentia must have a rational nexus to the object sought to be achieved by the Act”.
Simply put, for a law to satisfy the conditions under Article 14, it has to first create a “reasonable class” of subjects that it seeks to govern under the law. Even if the classification is reasonable, any person who falls in that category has to be treated alike.
Those challenging the law argue that if protecting persecuted minorities is ostensibly the objective of the law, then the exclusion of some countries and using religion as a yardstick may fall foul of the test.
Further, granting citizenship on the grounds of religion is seen to be against the secular nature of the Constitution which has been recognised as part of the basic structure that cannot be altered by Parliament.
In the CAA challenge, the petitioners have asked the Court to look into whether the special treatment given to so called “persecuted minorities” from three Muslim majority neighbouring countries only is a reasonable classification under Article 14 for granting citizenship, and whether the state is discriminating against Muslims by excluding them.
The status of the case
The challenge has had only one substantive hearing since 2020. On May 28, 2021, the Government of India issued an order under Section 16 the Citizenship Act, 1955, giving district collectors in 13 districts with a high migrant population the power to accept citizenship applications from groups identified in the 2019 amendment.
The IUML filed an application requesting an interim stay on this order, after which the Union government filed a response. Since then, the case has not been heard.
The Government’s stand
The Home Ministry has told the Supreme Court in an affidavit that the May 2021 notification “has no relation whatsoever with the CAA (Citizenship (Amendment) Act, 2019)”.
The government cited instances of such delegation of power in the past. In 2016, the government used Section 16 and delegated its powers to grant citizenship by registration or naturalisation to collectors of 16 districts and home secretaries of governments of seven states in respect of migrants belonging to six specified minority communities of Afghanistan, Pakistan and Bangladesh, for a period of two years, the affidavit pointed out. This, it said, was done to fast-track the decision on citizenship applications of this category of foreigners.
In 2018, this delegation of power was extended until further orders.
The government argued that the notification “does not provide for any relaxations to the foreigners and applies only to foreigners who have entered the country legally”.
It also opposed the challenge to the notification and said that “it is inconceivable” that the intervention application can be filed in the original writ petition against the CAA.
What happens next
The listing of the CAA challenge indicates that the hearing will be fast-tracked. The court will have to ensure that all pleadings, written submissions are filed and served to the opposite party before it is listed for final hearing. Some petitioners could also seek a referral to a larger Constitution Bench. However, the challenge is to a statute and does not directly involve interpretation of the Constitution. These issues are also likely to be debated before the court allots time for the final hearing.