The government’s disingenuous defence of the CAA and NRC in the Supreme Court

Protest against CAA and NRC in December 2019 at Lenin Sarani Road, Kolkata. Swapnajit Bannerjee
10 April, 2020

On 17 March, the union government filed a counter affidavit in the Supreme Court in response to at least 144 petitions challenging the Citizenship Amendment Act, 2019. The act had paved the way for members of six communities, namely Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, who entered India before 31 December 2014, from three countries—Pakistan, Bangladesh and Afghanistan—to avail Indian citizenship with ease. As the government is likely to go forward with a plan to prepare a National Register of Citizens, the act has been perceived by petitioners as a cushion for the six communities if they are found to be without documents that can prove their citizenship. Since Muslims are the only large group that has been excluded from the CAA, the NRC is likely to be an existential threat to the citizenship of members of the community.

Defending the CAA in its counter affidavit, the government called it “a reinstatement of Indian ideals of secularism, equality and fraternity.” It also defended the preparation of an NRC as a “necessary exercise” and a “responsibility” conferred on it through a “combined reading” of  the Foreigners Act, The Passport (Entry into India) Act, 1920 and the Citizenship Act 1955.

The defence of the NRC in the submission contradicted the claim of the prime minister Narendra Modi who, in December 2019, had claimed that his government had not had a single discussion on the pan-India NRC. 

The affidavit got little media attention because that same day, the government also issued travel advisories banning any passenger from countries of the European Union, United Kingdom and Turkey from entering the country in light of the COVID-19 outbreak. That day, almost all television channels ran prime-time panel discussions on the travel advisory. 

The government’s defence of the CAA and NRC, as evident from the affidavit, comes across as deeply disingenuous. It provided convoluted and often incoherent arguments for why it chose these six specific communities, from three specific countries. In its attempt to answer various points raised in the petitions, the government has cherry-picked historical data and made assertions based on scant evidence. The affidavit is riddled with contradictory statements and unconvincing extrapolation of existing laws. It also does nothing to address allegations of many critics that the combination of the CAA and the NRC are an attack on the citizenship of Indian Muslims.

The government’s affidavit categorised the petitioners’ contentions under twelve broad categories and responded to each of them individually. The most important contentions it responded to included the CAA and the proposed NRC’s violation of various Articles of the Constitution—the Articles 5 to 11, which deal with conditions for conferment and withdrawal of one’s citizenship; Article 14, which guarantees equality before law; Article 15, which prohibits discrimination; Article 19, which guarantees freedom of expression; Article 21, which guarantees the right to life; and Articles 25 to 28, which define secularism which is considered among foundational principles governing the Constitution. It also responded to the contentions that the proposed NRC flouts international covenants. 

Besides the CAA, petitioners have also challenged other laws that the government could possibly use for an NRC exercise. They have challenged Section 14A of the Citizenship Act 1955, which was added to it in 2003 by the then BJP-led government. Section 14A mandates the registration of every citizen of India and issuance of identification cards to them. One of the provisions of Section 14A gives the executive the power to frame rules for such an exercise. The petitioners have alleged that the provision gives the executive “excessive” power. Further, the petitioners have challenged the Section 9 of the Foreigners Act 1946, a pre-Independence law dealing with identification, detention and deportation of foreigners. The provision puts the onus of proof on the individual accused of being a foreigner. The government, in its response, defended both the challenged provisions. 

On behalf of the government, BC Joshi, a director in the ministry of home affairs, filed the affidavit before the court. The submission listed out a history of citizenship laws—events that triggered migration such as creation of Bangladesh, and parliamentary reports on migration from West and East Pakistan prepared since Independence. Through these, the government tried to argue that “religious persecution” of the six communities who have been made eligible for citizenship under the CAA had been documented and discussed by the government or in Parliament for several decades. 

However, none of the evidence produced by the government mentioned the six specific communities included in the CAA. When it came to granting citizenship, governments had used broader terms such as the “persecution of minorities.” In the 1980s, the ministry of home affairs passed guidelines to provide preferential exemption to Hindus and Sikhs of Pakistan and Bangladesh while availing them long-term visas. From time to time, similar guidelines have been issued by the government. In 2011, the ministry also added Buddhists and Christians of the two countries in its exemption list. But most of these have been described as “instructions” from the ministry of home affairs and seem to lack the weight of legislation. The government produced no evidence indicating there was ever a legislative decision made with specific religions being cited as a criteria.  

The government also revealed some other decisions it has taken following the same logic applied in the CAA. Before the CAA was passed in December 2019, the government had already amended the legislative rules dealing with the stay of individuals from the six communities from the three countries. This included how the Foreigners Act 1946 would apply to people from these communities without valid documents. In September 2015, the Narendra Modi government amended the Passport (Entry into India) Rules, 1950 and the Foreigners Order 1948 through two executive orders. The amendment to the former allowed the stay of the six communities in the country without any valid document, which until then was an illegal act; while the latter exempted them from the Foreigners Act, which otherwise mandates detention of those identified as foreigners without documents. Both the rules though, only allowed illegal migrants from Pakistan and Bangladesh. In July 2016, the government again amended both the rules and substituted “Bangladesh” with “Afghanistan and Bangladesh.” In October 2018, through another executive order, the government allowed the six communities from the three countries to stay in India indefinitely. 

The government, in its submission, argued that the CAA was a “narrowly tailored legislation” to address a “specific problem.” It claimed that the CAA gave legislative status to the executive amendments that the government had brought before. But in this argument, the government is assuming that the orders it had passed earlier also complied with the Constitution and law.

Under the Citizenship Act 1955 and its subsequent amendments, there are broadly three criteria for conferment of Indian citizenship to an individual: birth, descent and period of residency of an individual. The religion of an individual or “persecution based on religion” has never been a criteria for conferring citizenship under any law. 

Article 14 guarantees equality before law, but permits classification of people for achieving specific goals. For a classification to not be arbitrary, it must be based on “intelligible differentia,” which means a reasonable classification of groups—for instance, in the case of the CAA, those entitled to the benefits of the act and those who are not. This classification must also have a “rational nexus” to the objective of the law, which means that the classification must be based on and further the specific goal sought to be achieved under the act. 

The government argued that the classification of the six communities is reasonable because all the communities in the three countries face persecution for practising their religion and all of them were numerically minorities there. As evidence of ongoing religious persecution of the communities, the government produced its own press releases, diplomatic letters sent to the High Commission of Pakistan, complaints received from members of parliament and the question and answers asked in both houses of Parliament related to the persecution of such minorities in Pakistan, Bangladesh and Afghanistan over the last few decades. Most of these questions were asked in Parliament by BJP MPs themselves. Most of the complaints given to the ministry of home affairs or external affairs about the persecution have also come from BJP parliamentarians. In the affidavit, the government provided a list of complaints received from NGOs on persecution, which included one from the militant organisation, Hindu Janajagruti Samiti—a faction of the Sanatan Sanstha, whose members have been chargesheeted in cases of several bomb blasts on Muslim shrines and mosques. 

The government also said that the classification of the six communities was based on religious persecution and it was not unprecedented. However, in citing the precedence it made a flawed analogy. “Article 6 of the Constitution deems all migrants from Pakistan in India as a citizen of India if such persons or their parents or their grandparents were born in undivided India or such persons migrated into India before 19th July 1948,” the government wrote. “If such persons migrated after this date and got registered before a competent officer and had been resident in India for at least six months before the registration, then such persons were also to be deemed Indian citizens.”

Citing Article 6 as a possible precedent for the CAA is clearly an underhanded tactic considering that it does not require any person to be from a particular religion, much less from the six communities categorised by the current government, for them to be granted citizenship. But the government erroneously insists in the affidavit that religion is of importance to Article 6. It submitted, “It is obvious that the Article 6 deemed a special class of migrants post-partition (which clearly took place on religious lines which resulted in large scale migration also on religious lines) as citizens of India due to their special circumstances.” Article 6 facilitated the Nehru–Liaquat pact, which allowed displaced refugees of India and Pakistan to return to their places of origin. An official report of the home department of Assam government noted that the pact led to the return of around 161,000 “displaced people” from East Pakistan into India. There is no mention of a specific religion in Article 6 or in the official report. Yet, the government projects the provision of the Constitution as one in which migrants were classified based on their religion. 

The government also quoted the findings of a joint parliamentary committee—constituted in 2016 to deliberate on the Citizenship Amendment Bill before it became a law—from its visit to refugee colonies in Jodhpur. The government affidavit said that the refugees told the committee members that Hindus were persecuted in Pakistan on the basis of religion. The findings were based on oral interviews of the inhabitants. There is also no mention in the affidavit of any interaction of the government officials or parliamentarians with Afghani refugees anywhere in India. 

The petitioners had also contended that the grouping of the six communities was arbitrary because it left out several other communities from the three countries who were also persecuted due to their practicing faith, such as the Ahmadia, Shia, Baháí, Hazara, Jewish, atheist and Baloch communities. If the rational nexus of the classification of the six communities benefitting under the CAA was based on their persecution, the petitioners argued that these communities ought to have been included under the ambit of the law as well. 

The government, however, called the contention “erroneous” in its submission. It rather submitted that the inclusion of those communities from the three countries would “impair” the intelligible differentia. The government said it considered persecution of those communities as “intra-religious” whereas it wished to recognise only “inter-religion” persecution which is different and distinct. It wrote, “It is submitted that intra-religious persecutions or sectarian persecution or persecution due to non-recognition of particular sects to be within the fold of majority religion in the said countries, cannot be equated with the persecution of religious minorities admittedly following and practicing a different and completely distinct religion than the majority religion in particular neighbouring countries.” Why the government sees persecution of say Baháís in Pakistan as an “intra-religious” matter can be best explained by the government itself. 

Several members of the joint parliamentary committee had advised the government against classifying persecuted communities based on their religion. They had warned the government that all previous judgments of the Supreme Court did not support such classification. However, the government did quote this part of the committee’s report in its submission before the court. 

According to the report, a constitutional expert who was a member of the JPC, advised the government to not name the religions and instead use the term “persecuted minorities.” “Firstly, the term minority has not been defined in the Constitution. I would submit that the minority doesn’t mean only the religious minority. It may be minority on other ground,” the JPC report said, quoting the constitutional expert. “If you say persecuted minorities, it will cover all those people you have in view.” The expert further said to the government, “... If you want to be on safer side, we would have to omit reference to religion like Hindus, Sikhs, Parsis, etc. I again submit that if we use the term persecuted minorities the purpose would be served. As compared to communities, minority would perhaps be more useful from the legal and constitutional point of view.”

The government also gave a bizarre justification for choosing only three countries for the purpose of rehabilitating these six communities. It said that Pakistan, Afghanistan and Bangladesh were picked because all of them had a “state religion.” It did not, however, explain how having a state religion aided or fuelled the persecution of the six communities. Another absurd explanation was that all these countries had seen violent conflicts in the last few decades. The government submitted that Afghanistan was invaded and went through a civil war, and that Pakistan had seen several military coups. It said that East Pakistan, too, underwent a civil war before it became Bangladesh. The government did not explain how these political events had any bearing on persecution of the six communities. 

To the contention that Buddhists of Tibet, Tamil Hindus of Sri Lanka and Rohingyas of Myanmar also faced persecution but are not covered under the CAA, the government said that the issue of Tamil Hindus and Rohingyas are being dealt under a “separate” mechanism. Again, the government did not explain what those separate mechanisms were and why they could not be covered under the CAA. Finally, perhaps recognising the unreasonable choice to limit the law to these three countries, the government said the inclusion of the countries was a matter “foreign policy” and should be left to the legislative body. The government submitted that “under inclusiveness” or “over inclusiveness” cannot be a ground for challenging a law. 

To defend the alleged non-secular nature of the act, the government used its own unreasonable grouping together of the three countries. “The assertion that the CAA is against any particular community is erroneous, unfounded and designedly mischievious,” it argued. “It is submitted that the CAA also results in not granting any kind of exceptions/exemptions to Tibetan Buddhists from China and Tamil Hindus from Sri Lanka.” In other words, to defend the act, the government was arguing that not just Muslim sects, but Hindus of certain countries were also left out from the CAA. This contradicted the government’s own claim in the same submission a few paras earlier that the Tamil Hindus of Sri Lanka and Tibetan Buddhists were kept out of CAA because they were to be helped under a “separate” mechanism, and their inclusion or exclusion depended on “foreign policy.” This was also a false equivalence, as unlike in the case of the six communities, no single Muslim community in South Asia has found its place in the CAA. The government thus did nothing to allay the fear that its choice of three countries and six communities was designed to keep Muslims out of the CAA. This would mean that there is no cushion for the community in the event the NRC takes place. 

Contradictions were peppered throughout the affidavit. At one point, the government argued, “It is unequivocally submitted that the CAA has, in no manner whatsoever, made religion a basis of determining citizenship of a person.” Then, one paragraph later the government submitted: “merely because religion is the starting point of any classification [and not the sole basis of classification] (sic), would not imply such classification falls foul of the principles of secularism.” 

Defending the alleged violation of Articles 15 and 19, the government offered a technical argument. It submitted that the petitioners cannot claim these rights to equality and freedom of expression “on behalf of illegal migrants” because these rights were available to Indian citizens only. The government submitted that the CAA did not violate the Articles 5, 6, 7, 8, 9 and 10—which deal with conferment of citizenship based on birth, descent, residency, naturalisation—because Article 11 gave Parliament an overriding power to make any new law to confer citizenship on a new class of communities. It quoted Article 11 in its defence: “Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.” 

The government submitted that the right to life of the citizens will not be violated by the “proposed NRC” because the preparation of the register has been a part of the Citizenship Act, 1955 since 2004 under Section 14A. The provision provided for the preparation of a national register of citizens and issuance of identification cards to Indian citizens. The home ministry’s director submitted, “I state and submit that the legal provisions regarding the National Register of Citizens i.e. Section 14A of the 1955 Act have been part of said 1955 Act since December, 2004. It is submitted that said provisions consist merely of the procedure and the authority concerned for the preparation of a national register of citizens. It is submitted that the preparation of a national register of citizens is a necessary exercise for any sovereign country for mere identification of citizens from non-citizens.”  

The petitions also allege that Section 14A amounts to what is known as “excessive delegation”—a judicial doctrine which holds as unconstitutional any law where the legislature grants too much power to the executive, giving it too much discretion on how it would interpret and implement the law. The government defended the law saying that it merely delegated the framing of rules “with regard to the procedure to be followed.” The government said, “It is submitted that the delegation does not include the delegation of power to frame criterion or requirements of citizenship of Indian nationals.” This is a misleading claim as the government retains the power to change the rules governing the National Population Register, a record of all residents of India that is to be used to prepare the NRC. This means the government can set the criteria for who is considered doubtful and needs to be reverified for citizenship. It recently changed the requirements for the preparation of the NPR. The exercise, as announced by the home minister earlier, now requires citizens to give details of place of birth of their parents and of their Aadhaar card. These requirements were not there when the NPR-preparation exercise was first conducted in 2011 under the Congress regime.

The CAA, as per the government, would apply to those from the six communities and the three countries who had entered India before 31 December 2014—the year when Modi first formed government. The petitions have called this date arbitrary. In its defence, the government said, “The country does not have and has never had an open ended provision for citizenship.” The government did not explain how it arrived on the date. While the provision for citizenship had never been open ended, all the cut-off dates, such as 19 July 1948 for India and 24 March 1971 for Assam, previously decided based on political landmarks—respectively, the independence of India and creation of Bangladesh. 

In defence of Section 9 of the Foreigners Act, the government submitted that it has been upheld by Supreme Court in 2006 in the Sarbananda Sonowal vs Union of India case. The provision puts the burden of proving their citizenship on the individual accused of being a foreigner. The government submitted, “This Hon’ble Court had also observed that though in a criminal case the general rule is that the burden of proof is on the prosecution but if any fact is especially within the knowledge of the accused, he has to lead evidence to prove the said fact.” The judgment though errs in not considering the fact that the evidence in possession of the accused in such cases is sometimes dismissed by the state or central authorities who issue identification documents and are in charge of authenticating these documents. While reporting on the NRC-updation exercise in Guwahati, I witnessed how the provision of burden of proof puts an individual in perpetual disadvantage in proving one’s citizenship, as the police and judiciary body refuse to acknowledge an individual’s documents over minor mistakes. 

One of the provisions of the CAA, which is also under challenge, gave the government the power to cancel the citizenship of overseas citizens of India. The government in its defence submitted that the OCI cardholders are not Indian citizens and are given visas for longer stays. So, the government argued, it should have the power to withdraw such facility if any OCI holder violated any law or provision of the CAA. The government submitted it was within its power to make such a law. 

The submission follows conflicting statements given by the prime minister and home minister Amit Shah over the last six months on the NRC. While Modi had claimed that the NRC had not been discussed by his government, Shah at several times, including once in Rajya Sabha, said that the NRC is inevitable. The affidavit has now proven that the government’s official position is more in line with statements made by Shah.