Constitutionality of Citizenship Act is too nuanced, protesters don't have agency to decide complex legal issues

In this previous piece on the debate on the constitutionality of the Citizenship Amendment Act (CAA), I rested my central argument on the presence of certain valid legal propositions that currently exist under Indian law, and hence, I argued, that the debate on the Constitutionality of the CAA has to be settled by the Courts of Law and not on the streets.

The simple reason was that the question is too nuanced, and is not as simple as the protesters make it out to be.

However, in an under-researched piece, Gaurav Mukherjee tried to rebut it, without even understanding what was the principal argument. My piece never discounts the presence of certain legal arguments against the constitutionality, which is evident in the concluding para. However, the emphasis is on equally strong, if not stronger arguments, that exist in favor of its constitutionality.

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As much as Mukherjee wants to assume jurisdiction, he is in no position to rule on the Constitutionality or the lack of it of the CAA. So are the authors of the blogs, which he quotes. It has to be decided by the Court on the basis of Law, which is found in the statute books and court judgements, not on blog posts.

A file image of anti-CAA protests in Assam. Firstpost

Those on the streets are functioning on the premise of a simplistic understanding that the CAA is 'blatantly' or 'inherently' unconstitutional. The protestors, much like all of us, do not have any agency to determine this question, simply because it has complex legal issues, which can only be settled in a court of law. My piece tried to bring forth the fact that the case of protesters may not be the only case in the court.

Mukherjee has raised a few contentions, which I will address sequentially.

Firstly, with respect to the question that whether illegal immigrants can approach the court, Mukherjee quotes that the petitions are filed as PILs and hence are maintainable without petitioners having the locus and that Article 14 is applicable to non-citizens too. He again, doesn't comprehend the argument.

Article 14, applies to citizens and non-citizens alike, there is no doubt about that. The word 'person' in Article 14, of course, includes foreigners who have validly entered the country. However, the word 'person' also includes 'illegal immigrants', who have criminally sneaked into the country, is arguably not correct. Simply because it arises of an illegality. That is, illegal immigrants, because they are illegal, don't constitute a single class, and can be differentiated. Much to the disappointment of Mukherjee, my argument is based on law, and not on 'popular articles'. The Supreme Court has held in General Manager, Uttaranchal Jal Sansthan versus Laxmi Devi & Ors, that:

'Equality clause cannot apply in a case where it arises out of illegality.'

Hence, this point on maintainability, is more nuanced than how Mukherjee understands it.

Secondly, Mukherjee quotes a judicial opinion and a few blog posts to drive home the point that the CAA is manifestly arbitrary. However, the author would have done well if he had read MP Jain's Indian Constitutional Law, which is a basic book, and has good number of case laws quoted in it.

The argument against arbitrariness originates from the simple fact that the government recieved, at least, 31,000 applications from illegal immigrants who are from minority communities from Pakistan, Afghanistan and Bangladesh. The government in pursuance of this and in consideration of the persecution these people had faced, decided to legally expedite their naturalisation. There is reasonability in the classification, on account of the applications being from only these countries and the intelligible differentia is based on the persecution, which is well documented and is known.

My argument on Executive supremacy doesn't arise from popular articles or blog posts but from two judgments of the Supreme Court in Sarbananda Sonowal versus Union Of India & Anr and Mr. Louis De Raedt & Ors verus Union Of India And Ors. Mukherjee, conveniently skips to deal with the law laid down in these judgments entirely which have been duly quoted in my earlier piece. I will again quote the relevant law from the judgments:

"The power of the Government of India to expel foreigners is absolute and unlimited…"

The court also held that the power to expel an illegal immigrant is coexistent with territorial sovereignty. In simple words this also means, that the Judiciary will not hold an enquiry into it, because this power is 'unrestricted' and 'unlimited'.

The purport of these words — unlimited and unrestricted — is very straightforward that there are no constitutional limits on such a power of the executive. Therefore, if someone has been identified as an illegal immigrant, the decision to expel them is entirely an Executive decision and is a matter of policy. The corollary will also naturally be true, that is, to keep an illegal immigrant is also a sovereign and an executive function.

Applying the above jurisprudence to the rationale of choosing three countries, which are covered by the CAA to the exclusion of others, will also be a matter of policy. It is not a legal or a constitutional question. In US jurisprudence, such an enquiry is known as a 'political question'. Simply because, these questions are engaged by policy and there are no constitutional issues involved to settle them.

The executive can't be compelled to naturalise all illegal immigrants, it can legally choose to do it from a set of countries to the exclusion of others. This is so, because such questions can require consideration of international relations and foreign policy of the country. Hence, the judiciary, as has been accepted by the court itself, can't get into the merits of such a decision.

The author is an Assistant Professor at Maharashtra National Law University, Mumbai