Table of Contents
THE CONTEXT: The Supreme Court of India will, sooner or later, consider whether the Citizenship (Amendment) Act (CAA) and its rules can pass constitutional scrutiny. The recently promulgated CAA Rules are unclear about the fate of applicants whose requests for citizenship are turned down, which has aggravated concerns over the issue. There is also a fear that persons whose applications are disallowed might end up in detention centers.
ISSUES:
- Constitutional Scrutiny and Judicial Review: The Supreme Court of India must determine whether the CAA and its rules can pass constitutional scrutiny. It emphasizes the importance of solid judicial adjudication, especially for laws that may be unconstitutional or divisive.
- Unclear Fate of Applicants: The recently promulgated CAA Rules are unclear about the fate of applicants whose requests for citizenship are turned down. This ambiguity has raised concerns about the potential for these individuals to end up in detention centers.
- Dual Citizenship Concerns: Some petitioners have raised concerns about the possibility of dual citizenship for foreign applicants, which could create uncertainty about citizenship and go against the spirit of the Parent Act.
- Targeted Legislation and Legislative Malice: It is argued that the CAA is a form of targeted legislation that discriminates based on religion by excluding Muslims from the process of granting citizenship. This legislative malice calls for rigorous judicial scrutiny.
- Judicial Presumption of Validity: It criticizes the conventional presumption that laws made by Parliament are valid unless proven otherwise. It suggests that this presumption is outdated and inadequate for addressing contemporary challenges posed by populist regimes and motivated legislation.
- Need for Timely Judicial Intervention: The stress should be on the importance of timely judicial intervention to prevent the implementation of unconstitutional laws. Delays in judicial review can render the process ineffective, as seen in past cases like demonetization and the dilution of Kashmir’s special status.
THE WAY FORWARD:
- Clarify and Amend Dual Citizenship Provisions: Amend the CAA Rules to explicitly require applicants to renounce their previous citizenship before being granted Indian citizenship. This would align the rules with Section 9 of the Citizenship Act of 1955 and Article 9 of the Constitution, which prohibit dual citizenship.
- Inclusive Criteria for Persecuted Groups: Expand the criteria to include all persecuted groups regardless of religion. This would address the petitioners’ concerns about the arbitrary exclusion of certain groups and ensure that the law is not discriminatory. For instance, including Ahmadiyyas and Rohingyas would protect some of the most persecuted communities in Pakistan and Myanmar, respectively.
- Establish Clear Procedures for Rejected Applicants: Develop and implement procedures for handling rejected applications, ensuring these individuals are not placed in detention centers. This could include providing legal avenues for appeal and ensuring that rejected applicants are treated humanely and by international human rights standards.
- Judicial Review and Timely Intervention: The Supreme Court should adopt a more proactive approach to reviewing and potentially staying the implementation of laws that are challenged on constitutional grounds. This would prevent irreversible consequences and uphold the judiciary’s counter-majoritarian role. For example, issuing timely stays on contentious laws, as was done in the case of the farm laws, can prevent potential harm while the court deliberates.
- Comprehensive Refugee Policy: Formulate a comprehensive refugee policy that is inclusive and based on clear, non-discriminatory criteria. This policy should be aligned with international standards and ensure that all persecuted individuals, regardless of their religion or country of origin, are eligible for protection. This would address the fundamental flaws in the CAA and ensure that India’s refugee policy is fair and just.
THE CONCLUSION:
Regarding statutes that are glaringly unconstitutional or divisive, the process of judicial review should be firm, immediate, and unambiguous. The top court should be able to learn from its track record and understand the political consequences of its insensitivity during critical times. Delay often defeats the purpose of constitutional adjudication. Time is the essence of judicial review regarding malicious and unconstitutional laws.
UPSC PAST YEAR QUESTIONS:
Q.1 Constitutionally guaranteed judicial independence is a prerequisite of democracy. Comment. 2023
Q.2 Do you think India’s constitution does not accept the principle of strict separation of powers? Instead, it is based on the ‘checks and balances’ principle. Explain. 2019
Q.3 The Supreme Court of India checks the arbitrary power of the Parliament in amending the Constitution. Discuss critically. 2013
MAINS PRACTICE QUESTION:
Q.1 Discuss the constitutional issues raised by the petitioners against the CAA and its rules, focusing on the concerns regarding dual citizenship and the exclusion of specific communities. How should the Supreme Court balance the presumption of validity of parliamentary legislation with the need to protect constitutional principles in cases of alleged targeted legislation?
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