Supreme Court burdened with the onerous task of judging on the CAA’s constitutionality

| Updated on January 23, 2020

The question is whether Parliament should be regarded as the custodian of the people’s will in all situations, or whether it is subject to judicial checks and balances

After Ram Mandir and repeal of Article 370, the Supreme Court has had to wade into yet another contentious political issue — deciding on the validity of the Citizenship (Amendment) Act. The Court has displayed none of overzealousness and haste that characterised the passage within a week of the contentious CAA in Parliament. Amidst countrywide protests against the CAA, the three-judge Bench headed by Chief Justice Santosh A Bobde displayed a sense of procedural sobriety on Wednesday, as it commenced hearing as many as 144 petitions for and against the law. While pointing out that no law was “irreversible”, the Chief Justice duly allotted four weeks to the Centre to respond to the overwhelming number of notices and seemed to favour a Constitution Bench. Regardless of the arguments on both sides, the most striking feature of the Government’s response has been the refusal to engage with the protesters, essentially holding on to the view that a decision taken by Parliament cannot be reversed. The question is whether Parliament should be regarded as the custodian of the people’s will in all situations, or whether it is subject to judicial checks and balances.

The Indian judiciary is faced with an onerous task of reviewing a law that has instilled nationwide unease for allegedly going against the basic tenets of the Constitution. This is, however, not an unfamiliar juncture. Justice HR Khanna’s venerated dissenting judgment (ADM Jabalpur vs Shivkant Shukla, 1976) is still seen as an outstanding example of the judiciary upholding the primacy of fundamental rights (Article 21), despite the legislature ruling for their suspension under the Emergency. It can be argued that the new law does violate the secular character of law-making by linking the idea of citizenship to religion, and by introducing an element of religious discrimination. The Supreme Court is expected to examine the possibility of legislative overreach. It would surely bear in mind the infamous 42nd Amendment to the Constitution, passed during the Emergency, which underscored the unequivocal authority of legislature over the courts at that time.

The anxiety of the petitioners should ideally have been addressed by the Government. The CAA allows individuals of only six religious identities to acquire citizenship. By inserting a provision in Section 2 of the Citizenship Act, 1952 to change the definition of “illegal immigrant” to exclude persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities from Afghanistan, Pakistan and Bangladesh, the Amendment Act has altered the secular criteria for grant of citizenship. Along with the unfolding processes of National Population Register (NPR) and possibly the National Register of Citizens (NRC), it has created fear and anger among the Muslims who are citing their fundamental rights under Articles 14, 21 and 25. This could well be a Kesavananda Bharati moment for the Supreme Court.

Published on January 22, 2020

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