Safi H. Jannaty | Caravan Daily
THE REFUSAL by the Supreme Court to grant a stay on the controversial Citizenship Amendment Act (CAA) will keep the nation embroiled in anxiety and restlessness for at least another one month. The divide between the people who support CAA and those who oppose it will grow further. Unfortunately, the unyielding and somewhat obstinate manner in which Prime Minister Modi and Home Minister Amit Shah have been defending their ground on CAA makes one suspect they actually wished the nation to simmer and fume for long.
The diffidence of the PM and the HM is manifest from the fact that, instead of addressing or meeting communities and groups that feel the law is harmful to the nation, they are busy organising rallies to gather support for the new law. This is presenting a very piquant and odd situation.
It is a set universal practice for courts to broadly test three primary conditions vis-a-vis granting a stay or interim relief – namely, a balance of favour; a stay not causing irreparable harm; and presence of prima facie evidence for or against. Indian courts too have relied on these parameters and, as recently as last November 2019, a bench of the Supreme Court comprising Justice Deepak Gupta and Justice Aniruddah Bose clearly outlined the requirements in the case of State of Mizoram Vs. Pooja Fortune Pvt. Ltd.
As regards the balance of convenience doctrine, courts are required to determine whether it would do greater damage to the petitioners if the injunction was not allowed, than it would do to the respondent if the injunction or stay was granted. In the subject case, petitioners from the North Eastern States are faced with the direct and adverse impact from the operation of the Act. Hence, from the balance of convenience perspective, they happened to be in jeopardy and the State has nothing to lose with the stay or a delay in implementation of the law. There is no question of any irreparable loss to parties who are poised to benefit from the Act. A delay of a few months would not change their fortune or situation.
In fact, if the Act is allowed to operate, it might end up giving citizenship to illegal migrants falling in the set category; and if the court were to declare the law unconstitutional later, it would not be possible for the government to reverse the process. As far as presence of prima facie evidence is concerned, a total of 153 petitions filed by people from different political parties, social groups and individuals across the nation present a stronger basis.
Besides, the rallies, sit-ins, marches, demonstrations and the like by millions of people in different cities and towns reflect non- acceptability of the law among sizeable sections of the citizens. Chief Justice SA Bobde who headed the bench himself had remarked earlier that the nation was going through a critical time. Thus, except for stifling the ego of the ruling party the BJP, the stay would not have irritated the nation in any manner. Rather, it would have worked as a balm to soothe the agitating minds and prompt people return to their normal life.
In all cases, the apex court’s intent to refer the issue to a Constitutional bench must have shocked those who thought the court would dismiss the petitions in the first hearing and declare the law fully constitutional. Seen from the perspective of the case and the law on provisions covering fundamental rights and basic structure of Constitution, it will be very difficult for the government to get away with its act.
First, the Act might not pass the criteria set for a reasonable classification vis-à-vis the right to equality and equal protection by law enshrined under Article 14 of the Constitution. While reasonable classification is allowed, class legislation abrogating or abridging the aforesaid fundamental right is not permissible. If argued properly, the court might classify the amendment as class legislation, since CAA treats two sets of equal people as un-equal.
ALIBI OF RELIGIOUS PERSECUTION
The alibi of religious persecution cleverly added in the statement of objects and reasons of the Bill, the only difference being pitched by the government, might not stand the test of reasonable classification.
Let us turn to the most-cited landmark judgement, the ‘Kesavananda Bharati Sripadagalavaru versus State of Kerala’ of 1973. While accepting the power of Parliament to legislate any law including the laws involving fundamental rights, it has ruled that Parliament cannot make laws which affects or touches the basic structure of the Constitution.
There is no denying the fact that, although added later in the preamble, Secularism has been an integral part of the basic structure of Indian Constitution. Thus, the CAA not only infringes upon several fundamental rights, but it also stirs the secular ethos and fabric of the Indian Constitution.
Safi Jannaty is a Saudi Arabia-based Indian writer and Contributing Editor. All opinions and views expressed in columns and blogs and comments by readers are those of individual writers and do not necessarily reflect the editorial policy of Caravan Daily.