CAA:  Will the Supreme Court ignore the basic structure of the Constitution?

Hours before the Supreme Court, which had earlier refused to hear petitions challenging the Citizenship Amendment Act of 2019 till ‘violence ends’, takes up hearing of a batch of 144 petitions, there is buzz on what might happen in court.

The five possible outcomes have been listed by legal experts. They are :

1. The Supreme Court declares the CAA valid and constitutional and dismisses the petitions

2. The SC declares the CAA invalid and strikes it down

3. The court stays the CAA and agrees to hear the arguments.

4. The court refuses to grant a stay but agrees to hear petitioners.

5. The court refers the case to a larger Constitutional Bench.

The Government has already argued that Article 11 of the Constitution gives the sovereign state unfettered right over citizenship. Those who are challenging the CAA are arguing that the amendment is against the Constitution because it links citizenship to religion and is discriminatory.

In a perceptive blogpost, lawyer and Constitutional expert Gautam Bhatia, however, points out that while Article 11 does not place any limitation on the Government and gives it the right to regulate citizenship, there are implied limitations that the Supreme Court must look at.

Bhatia argued that no law passed by Parliament can go against the basic structure of the Constitution. And since the Supreme Court, in the Kesavanand Bharati case, has already ruled that secularism is part of the Constitution’s basic structure, the CAA cannot go against it.

Bhatia cites the example of the UK Supreme Court court which ruled against Prime Minister Boris Johnson last year when he tried to prorogue the Parliament. It held that the PM could not act against the principles of Representative Democracy, which required Parliament to deliberate and debate.

The relevant parts from Gautam Bhatia’s blogpost, published on Tuesday evening, are as follows:

In a constitutional democracy, no power is absolute. Constitutional authorities are established by – and owe their existence to – the Constitution, and the powers they exercise flow from that same Constitution. In some cases, these powers are limited in express terms. For example, Article 13 of the Constitution expressly limits Parliament’s power of law-making by making it subject to the fundamental rights chapter.

Article 11 of the Constitution – that deals with citizenship – contains no such express limitation. It gives to Parliament the right to “regulate citizenship by law”, and allows Parliament to make “any” provision with respect to acquisition and termination of citizenship, and “all other matters” relating to citizenship. Commentators have pointed to the width of these words to argue that in matters of citizenship, Parliament has virtually unlimited power (apart from the usual touchstone of the fundamental rights chapter).

What this argument ignores, however, is that express limitations are not the only manner in which constitutional authorities are constrained. As noted in Kesavananda Bharati, there also exist implied limitations that flow from the structure of the Constitution. When – and how – do we discern implied limitations? For the purposes of this post, a short answer will suffice: power under the Constitution to do “x” is limited at the point at which doing “x” will frustrate or destroy another, equally important constitutional principle. This principle was most recently reiterated by the UK Supreme Court in Miller v The Prime Minister, where the British Prime Minister’s power to “prorogue” Parliament was held to be limited by the constitutional principle of representative democracy, according to which it was Parliament’s function to scrutinise and debate important legislation. It was found that the Prime Minister’s prorogation – just before the deadline for Brexit – had the effect of denying Parliament an adequate opportunity to debate the proposed EU Withdrawal Bill, and was therefore unconstitutional.

What is the implied limitation in the present case? The answer is the constitutional principle of secularism. Secularism – as Kesavananda Bharati held – is a basic feature of the Indian Constitution (independent of its subsequent insertion into the Preamble during Indira Gandhi’s Emergency). The Indian Constitution commits us to being a secular polity. The key issue, then, is that can the conditions of entry into the polity (determined by citizenship law) be such that they frustrate the character of the polity itself. The answer, obviously, is no. In other words, therefore, there is an implied limitation upon the power under Article 11 to grant or withdraw citizenship, that does not permit Parliament to pass any such law that would negate the secular character of the polity – in this case, through the backdoor, by creating conditions of entry where religious claims become determinants of citizenship. To put it in a single sentence: the principle of secularism acts as an implied limitation upon Parliament’s power to legislate on citizenship. Parliament, therefore, has all powers to prescribe conditions of citizenship except and insofar as such conditions frustrate the Constitutional commitment towards preserving a secular polity.

Gautam Bhatia’s full blog can be read here