• UGI USER
  • May 21, 2024
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CRITICAL TIMES CALL FOR STRONG JUDICIAL ADJUDICATION

SYLLABUS:

  • GS 2: Statutory, regulatory and various quasi-judicial bodies.

Focus:

  • The Supreme Court of India will eventually address whether the Citizenship (Amendment) Act (CAA) and its rules can withstand constitutional scrutiny.
Source: OAG

Introduction

  • The Supreme Court of India will eventually address whether the Citizenship (Amendment) Act (CAA) and its rules can withstand constitutional scrutiny.
  • The recently promulgated CAA Rules are unclear about the fate of applicants whose citizenship requests are denied.
  • There are concerns that rejected applicants might end up in detention centres.
  • Petitioners have raised issues about dual citizenship for foreign applicants, which could lead to uncertainty in citizenship matters.
  • This ambiguity goes against the spirit of the parent Act, as pointed out by some petitioners.

Legislative Malice and Judicial Review

  • Interdicting a statute or set of statutory rules is not a routine exercise for constitutional courts.
  • Laws made by Parliament are presumed valid unless shown to breach constitutional provisions.
  • The law presumes malice cannot normally be attributed to the legislative process (Manish Kumar vs Union of India, 2021).
  • In Gurudevdatta Vikoos Maryadit vs State Of Maharashtra (2001), the Supreme Court stated that “legislative malice is beyond the pale of jurisdiction of the law courts.”
  • This conventional wisdom is inadequate for addressing challenges posed by populist regimes using motivated legislation.

Cases Illustrating Judicial Challenges

  • The case of Vivek Narayan Sharma vs Union of India (2023) highlighted the irreversible situation due to lack of judicial interdiction regarding Kashmir’s special status.
  • The Anoop Baranwal vs Union of India (2023) case called for an independent body to select the Election Commission of India (ECI).
  • Recently, the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, revived the earlier position of the “Prime Minister’s Committee” choosing the ECI.
  • This Act was challenged in Jaya Thakur vs Union of India (2024), but the Court refused to prevent its operation, presuming its validity.
  • This situation shows how judicial superstition regarding the presumption of validity can undermine democracy.

Examples of Targeted Legislation

  • The CAA and its rules clearly fall within the category of targeted legislation, excluding Muslims from the process for granting citizenship.
  • The Muslim Women (Protection of Rights on Marriage) Act (2019) criminalised instant triple talaq, despite the act already being invalidated by the Supreme Court.
  • This statute motivated some husbands to resort to other means of divorce or simply desert their wives to avoid penal consequences.
  • Anti-conversion laws in certain states also follow a similar divisive agenda.
  • Such laws are aimed against specific communities and often fail to protect the supposed beneficiaries.

International Perspective and Indian Precedents

  • In the U.S., conventional views did not favour judicial nullification of statutes on grounds of malice, as stated by John Hart Ely.
  • Scholar Susannah W. Polivogt argues that animus can never constitute a legitimate state interest for equal protection analysis.
  • Indian precedents, such as Ashoka Kumar Thakur vs Union of India (2007), show the Supreme Court effectively interdicted the operation of parliamentary legislations.
  • In Rakesh Vaishnav vs Union of India (2021), the Court issued a stay on three contentious farm laws, preventing their implementation.
  • These examples demonstrate that the judiciary can and should act decisively against unconstitutional or divisive statutes.

Conclusion

  • The process of judicial review should be strong, immediate, and unambiguous for statutes that are obviously unconstitutional or divisive.
  • The Supreme Court should learn from its track record and understand the political consequences of its insensitivity during critical times.
  • Delays in judicial review often defeat the purpose of constitutional adjudication.
  • Time is of the essence when dealing with malicious and unconstitutional laws.
  • A proactive and assertive judicial approach is essential to uphold constitutional democracy in critical times.
What is the Citizenship Amendment Act, 2019?

  • Amendment to Citizenship Act, 1955: The Citizenship (Amendment) Act, 2019 (CAA) amends the existing Citizenship Act, 1955.
  • Pathway to Citizenship: It provides a pathway to Indian citizenship based on religion for six undocumented non-Muslim communities: Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians.
  • Eligible Countries: These communities must be from Pakistan, Afghanistan, or Bangladesh.
  • Cut-off Date: They must have entered India on or before December 31, 2014.
  • Legal Exemption: The CAA exempts these communities from legal action under the Foreigners Act, 1946, and the Passport Act, 1920, which prescribe penalties for illegal entry and overstaying in India.

Mechanism for Implementation of CAA Rules

  • Processing by MHA: The Ministry of Home Affairs (MHA) has designated the Postal Department and Census officials to process citizenship applications under the CAA.
  • Background Checks: Central security agencies, such as the Intelligence Bureau (IB), will conduct background and security checks.
  • Empowered Committees: Final decisions on applications will be made by empowered committees led by the Director (Census Operations) in each state.
  • Committee Composition: These committees will include officials from the IB, PostMaster General, State or National Informatics Centre, and representatives from the State government’s Department of Home and Divisional Railway Manager.

District-level Committees:

  • Leadership: Headed by the Superintendent of the Department of Post.
  • Role: These committees will review applications, with a representative from the District Collector’s office as an invitee.
  • Application Processing:
  • DLC’s Role: The District Level Committee (DLC), instituted by the Centre, will process citizenship applications, bypassing state control.
  • Final Decision: The final decision will be made by the Empowered Committee, led by the Director (Census Operations).

Source:The Hindu

Mains Practice Question:

“Discuss the concept of judicial activism in the context of the Indian legal system. Analyze the impact of judicial activism on the separation of powers doctrine and the relationship between the judiciary and the executive in India. Can judicial activism be seen as a boon or a bane for the Indian democracy? Support your answer with relevant examples.”

Associated Articles:

https://universalinstitutions.com/creating-an-all-india-judicial-service-aijs/