The Supreme Court today adjourned the petitions challenging the Citizenship Amendment Act, 2019 to December 6 2022. The bench consisting of Chief Justice UU Lalit, Justices Ravindra Bhat and Bela M. Trivedi decided to treat the petition filed by the Indian Union Muslim League as the lead matter. The Court also appointed two lawyers as nodal counsels who will ensure that the compilations are ready by the next date.
“Having noted that there are various matters projecting multiple issues, in our view the resolution to instant controversy can be achieved if 2-3 matters are taken as lead matters and convenience compilations are prepared well in advance, such process will make the conduct of the proceedings easy. We have been appraised that the Writ Petition filed by Indian Union Muslim League has been complete. The petition has been filed by Advocate Pallavi Pratap. We therefore appoint her and Mr. Kanu Agarawal as nodal counsels,” reported LiveLaw.
The nodal counsels were also advised to consider designating some other matters as lead matters keeping in view the grounds of geographical and religious classifications among other things. The petitions raising issues relating to Assam and North-East could be separately classified.
The bench also granted time to the states of Assam and Tripura to file their responses to the latest affidavit filed by the Union Government in relation to the issues of North-Eastern region. As many as 232 plus petitions challenging the CAA were listed before the Court. Nearly 50 petitions raise issues specific to Assam and other North-Eastern states.
Issues Raised in the lead IUML Petition
The 2019 Act amends the Citizenship Act 1955 to ease, or liberalise the norms for granting citizenship to non-Muslim migrants from Pakistan, Bangladesh and Afghanistan. The petition filed by the Indian Union Muslim League (IUML) [Indian Union of Muslim League And Ors. v. UoI And Ors. WP(C) No. 1470/2019] avers that while they do not oppose the grant of citizenship to migrants, they are aggrieved by the discrimination and illegal classification based on religion. The exclusion of Muslims from the Act amounted to religion-based discrimination. As per the petition, the religious segregation made by the Act is without any reasonable differentiation and results in violation of Article 14 and also the very idea of India as a country which treats people of all faiths equally. The Indian Constitution only recognises citizenship by birth, descent or acquisition by bona fide residence. The Act makes religion a criteria for citizenship. The linking of religion to citizenship is opposed to secularism, which is a part of the basic structure of the Constitution.
“CA, Act 2019 explicitly discriminates against the Muslims. The Act extends the benefit to individuals belonging Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, but excludes the same benefit to the individuals belonging to the Islam religion. Since, CA, Act 2019 discriminates on the basis of core and intrinsic trait of the individual that is, religion of the individual, it cannot form a reasonable classification based on intelligible differentia”, the petition argued.
The petition further contends that the yardsticks adopted for selecting the countries within which populations of minorities were persecuted and the categories of persons therein have not been uniformly applied. The exclusion of Myanmar and the inclusion of Afghanistan (which was not a part of British India, and has no history of partition) are illustrative, states the petition. Specifically, the exclusion of Sri Lankan Tamil refugees and the Rohingya Muslims –both minorities that have suffered persecution– are also flagged to illustrate the bias and illogicality of the discrimination.
In early 2020, the aggressive push by the second term elected Modi government, to first push through the CA Act of 2019 and thereafter also announce the launch of the National Register of Citizens (NRC-All India) had generated outrage, insecurity and nationwide protests. Given the fallout of the arbitrary ‘test’ of documented citizenship currently being undertaken in Assam these were well-founded.
Based on this ground reality, the lead petition has also voiced the apprehension that the Act will result in harm to Muslims in the exercise of National Register of Citizens which is proposed to be carried out nationwide. “With the passage of the Amendment Act, and the nationwide implementation of NRC, it shall ensure that those illegal migrants who are Muslims shall be prosecuted and, those illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians such shall be given the benefit of naturalization as an Indian Citizen”, stated the plea.
Centre’s Response through the MHA
The Centre, through an affidavit made public recently, submitted that the CAA did not impinge upon any existing right that may have existed prior to the enactment of the amendment and further, in no manner whatsoever, sought to affect the legal, democratic or secular rights of any of the Indian citizens. The move to amend the CA Act of 2019 merely fast-tracks citizenship-by-naturalisation process for ‘illegal migrants’ from six religious communities, other than Muslims, who have fled persecution from Pakistan, Bangladesh and Afghanistan
The Citizenship Amendment Act (CAA) is a “benign piece of legislation” which seeks to provide a relaxation, in the nature of an amnesty, to specific communities from specified countries with a clear cut-off date, the Home Ministry told the Supreme Court late on Sunday, October 30. The affidavit further submitted that the existing regime for obtaining citizenship of India by foreigners of any country was untouched by the CAA and remained the same and that the legal migration, on the basis of valid documents and visa, continued to be permissible from all countries of the world including from the three specified countries. The Centre also stated that CAA was merely a limited legislative measure, circumscribed in its application which did not affect the existing legal rights or regime concerning citizenship [falling outside the purview of specialized measure] in any manner. It added that the question of entitlement and conferment of citizenship and issues related thereto were within the plenary domain of the competent Legislature.
“By the very nature of the question regarding citizenship of the country and issues pertaining thereto, the said subject matter may not be within the scope of judicial review and may not be justiciable” said Centre.
The Parliament, in its competence, has passed the law taking into consideration the acknowledged class of minorities in three countries. It said the plight of these classified communities in neighbouring Pakistan, Bangladesh and Afghanistan had been attracting the attention of successive governments in India. “But no government took any legislative measure and merely acknowledged the problem and took some administrative action through executive instructions regarding entry, stay and citizenship issues of these classified communities,” the government said.
‘Narrowly tailored law’
The CAA, the government said, was a “narrowly tailored legislation” seeking to address the problem which awaited India’s attention for several decades. “The CAA does not seek to recognise or seek to provide answers to all or any kind of purported persecution that may be taking place across the world or that may have taken place previously anywhere in the world,” the Home Ministry reasoned. The affidavit said the CAA does not in any manner affect the legal, democratic or secular rights of any Indian citizen.
“In matters concerning foreign policy, citizenship, economic policy, etc, a wider latitude is available to the Parliament/Legislature,” the affidavit said. The Ministry said the CAA had been challenged as arbitrary and discriminatory on the ground that federal structure was breached and on the exclusion of certain areas.
Fears of the North East Unfounded
The classification of tribal areas of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule of the Constitution and the area covered under ‘The Inner Line’ notified under the Bengal Eastern Frontier Regulations of 1873 has been made in the CAA on tangible material, historic reasons and prevalent classifications based on differences in population density, native culture, economic and social inability in case of mass migration and reasons of national security.
Requesting the court to decide the validity of the CAA by taking cognisance of the persistent persecution of minority communities, specified in the CAA, in the three theocratic countries, it said, “Parliament, after taking cognizance of the said issues over the course of the past seven decades and having taken into consideration the acknowledged class of minorities in three specific countries, has enacted the present amendment.”
Simultaneously, it also underlined that the issue pertained to foreign policy, where the legislature and executive have a wider latitude. “The CAA does not impinge upon any existing right that may have existed prior to the enactment of the amendment and further, in no manner whatsoever, seeks to affect the legal, democratic or secular rights of any of the Indian citizens,” it said.
On the petitioners’ question about exclusion of Muslim immigrants already in India from the ambit of the CAA, the Centre said the SC must look into the provisions of the Assam Accord and the memorandum of settlement between the Government of Tripura and the All Tripura Tribal Force under which certain areas of Assam and Tripura have been excluded from being settled by CAA beneficiaries to protect the interests of ethnic minority communities and not to allow them to get swamped by immigrants.
“There is required to be a harmonious construction of the Assam Accord and the CAA as the CAA is a beneficial legislation intended for benefitting persons escaping religious persecution in particular neighbouring countries. The Assam Accord or the memorandum of settlement signed between the Government of Tripura and a tribal group of Tripura, i.e. the All Tripura Tribal Force (ATTF), cannot form the basis of judicial review of legislation before the SC. It is submitted that by excluding certain regions of Assam and Tripura, the Parliament has tried to balance the interest of the classified communities and the indigenous people of Assam and Tripura,” it said.
The government has also argued that restricting the purview of the CAA to minority communities facing persecution only to the three Islamic countries qualified for the justifiable, reasonable classification and was in keeping with the spirit that led the Constitution to accept as citizen’s people who flooded India from undivided Pakistan after the Partition on religious lines.
“Article 6 of the Constitution deems all migrants in India from Pakistan (including present day Bangladesh) as citizens of India if such persons or their parents or grandparents were born in undivided India or such persons had migrated into India before July 19, 1948,” it said. “If such persons had migrated after this date and got registered before a competent officer and had been resident in India for at least six months before the date of registration, then such persons were also deemed to be Indian citizens. It is obvious that Article 6 deemed a special class of migrants post-partition (which clearly took place on religious lines and resulted in large scale migration on religious lines) as citizens of India due to their very special circumstances,” the government said.
Facts about Citizenship: A Constitutional Lens
As the teams and legal researchers of Citizens for Justice and Peace (cjp.org.in) have been contending, the issue –of the CAA 2019 read with the proposed NRC-All India –is one of seeking ‘documented proof of citizenship’ a concept alien to the provisions of the Indian Constitution.
Citizenship is dealt with under Articles 5 to 11 of the Constitution of India. Articles 5 to 10 deal with citizenship at the time of the coming into force of the Constitution i.e. 26.1.1950. It is essentially by birth with certain provisions concerning migration. But this is not very relevant for our purposes as this is frozen at the time of coming into force of the Constitution. Article 11 speaks about the future and allows the Parliament to enact laws concerning citizenship.
Consequently Citizenship Act, 1955 was enacted which continues to be in vogue. Under the Act, there are 5 methods of acquiring citizenship:
By birth
By descent- that is for children born outside India from Indian citizen parents
By registration- that is for persons of Indian origin who are not citizens and want to be Indian citizens
By Naturalisation- that is for non-Indians who want to be Indian citizens.
By acquisition of Territory for example Sikkim
Thus if you are not born in India the major way of acquiring citizenship is through naturalisation or registration. However both these methods are not available to ‘illegal migrants’. Illegal migrant is defined as any person who entered India without a valid passport or travel document or having entered India with a valid passport or travel document has stayed behind after its expiry. Thus a Bangladeshi who is alleged to have crossed over into India without a passport or valid travel document can never acquire Indian citizenship (except under certain circumstances if the entry is into Assam before 25.3.1971 )
As far as citizenship by birth is concerned there have been subsequent amendments. Any person born before 1st July, 1987 in India is automatically entitled to Indian citizenship irrespective of who that person’s parents are or where they were born and even if they are illegal migrants.
For those persons born in India between July 1, 1985 to December, 2004, they will be entitled to Indian citizenship by birth provided one of the parents was an Indian citizen at the time of birth. It does not matter who the other parent is. For those children born in India after December, 2004, such children will get citizenship of India provided both the parents are citizens of India or either of the the parents are citizens of India as long as the other parent is not an illegal migrant. Thus for children born after December, 2004 if one of the parents is an illegal migrant then such children cannot get citizenship in India.
In a nutshell, for those of us who are born before 1.7.1987 it is enough to prove that we were born in India to get citizenship. For those of us born between 1.7.87 and December, 2004 in India it is not enough for us to be born here but one of our parents has to be a citizen of India at the time of our birth. For those of us born after December, 2004 in India not only one of our parents has to be a citizen of India at the time of our birth but the other parent should not be an illegal migrant.
In 2009, Citizenship Rules were passed which are not of much relevance for other parts of India except Assam.
National Register of Citizens
In 2003, The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 were passed under the Citizenship Act. These are the NRC Rules. Under this, the Central Government is to carry throughout the country a house to house enumeration for determining citizenship status. During this exercise all those whose citizenship is doubtful will be entered with appropriate remark in population register for further enquiry and the persons concerned have to be informed immediately after the verification is over about this in a prescribed format. These persons will be given an opportunity for being heard before final decision is taken. The Sub District or Taluk Registrar shall finalise his findings in 90 days of the entry being made. The draft of the Local Register shall be published for inviting any objection or for inclusion of any name. Within 30 days individuals have to complain or raise objection spelling out the nature and reasons for such complaint. These complaints will be considered by Sub District or Taluk Registrar and will be summarily disposed of in 90 days. A person aggrieved by the above orders can appeal in 30 days to District Registrar of Citizenship Registration. The District Registrar shall take final decision after hearing the party within 90 days. After this the final Register is published and every citizen will be issued National Identity Cards. Under this, there is no role of Foreigners Tribunal at least as the law stands today.
If you are not registered as a citizen you will be treated as foreigner and all consequences would follow. These would include being sent to detention camps, being deported, etc.
All the above applies across the country but for Assam there are some distinguishing features.
The unfettered power under the hitherto unchallenged 2003 Rules –given the tragic trajectory of the NRC process within Assam –has rightly raised the antenna of all Indian citizens at this arbitrary measure –un-deliberated and without checks and balances by the NDA II government at the Centre.
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