The Supreme Court on Wednesday refused to stay the implementation of the Citizenship Amendment Act (CAA), but indicated that the matter would be referred to a Constitution bench.
The court, which issued notice to the central government on December 18 last year, gave it four more weeks to respond, after a request by Attorney general KK Venugopal. Venugopal pointed out that there were only 60 petitions when the case was first heard on December 18 but at least 144 petitions have been filed as on Wednesday and copies of the fresh petitions had not been supplied to the central government yet.
All the petitions were listed for hearing on Wednesday. One of the petitions was a transfer plea by the central government seeking the transfer of all petitions pending in various high courts to the Supreme Court.
The law, passed by the Lok Sabha on December 9, the Rajya Sabha on December 11, and notified on January 10, fast-tracks Indian citizenship to non-Muslim minorities from six religions who came to India from Bangladesh, Pakistan, and Afghanistan before December 31, 2014.
A three-judge bench headed by Chief Justice of India SA Bobde and comprising justices S Abdul Nazeer and Sanjiv Khanna expressed its inclination to refer the matter to a Constitution bench while making it clear that it “will not pass any orders either way now.”
No order was passed to this effect; usually the Chief Justice of India sets up a Constitution Bench after there is a judicial order seeking the creation of one. In this case, the earliest such an order can come, under normal circumstances, is the next time the case is heard, towards the end of February.
The bench also segregated petitions from Assam and Tripura. Senior Counsel Kapil Sibal has been asked to submit a list of petitions from Assam and Tripura to the court.
While the law has been challenged on various counts, the issues in these two states are not the same as in the rest of the country. Both states have a history of protests against outsiders who compete with indigenous people for land, other resources, and jobs.
Pradyot Debbarman, one of the petitioners from Tripura, welcomed this order. “We are glad that our issues were not hijacked as has been on previous occasions.”
Former Assam chief minister Tarun Gogoi said: “The matter is very serious and the Centre is yet to react. For the people of Assam, it is an important matter. Why hasn’t the government responded? Agitation has been going on for so long in every nook and corner but the government does not want to listen to anyone.”
Senior counsel Kapil Sibal, appearing for petitioners, told the court that the case should be heard by a Constitution Bench and asked for deferring the operation of CAA and the updation of the National Population Register (NPR) .
The updation of the NPR is scheduled to commence from April 1. This is widely seen as a step towards a nationwide National Register of Citizens (NRC), although the government has denied that the NPR is connected to the NRC. It has also clarified that there are no plans for a nationwide NRC.
Attorney General KK Venugopal, appearing for the central government, vehemently opposed the prayer made by Sibal and claimed that no stay should be granted without hearing the central government. Sibal reasoned that he was not asking for a stay but only praying for a postponement of the process of implementation, but the AG countered that this was effectively a stay.
Senior advocates KV Viswanathan and Shyam Divan, representing the petitioners, also pressed for interim relief. Viswanathan too told the court that delaying the process of implementation is not the same as a stay. He submitted that people could be disenfranchised if not included in the NPR.
“This is not the concern of minority but also majority,” said Viswanathan.
Senior Counsel Abhishek Manu Singhvi also raised the same concern.
“If the process could wait for 70 years, can it not wait for two more months?” asked Singhvi, pressing for a stay.
The bench, however, did not grant any interim relief, and remarked that all the issues including prayers for interim relief would be considered by a Constitution bench.
The bench also ordered that high courts in the country should desist from taking up cases challenging the CAA.
The CAA amends Section 2 of the Citizenship Act, 1955, which defines “illegal migrants”, by adding a proviso to Section 2 (1)(b). As per this new proviso, any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Bangladesh or Pakistan, and who have been exempted by the Central Government under the Passport (Entry into India) Act, 1920 or the Foreigners Act, 1946, shall not be treated as “illegal migrant”. Consequently, such persons shall be eligible to apply for citizenship under the 1955 Act.
However, the Muslim community did not find a place in the proviso thereby excluding Muslim illegal migrants from availing the opportunity to apply for Indian citizenship.
The petitioners challenging the law have submitted that the CAA discriminates on the basis of religion by segregating persons and granting them the benefit of applying for citizenship if they belong to a certain religion, in this case Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, who are from Pakistan, Afghanistan and Bangladesh. Such segregation based on religion, they argued, is without any reasonable differentiation and it violates right to equality under Article 14 of the Constitution.
The petitioners include the Indian Union Muslim League (IUML), Congress leader Jairam Ramesh, RJD leader Manoj Jha, Trinamool Congress MP Mahua Moitra, and AIMIM leader Asaduddin Owaisi.
