Activists and Academics, DYFI move Supreme Court against Citizenship Amendment Act, 2019

Adding to a growing list of petitions challenging the Citizenship (Amendment) Act, 2019, two more PILs have been filed in the Supreme Court.

One petition filed for five activists and academics, Harsh Mander, Aruna Roy, Nihil Dey, Irfaan Habib and Prabhat Patnaik argues that granting citizenship on the basis of religion goes against the grain of the Constitution of India. The petition filed through Advocate Prashant Bhushan states further that,

“Religious pluralism and secularism have been the foundation of our country since Independence. While Article 11 empowers parliament to regulate citizenship, this does not mean that Parliament through an ordinary law, can destroy the fundamental values and basic structure of the Constitution.”

The petitioners have contended that the exclusion of Muslim beneficiaries from the purview of the Act, as well as other persecuted minorities from other countries, entails a violation of Articles 14 and 21. In this regard, notifications issued by the Central Government, exempting migrants from the prescribed six religions (i.e. Hindus, Sikhs, Buddhists, Jains Parsi and Christians) from provisions of the Passport Act and Foreigners Act have also been challenged. Inter alia, the petition highlights discrepancies between the Statement and Objects of the Amendment and its provisions. In this regard, it is noted,

“The Statement of Objects and Reasons mention that the criterion is undivided, pre-Partition India. Then Afghanistan ought not to have been a part of the list (of target countries). If the criterion is neighbouring nations, then there are a host of countries surrounding India that have witnessed violence upon minorities. The Rohingya Muslims of Myanmar have been subjected to ethnic cleaning and genocide. Sri Lankan Tamils have suffered systematic discrimination and state-sponsored persecution. This classification also fails because though the statement of objects and reasons mentions that Afghanistan, Pakistan and Bangladesh have an official state religion (Islam), other neighbour like Sri Lanka also has an official State religion (Theravada Buddhism).”

Protest is also registered to the arbitrary cut-off date (December 31, 2014) in prescribing the eligibility for grant of citizenship. The petition goes on to point out,

“It further arbitrarily excludes person in tribal areas of four northeastern States and Inner Line Permit areas from the benefit of grant of citizenship.“

Apart from a violation of provisions of the Indian Constitution, the petitioners also contend that the Amendment runs contrary to International Covenants, including the Universal Declaration of Human Rights and the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief.

In view of these grounds, the petitioners have made the following prayers, i.e.

Strike down the words “Hindu, Sikh, Buddhist, Jain, Parsi or Christian Community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before 31st day of December, 2014”, from the proviso to Section 2 (1)(b) of the Citizenship (Amendment) Act, 2019. Alternatively, strike down the entire proviso to Section 2(1)(b) introduced by the Citizenship (Amendment) Act, 2019 as unconstitutional, illegal and void.
Strike down section 6B (which relaxes the naturalisation standards for migrants belonging to the six religious communities from the Pakistan, Afghanistan and Bangladesh) introduced by the Citizenship (Amendment) Act, 2019 as unconstitutional, illegal and void.
Strike down the proviso to clause (d) of the third schedule as introduced by the Citizenship (Amendment) Act, 1955 as unconstitutional, illegal and void.
Declare notifications GSR 685(E), 686 (E ), 702(E) & 703 (E) dated September 7, 2015 and July 18, 2016, issued by the central government by which Section 4(1)(ha) was added to the Passport (Entry into India) Rules, 1950 and Section 3A was added to the Foreigners Order, 1948, as unconstitutional, illegal and void.

On similar concerns, a petition filed by the Democratic Youth Federation of India (DYFI) has also challenged the “anti-minority” and “anti-muslim” characteristics of the Amendment, pointing out that the same has raised severe insecurity and apprehension in the minds of of members of Muslim minorities all over the country.

Apart from querying why the Act has failed to consider the plight of persecuted minorities such as Ahmaddiyyas, Hazaras and Shia sections, Sri Lankan migrants and Rohingyas from Myanmar, the petitioner also contends that,

“The direct and inevitable consequence of the impugned Act shall be that only Muslims would be targeted in the proposed pan-India NRC proceedings. The fundamental rights violation of Citizenship (Amendment), Act 2019 must be adjudged in the light of ‘direct and inevitable effect’ of the legislation on the individuals belonging to the Muslim migrants.”

Inter alia, it is also argued that the Amendment is likely to trigger more radicalisation among members of minority communities.

“It promotes radicalization of members of the minority due to discrimination. It violates Art. 51 of the Constitution of India of promotion of International peace, fostering respect for International law. It is against the Charter of the United Nations.“

In view of these, and other concerns, the DYFI has joined in with various petitioners to pray that the Supreme Court strike down the Citizenship Amendment Act, 2019 and connected notifications as unconstitutional.

Two other petitions were filed today in the matter, i.e.one by the Makkal Needhi Maiam(MNM), a political party lead by actor-turned-politician, Kamal Hassan, and another by Padi Richo, former MLA and a resident of Arunachal Pradesh.

Two days after the Citizenship Amendment Bill 2019 received assent in the Lok Sabha, the Rajya Sabha has also signed off on the legislation on December 11. A day later, the first challenge to the controversial legislation was mounted by the Indian Union of Muslim league along with Members of Parliament PK Kunhalikutty, ET Mohammed Basheer, Abdul Wahab and K Navas Kani. At this stage, the Citizenship (Amendment) Bill, 2019 was yet to received Presidential assent.

Hours after it was signed off by the President, a battery of PILs were filed challenging the Citizenship Amendment Act, 2019. The petitioners who have approached the top Court on the issue from various quarters include TMC MP Mahua Moitra; Pradyot Deb Burman; the All Assam Students Union, INC MP Jairam Ramesh; various public servants including former High Commissioner Deb Mukherjee and former IAS officers, Somasundar Burra and Amitabha Pande; Assam MLAs Debabrata Saikia (Leader of Opposition) and Rupjyoti Kurmi along with Abdul Khaleque, a Loksabha MP from Assam; RihaiManch and Citizens Against Hate; Fazil Ahmed of the Jan Adhikar Party; the Peace Party; Advocate Ehtesham Hasmi; Lok Sabha MP Asaduddin Owaisi and Lok Sabha MP TN Prathapan.