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CAA, NPR notification challenged before Supreme Court as being against constitutional morality
Litigation News

CAA, NPR notification challenged before Supreme Court as being against constitutional morality

Sanya Talwar

Adding to the pending litigation before the Supreme Court, a petition has been filed today challenging the Citizenship Amendment Act, 2019 (CAA). Today’s petition filed by NGO Minority Front also assails the National Population Register (NPR) Notification dated July 31, 2019 as unconstitutional.

The petition also challenges Section 3(1)(a) of the Act, as per which a child born before the July 1, 1987, will not get Indian citizenship by birth.

Filed by Advocate Ejaz Maqbool and drawn by Advocates Akriti Chaubey, Kunwar Aditya Singh, Muhammad Isa M Hakin and Aishwarya Sarkar, the petition contends that the CAA is violative of Articles 14, 15, 21, 25, 51 (c) and 51(a) and is ultra vires the Constitution of India as it denudes the principles of “constitutional morality” and extends patronage to certain religious communities.

The petitioners have claimed that the Act is unconstitutional and arbitrary in light of the basic structure of the Constitution. Even though the Parliament has passed the Act with brute majority, it is antithetical to the principles of secularism, the thread upon which our Constitution stands, the petitioners contend.

“...the principle of secularism which is to be found in the Preamble forms an intrinsic part of the test of constitutional morality, which the Impugned Act fails to pass. Needless to say, that the Impugned Act which provides for the grant of citizenship based on religion is clearly violative of the principle of secularism and is thereby against constitutional morality and the basic structure of the Constitution.”
The petition has been filed through Advocate Ejaz Maqbool
The petition has been filed through Advocate Ejaz Maqbool

It contends that the trinity of the CAA, the National Register of Indian Citizens (NRC) and the National Population Register (NPR) has created huge unrest in the country owing to the apprehensions of its effect on the marginalised and poor sections of the society, and that one cannot be read in isolation from the other.

“Because the Impugned Act has to be read comprehensively with the other provisions of law particularly the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 which provide for the identification of illegal migrants from citizens through the preparation of a National Register of Indian Citizens (NRIC – popularly known as ‘NRC’). It is submitted that the joint reading of the Impugned Act and the 2003 Rules reveals a clear scheme to single out certain communities and deny them the benefit of the Impugned Act, which is impermissible.”

Moreover, the argument that the CAA is violative of Article 14 for making an unreasonable classification has been reiterated.

“The Impugned Act makes unreasonable classifications as there is no intelligible differentia for the classification and the said classification has no rational nexus with the object sought to be achieved by the Act. It is submitted that the stated objective of the Government for the Impugned Act is to protect minorities facing religious persecution in countries which have Islam as their state religion and were a part of undivided India. However, the said classification has glaring loopholes which make it unreasonable.”

In this regard, the fact that the Act excludes Jews, Muslims, Tibetan Buddhists, Bhutanese Christians, Sri Lankan Tamil Hindus, Rohingya Muslims, Uighur Muslims, Shias, Hazaras, and Ahmadiyyas from neighbouring countries is brought to light.

It is further contended that the CAA is violative of various principles of international law and India’s international obligations contained in Articles 2, 9, 10 and 26 of the ICCPR, article 15 of the UDHR and principles of non-refoulement.

“Because, while India is not signatory to the Refugee Convention, 1951, which incorporates the principle of non-refoulement, it is submitted that the principle has crystallized into customary international law and has achieved the status of jus cogens, i.e., a peremptory norm of International Law. Therefore, it is incumbent on the state to abide by and respect the principle of non-refoulement.”

The principle of non-refoulement prohibits the State from deporting refugees to their home country when there is an imminent threat to their life and personal liberties.

It is averred that Section 3 of the Citizenship Act gives rise to three scenarios relating to children born on different dates:

Those children born between January 26, 1950 and before July 1, 1987 are entitled to Indian Citizenship without any condition. However;

1) Those children born on or after July 1, 1987 and December 3, 2004 are citizens of India only if either of their parents are citizens of India at the time of their birth;

2) Those children born after July 1, 1987 and before December 3, 2004, but none of their parents are citizens of India has no right to citizenship and;

3) Those children born after December 3, 2004 of those couples where one of them is a citizen of India and the other is not an illegal migrant at the time of the child’s birth. Such children are citizens by birth.

Therefore, according to the Act, children born to a couple, one of whom is an illegal migrant, is not entitled to the status of citizenship by birth, which is antithetical to Article 15 of the UDHR and also go completely contrary to the Convention of the Rights of Child 1990, which India has ratified, the petition contends.

In light of the above, the petitioners have prayed that the CAA and the NPR notification be declared unconstitutional. A further direction to declare Section 3(1)(a) of the Act vis-à-vis the caveat of a child born before July 1, 1987 and Section 3(1)(b) &(c) of the Citizenship Act, 1955 as unconstitutional has also been prayed for.

On December 18 the Supreme Court issued notice in all 60 petitions challenging the Citizenship Amendment Act, 2019. The matter is scheduled to be taken up on January 22.

More recently, the Court issued notice in the Central Government's plea to transfer all petitions challenging the validity of the CAA from various High Courts to the Apex Court.