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Section 3(1) of Citizenship Act 1955 renders certain classes of children stateless: APCR in PIL against CAA 2019

The PIL also prays for the Supreme Court to direct the government to refrain from implementing the NRC, arguing that the same would leave crores of undocumented Indians stateless.

Meera Emmanuel

Adding to the long list of petitioners, the Association for Protection of Civil Rights (APCR) has moved the Supreme Court challenging the constitutionality of the Citizenship Amendment Act, 2019 (CAA), connected passport rules and various notifications and orders concerning foreigners.

The PIL also prays for the Supreme Court to direct the government to refrain from implementing the National Register of Citizens (NRC) exercise throughout the country, arguing that the same would leave crores of undocumented Indians stateless.

Notably, a specific challenge has also been mounted to the constitutionality of Section 3 (1) of the Citizenship Act, 1955 as well as the third schedule to the 1955 Act. The provision in question states,

"Except as provided in sub-section (2), every person born in India,—

(a) on or after the 26th day of January, 1950, but before the 1st day of July, 1987;

(b) on or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth;

(c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where - (i) both of his parents are citizens of India; or (ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth."

The APCR has contended that the provision arbitrarily metes out different treatment to children as far as their citizenship status is concerned based on the date of their birth.

“… Section 3(1) provides for different treatment to children as per their date of birth and renders certain category of children stateless on the basis of classification on date of birth, which is manifestly arbitrary.

As explained in the petition,

It is submitted that while there are no conditions on children born between 26.1.1950 to 1.07.1987 for attaining Indian Citizenship, the other two categories i.e. Section 3(1) (b) and Section 3(1) (c) create certain class of stateless children:-

  • Those children who were born in India on or after July 1, 1987 but before December 3, 2004 whose parents were illegal migrants, would not be granted Indian citizenship but would not even be considered illegal migrants within Section 3(2) (b) of the Citizenship Act,1955.

  • Similarly, those children who were born in India on or after December 3,2004 either of whose parents was an illegal migrant, would again not be granted Indian citizenship.

In view of the same, it has been argued,

Section 3(1) (a) of the Citizenship Act,1955 is unconstitutional in so far as it introduces a caveat that the child should have been born on or before 1.7.1987. Further, the provisions of Section 3(1)(b) and 3(1)(c) of the Citizenship Act,1955 are unconstitutional as they are violative of Articles 14, 15, 21, 51(c) and 51-A of the constitution.”

The petitioner also contends that the same is violative of international obligations including those under the United Nations Convention on the Rights of the Child, 1990 to which India is signatory.

This apart, the ACPR has also questioned the basis on which the 2019 Citizenship Amendment Act grants favourable treatment to only Hindu, Sikh, Buddhist, Jain, Parsi and Christian beneficiaries from Afghanistan, Bangladesh and Pakistan. The exclusion of other religious communities has been challenged as arbitrary, discriminatory and against secularism.

Furthermore, whereas the the objective of the Amendment is to aid religious minorities from these three countries, the petition also points out that the CAA does not provide any parameters to confirm whether a person who has crossed the borders of India has in fact been a victim of religious persecution.

The petitioner has also urged the Supreme Court to intervene against the operation of the Amendment in view of the possibility that an NRC exercise may be undertaken for India.

“… there is imminent threat to operationalise the provisions of the Impugned Act by the Executive/Administrative actions of preparing National Register of Indian Citizens (NRC). The Hon'ble Minister of Home Affairs and other responsible ministers and leaders of the Ruling Bhartiya Janata Party (BJP) have announced that the follow up of the Impugned Act will be by preparing NRC for the whole country. Preparation of NRC on the basis of the Impugned Act and other impugned provisions of Citizenship Act of 1955, will prove disastrous….”

It is further argued,

"… there are crores of undocumented Indians who will become stateless and no estimate or assessments have been made of their number. No policy is framed regarding the plight and treatment of such undocumented Indians who will be rendered stateless. For the premises stated above, it is absolutely necessary that this Hon'ble Court may issue an appropriate Writ/direction to the Union of India and states, to refrain from preparing NRC arbitrarily.”

The prayers made by the APCR before the Supreme Court include:

  • That the Court strike down the provisions of Section 3 (1) (a) so far it introduces caveat that child is born before 1st day of July, 1987 and section 3 (1) (b) & (c) of the Citizenship Act,1955 as unconstitutional, illegal and void;

  • That the Citizenship (Amendment) Act, 2019 be declared unconstitutional

  • That the Government be directed to refrain from preparing NRC (National Register of Citizens)

  • That Notification No. G.S.R 685(E) dated 7.9.2015, Order No. G.S.R 686(E) dated 7.9.2015, Notification No. G.S.R 702 (E) dated 18.7.2016 and Order No. G.S.R 703(E) dated 18.7.2016 be declared unconstitutional.

The petition has been filed by Advocate Ejaz Maqbool; drawn by Advocates Ejaz Maqbool, Sagheer A Khan, Mussadique Momin, Shaikh Mohd Taha, Parth H Zaveri, Advocate, Akriti Chaubey, Kunwar Aditya Singh, Muhammad Isa M Hakim and Aishwarya Sarkar; and settled by Senior Advocate Yusuf Hatim Muchhala.

On December 18, last year, the Supreme Court issued notice in 60 petitions challenging various aspects of the Citizenship Amendment Act, 2019. The matter is expected to come up next on January 22.

[Read the Petition]

Association for Protection of Civil Rights Writ Petition against CAA, 2019.pdf
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