Two more petitions have been filed in the Supreme Court challenging the recently enacted Citizenship Amendment Act, 2019. Both petitions, filed by Lok Sabha MPs Asaduddin Owaisi and TN Prathapan, have registered protest over the non-inclusion of Muslims in the purview of the Act, challenging the same to be unconstitutional.
In this regard, both petitions have challenged Sections 2, 3, 5, and 6 of the Citizenship (Amendment) Act, 2019. In this regard, Owaisi’s petition states,
“The classification in the Act is not founded on the basis of intelligible differentia. The yardstick for the purpose of differentiation in the Act is the alleged persecution of religious minorities belonging to Afghanistan, Pakistan and Bangladesh. It includes Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, but at the same time exclude other minorities facing discrimination or persecution on the basis of their religious/sectarian belief, such as Shia sects in Pakistan and the Hazaras in Afghanistan. .. The extension of the benefit of the Amending Act to one set of religious minorities but denying the same to other religious minorities fleeing persecution from the same countries is without nexus with the purported object sought to be achieved, which is the protection of minorities facing religious persecution in the Afghanistan, Pakistan and Bangladesh.”
Similarly, Prathapan’s plea argues the message sent out by the Citizenship Amendment is one of discrimination, exclusion and second-class citizenship based on religion.
“… its utter selectivity in extending the given logic while denying citizenship to persecuted minorities within Muslims like Ahmadiyas, Baloch, Shias from Pakistan, Bangladesh and Afghanistan, exclusion of persecuted groups from other neighboring countries like Rohingyas from Myanmar, Madhesis from Nepal, Tamil Elam from Sri Lanka and Muslims from China conspicuously strip the idea of secularity, progressiveness and inclusivity from the proposed Citizenship Amendment Act,2019.”
Prathapan goes on to highlight that the “idea of religious persecution or forced migration is not necessarily linked with the group’s religiosity alone.”
“Any group or individual including atheists irrespective of their affiliation with minority or majority groups may be subjected to persecution or forced migration from their country if their views do not conform to the dominant sectarian clergy norms enjoying the support of the ruling establishment.”
Further, Prathapan has also challenged the morally indefensible Amendment’s nullification of the Assam Accord of 1985. This petition has been filed by Advocate Suvidutt MS.
Owaisi’s petition terms the Amendment an affront to constitutional morality and details how it has violated Articles 14, 15, 21 and 25. Inter alia, it is highlighted that the Citizenship Amendment Act does not preside any standard principle or norm for choosing Pakistan, Bangladesh and Afghanistan for its applications, while it does not extend to religious minorities to other neighbouring countries such as Sri Lanka, Myanmar, Nepal, Bhutan and China. On this aspect, it is further argued,
“The religious persecution of Tamils in Sri Lanka, Rohingyas in Myanmar and Buddhists in Tibet, China is again well- documented. It may be noted that Afghanistan never formed a part of India, even during the British rule, whereas Burma was in fact a part of India even when the Government of India Act, 1935 was enacted. Therefore, there is no basis for selection of the three countries except that all three are Islamic States.“
Another issue raised is that the Amendment and allied Home Ministry notifications do not impose any requirement to prove religious persecution or a reasonable fear of religious persecution, nor do they prescribe a standard for the same. In view of this aspect, Owaisi further argues that,
“Absent a requirement to prove or even claim persecution for applying for citizenship, the Amendment Act clearly appears to have an unholy nexus with the National Register of Citizens “NRC” exercise, aimed at identifying “illegal migrants” residing in India…
… This Hon’ble Court must lift the veil and see the nexus between the NRC, the Impugned Notifications and the Amendment Act as part of one seamless chain and set the Amendment Act aside as vitiated by political mala fides, ex facie discriminatory and manifestly arbitrary.“
Another line of argument is that the Amendment would entail incentivising the forcible conversion of people who wish to avail its benefits, thereby violating Article 25 of the Constitution.
“The Amending Act, particularly Section 6, offers an incentive to persons from Afghanistan, Bangladesh and Pakistan to change their faith so as to avail the relaxed requirement of only five (5) years of residence for obtaining Indian citizenship, down from eleven (11) years prescribed under the Third Schedule to the Citizenship Act, 1955…The offering of incentives by the State to any category of persons following one or more specified religions and not to persons of other faiths in the same category would amount to violation of the freedom of religion available to “all persons” under Article 25.“
Moreover, it is also argued that the Amendment entails a violation of Article 52 of the Constitution, which requires the State to endeavour to promote international peace and order as well as International norms including the United National Declaration of Human Rights. The petitions add,
“The Amendment Act has already brought disrepute to the nation and has besmirched India’s reputation in the international community, inviting immediate censure from the UN High Commissioner for Human Rights, which has referred to the Amendment Act as ‘fundamentally discriminatory in nature.'”
Owaisi’s petition has been filed by Advocate MR Shamsad and drawn by Advocates Mohammad Nizam Pasha, Shariq Ahmed, Aditya Samaddar and Sparsh Prasad.
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, the All Assam Students Union, INC MP Jairam Ramesh; various public servants including former High Commissioner Deb Mukherjee and former IAS officers, Somasundar Burra andAmitabha Pande; Assam MLAs Debabrata Saikia (Leader of Opposition) and Rupjyoti Kurmi along with Abdul Khaleque, a Loksabha MP from Assam; Rihai Manch and Citizens Against Hate; Fazil Ahmed of the Jan Adhikar Party; the Peace Party and Advocate Ehtesham Hasmi.