Citizenship Amendment Act, 2019: Volley of PILs filed in Supreme Court challenging Constitutionality

Following Presidential assent last midnight, the Citizenship Amendment Act, 2019 has drawn more challenges before the Supreme Court. Various PILs filed today have added to a rising chorus challenging the constitutionality of the controversial legislation, in view of its exclusion of Muslim persons from its list of beneficiaries. The petitioners have contended that the same entails a violation of Articles 14 and 21 of the Constitution.

PILs filed on this aspect include those by 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; Rihai Manch and  Citizens Against Hate; Fazil Ahmed of the Jan Adhikar Party; the Peace Party and Advocate Ehtesham Hasmi.

The PIL filed by the All Assam Students Union (AASU), however, registers protest over provisions of the Citizenship Amendment Act being violative of the Assam Accord of 1985 and Section 6A of the Citizenship Act, 1955, thereby relaxing immigration standards for the categories of persons covered by it.

Earlier this morning, a PIL filed by Trinamool Congress MP, Mahua Moitra in the matter was mentioned before the Supreme Court. This apart, the Indian Union of Muslim League and four other Members of Parliament have already filed a PIL challenging the Amendment yesterday, before Presidential assent was obtained for the Bill.

PIL by Jairam Ramesh

Echoing concerns raised by various petitioners, the PIL filed by Jairam Ramesh has contended the Citizenship Amendment Act is a brazen attack on the core fundamental rights envisaged under the Constitution and is ex facie violative of Articles 14 and 21. The petition adds that,

“… the impugned Act has been enacted disregarding the Report of the Joint Parliamentary Committee dated 07.01.2019 as also the terms of the Accord between AASU, AAGSP and the Central Government on the Foreign National Issue signed on 15.08.1985 (Assam Accord) … which provides constitutional, legislative and administrative safeguards … to protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people.“

Ramesh goes on to submit that on the one hand, the Act does not provide refuge for persecuted minorities to settle in India. On the other hand, large categories of migrants are excluded from its purview based on motivated and unconstitutional tests of classification. In view of the same, it is contended that the Act is neither refugee protective nor an illegal immigration antidote. Further, an objection is also raised to the connection the Act has with the NRC exercises. As noted in the petition,

“… the impugned Act promotes rather than checks illegal migration and is inextricably intertwined with the bizarre concept of a national “National Register of Citizens”, as it does not even attempt to address the humanitarian and logistical issues of excluding millions and is clueless as to where to house them, where to deport them and how to deal with them.“

Ramesh’s petition has been filed by Advocate Nishanth Patil, drawn by Advocates Muhammad Ali Khan, Omar Hoda and Javedur Rahman, and settled by Senior Advocates Kapil Sibal and Devadatt Kamat.

PIL by All Assam Students Union

The issue of the Assam Accord being violated has been highlighted in the PIL filed by the All Assam Students Union (AASU). The petition challenges Sections 2, 3, 5 and 6 of the Citizenship Amendment Act as being unconstitutional and in violation of several provisions of the Constitution of India. 

It is contended that the 2019 Amendment goes against the 1985 Accord and the consequent Section 6A of the Citizenship Act, 1955, which was introduced with a view to control the influx of illegal migration to Assam. As stated in the petitioner,

“The impugned Act has been passed under extraneous political considerations and is in derogation of the rights of Indian citizens living in the state of Assam. The impugned Act is not in public interest and welfare. The result of the impugned Act will be that a large number of non-Indians, who have surreptitiously entered Assam after 25.03.1971, without possession of valid passport, travel documents or other lawful authority to do so, will be able to take citizenship and reside therein. The impugned Act seeks to do away with any sort of regulation for Hindus, Sikhs, Buddhists, Jains, Parsis and Christian foreigners entering India illegally from Bangladesh, Afghanistan and Pakistan.”

AASU’s petition has been filed by Advocate T Mahipal. 

PIL filed by Debabrata Saikia, Abdul Khaleque and Rupjyoti Kurmi

The petition highlights that the Citizenship Amendment Act, 2019 is flawed given that,

” … by excluding Muslims from the category of ‘persecuted’, the amendment is based on the false premise that only minorities face religious persecution in a Muslim-majority country. The amendment makes an easy – but untrue – classification between minority and majority religion. This assumption is similar to assuming that all Hindus in India are treated alike irrespective of caste. However, within the majority Muslim religion, there is persecution based on sect.“

Citing the example of Ahmaddiyas in Pakistan and Hazaras in Afghanistan, the petitioners contend,

“Unless persecution of a sect within the majority religion is recognised, the classification – of majority and minority – will have no nexus with the object of protecting those who face religious persecution.“

Inter alia, it is also pointed out that,

“The classification might be limited to singling out persecuted religious minorities. However, on this logic, Sri Lankan Eelam Tamils must also be included, as the Tamil Eelams are persecuted based on religion (Hinduism) and ethnicity.“

Further, specific objection has been raised to the alleged violation of the Assam Accord, akin to the concerns raised by the AASU. In this regard, the petition states,

“By granting citizenship to illegal migrants based on religion who came to India before 31st December 2014, the Act contradicts the Assam Accord of 1985. The Act is an attempt to destroy the fragile ethnicity and socio economic fabric of the State of Assam.”

The petition has been filed by Advocate Pyoli.

PIL filed by former High Commissioner Deb Mukherjee and other public servants

Another PIL filed by former Indian High Commissioner in Bangladesh Deb Mukherjee and two former IAS officers, Somasundar Burra and Amitabha Pande echoes protest over the non-inclusion of Muslims from the purview of the Act, contending the same to be a violation of Articles 14, 21 and 15. Citing various examples of communities who are excluded from the Bill despite facing persecution in neighbouring countries, the petitioners argue that,

“It is respectfully submitted, therefore, that the impugned Act is devoid of rationality, devoid of compassion, devoid of humanity, and devoid of constitutional validity…

… by elevating religion and religious persecution to the level of constituting justified claims to citizenship, while refusing to accord the same sanctity to other forms of (equally serious) non-religious persecution, the impugned Act violates the basic feature of secularism. Indian secularism does not permit religion and faith to determine an individual’s civil status in the polity (through citizenship), either directly or indirectly. And it certainly does not permit that to be done in a colourable and discriminatory fashion.“

PIL by Rihai Manch and Citizens Against Hate

The PIL filed by Rihai Manch and Citizens Against Hate through Advocate Fauzia Shakil and drawn by Advocate Sanah Javed also highlight that the religion-based classification made by the Citizenship Act Amendment violates Articles 14 and 25 of the Constitution. It is argued that such a classification is constitutionally immoral and antithetical to the idea of ‘Republic of India'”. The petition further states,

“… the amendment makes three classifications: (i) between Muslim migrant and non-Muslim migrant from Afghanistan, Bangladesh and Pakistan; (ii) between migrants from these three countries and those from other countries; and (iii) between residents who migrated due to reasons of religious persecution and those who migrated due to other forms of persecution for e.g. racial persecution, ethnic persecution. The classification is not based on any real and substantial distinction and has no nexus with the object it seeks to achieve. The classification is based on religion and is manifestly arbitrary.”

Particularly, objection has been registered to the exclusion of Muslim minority sects contended to be persecuted in the three countries covered under the Citizenship Amendment Act, i.e. Pakistan, Bangladesh and Afghanistan. Moreover, the exclusion of persecuted communities from other countries not covered by the Amendment has also been challenged.

PIL filed by Fazil Ahmed

Inter alia, Fazil Ahmed’s plea also highlights the legislation’s disregard for various Muslim minority groups that face persecution in neighbouring countries.

“… the Muslims in these countries are not a homogenous group and minority sects within the community are persecuted for their faith. For example, members of the Ahmaddiya community in Pakistan are persecuted purely for religious reasons as they have theological differences with the majority Sunni sect. In fact, the Ahmadis are constitutionally prohibited from calling themselves Muslims and for all practical purposes are minorities. In Afghanistan, Hazaras have faced violent repression from the majority Sunnies since the 19th century. The Citizenship Amendment Bill, however, does not cover them.“

Recalling the observations of the Supreme Court in KR Lakshmanan v KSEB regarding the mandate to treat equals alike when a classification is made, the petitioner has contended,

“When the court says one should not be singled out for special treatment, what implies is that one cannot be singled out for unfair treatment as well. When this is applied to the Citizenship Amendment Bill, the immediate revealing facet is that Muslims of the three countries are being singled out for a differential treatment that is discriminatory. When the identification of the beneficiary of the law is based on religious persecution, all those religiously persecuted have to be treated as equals. Leaving out Muslims who are persecuted amounts to treating people of similar position unequally.. 

… this sort of unreasonable classification which singles out a class “without having any difference peculiar to that class” according to the Supreme Court, makes the statute unsustainable.“

Notably, the PIL filed by Fazil Ahmed also raises the concern that the Citizenship Amendment Bill was introduced to include Hindus who were left out from the list in the National Register of Citizens (NRC), which was released earlier this month. On this aspect, the petition states,

“…  in Assam, the Citizenship Amendment Bill has raised another concern. Many feel that this is a way to bring the 19 lakh Hindus left out of the National Register of Citizens (NRC) list.”

Ahmed’s petition has been filed through Juris Quorum. Advocate Pawan Prakash Pathak will appear for the petitioner.

PIL by Peace Party of India

The exclusion of minority Muslim communities from Afghanistan and Pakistan, namely the Ahmaddiya ad Shia sect, also find prominent mention in the PIL filed by the Peace Party, which has challenged the Amendment as divisive, unreasonable, discriminatory and manifestly arbitrary. The notifications initiating the effect of the Amendment is challenged by the Party as manifestly arbitrary, while contending that

“…  they, arbitrarily, do two things: – (a) shields a set of individuals from being declared illegal migrants (and, by extension, shields them from detention or deportation); and (b) creates a fast-track to citizenship for these individuals ...  [these] actions are clearly and explicitly on communal basis by categorically excluding Muslims from its ambit.

Petition filed by Advocate Ehtesham Hasmi

While challenging the constitutionality of the Act on grounds that it violates Articles 14, 15 and 21, Hasmi also points out, inter alia, that.

“… this Act has already attracted a lot of criticism from all around the country and makes the inhabitant of India and the muslim citizens of the country fear the action of the ruling government. This Act even before coming into action had created a sense of fear amongst the Muslims community of the country and a diverse country like ours where hundreds of religions reside in one country does not have any place for discrimination against one particular community.”

The petition has been filed by Advocate Akbar Siddique.