• Challenge to Citizenship Amendment Act, 2019; seven petitions moved in the Supreme Court

    The Leaflet

    December 16, 2019

    A total of seven petitions has been filed in the Supreme Court of India, so far, challenging the constitutional validity of the Citizenship Amendment Act, 2019 (the Act).

    Six fresh petitions are filed in the apex court today challenging India’s new citizenship law which allows entitlement of citizenship on the basis of religion. The new law got President’s assent on late Thursday night.

    Here are the details of all the petitions:

    I. The Indian Union Muslim League (IUML) along with four Members of Parliament (MPs) P K Kunhalikutty, E T Mohammed Basheer, Abdul Wahab and K Navas Kani moved the Supreme Court challenging the Act on Thursday.

    The petition challenged the Act to be declared unconstitutional for violating Article 14, 15, 21 and the basic structure of the Constitution of India.

    In their plea, the petitioners stated that they do not have any grievances in granting citizenship to migrants but they are aggrieved by discrimination and unreasonable classification based on religion.

    The petition is drawn by Haris Beeran and filed through Advocate Pallavi Pratap.

    II. Trinamool Congress MP Mahua Moitra on Friday approached the Supreme Court challenging the constitutional validity of the Citizenship Amendment Act.

    In her petition, MP Moitra stated that the new citizenship law violates Article 14 of the Constitution as it excludes Muslim from the Act amounting to discrimination. She also contended that the new law violates the principles of secularism which have been held to be part of the basic structure of the Constitution.

    III. Congress leader and MP Jairam Ramesh also filed a petition challenging the Act. In his petition, he stated that the amendment is a brazen attack on the core fundamental rights guaranteed under Article 14 and 21 of the Constitution.

    The Citizenship Act is challenged on the following grounds:

    • The Act creates two unreasonable classifications on the basis of religion and geography and shares no rational nexus to the object of the Act;
    • The Act treats equals as unequals, i.e. all persons facing religious persecution in their native country are not being treated alike;
    • The Act is arbitrary as it groups only three countries and six religions and expressly excludes specific religions and regions;
    • The Act violates Article 21 by creating a separate class of individuals who would be rendered stateless;
    • The Act fails to provide all persons, including those residing in India, the fundamental right of equality before the law guaranteed under Article 14;
    • The Act has inherent arbitrariness as it completely ignored the recommendations and observations of the Joint-Parliamentary Report on the Citizenship Amendment Bill, 2016;
    • The Act violates the Assam Accord of 1985; and that
    • The Act violates the law laid down in Sarbananda Sonowal v. Union of India where the Supreme Court established the constitutional requirement that the burden would always lie on the individual to rebut the allegation that he/she was a foreigner.

    The petition is drawn by Muhammad Ali, Omar Hoda, Javedur Rahman and filed through Advocate Nishanth Patil.

    IV. Former civil servants also moved a petition challenging the constitutional validity of the Citizenship Amendment Act 2019.

    The petitioners stated that the Act violates every known principle of equality and equal treatment and “damages and destroy” the Indian Constitution’s basic feature of secularism.

    The petition, filed by former ambassador Deb Mukharji and former IAS Officers Somasundar Burra and Amitabha Pande, also draws a distinction between refugees and asylum seekers within the territory of India.

    The petitioners raise the following questions in their plea:

    • Whether the impugned provisions and notifications entrench and perpetuates existing disadvantage, without any reasonable justification and is thus violative of Article 14?
    • Whether the impugned provisions fail the classification test under Article 14 of the Constitution?
    • Whether the impugned provisions enact a “reasonable classification for a legitimate purpose” as required under Article 14?
    • Whether the impugned provisions violate the arbitrariness test under Article 14?
    • Whether the impugned provisions violate Article 21 of the Constitution?
    • Whether the impugned provisions violate the Basic Structure of the Indian Constitution?
    • Whether the impugned provisions violate India’s Binding Obligations under the International Covenant for Civil and Political Rights and the Universal Declaration of Human Rights?
    • Whether the impugned provisions violate fundamental rights by imposing unconstitutional conditions?

    The petition is drafted by Gautam Bhatia, Abhinav Sekhri, Jahnavi Sindhu, Shruti Narayan, Suhrith Parthasarathy, Bharat Gupta, and is filed through Advocate Shadan Farasat.

    V. Rihai Manch and Citizens Against Hate has also filed a Public Interest Litigation challenging the constitutional validity of the Act contending that it is discriminatory, manifestly arbitrary and violates the fundamental rights under Articles 14, 21 and 25 of the Constitution of India.

    This petition states that: “By introducing a ‘religion test’ in India’s citizenship law, the Amendment strikes a body blow to the basic structure of India’s constitution, specifically its non-denominational character; and is manifestly arbitrary, constitutionally immoral, both in letter and in spirit.”

    It has sought the Act to be declared unconstitutional as it violates Articles 14 and 25, and is contrary to the basic structure doctrine that includes the principle of ’secularism’ in its ambit.

    The petition is drafted by Sanah Javed and is filed through Advocate Fauzia Shakil.

    VI. Advocate Ehtesham Hashmi along with journalist Ziya Us Salam, and law students Muneeb Ahmad Khan, Appurva Jain and Adeel Talib has filed a joint Public Interest Litigation seeking a declaration of appropriate order by the court to declare that the Citizenship (Amendment) Act, 2019 as well as the amendments made to Passport (Entry into India) Rules 1950 and Foreigners Order 1948 are illegal, arbitrary, discriminatory and violative of Article 14, 19 and 21 of the Constitution of India.

    The petition stated that “… the Act wants to create a class of refugees on the basis of religion which cannot be treated as permissible/reasonable classification. In order to pass the test of permissible/reasonable classification, two conditions as propounded by this Hon’ble Court in the case of State of West Bengal Vs Anwar Ali Sarkar, have to be satisfied:

    “the classification must be founded on an intelligible differentia which distinguishes person or thing that are grouped together from other left out;

    the differentia must have a direct nexus to the object sought to be achieved by the statute in question”.

    The petition is filed through Advocate Akbar Siddique

    VII. General Secretary of Jan Adhikar Party, Faiz Ahmed, has also filed a plea against the Act.

    (more information awaited)

    (Editor’s note: This is a developing story; it would be updated as more details come in)

     

    Read the Petition filed by the IUML here

    Read the Petition filed by Rihai Manch and Citizens Against Hate here

    Read the Petition filed by Former Civil Servants here

    Read the Petition filed by Advocate Ehtesham Hashmi & others here


    First published in The Leaflet.

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