Day 12 Arguments

August 8th 2019 

Today, a two judge bench of the Supreme Court comprising CJI Ranjan Gogoi and Rohinton Nariman J heard a set of challenges to paragraphs 7 and 8 of the NRC State Co-ordinator’s 10 July report on the ground that it violates section 3(1) of the Citizenship Act, 1955.

 

Background

Section 3(1)(a) of the Citizenship Act, 1955 provides that every individual born from January 26th 1950 to June 30th 1987 is an Indian citizen.

 

On July 2nd 2018, the Supreme Court ordered that the descendants of a D Voter (DV) and ‘person whose case is pending at Foreigners Tribunals’ (PFT) must not be included in the updated NRC.

 

On July 10th, NRC State Co-ordinator Prateek Hajela submitted a report, whose paragraph 7 suggests that:

1. Any person claiming eligibility from a parent established as a D Voter (DV), Declared Foreigner (DF) or person whose case is pending at Foreigners Tribunals (PFT) not be be included in the NRC.
2. Persons born before December 3rd 2004 are eligible to be included in the NRC if the parent through whom eligibility is sought is not DV, DF or PFT even if the other parent (through whom eligibility is not sought) is a DV, DF or PFT.
3. Persons born after December 3rd 2004 are not eligible to be included in the NRC if either parent is DV, DF or PFT, irrespective of which parent eligibility is sought from.

 

On July 23rd, the Supreme Court extended the deadline for publication of final list of NRC to August 31st. It also extracted paragraph 7 of the report to enable stakeholders to contest the suggestions made in the report before the court.

 

On August 3rd, the Leader of Opposition in the Assam legislative assembly, Debabrata Saikia, stated that NRC authorities had published sensitive data in contempt of court orders. The Supreme Court had earlier ordered that the NRC data must be kept in complete secrecy.

 

Today’s hearing

Today, the court heard contests to paragraph 7 of the report on the ground that it is foul of Section 3(1)(a) of the Citizenship Act, 1955.

 

On criticisms made about the NRC process, CJI Gogoi stated that the court’s orders and judicial officers’ actions are constantly subjected to debates and criticisms, and faults are being found. He stated that if the court bothers with these, it will “never be able to do any constructive work”. He refused to reflect upon the events in the Assam assembly and Mr. Chandan Bharani’s remarks, deeming that this was not worth the court’s time. He stated that the court wanted the NRC completed by August 31st, irrespective of criticisms. He then decided to hear the submissions.

 

Advocate Kapil Sibal submitted that the application of the NRC rules was in abrogation of section 3(1)(a) of the amended Citizenship Act. He also raised issues with clause (c) of section 3(1).

 

CJI Gogoi stated that the changes to rules suggested by the NRC Coordinator were in accordance with the law. He explained that as far as section 3(1)(a) is concerned, if the claim is on the basis of birth, an individual is covered by sections 3(1)(b) or 3(1)(c). But if the claim is on the basis of legacy, and if there is a problem with legacy, an individual must suffer the consequences.

 

Kapil Sibal then sought a clarification about whether citizenship could be denied to an individual born between 1950 to 1987. He explained that the cases of such individuals will be covered under section 3(1)(a) and not section 3(1)(b).

 

CJI Gogoi then stated that for a person claiming citizenship on the basis of birth between 1950 and 1987, of the 13 documents that can be submitted, one is a birth certificate.

 

NRC co-coordinator Prateek Hajela explained that only a pre-1971 birth certificate is accepted by the NRC authorities.

 

Kapil Sibal then read out section 3(1)(a) of the Act which provides that any person born in India after January 26th 1950 and before July 1st 1987 shall be a citizen of India. He clarified that he was speaking for the plight of individuals born before 1971. He submitted that NRC applications of such people were being disqualified even if they were claiming citizenship by birth.

 

Prateek Hajela stated that the NRC was functioning on the basis of Rule 4A and Schedule to Rule 4A of the Citizenship Rules, 2008 which provides that only those persons are included in the NRC whose ancestors of their own names appear in any of the documents in the permissible list of documents upto 1971.

 

CJI Gogoi inquired why people born between 1950 and 1971 were being excluded when those born after 1987 (covered by section 3(1)(b) of the Citizenship Act) were being considered.

 

Prateek Hajela reiterated that these exclusions were the result of NRC authorities following Rule 4A. He explained that the NRC’s permissible list of the particulars for those born between 1950 and 1971 was never on the basis of the birth certificate.

 

Nariman J stated that section 3(1)(a) of the amended Citizenship Act, 1955 must be taken into account and that if anyone born after 1950 and before 1971 was submitting a birth certificate, that must be accepted as valid.

 

Kapil Sibal then submitted that the phrase “at the time of his birth” in section 3(1)(c)(ii) of the Act was leading to injustice. He submitted that one could be declared an illegal immigrant after 2003 but may have been born before 2003. He submitted that this class of people should be protected and if their claims are still pending for doubtful origin before Foreigner Tribunal, their citizenship or lack thereof should not be declared before a decision is taken by the Tribunal.

 

Advocate Somiran Sharma then requested the court to not take a decision on questions of interpretation in section 3(1)(a). He submitted that section 3(1)(a) of the Act was under challenge before a 5-judge constitution bench on the question of whether “every person born in India” is to be interpreted as including every person born to Indian citizens only or also such persons born in India to illegal migrants. CJI Gogoi accepted considering his request to not take a decision relating to the matter until it was settled by the Constitution bench.

 

Advocate Sudhir Singh, on behalf of the Citizens for Justice and Peace which filed an application for impleadment, sought to bring the court’s attention to sections 3(1)(a) and 3(1)(c). However since the Citizens for Justice and Peace is not yet a party, the court did not hear his arguments. CJI Gogoi stated that the bench had cross-checked with the registry on the previous day to inquire whether whether the Citizens for Justice and Peace had filed the application for any directions on rights. However, they had found that the prayer was only filed for impleadment. He stated that in case of such a prayer, the court could not do anything and that even if they were to do something, others would raise objections. He reprimanded the organisation for its negligence. When the counsel requested that their arguments be heard, given the humanitarian nature of the issue at hand, CJI Gogoi responded that the humanitarian problems would be dissolved if the correct prayer – seeking directions from the court – had been filed.

 

Solicitor General Tushar Mehta opposed the intervention of the Citizens for Justice and Peace on the grounds that they were a Bombay based NGO. He claimed that they had not genuinely worked on the ground. The counsel for Citizens for Justice and Peace explained that the NGO had aided more than 9,500 individuals going through the NRC process.

 

An advocate on behalf of a client submitted that there is a dichotomy between sections 3 and 4 of the Citizenship Act, on the issue of one or both parents being Indian citizens at the time of the person’s birth. She requested the court to direct that section 3(1)(c) should be read with section 4(2) in the interests of justice, as NRC Coordinator Prateek Hajela’s insistence on descent was causing injustice. NRC Coordinator Prateek Hajela clarified that implementation was being done in accordance with Rule 4A.

 

The advocate for All Assam Students Union suggested that persons covered under section 3(1)(a) and those who qualify under the category – of the persons born before December 3rd 2004, if the parent through whom legacy is drawn is not DV, DF or PFT and is found eligible for NRC, but the other parent from whom legacy is not drawn is a DV, DF or PFT then such descendants may be included in the NRC –  be kept in a separate list in the NRC. The counsel further submitted that the purpose for the separate list was to ensure that the NRC process is undertaken without derailment and can be subject to the constitution bench’s decision on the challenge to section 3 and accordingly be adjudicated after the court’s decision.

 

NRC Coordinator Prateek Hajela sought permission from the court for writing a brief on the NRC process to inform members of the Foreigner Tribunals of the NRC process. He submitted that appeals to the NRC are made before the Foreigners Tribunals and that the setting up of these tribunals was being monitored by Assam state government and the Guwahati High Court. On June 25th, in such a monitoring committee meeting, the Guwahati High Court had decided that ‘since it is expected that there will be a substantial number of appeals arising out of final NRC, it is necessary that the members of the Foreigners Tribunal should be made aware of NRC process so that there is no confusion while deciding on matters. For this, Prateek Hajela is requested to write up a brief about the NRC process for internal circulation among the members of the Foreigners Tribunal and other stakeholders.’ He submitted that he needed to prepare the not before the orientation program and that he had been informed to appraise the Supreme Court and seek its permission before drafting the note.

 

CJI Gogoi directed Prateek Hajela to submit a note in the evening and place his views in record. He stated that the court would give its order on August31st, Tuesday. He stressed adherence to the August 31st deadline.