Day 13 Arguments

August 13th 2019

Today, in a brief hearing, the bench comprising CJI Ranjan Gogoi and Rohinton Nariman J stated that it would not allow the entire NRC exercise to be repeated on the basis of the issues raised in the previous hearing and new impleadments.

 

Background

Section 3(1)(a) of the Citizenship Act, 1955 provides that every individual born between January 26th 1950 and June 30th 1987 is an Indian citizen. The interpretation of sections 3(1)(a) and (b) of the Act is pending before a five judge Constitution bench in Deepak Kumar Nath v Union of India. In this case, the court must decide whether “every person born in India” in Section 3(1)(a) includes persons born in India to illegal immigrants. It must also decide whether “either of whose parents is a citizen of India at the time of his birth” in Section 3(1)(b) includes only those persons that have a citizen and a lawfully entered and residing foreigner as parents. Furthermore, the interpretation of section 3 and 6A  of the 1955 Act is also pending before a five judge Constitution bench in the Assam Accord case.

 

On July 2nd, the Supreme Court ordered that the descendants of 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 August 8th, the Supreme Court  heard stakeholders’ challenges to paragraph 7 on the grounds that it violates Section 3(1)(a) of the Citizenship Act, 1955.

 

Today’s order

The court held that the NRC State Co-Ordinator’s suggestions on inclusion in paragraph 7 are not violative of Sections 3(1)(b) and (c) of the Citizenship Act, 1955. Therefore, it stated that it would not allow the entire NRC exercise to be repeated on the basis of the issues raised in the August 8th hearing. In effect, all persons born after December 3rd 2004 whose parents are declared foreign, or whose registered voter status is under suspicion, will be declared foreigners.

 

The court also stated that until the Constitution bench decides the matter of interpretation regarding section 3 and 6A of the Act, due consideration must be made to Rule 4A of the Citizenship Rules, 2003. It stated that Rule 4A specifically departs from the procedures laid down in Rule 4 to make an exception for the creation of NRC in Assam through exclusive procedures laid down in the Schedule to the 2003 Rules. It also explained that section 6A was inserted through the Citizenship (Amendment) Act, 1985 to reflect the special provisions granting citizenship to persons covered by the Assam Accord. The court relied on Clauses 2 and 3(3) of the Schedule to the 2003 Rules to substantiate its reasoning. Further, it presented List A to the Schedule which outlines the 15 supporting documents that can be used to claim citizenship for NRC inclusion.

 

However, the court stated that its orders are subject to change after the decisions of the Constitution bench in the Assam Accord case and Deepak Kumar Nath v Union of India.

 

Further the court ordered that an appropriate security regime be adopted to maintain the secrecy of NRC data along the lines of Aadhaar’s security system. Only after the adoption of such a security regime should the list of inclusions and exclusions be made available to the State government, Union government and Registrar General of India. The court directed only the hard copies of the supplementary list of inclusions to be published. It directed that the list of exclusions shall be published online only.

 

Lastly, the court upheld the Gauhati High Court’s decision in Anowar Ali v. State of Assam on the question of validity of the orders passed under the IMDT Act.