CAA challenge #3: Supreme Court Directs Compartmentalisation of Issues

A Supreme Court Bench headed by CJI Lalit today listed the batch of petitions challenging the Citizenship (Amendment) Act, 2019 (CAA) for directions on October 31st 2022. The Bench, also consisting of Justice S Ravindra Bhat, directed the counsels to compartmentalise the petitions on the basis of what is being challenged. 

The CAA amends the Citizenship Act, 1955 to permit a certain class of illegal migrants to gain citizenship in India. The Amendment makes illegal migrants eligible for citizenship if they belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian community. They may also be eligible if they are from Afghanistan, Bangladesh or Pakistan. The amendment applies only to migrants who entered India on or before 31 December, 2014. Certain areas in the North-East are exempted from the provision.

Viewed in combination with the proposed all-India National Register of Citizens (NRC), the CAA has the potential to deprive many Muslims residing in India of full citizenship. The proposed NRC will likely deprive many persons, both Muslim and non-Muslim, residing in India of citizenship. While excluded non-Muslims will have the opportunity to regain citizenship via the CAA, this will not be the case for Muslims. Hence, the NRC in combination with the CAA may disproportionately exclude Muslim residents of India. On 11th December 2019, the Parliament passed the Citizenship (Amendment) Bill, 2019 (at which point it became the Citizenship (Amendment) Act, 2019). The CAA was officially notified on January 10th 2020.

On May 28th 2021, the Government of India issued an Order under Section 16 the Citizenship Act, 1955. The Order gives district collectors in 13 districts with a high migrant population the power to accept citizenship applications from people from the same 3 countries belonging to the same 6 religions.

CAA is challenged before the Supreme Court primarily for violating the right to equality under Article 14 of the Constitution of India, 1950. Article 14 guarantees all ‘persons’ (not only citizens) equality before the law and equal protection of law. 

In 2020, a Bench comprising the Chief Justice, Justice A.S. Bopanna and Justice Hrishikesh Roy briefly heard a new Assamese petition by the Muslim Students Federation (Assam). The counsel for the petitioners argued that the Bench should issue an ex-parte stay on the CAA, ‘insofar as the State of Assam is concerned’. He contended that no migrants who had arrived in Assam after 24 March 1971, the cut-off date set by the Assam Accord, should gain a path to citizenship via the CAA. The bench, merely issued notice to the Union and tagged the petition to the other 200+ CAA petitions. The Court heard the case today for the first time since July 2020.  

What Transpired Today?

Today, Senior Advocate Kapil Sibal, representing the Indian Union of Muslim League, informed the Bench that there are two sets of petitions in the case, that need to be clearly separated and dealt with. The Court was informed that Mr. Sibal stated that a set of petitions pertain to Assam and Tripura alone, while another set challenges the 2019 Amendment and the rules in general. Adding to this, Solicitor General (SG) Tushar Mehta, appearing for the Union of India, submitted that these cases should be clearly broken in discernible compartments for ease of court. 

The Court, on hearing the submissions, directed the office of SG to prepare a complete list of the issues that the Court must consider in  these challenges. The Court appeared to agree with the Solicitor General’s suggestion, and directed his office to compartmentalise the issues depending on what is under challenge. 

The Bench further directed the Union of India to file replies to all the petitions. In relation to petitions pertaining to Assam, wherein CAA, 2019, on the ground of it being violative of The 1985 Assam Accord, the court asked the State file a reply. 

The batch of petitions is now likely to come up before a 3-Judge Bench for further directions, on October 31st, 2022.