CAA: Writ Petition Summary (All Assam Students’ Union)

Background

The Citizenship (Amendment) Act, 2019 (hereafter ‘CAA’) amends the Citizenship Act, 1955 so as to grant a certain class of illegal migrants a path to Indian citizenship. The CAA makes illegal migrants eligible for citizenship if they (a) belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian community and (b) are from Afghanistan, Bangladesh or Pakistan. It only applies to migrants who entered India on or before December 31st, 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. While excluded non-Muslims will have the opportunity to regain citizenship via the CAA, this will not be the case for Muslims. So, the NRC in combination with the CAA may disproportionately exclude Muslim residents of India.

The All Assam Students Union (AASU)  filed a petition under Article 32 of the Constitution challenging the constitutionality soon after the Bill was passed in Parliament earlier in December. The CAA was officially notified on January 10th, 2020. Soon, various other litigants followed and there are currently around 200 petitions tagged together.

Many of the petitions pray for the Court to strike down four notifications issued by the Union government in 2015 and 2016 on similar grounds. The notifications (G.S.R. 685(E), 686(E), 702(E), 703(E)) exempt illegal migrants from the above six religions and three countries of origin from deportation and detention under the Passport (Entry into India) Act, 1920 and Foreigners Act, 1946.

Petition

Assam Accord and Section 6A of the Citizenship Act, 1995

In 1985, the Government of India, the State of Assam, AASU and some other parties signed the Assam Accord, 1985. The Accord was a settlement to satisfy the demands of the Assam Movement, for the cultural, educational and economic development and protection of the Assamese people.

After the Accord, the Union introduced Section 6A in the Citizenship Act, 1955. Among other things, Section 6A provided that in the state of Assam, ‘illegal’ migrants who had arrived prior to January 1966 would receive citizenship. People who arrived between January 1996 and March 1971 would receive citizenship after 10 years. And people who arrived after March 1971 would not be eligible for citizenship.

Sections 2, 3, 5 and 6 of the CAA have the effect of providing citizenship to ‘illegal’ migrants from the earlier mentioned religions and countries. It allows this for migrants who entered even until December 2014.

So, the petitioner argued that the CAA contravenes the earlier ‘solemn’ promise made to the people of Assam in the Assam Accord, which was statutorily enacted through Section 6A. Especially since Section 6A (8) specifically provides that the Section will have effect over any other law in force at the time.

Disturbs Other Provisions of the Statutory Regime

The petitioner argues that the CAA contravenes the provisions of the Immigrants (Expulsion from Assam) Act, 1950. This Act gives special powers to remove migrants resident in Assam who are ‘detrimental to the interests of the general public of India’ or ‘any scheduled tribes in Assam’.

The petitioner also refers to the Object of the Act which was large-scale migration causing economic and law and order problems. So, the CAA would be inconsistent with this aim and the provisions of the 1950 Act since it provides citizenship to these same migrants.

The petitioner also argues that the Registration of Foreigners Act, 1939 requires all foreigners to report their presence. There has been no order exempting the class of persons covered by the CAA from reporting. By allowing this class of persons to claim citizenship, the 1939 Act will lose its purpose, since they will become citizens without having complied with the reporting requirements of the 1939 Act.

Fundamental Rights: Article 14 and Secularism

The petitioner argues that the classification on the basis of religion as well as the place of birth is impermissible under Article 14 of the Constitution because they are ‘intrinsic and core identities’.

The CAA also omits other persecuted minority communities and selects only three countries. The petitioner submits that this is not a reasonable classification under Article 14.

In cases like Joseph Shine v. Union of India, the Court has held that legislation that is ‘manifestly arbitrary’ can be struck down. It would be a violation of Article 14.

The petitioner argues that the CAA grants too much discretion to the executive in granting citizenship. There are no guidelines or criteria to identify which persons are religiously persecuted. And there is no authority prescribed to exercise this power. The petitioner argues this is an arbitrary, uncontrolled and therefore, unconstitutional power.

It also threatens the secular fabric of the Constitution, contained in the Preamble, Article 15 and Articles 25 to 27.

The Court’s Earlier Rulings

The petitioner argues that in Sarbananda Sonowal v. Union of India (I) and (II), the Court has recognised that ‘illegal migrants’ should be expelled. They submit that this was the basis on which the Court had struck down the Illegal Migrants (Determination by Tribunals) Act, 1983 and the Rules. The Court has also recognised this migration as ‘external aggression’.

The Supreme Court has recognised in this and other cases, that the cause of migration from Bangladesh has not been religious persecution. It is primarily for economic and demographic reasons. So, the petitioner submits that the basis of the CAA is invalid.

This was reiterated in All Assam Sanmilitia Mahasangha v. Union of India, in which the Court directed the Union to take measures to stop ‘illegal migration’. The case also referred 13 important questions to a 5-Judge bench which is pending.

UN Declaration on the Rights of Indigenous Persons

The United Nations Declaration on the Rights of Indigenous Persons, 2007 (UNDRIP) guarantees the right of indigenous communities to access and maintain their land and culture, among other things. It also imposes a duty on States to protect these rights.

The petitioner argues that the ‘illegal immigration’ from Bangladesh threatens the culture of the indigenous people of Assam and their economic well-being. By providing them citizenship, the CAA is a violation of international law.

Federalism

The CAA would place a financial burden on States because of the number of new citizens. The petitioner argued that the States should have been consulted before the CAA was enacted.

Prayer

So, the petitioner prays that the Court strike down the CAA, or specifically sections 2, 3, 5 and 6 of the Act.

They also ask the Court to recognise the rights of the indigenous people of Assam, under the UNDRIP and the Assam Accord, and order the implementation of measures to protect these rights.