Day 2 Arguments: 22 January

The Supreme Court is hearing over 130 petitions challenging the Citizenship (Amendment) Act, 2019 ('CAA'). The CAA amends the Citizenship Act, 1955 so as to grant illegal migrants who meet the following conditions a path to Indian citizenship: (a) belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian community, and (b) are from Afghanistan, Bangladesh or Pakistan. 

 

The petitioners contend that the CAA violates the fundamental rights to equality and dignity of illegal migrants residing in India.


On 18 December 2019, a Bench comprising Chief Justice S.A. Bobde, Justice B.R. Gavai and Justice Surya Kant issued notice to the Union of India. 

 

Today, a Bench comprising the Chief Justice, Justice Abdul Nazeer and Justice Sanjiv Khanna directed the Union to file its reply within four weeks. Further, it said that it would treat the petitions from Assam and Tripura separately, even though all petitions will be listed together. The matter is listed for five weeks from now.

 

Union yet to file reply

Appearing for the Union, Attorney General K.K. Venugopal brought to the Bench's attention that the Union had only been served with roughly 60 petitions of the around 140 petitions that had been filed. He explained that therefore the Union had only prepared a preliminary reply. He said that it would finalise its reply once all the petitions had been served.

 

Court hears various counsels

The Bench heard various counsels for the petitioners present preliminary arguments. Primarily, the counsels sought to convince the Bench to issue an interim stay on the CAA.

 

Sr. Adv. Kapil Sibal urged the Court to decide whether to refer the matter to a Constitution Bench, before hearing the case on merits. He added that while the referral issue is being decided, the Court may in the interim order that the implementation of the CAA be postponed by a few months. He clarified that postponement did not entail a stay. A postponement would allow the law to remain in force, while however preventing it from being implemented for a few months, he said.

 

Sr. Adv. Rajeev Dhavan concurred with Sr. Adv. Sibal, submitting that a preliminary hearing ought to be held on two issues: a) whether a Constitution bench needs to be constituted b) irreversibility of the implementation of the Act in the interim.

 

Sr. Adv. Abhishek Manu Singhvi also concurred with Sr. Adv. Sibal's arguments. Further, he highlighted that around 40,000 people in Uttar Pradesh (U.P.) have already been marked as 'doubtful for citizenship', despite the fact that the government is yet to frame rules for the implementation of the CAA.

 

Sr. Adv. Shyam Divan urged the Court to issue a stay on the issuance of citizenship certificates, He explained that such issuances result in an irreversible change. Once a person applies for citizenship under the CAA, said person implicitly gives up their claim to the citizenship of another nation as India recognizes only single citizenship. 

 

Next, Sr. Advs. Vikas Singh and Salman Khurshid presented arguments on behalf of certain petitioners from Assam and Tripura. They submitted that the Court ought to treat their cases separately. They argued that implementing the CAA would irreversibly alter the demographics of Assam. They submitted that there are a large numbers of Hindu refugees from Bangladesh settled in Assam. Further, they pointed out that the constitutionality of the Assam Accord is still under challenge before the Court. The Accord inserted Section 6A to the Citizenship Act, 1955 so as to make all migrants entering Assam after 1971 illegal migrants. Finally, they pressed the Court to issue an immediate ex parte stay on the CAA, at least as far as it applies to Assam and Tripura.

 

Attorney General K.K. Venugopal opposed any form of stay or interim relief, re-iterating that the Union had yet had the chance to file its reply.

 

Court declines to issue stay

The Court issued notice in all the new tagged petitions and directed the Union to file their reply within 4 weeks. It directed the Registrar to list the matter for orders a week after the Union files its reply. It declined to issue a stay.

 

Further, it directed both the petitioners and the respondents to nominate one lawyer to appear in chambers, in case any procedural issues required resolving.

 

Finally, it observed that it will treat the Assam and Tripura petitions as a separate batch, even though they will be listed alongside the other petitions. It requested the counsels to submit a list of petitions relating to Assam and Tripura. 

 

The matter will be heard in five weeks.

(Court reporting by Avinash Amarnath)