CJI says it is “uppermost in everybody's minds”, indicates referring CAA challenge to Constitution Bench.

The Supreme Court on Wednesday said the Citizenship (Amendment) Act (CAA), 2019, is “uppermost in everybody's minds”, but refused to stay the law without hearing the government first.

A three-judge Bench led by Chief Justice of India (CJI) Sharad A. Bobde did not pay heed to fervent pleas to even postpone the process of collecting population data to identify illegal migrants or “doubtful citizens” on the basis of their religion.

The CJI indicated that the CAA challenge may eventually be referred to a Constitution Bench for a decision on merits.

The Bench issued notice on at least 80 more fresh petitions filed for and against the CAA. It gave the government four weeks to file its response. The government urged the court to “freeze” the number of petitions filed in the case.

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144 petitions

A total of 144 petitions were listed before the Bench that also comprised Justices S. Abdul Nazeer and Sanjiv Khanna.

The court said it would list the case in February to pass interim orders. It asked the senior lawyers involved in the case to categorise the petitions and work out a schedule for hearing them.

“I don't think anything [any law like the CAA] is irreversible. There will have to be a date for hearing this interim prayer [for a stay of the CAA)... This case is uppermost in everybody's minds,” the CJI reacted to the concerns.

Lawyers argued that the National Population Register (NPR) exercise is commencing in April. Data collected through it would be used for preparing a nationwide National Register of Citizens (NRC). The NPR-NRC is considered a harbinger of facilitator for the operation of the CAA, which fast-tracks the citizenship-by-naturalisation process for “illegal migrants” from six religious communities, other than Muslims, who have fled persecution from Pakistan, Bangladesh and Afghanistan.

Senior advocate K.V. Vishwanathan addressed the court, “The most immediate concern now is the sweeping powers given to executive authorities to brand people as ‘doubtful citizens’. Once this is done, there are no guidelines to help these people. This is sinister. It will lead to gerrymandering of electoral rolls. The concern is spread across both the majority Hindus and the minorities as well. You have to address this fear... Otherwise fear and insecurity will pervade the country.”

U.P. govt ‘move’

Senior advocate A.M. Singhvi submitted that the Uttar Pradesh government had “marked” people as doubtful citizens two weeks ago. “The process of granting citizenship under CAA is already underway,” he said.

Senior advocate Kapil Sibal urged the court to postpone the NPR and the citizenship process for at least two months to avoid chaos.

Attorney General K.K. Venugopal reacted that “a postponement of the CAA and its stay were one and the same”.

Senior advocate Shyam Divan contended that the final certificate of citizenship by naturalisation to illegal migrants should be stayed during the pendency of the case in the Court. Indian citizenship once granted cannot be revoked if the challenge to the CAA succeeded in court, he said.

But Mr. Venugopal countered that there were provisions in the law that allowed the revocation of citizenship.

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Importance to N-E pleas

The CJI indicated that the court would give due importance to petitions concerning the impact of CAA in border States such as Assam and Tripura. These cases may be segregated and heard. He, however, said all the petitions on the CAA would be subject to a common final decision.

Senior advocate Vikas Singh said the CAA would change the entire demography of Assam. The CAA violated the Assam Accord of 1985, which stipulated that any foreigner who entered the State after the cut-off date of March 24, 1971, irrespective of their religious affiliation, would be deported. The cut-off date in the CAA is December 31, 2014.

The government has maintained that the amendments made to the Citizenship Act of 1955 were meant to protect and welcome religiously persecuted people fleeing the three neighbouring countries where Muslims form the majority.

The petitions argued that a law that welcomed “illegal migrants” into India selectively on the basis of their religion was against the principles of secularism, right to equality and dignity of life enshrined in the Basic Structure of the Constitution.

The petitions said the Act selectively agreed to grant citizenship benefits to illegal migrants from only three countries. Besides it did not impose any requirement on illegal migrants to prove their claim of religious persecution or even a reasonable fear of it. The legislation effectuated discrimination on the basis of the intrinsic and core identity of an individual, that was, his religious identity as a Muslim. While Muslim migrants would have to show their proof of residency in India for at least 11 years, the law allowed illegal migrants from the six communities to be naturalised in five years' time.