New Delhi: Hearing a batch of 140 petitions, challenging the constitutional validity of the Citizenship (Amendment) Act, 2019 or CAA, the Supreme Court on January 22 refused to give any interim relief and granted the Centre four weeks to respond. Some of the parties insisted on implementation of the new legislation, but the top court restrained from passing any such order.
A three-judge bench comprising Chief Justice of India SA Bobde, Justice Sanjiv Khanna and Justice Abdul Nazeer also hinted that the matter can be referred to a Constitutional Bench.
As the hearing began, Attorney General (AG) KK Venugopal submitted, “There are 140 petitions, out of which, the Government of India has been served 60 pleas. Counter affidavits in these matters are ready.”
Senior counsel Kapil Sibal suggested that the matter should be heard by a larger bench. “Maybe it should,” responded CJI Bobde.
He then drew the bench’s attention towards the National Population Register (NPR), saying it will begin in April. He urged the court to pass an order to the government to reschedule the process. “Kindly postpone the (NPR) process for three months. In the meantime, your lordships can make a decision,” he prayed.
Senior lawyer Abhishek Manu Singhvi also suggested setting up a Constitution Bench. “While Constitution Bench is set up, the implementation of the CAA process can be postponed,” he argued.
The AG opposed the suggestion of “stay”. To which Sibal replied, “We are not seeking a stay on the Act, but a postponement of a process under the Act.”
AG Venugopal submitted, “Seeking the postponement of implementation of the Act is the same as seeking a stay of the same.”
The CJI agreed with the submission and said only words are different, but the effect is the same. “You are asking for a stay without using the express words of stay,” CJI Bobde told Sibal.
At this point, Senior Advocate KV Vishwanathan intervened and said staying the Act and deferring its implementation are different. “Once the matter is implemented, there will be a problem as once the process starts and if a name is marked doubtful, then names are left out. Not just Muslims, Hindus will also be left out,” he submitted.
Singhvi then told the Court that several households in Uttar Pradesh have already been marked as doubtful. “Without any rules being framed, 40 lakh people have been identified as doubtful in 19 districts of UP. They will lose their right to vote. Our prayer is to kindly stay the process. This will prevent a lot of chaos and insecurity,” he submitted.
Sibal added that these people might lose voting rights.
Senior Advocate Rajeev Dhavan also concurred and urged the court to first decide if the matters need to be referred to a Constitution Bench. He made a suggestion that the petitioners be heard regarding two questions: (a) Whether the matter needs to be heard by a Constitution Bench; (b) Would there be an irreversible situation?
Senior Counsel Vikas Singh too urged the court to pass an interim order, raising the issue of Assam. “Initially, the cut-off date was 1948. Since Assam has a unique situation, therefore, it was extended to 1971. When this happened, the matter was challenged before the Court and the same is still pending to be considered by a Constitution Bench. There are three petitions from Assam of which two have already been served to the government,” he submitted.
CJI Bobde asked him to serve a copy of the petition to the Centre if he wanted to argue on the question. He refused to grant any relief at this stage. “We are not going to serve any ex-parte order without notice being served to the Centre,” he observed.
Singh continued, arguing that there was an understanding that prior to 1971, there was persecution and the persecuted people have come. “But there is no justification for people coming after 1971,” he argued.
The CJI said, “We cannot hear it without 99% of the petitions being served to the government.” To which, Dhavan said, “Irrespective of the number of petitions, what we are looking at is irreversibility.”
The CJI pointed out that the Supreme Court also has to hear the Sabarimala reference.
Former Attorney General Indira Jaising intervened and said, “Priorities will have to be set, my Lord.”
CJI Bobde said everyone has a right to exercise judicial remedy. “If orders are passed on a batch of petitions, others may say they have been left out,” he said.
Hinting at setting up a five-judge bench to hear the case, he added that all suggestions may be considered.
He also identified that the challenge to CAA will have to be bifurcated in two sections – one concerning Assam and Tripura and the other concerning challenge to the CAA.
The court will also look at the Assam issue differently; however, it clarified that the same is for the benefit of the court. All the matters will be heard together.
The AG sought six weeks time to file counter affidavits to 80 more petitions. There are 140 pleas before the court of which 60 were served to the government.
Sibal objected, saying the Centre already had four weeks, but it did not file counters.
The CJI said, “We will grant them four weeks time. Issue notice on all matters. AG seeks time to reply. Four weeks for reply. After four weeks, we will list it for orders. Give us a list of all the categories of matters. Small matters we can hear in the chamber.”
The matter will be listed after five weeks for interim orders.
The CAA seeks to grant Indian citizenship to non-Muslim refugees from Bangladesh, Pakistan and Afghanistan who came to India before December 31, 2014. As the contentious law, which many argue is “discriminatory” and “unconstitutional”, got President’s ascent, 60 petitions were filed in the apex court challenging the validity of the amended Act. Despite the court issuing first notice to the government in December 2019, the central government notified the CAA on January 10 this year. Later, more petitions were filed in the top court.
The new law has relaxed naturalisation criteria for people from six communities. Petitioners argue that excluding Muslims from the purview of the amended Act is a violation of Articles 14, 21 and 25 of the Constitution. They also argue that the exclusion of a particular community is against the basic principles of secularism.
The Amendment has also been challenged for alleged violation of the Assam Accord, which was signed between the All Assam Students Union (AASU) and the Government of India in 1985 with an aim to control the influx of illegal immigration from East Pakistan, now Bangladesh, in Assam.
The bunch of petition also include a plea filed in support of the CAA. It has urged the Supreme Court to take action against those who are allegedly misguiding people with regard to the legislation.
Also read: Protests For and Against CAA-NRC Overrun Madhya Pradesh