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IN

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. OF 2019

(Under Article 32 of the Constitution of India)

IN THE MATTER OF:-

NORTH EAST STUDENTS’ ORGANISATION PETITIONER

VERSUS

UNION OF INDIA & ANR. RESPONDENTS

WITH

I.A. NO. _____ OF 2019:

APPLICATION FOR AD-INTERIM EX-PARTE STAY

PAPER – BOOK
[FOR INDEX KINDLY SEE INSIDE]

ADVOCATE FOR THE PETITIONER : T. MAHIPAL

IN THE SUPREME COURT OF INDIA

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CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. _______ OF 2019

Petition under Article 32 of the Constitution of India read with Order XXXVIII
of the Supreme Court Rules, 2013

IN THE MATTER OF:

1. NORTH EAST STUDENTS’ ORGANISATION

THROUGH ITS CHAIRMAN,

OFFICE OF THE KHASI STUDENTS’ UNION,

JAIAW CHAPEL ROAD,

JAIAW, SHILLONG- 793002

…PETITIONER

VERSUS

1. UNION OF INDIA,
THROUGH THE SECRETARY,
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK, CENTRAL SECRETARIAT,
NEW DELHI-110001

2. UNION OF INDIA,
THROUGH THE SECRETARY,
MINISTRY OF EXTERNAL AFFAIRS,
SOUTH BLOCK, CENTRAL SECRETARIAT,
NEW DELHI-110001

…RESPONDENTS

A WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF

INDIA INTER ALIA CHALLENGING THE CITIZENSHIP
(AMENDMENT) ACT, 2019 AND SEEKING ENFORCEMENT OF
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THE PETITIONER’S RIGHTS GUARANTEED UNDER PART III OF

THE CONSTITUTION OF INDIA

To
The Hon’ble Chief Justice of India and
His Companion Justices of the Hon’ble Supreme Court of India.

The humble Petition of the Petitioner above named.

MOST RESPECTFULLY SHEWETH:

1. The present Petition has been preferred by the Petitioner herein in its

personal as well as representative capacity for a large number of people

living in North-East who have suffered and are still suffering the

consequences of illegal immigration in the region and are seeking

enforcement of their fundamental rights guaranteed under the Constitution

of India, inter alia including the rights contained in Articles 14, 15, 19, 21,

25 and 29 of the Constitution. The present Petition inter alia challenges the

Citizenship (Amendment) Act, 2019 as a whole, and/or specifically

Sections 2, 3, 5 and 6 thereof, as discriminatory, arbitrary, illegal and

against the basic structure of the Constitution.

1A. The details of Petitioner filing the present Public Interest Litigation are as

follows:

a) Petitioner is a non-political student organisation, namely the North East

Students Organisation (hereinafter referred to as “NESO”). The North

East Students’ Organisation (NESO), comprising of the Khasi

Students’ Union (KSU), All Assam Students’ Union (AASU), Naga

Students’ Federation (NSF), Mizo Zirlai Pawl (MZP), Twipra Students’

Federation (TSF), All Manipur Students’ Union (AMSU), Garo

Students’ Union (GSU) and All Arunachal Pradesh Students’ Union

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(AAPSU), representing eight major students’ unions of the seven North

Eastern States of India. The North East Students’ Coordination

Committee was formed in 1990 and was renamed as “North East

Students’ Organisation” at Shillong in 1994. The main aims and

objectives of the Petitioner organization were to foster unity, mutual

understanding and cooperation amongst the students of the North East;

to safeguard and protect common interests, securing social and

economic justice and protect human rights of the indigenous people of

the North East; and to cultivate and preserve the cultural and traditional

identity. The Petitioner has submitted several representations to the

Union of India and led debates and discussions on various issues

concerning the people of North East. It acts as a unified voice for the

entire North East and especially, the students thereof.

b) The Petitioner has no personal/ individual interest in the reliefs sought

for in the present Petition and the same has only been filed in public

interest.

c) Respondent No. 1 is the Union of India, through the Ministry of Home

Affairs and Respondent No. 2 is the Ministry of External Affairs of the

Union of India. The Union of India has enacted the Citizenship

(Amendment) Act, 2019, which is currently under challenge in the

present Writ Petition. Both the Respondents are proper and necessary

parties to the present Petition and are likely to be affected by the orders

sought in the present Petition.

d) The Petitioner, through the present writ petition, is invoking the civil

original writ jurisdiction of this Hon’ble Court to seek issuance of a

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writ, order or direction of like nature against the Respondents herein

inter alia to quash the Citizenship (Amendment) Act, 2019, being

unconstitutional and in violation of several provisions of the

Constitution of India. It may be relevant to mention here that the

Petitioner herein has been continuously opposing the introduction and

thereafter the enactment of the impugned Act before various forums.

However, no relief was granted to the Petitioner therefrom.

1B. The Petitioner has no other equally efficacious remedy except to approach

this Hon'ble Court by way of present Writ Petition. All annexures annexed

to the Writ Petition are true copies of their respective originals.

1C. That the Petitioner herein has never approached this Hon’ble Court or any

other Court seeking a relief similar to the relief sought for in the present

writ petition. The Petitioner has, however, made representations to the

Union of India, however, no relief has been granted by the Union of India

in this regard.

BRIEF FACTS

2. The Petitioner respectfully submits that Bangladesh and India share a

4,096-kilometer international border, the fifth-longest land border in the

world. It is respectfully submitted by the Petitioner that large scale illegal

migration from Bangladesh over several decades has been altering the

demographic complexion of the North-East India. It poses a grave threat

both to the identity of the North-Eastern people and to national security.

3. In 1983, Parliament enacted The Illegal Migrants (Determination by

Tribunal) Act, 1983 and made the same applicable only to Assam.
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Although it was stated to be a measure which would expedite the

determination of illegal migrants in the State of Assam with a view to their

deportation, the said Act in fact provided a far more onerous and

cumbersome process for the detection of illegal migrants in the State of

Assam, than the procedure prescribed by the Foreigners Act, 1946

applicable in the rest of India. Consequently, a three judge bench of this

Hon’ble Court struck down the Illegal Migrants (Determination by

Tribunals) Act, 1983 and the Illegal Migrants (Determination by

Tribunals) Rules, 1984 as ultra vires in its judgment reported as

Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 (hereinafter

“Sonowal (I)”). It was inter alia held by this Hon’ble Court (at para 63)

that illegal migration into the State of Assam constituted “external

aggression” within the meaning of Article 355 of the Constitution of India.

4. The Assam Accord (1985) was a Memorandum of Settlement signed

between representatives of the Government of India, State of Assam All

Assam Students’ Union (a member body of the Petitioner herein) and other

representative organisations in New Delhi on 15.08.1985. The clauses of

the Assam Accord which deal with citizenship and illegal migrants are as

under.

“5.8 Foreigners who came to Assam on or after 25th March 1971 shall

continue to be detected, deleted and expelled in accordance with law.

Immediate and practical steps shall be taken to expel such foreigners.”

(Emphasis supplied)
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“5.7 All persons who were expelled earlier, but have since re-entered

illegally into Assam, shall be expelled.”

“9.1 The international border shall be made secure against future

infiltration by erection of physical barriers like walls, barbed wire fencing

and other obstacles at appropriate places. Patrolling by security forces on

land and riverine routes all along the international border shall be

adequately intensified. In order to further strengthen the security

arrangements, to prevent effectively future infiltration, an adequate

member of check posts shall be set up.”

“9.2 Besides the arrangement mentioned above and keeping in view

security considerations, a road all along the international border shall be

constructed so as to facilitate patrolling by security forces. Land between

border and the road would be kept free of human habitation, wherever

possible. Riverine patrolling along the international border would be

intensified. All effective measures would be adopted to prevent infiltrators

crossing or attempting to cross the international border.”

“10. It will be ensured that relevant laws for prevention of encroachment

of government lands and lands in tribal belts and blocks are strictly

enforced and unauthorized encroachers evicted as laid down under such

laws.”

A true copy of the Assam Accord, Memorandum of Settlement dated

15.08.1985 is annexed herewith as ANNEXURE P-1 (Page ___ to ___ ).

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5. Section 6A was inserted into the Citizenship Act, 1955, via Act 65 of 1985

with effect from 07.12.1985. The Statement of Objects and Reasons of the

Citizenship (Amendment) Act, 1985 states that it was inserted pursuant to

the Assam Accord dated 15.08.1985. Section 6A provides that,

notwithstanding anything contained in any other law for the time being in

force,

a. all persons of Indian origin who came into Assam from the territories

included in Bangladesh immediately before the commencement of the

Citizenship (Amendment) Act, 1985 (including such of those whose

names were included in the electoral rolls used for the purposes of the

General Election to the House of the people held in 1967) before

01.01.1966, and who have been ordinarily resident in Assam since the

date of their entry into Assam, shall be deemed to be citizens of India;

b. all persons of Indian origin who came to Assam from the territories

included in Bangladesh immediately before the commencement of the

Citizenship (Amendment) Act, 1985, on or after 01.01.1966 but before

25.03.1971, and have been ordinarily resident in Assam and have been

detected to be a foreigner, shall register with the Registering Authority

and their names, if included in the electoral roll for any

Assembly/Parliamentary Constituency in force on the date of such

detection, shall be deleted therefrom for a period of 10 years.

c. all persons of Indian origin who came to Assam from the territories

included in Bangladesh immediately before the commencement of the

Citizenship (Amendment) Act, 1985, on or after 01.01.1966 but before

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25.03.1971, from the date of detection as a foreigner, shall have the

same rights and obligations as a citizen of India, except the right to have

their name included in electoral rolls for any Assembly or

Parliamentary constituency. Ten years from the date of detection as a

foreigner, such person would be deemed to be a citizen of India.

6. On 14.07.2004, the then Minister of State, Home Affairs, submitted a

statement to the Parliament indicating that indicating therein that the

estimated number of illegal Bangladeshi immigrants in India as on

31.12.2001 was 1,20,53,950. Out of the total figure of 1.20 crores, 50 lacs

illegal Bangladeshi immigrants were in Assam, 30 thousand in Meghalaya,

800 in Arunachal Pradesh, 59,500 in Nagaland and 3,25,400 in Tripura. A

true typed copy of the record of proceedings of the parliament dated

14.07.2004 is annexed herewith as ANNEXURE P – 2 (Page ___ to

____).

7. After the judgment in Sonowal (I), the Central Government promulgated

The Foreigners (Tribunal) Amendment Order, 2006, by which the

Foreigners Order, 1964 was itself made inapplicable to the state of Assam.

The Foreigners (Tribunal) Amendment Order, 2006 was called into

question before this Hon’ble Court in W.P. (Civil) No. 117/2006 and W.P.

(Civil) No. 119/2006. In the judgment reported as Sarbananda Sonowal v.

Union of India, (2007) 1 SCC 174 (hereinafter referred to as, “Sonowal

(II)”) this Hon’ble Court quashed the Foreigners (Tribunal) Amendment

Order 2006.
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8. Several statutes and instruments, including those mentioned herein below,

empower the Central Government to place conditions and give directions/

orders relating to a foreigner’s entry, stay and removal from India. The

Petitioner submits that the impugned Act has the effect of altering the

statutory regime in respect of a class of persons who have entered/

remained in India illegally. Some of the relevant statutes and statutory

instruments are as follows:

A. The Passport (Entry into India) Act, 1920 and Rules made there

under provide as follows:

● Section 3 of the Passport (Entry into India) Act, 1920 empowers

the Central Government to make rules, inter alia, requiring that

any person entering India shall be in possession of a passport.

● By virtue of Section 4, a person who has contravened or is

reasonably suspected to have contravened any Rule or Order

made under Section 3, is liable to be arrested.

● Under Section 5, the Central Government has the power to make

a general or special order directing the removal of any person

from India who has entered India without a passport in

contravention of the Rules and to enforce such directions.

● Rule 3 of the Passport (Entry into India) Rules 1950, requires any

person entering India to be in possession of a valid passport.

● Rule 5 (iv) specifies that the holder of a foreign passport must be

in possession of a visa in order to satisfy the conditions of a

“valid passport”. Insofar as holders of Pakistani and Bangladeshi

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passports are concerned, the relevant provisions are in Rule 5(iv-

A) and Rule 5(iv-C) of the said Rules, respectively.

● Rule 6 of makes contravention of Rule 3 punishable with

imprisonment or fine or both.

B. The Registration of Foreigners Act, 1939 and Rules made there

under provide as follows:

● Section 3 of the Registration of Foreigners Act, 1939 empowers

the Central Government to make Rules requiring foreigners to

report their presence and movements to specific authorities.

● It is clear from Section 4 that the burden of proving whether any

person is or is not a foreigner is placed upon that person.

● Section 5 of provides for penalty in case of contravention thereof.

● It is provided in Section 8 that the provisions of the said Act shall

be in addition to and not in derogation of any other laws.

● The Registration of Foreigners Rules, 1992 have been framed

under the said Act of 1939, in supersession of the 1939 Rules.

The Central Government has also made the Registration of

Foreigners (Bangladesh) Rules, 1973 requiring any citizen of

Bangladesh entering India or resident in India to present a

“registration report” to the appropriate Registration Officer. (It

may be noted that the proviso to Rule 2 exempts a person who

enters India on a valid visa of not more than 180 days and does

not wish to remain in India beyond this period.)

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C. The Foreigners Act, 1946 and Foreigners Order, 1948 provide as

follows:

● Section 3 of the Foreigners Act, 1946 empowers the Central

Government to make general or specific orders prohibiting,

regulating or restricting the entry and departure of foreigners and

their presence in India.

● Under Section 9, the burden of proving whether or not a person

is a foreigner lies upon that person.

● Section 11 empowers the concerned authorities to enforce

compliance with their directions including by use of reasonable

force.

● Sections 14 to 14C provide for penalties for contravention

thereof, including for overstaying or violating visa conditions

(Section 14) or entering into any area in India without the

documents required under any order or direction given under the

1946 Act (Section 14A).

● Section 16 provides that it shall be in addition to and not in

derogation of other laws.

● The Foreigners Order, 1946 provides for various restrictions

upon foreigners including with regard to their duration of stay,

employment, movement and permissible activities.

● Clause 3 provides specific points of entry for foreigners to enter

India and also requires them to obtain leave of the jurisdictional

civil authority. Such leave is to be refused, inter alia, if the

foreigner is not in possession of a valid passport or visa. In the

absence of leave, the foreigner may also be detained.

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● Under Clause 14, when a foreigner is liable to removal from

India, his money and property may be applied towards “the

voyage from India and the maintenance until departure of the

foreigner and his dependents, if any”.

D. Section 2 of the Immigrants (Expulsion from Assam) Act, 1950

provides that the Central Government can order expulsion of

persons who have been resident outside India, and are resident in

Assam, detrimental to the interest of the general public of India or

any section thereof, or of any scheduled tribes in Assam. Such an

order can be enforced under Section 4, if necessary, by use of

reasonable force. Section 5 also provides for penalties for

contravention of any order made under the Act. (By notification

dated 20.03.1950, powers under the aforementioned Act were

conferred by the Central Government also upon the Government of

Assam and other authorities.)

9. That on 13.09.2007, the United Nations General Assembly adopted the

United Nations Declaration on the Rights of Indigenous Peoples

(hereinafter “UNDRIP”), with India voting in its favour. UNDRIP inter

alia provided for the following right for the indigenous peoples:

“Article 8

1. Indigenous peoples and individuals have the right not to be

subjected to forced assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and

redress for:
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(a) Any action which has the aim or effect of depriving them of their

integrity as distinct peoples, or of their cultural values or ethnic

identities;

(b) Any action which has the aim or effect of dispossessing them of

their lands, territories or resources;

(c) Any form of forced population transfer which has the aim or effect

of violating or undermining any of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or

ethnic discrimination directed against them.

Article 10

Indigenous peoples shall not be forcibly removed from their lands or

territories. No relocation shall take place without the free, prior and

informed consent of the indigenous peoples concerned and after

agreement on just and fair compensation and, where possible, with

the option of return.

Article 15

1. Indigenous peoples have the right to the dignity and diversity of

their cultures, traditions, histories and aspirations which shall be

appropriately reflected in education and public information.

2. States shall take effective measures, in consultation and

cooperation with the indigenous peoples concerned, to combat

prejudice and eliminate discrimination and to promote tolerance,

understanding and good relations among indigenous peoples and all

other segments of society

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Article 26

1. Indigenous peoples have the right to the lands, territories and

resources which they have traditionally owned, occupied or

otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control

the lands, territories and resources that they possess by reason of

traditional ownership or other traditional occupation or use, as well

as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands,

territories and resources. Such recognition shall be conducted with

due respect to the customs, traditions and land tenure systems of the

indigenous peoples concerned

Article 29

1. Indigenous peoples have the right to the conservation and

protection of the environment and the productive capacity of their

lands or territories and resources. States shall establish and

implement assistance programmes for indigenous peoples for such

conservation and protection, without discrimination.

2. States shall take effective measures to ensure that no storage or

disposal of hazardous materials shall take place in the lands or

territories of indigenous peoples without their free, prior and

informed consent.

3. States shall also take effective measures to ensure, as needed, that

programmes for monitoring, maintaining and restoring the health of

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indigenous peoples, as developed and implemented by the peoples

affected by such materials, are duly implemented.

Article 31

1. Indigenous peoples have the right to maintain, control, protect and

develop their cultural heritage, traditional knowledge and

traditional cultural expressions, as well as the manifestations of

their sciences, technologies and cultures, including human and

genetic resources, seeds, medicines, knowledge of the properties

of fauna and flora, oral traditions, literatures, designs, sports and

traditional games and visual and performing arts. They also have

the right to maintain, control, protect and develop their

intellectual property over such cultural heritage, traditional

knowledge, and traditional cultural expressions.

2. In conjunction with indigenous peoples, States shall take effective

measures to recognize and protect the exercise of these rights.”

It is submitted that due to the continued influx of the illegal immigrants in

the North East, the Respondents herein have failed to protect the rights of

the indigenous people of the North East as enshrined under the UNDRIP.

10. On 07.09.2015, the Union of India promulgated Passport (Entry into India)

Amendment Rules, 2015 (hereinafter “2015 Rules”) under Section 3 of the

Passport (Entry into India) Act, 1920 exempting Hindus, Sikhs, Buddhists,

Jains, Parsis and Christians who were compelled to seek shelter in India

due to religious persecution or fear of religious persecution in Pakistan and

Bangladesh and who have entered India on or before 31.12.2014 without

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valid documents (or who have overstayed), from the application of Rule 3

of the Passport (Entry into India) Rules, 1950. Rule 3 of the Passport (Entry

into India) Rules, 1950 provides that no person, except those specified in

Rule 4, may enter India without a “valid passport” (a valid passport is one

which conforms to the requirements under Rule 5) and that no person may

enter India via water, land or air except through such port or other place as

may be specified in this behalf by the Central Government. A true copy of

the Passport (Entry into India) Amendment Rules, 2015 is annexed

herewith as ANNEXURE P – 3 (Page ___ to ____).

11. On the very same day, being 07.09.2015, the Union of India also

promulgated the Foreigners (Amendment) Order, 2015 (hereinafter “2015

Order”) in purported exercise of powers under Section 3 of the Foreigners

Act, 1946. The Foreigners (Amendment) Order, 2015 grants Hindus,

Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek

shelter in India due to religious persecution or fear of religious persecution

in Pakistan and Bangladesh and who have entered India on or before

31.12.2014 without valid documents or who have overstayed, exemption

from the application of the provisions of the Foreigners Act, 1946 and the

orders made there under. A true copy of the Foreigners (Amendment)

Order, 2015 is annexed herewith as ANNEXURE P – 4 (Page ___ to

____).

12.It is submitted that the effect of the 2015 Rule and the 2015 Order is thus

that a class of foreigners, who have entered India without a valid passport

or other legal authority or who stay in India beyond the period of

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authorisation, can continue to remain in India based on religious affiliation,

due to alleged religious persecution or alleged fear of religious persecution.

13.That on 23.12.2016 the Respondent No. 1 issued another notification/

Order, which stated as follows:

“S.O. 4132(E).—In exercise of the powers conferred by section 16 of

the Citizenship Act, 1955 (57 of 1955), the Central Government

hereby directs that powers exercisable by it, for registration as a

citizen of India under section 5 or for grant of certificate of

naturalisation under section 6 of the Citizenship Act, 1955, in

respect of any person belonging to minority community in

Afghanistan, Bangladesh and Pakistan, namely, Hindus, Sikhs,

Buddhists, Jains, Parsis and Christians (herein this Order referred

to as “the applicant”), residing in the States of Chhattisgarh,

Gujarat, Madhya Pradesh, Maharashtra, Rajasthan and Uttar

Pradesh and Union territory of Delhi, shall also be exercisable

by—

(a) the Collector, within whose jurisdiction the applicant is ordinarily

resident, in relation to the districts of—

(i) Raipur in the State of Chhattisgarh;

(ii) Ahemdabad, Gandhinagar and Kutch in the State of Gujarat;

(iii) Bhopal and Indore in the State of Madhya Pradesh;

(iv) Nagpur, Mumbai, Pune and Thane in the State of Maharashtra;

(v) Jodhpur, Jaisalmer and Jaipur in the State of Rajasthan;

(vi) Lucknow in the State of Uttar Pradesh; and

(vii) West Delhi and South Delhi in the Union territory of Delhi; and
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(b) the Secretary of the Department of Home of the State or the Union

territory, as the case may be, within whose jurisdiction the

applicant is ordinarily resident, in relation to districts not covered

under clause (a), in accordance with the provisions of the

Citizenship Rules, 2009 (hereinafter referred to as the said rules),

subject to the following conditions, namely:—

(A) the application for registration as citizen of India or grant of

certificate of naturalisation as citizen of India under the said rules

is made by the applicant online;

(B) the verification of the application is done simultaneously by the

Collector or the Secretary, as the case may be, at the district level

and the State level and the application and the reports thereon

shall be made accessible simultaneously to the Central

Government;

(C) the Collector or the Secretary, as the case may be, makes such

inquiry as he considers necessary for ascertaining the suitability

of the applicant and for that purpose forward the application

online to such agencies for verification and comments as may be

required under the instructions issued by the Central Government

in this regard;

(D) the comments of the agencies referred to in clause (C) are uploaded

online by such agencies and accessible to the Collector or the

Secretary, as the case may be, and the Central Government;

(E) the Collector or the Secretary, as the case may be, on being satisfied

with the suitability of the applicant, grant him the citizenship of

India by registration or naturalisation and issue a certificate of

registration or naturalisation, as the case may be, signed by the

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Collector or the Secretary, as the case may be, in the Form as

prescribed in the said rules; and

(F) the Collector and the Secretary shall maintain a register, in

accordance with the said rules, containing the details of persons

so registered or naturalised as a citizen of India and furnish a

copy thereof to the Central Government within seven days of

such registration or naturalisation…”

14. That after reading some media reports on the Respondent No. 1’s plans for

amending the Citizenship Act, 1955, the Petitioner strongly, but

peacefully, voiced its concerns to inter alia the Prime Minister, Home

Minister and several other authorities. A true copy of the representation

dated 18.11.2019 addressed by the Petitioner herein to the Prime Minister

of India is annexed herewith as ANNEXURE P – 5 (Page ___ to ____).

A true copy of the representation dated 18.11.2019 addressed by the

Petitioner herein to the Union Home Minister is annexed herewith as

ANNEXURE P – 6 (Page ___ to ____).

15. That the Union of India has enacted the Citizenship (Amendment) Act,

2019, on 12.12.2019, which inter alia seeks to make illegal migrants who

are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from

Afghanistan, Bangladesh and Pakistan, eligible for citizenship. The said

Act also makes amendments to provisions related to Overseas Citizen of

India (OCI) cardholders, including a provision to allow cancellation of

OCI registration if the person has violated any law notified by the central

government. For the sake of convenience, the provisions of the Act are

reproduced below:
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“1. (1) This Act may be called the Citizenship (Amendment) Act, 2019.

(2) It shall come into force on such date as the Central Government

may, by notification in the Official Gazette, appoint.

2. In the Citizenship Act, 1955 (hereinafter referred to as the principal

Act), in section 2, in sub-section (1), in clause (b), the following proviso

shall be inserted, namely:—

"Provided that any person belonging to Hindu, Sikh, Buddhist, Jain,

Parsi or Christian community from Afghanistan, Bangladesh or

Pakistan, who entered into India on or before the 31st day of December,

2014 and who has been exempted by the Central Government by or

under clause (c) of sub-section (2) of section 3 of the Passport (Entry

into India) Act, 1920 or from the application of the provisions of the

Foreigners Act, 1946 or any rule or order made thereunder, shall not be

treated as illegal migrant for the purposes of this Act;".

3. After section 6A of the principal Act, the following section shall be

inserted, namely:—

“6B. (1) The Central Government or an authority specified by it in this

behalf may, subject to such conditions, restrictions and manner as may

be prescribed, on an application made in this behalf, grant a certificate

of registration or certificate of naturalisation to a person referred to in

the proviso to clause (b) of sub-section (1) of section 2.

(2) Subject to fulfilment of the conditions specified in section 5 or the

qualifications for naturalisation under the provisions of the Third

Schedule, a person granted the certificate of registration or certificate

of naturalisation under sub-section (1) shall be deemed to be a citizen

of India from the date of his entry into India.

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(3) On and from the date of commencement of the Citizenship

(Amendment) Act, 2019, any proceeding pending against a person

under this section in respect of illegal migration or citizenship shall

stand abated on conferment of citizenship to him: Provided that such

person shall not be disqualified for making application for citizenship

under this section on the ground that the proceeding is pending against

him and the Central Government or authority specified by it in this

behalf shall not reject his application on that ground if he is otherwise

found qualified for grant of citizenship under this section: Provided

further that the person who makes the application for citizenship under

this section shall not be deprived of his rights and privileges to which

he was entitled on the date of receipt of his application on the ground

of making such application.

(4) Nothing in this section shall apply to tribal area of Assam,

Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to

the Constitution and the area covered under "The Inner Line" notified

under the Bengal Eastern Frontier Regulation, 1873.”

4. In section 7D of the principal Act,— (i) after clause (d), the following

clause shall be inserted, namely:—

"(da) the Overseas Citizen of India Cardholder has violated any of the

provisions of this Act or provisions of any other law for time being in

force as may be specified by the Central Government in the notification

published in the Official Gazette; or".

(ii) after clause (f), the following proviso shall be inserted, namely:—

"Provided that no order under this section shall be passed unless the

Overseas Citizen of India Cardholder has been given a reasonable

opportunity of being heard.".

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5. In section 18 of the principal Act, in sub-section (2), after clause (ee),

the following clause shall be inserted, namely:—

"(eei) the conditions, restrictions and manner for granting certificate of

registration or certificate of naturalisation under sub-section (1) of

section 6B;".

6. In the Third Schedule to the principal Act, in clause (d), the following

proviso shall be inserted, namely:—

“Provided that for the person belonging to Hindu, Sikh, Buddhist, Jain,

Parsi or Christian community in Afghanistan, Bangladesh or Pakistan,

the aggregate period of residence or service of Government in India as

required under this clause shall be read as "not less than five years" in

place of "not less than eleven years".””

It is submitted that Section 2 of the impugned Act amends Section 2(1)(b)

of the 1955 Act to provide that Hindus, Sikhs, Buddhists, Jains, Parsis and

Christians from Afghanistan, Bangladesh and Pakistan will not be treated

as illegal migrants. In order to get this benefit, they must have also been

exempted from the Foreigners Act, 1946 and the Passport (Entry into

India) Act, 1920 by the central government.

The unamended 1955 Act allowed a person to apply for citizenship by

naturalisation, if the person meets certain qualifications. One of the

qualifications is that the person must have resided in India or been in

central government service for the last 12 months and at least 11 years of

the preceding 14 years. However, section 3 of the impugned Act has

further inserted “Section 6B” in the 1955 Act, which inter alia created an

exception for Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from

Afghanistan, Bangladesh and Pakistan, with regard to this qualification.

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For these groups of persons, the 11 years’ requirement will be reduced to

about five years. It further provides that on acquiring citizenship: (i) such

persons shall be deemed to be citizens of India from the date of their entry

into India, and (ii) all legal proceedings against them in respect of their

illegal migration or citizenship will be closed.

Further, sections 5 and 6 of the impugned Act also makes consequent

amendments to Sections 18 and the Third Schedule of the 1955 Act

respectively.

A true copy of the impugned Citizenship (Amendment) Act, 2019 is

annexed herewith as ANNEXURE A-7 (Page __ to ___).

16. In the context of the relevant constitutional provisions and aforesaid

statutory scheme, it is respectfully submitted that the impugned Act

(especially Sections 2, 3, 5 and 6 thereof) is unreasonable, arbitrary, illegal

and thus, violative of Article 14 of the Constitution of India. The impugned

Act has been passed under extraneous political considerations and is in

derogation of the rights of Indian citizens and especially of those living in

the North-East India. The impugned Act is not in public interest and

welfare. The result of the impugned Act will be that a large number of non-

Indians, who have surreptitiously entered India, without possession of

valid passport, travel documents or other lawful authority to do so, will be

able to take citizenship and reside therein. The impugned Act seeks to do

away with any sort of regulation for Hindus, Sikhs, Buddhists, Jains, Parsis

and Christian foreigners entering India illegally from Bangladesh,

Afghanistan and Pakistan.

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17. Therefore, in light of the abovementioned facts, the Petitioner herein is

constrained to file the present Writ Petition challenging the Impugned Act

on the following amongst other grounds, which are being taken without

prejudice to each other and the Petitioner seeks liberty to urge further

grounds at the time of hearing, if so advised.

A. Because the impugned Act fails to take into consideration that the

North East is one of the worst affected regions in terms of illegal

migration from Bangladesh. It is submitted that on 14.07.2004, the

then Minister of State, Home Affairs, submitted a statement to the

Parliament indicating that indicating therein that the estimated

number of illegal Bangladeshi immigrants in India as on 31.12.2001

was 1,20,53,950. Out of the total figure of 1.20 crores, 50 lacs illegal

Bangladeshi immigrants were in Assam, 30 thousand in Meghalaya,

800 in Arunachal Pradesh, 59,500 in Nagaland and 3,25,400 in

Tripura. It is, therefore, submitted that the effect of the impugned

Act, and especially Sections 2, 3, 5 and 6 thereof, granting special

privileges to certain classes of illegal migrants, is to negate the

fundamental rights of its own citizens, and especially the people of

North East.

B. Because the impugned Act, and especially Sections 2, 3, 5 and 6

thereof, suffers from manifest arbitrariness and is thus, liable to be

struck down in light of the judgments of this Hon’ble Court inter

alia including the judgments in Joseph Shine v. Union of India,

(2019) 3 SCC 39; Shayara Bano v. Union of India, (2017) 9 SCC 1

and Hindustan Construction Company & Anr. v. Union of India &

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Ors. 2019 SCC OnLine SC 1520 (Writ Petition (Civil) No.

1074 of 2019, decided on 27.11.2019).

C. Because the impugned Act, especially Sections 2, 3, 5 and 6 thereof

violate the right of the people of the North-East India to conserve

and preserve their distinct culture, heritage and traditions, by failing

to consider the adverse effect it has on the region which is already

burdened with the continuous influx of illegal migrants. It is

respectfully submitted that the impugned Act will also have the

effect of significantly altering the demographics of the region.

D. Because the impugned Act imposes an unreasonable and unfair

burden on Indian states since no budgetary allocation has been made

for the illegal migrants expected to take citizenship of India as a

result of the impugned Act. The Central Government has vested the

power to identify and deport a foreign national illegally staying in

the country under section 3 (2)(c) of the Foreigners Act, 1946 to the

State Governments/Union Territory Administrations. Therefore, the

State Governments/Union Territory Administrations should have

been consulted before promulgating the impugned Act.

E. Because Section 3 of the Registration of Foreigners Act, 1939

empowers the Central Government to make rules requiring

foreigners to report their presence, date of intended departure, proof

of identity as well as require persons having the management of any

hotel etc. or vessel or aircraft etc. to report the name of any foreigner

residing therein or entering or intending to depart from India therein

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respectively. Section 6 of Registration of Foreigners Act, 1939

empowers the Central Government to exempt certain foreigners or

class or description of foreigners from the application of the

provisions of the Registration of Foreigners Act, 1939. In exercise

of the powers under Section 3 of the Registration of Foreigners Act,

1939, the Central Government has issued the Registration of

Foreigners Rules, 1992 which have been amended from time to time

and most recently by the Registration of Foreigners (Amendment)

Rules, 2013. The Respondents have not issued any Orders or Rules

under the Registration of Foreigners Act, 1939, in respect of the

classes of persons sought to be covered by the impugned Act, which

are, therefore, in violation of the mandate of the Registration of

Foreigners Act, 1939, unworkable and vague.

F. Because the impugned Act has been passed as a result of extraneous

political considerations. Sections 2, 3, 5 and 6 of the impugned Act

are in violation of the non-religious and secular fabric of the

Constitution of India which is contained in the Preamble to the

Constitution, as well as in Articles 15 and 25 to 27 of the

Constitution of India. It is further submitted that a discrimination

based on religion is not permissible. The impugned Act attempts to

grant blanket exemptions from the provisions of law governing

grant of citizenship to a certain class of foreigners in India, who have

entered and/or staying in India without valid documents.

G. Because the impugned Act is in violation of Article 14 of the

Constitution of India. The impugned Act grants unbridled discretion

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for exclusion of a certain class of persons from the existing legal

framework regulating the grant of citizenship of India, without

prescribing guidelines/ determinable criteria for identification of

such persons, who may have been persecuted. Further, they do not

enjoin a prescribed authority with the power to determine whether

and in what manner and to what extent, if at all, such persons of the

specified religion who have entered into India from Pakistan,

Afghanistan and/or Bangladesh, form a special class and/or are

eligible for a special treatment, thus granting legal right to

citizenship of India to such persons arbitrarily and en-masse.

H. Because this Hon’ble Court has held religion to be a facet of

personal autonomy and any classification based on religion is an

impermissible classification in terms of Article 14 of the

Constitution. Further, classification on the basis of place of birth is

also an impermissible classification and contrary to Part III of the

Constitution. It is submitted that Sections 2, 3, 5 and 6 of the

impugned Act, thus, make impermissible classification of people

and are liable to be stuck down on that ground itself.

I. Because the impugned Act does not have reasonable classification

based on intelligible differentia. The classification based on religion

ipso facto violates Article 14 of the Indian Constitution, wherein the

legislation effectuate discrimination on the basis of the intrinsic and

core identity of the individual i.e., religious identity of the

individual. It is respectfully submitted that this Hon’ble Court in

Navtej Singh Johar v Union of India , (2018) 10 SCC 1, has held

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that “where a legislation discriminates on the basis of an intrinsic

and core trait of an individual, it cannot form a reasonable

classification based on an intelligible differentia”. It is therefore,

submitted that the classification done by the impugned Act falls foul

of the law propounded by this Hon’ble Court.

J. Because, in any case, the classification made by the impugned Act

has no rational nexus with the object it is said to achieve. It is

submitted that it would not be correct to say that the impugned Act

has been enacted to protect persecuted communities from the

neighbouring countries of India as there are several minority

Muslim communities and other communities (including atheists)

also in the countries in question which also face discrimination and/

or persecution from the other majority Muslim communities. It is

further submitted that even the selection of just three countries with

a specific state/ majority religion, while leaving out other countries

with other state/ majority religions, inter alia like Sri Lanka,

Myanmar, China etc. itself fails to withstand the test of a reasonable

classification. It is therefore, submitted that both religion based

classification and country based classification, done in Sections 2,

3, 5 and 6 of the impugned Act, are unconstitutional and liable to be

struck down by this Hon’ble Court.

K. Because there is no reasonable justification or rational nexus sought

to be achieved by providing an arbitrary cut off date of 31.12.2014.

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L. Because the impugned Act confers arbitrary and uncontrolled power

upon the Executive and is thus violative of the fundamental rights

of the people of North East in particular, and India in general, in that

no mechanism is provided to determine whether such persons satisfy

the criteria laid down in the impugned Act.

M. Because even if the Respondents justify the class created by the

impugned Act on the grounds of religious persecution, it is

submitted that the same was not identified as one of the causes of

illegal migration by the Government of India before this Hon’ble

Court in Sonowal (I). The stand of the Government of India was that

Bangladeshis enter India due to, “steep and continuous increase in

population, sharp deterioration in land-man ratio and low rates of

economic growth particularly poor performance in agriculture”. It

was further submitted that people of all religions from Pakistan and

Bangladesh have come for the same reason. The same was recorded

by this Hon’ble Court in its judgment in Sonowal (I), as follows.

“A true copy of the latest status report filed by the Government

in Writ Petition No. 125 of 1998, which has been filed seeking

deportation of all Bangladeshi nationals from India, has been

filed as Annexure R-1 to the Counter Affidavit and paragraphs 3

to 7 of the said status report are being reproduced below :

3. Continuing influx of Bangladeshi nationals into India has been

on account of a variety of reasons including religious and

economic. There is a combination of factors on both sides which

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are responsible for continuing influx of illegal immigration from

Bangladesh. The important "Push Factors" on the Bangladesh

side include: -

a) steep and continuous increase in population;

b) sharp deterioration in land-man ratio;

c) low rates of economic growth particularly poor performance

in agriculture;

The "Pull Factors" on the Indian side include: -

a) ethnic proximity and kinship enabling easy shelter to the

immigrants;

b) porous and easily negotiable border with Bangladesh;

c) better economic opportunities;

d) interested religious and political elements encouraging

immigration;”

There is thus no basis for the Respondent No.1 to exempt illegal

migrants from the applicable statutory scheme on the basis of

religious persecution or religious persecution in Afghanistan,

Bangladesh or Pakistan.

N. Because the impugned Act is in violation of Article 14 of the

Constitution of India in as much as it violates the requirement of

‘equal protection of the laws’ to all persons within the territorial

jurisdiction of the Union. The classification made has no relation

with the object of the legislations in question. The impugned Act

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makes an illegal discrimination based on religion and therefore, also

runs contrary to the rule against arbitrariness.

O. Because Sections 2, 3, 5 and 6 of the impugned Act violate the

obligations of Respondent No. 1 under the United Nations

Declaration on the Rights of Indigenous Peoples. It is submitted that

due to the continued influx of the illegal immigrants in the entire

North East, the Respondents herein have failed to protect the rights

of the indigenous people of North East as enshrined under the said

Declaration. It is submitted that the impugned Act is, in any manner,

also in violation of the international obligations of India.

P. Because Sections 2, 3, 5 and 6 of the impugned Act is inconsistent

of Section 6A of the Citizenship Act, 1955 (hereinafter referred to

as “the 1955 Act”). Section 6A was inserted into the 1955 Act, by

the Citizenship (Amendment) Act 1985, as a result of the 1985

Assam Accord, whereby illegal migrants who have entered the State

of Assam from Bangladesh up to 24.03.1971 were ultimately

required to be granted citizenship of India, on the assurance that

illegal migrants entering the state of Assam after 25.03.1971 would

be deported back to Bangladesh. Sections 2, 3, 5 and 6 of the

impugned Act are completely contrary to Section 6A of the 1955

Act, since it legitimises the entry and continued stay of “illegal

migrants” as defined under Section 2(1) (b) the 1955 Act in the state

of Assam, even if they entered India after 25.03.1971. It is submitted

that the provisions of the impugned Act, thus, go contrary to the

solemn promise made to the Assamese people (which was accepted

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by the entire North East) by way of the enactment of Section 6A of

the 1955 Act.

Q. Because the impugned Act is in stark contradiction with Section 6A

(8) of the 1955 Act, which is a saving clause and provides that,

“Save as otherwise expressly provided in this section, the

provisions of this section shall have effect notwithstanding

anything contained in any other law for the time being in force.”

Sections 2, 3, 5 and 6 of the impugned Act are therefore inconsistent

with the provisions of Section 6A (8) of the 1955 Act. It is submitted

that the impugned Act tends to negate the statutory promise made to the

people of Assam and in fact, provides incentive to the illegal migrants,

thus, defeating the entire object and purpose of Section 6A of the 1955

Act.

R. Because Sections 2, 3, 5 and 6 of the impugned Act are in violation

of the judgment of this Hon’ble Court in Sonowal (I) wherein this

Hon’ble Court gave a clear mandate to the Central Government to

remove illegal migrants from India and equated the entry and stay

of illegal migrants in the state of Assam with external aggression.

All foreigners, irrespective of religion or place of origin, who enter

India without valid travel documents, are illegal migrants and liable

for expulsion. By establishing vague and indeterminable criteria, the

effect of the impugned provisions will be to enable more illegal

migrants to claim exemption from the existing statutory framework.

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On a similar reasoning, in the said judgment, this Hon’ble Court had

struck down the Illegal Migrants (Determination by Tribunals) Act,

1983 and the Illegal Migrants (Determination by Tribunals) Rules,

1984 as ultra vires the Constitution. Similarly, in Sonowal II also,

the Hon’ble Court had emphasized that all illegal immigrants should

be deported.

S. It is further submitted that Sections 2, 3, 5 and 6 of the impugned

Act are in violation of the judgment of this Hon’ble Court in All

Assam Sanmilitia Mahasangha v. Union of India (2015) 3 SCC 1

wherein this Hon’ble Court directed the Union Government to and

to detect and deport all illegal migrants who have come to the State

of Assam after 25.3.1971. The impugned Act is an attempt to

overreach the following directions of this Hon’ble Court.

“41. We are at loss to understand why 67 years after

independence the Eastern border is left porous...”

“42. …we have considered the necessity of issuing appropriate

directions to the Union of India and the State of Assam to ensure

that effective steps are taken to prevent illegal access to the

country from Bangladesh; to detect foreigners belonging to the

stream of 1.1.1966 to 24.3.1971 so as to give effect to the

provisions of Section 6(3) & (4) of the Citizenship Act and to

detect and deport all illegal migrants who have come to the

State of Assam after 25.3.1971.The Union will take all effective

steps to complete the fencing (double coiled wire fencing) in such

parts/portions of the Indo-Bangla border (including the State of

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Assam) where presently the fencing is yet to be completed. The

vigil along the riverine boundary will be effectively maintained

by continuous patrolling. Such part of the international border

which has been perceived to be inhospitable on account of the

difficult terrain will be patrolled and monitored at vulnerable

points that could provide means of illegal entry. Motorable roads

alongside the international border, wherever incomplete or have

not yet been built, will be laid so as to enable effective and

intensive patrolling. Flood lights, wherever required, will also

be provided while maintaining the present arrangements. The

completed part of the border fencing will be maintained and

repaired so as to constitute an effective barrier to cross border

trafficking.” (Emphasis supplied)

As a result of the above directions of this Hon’ble Court, it is amply

clear that the Respondent No. 1 has been directed to completely stem

the flow of illegal migrants from Bangladesh into India, as well as to

speedily detect and remove permanently all illegal migrants who are

residing in the state of Assam, having entered after 25.03.1971. In the

light of such directions, the impugned Act is clearly an attempt to

bypass the express directions of this Hon’ble Court.

T. Because the impugned Act is arbitrary, illegal, null and void.

U. Because the impugned Act is otherwise bad in law.

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18.That the Petitioner has no other efficacious remedy but to approach this

Hon’ble Court by means of the present Writ Petition. The Petitioner had

approached the Union of India with its representations, but no relief was

granted in that regard.

19.That the present Petition is filed bonafide and in the interest of justice and

there is no personal gain or private motive in filing this petition.

20.That the Petitioner has not filed any other similar petition before this

Hon’ble Court or any other court seeking similar reliefs.

PRAYER

It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased

to:

a. Issue a writ in the nature of mandamus and/ or any other writ/

order or direction declaring the Citizenship (Amendment)

Act, 2019 as a whole, or Sections 2, 3, 5 and 6 thereof, as

discriminatory, arbitrary and illegal and consequently setting

aside the impugned Act as ultra-vires the Constitution of

India;

b. Issue a writ in the nature of Mandamus or any other

appropriate a writ/ order or direction to the Respondent no 1

to take effective steps for implementation of the provisions of

the United Nations Declaration on the Rights of Indigenous

Peoples;

c. Issue a writ in the nature of Mandamus or any other

appropriate a writ/ order or direction to the Respondent no 1

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to take effective steps for conservation and preservation of the

distinct culture, heritage and traditions of the indigenous

people of North East;

d. Issue Rule Nisi in terms of prayers (a), (b) and (c) above,

e. Pass any other such further or other writ, order or directions

as this Hon’ble Court may deem fit and proper in the facts and

circumstances of the present case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER AS IN DUTY

BOUND SHALL EVER PRAY.

Drawn on: 12.12.2019 Filed by

Filed on: 16.12.2019 (T. Mahipal)

Place: New Delhi Advocate for the Petitioner

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IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
I.A. NO. ________ OF 2019
IN
WRIT PETITION (CIVIL) NO. _________ OF 2019

IN THE MATTER OF:

NORTH EAST STUDENTS’ ORGANISATION PETITIONER

VERSUS

UNION OF INDIA & ANR. RESPONDENTS

APPLICATION FOR AD-INTERIM EX-PARTE STAY

TO
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THIS
SUPREME COURT OF INDIA
THE HUMBLE APPLICATION OF THE PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHOWETH:

1. By way of accompanying writ petition under Article 32 of the Constitution of

India, preferred by the Petitioner herein in its personal as well as representative

capacity for a large number of people living in North-East who have suffered

and are still suffering the consequences of illegal immigration in the region,

Petitioner is seeking enforcement of their fundamental rights guaranteed under

the Constitution of India, inter alia including the rights contained in Articles

14, 15, 19, 21, 25 and 29 of the Constitution. The present Petition inter alia

challenges the Citizenship (Amendment) Act, 2019 as a whole, and/or

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specifically Sections 2, 3, 5 and 6 thereof, as discriminatory, arbitrary, illegal

and against the basic structure of the Constitution.

2. The averments made in the accompanying writ petition may be treated as part

and parcel of the present application and the same are not being repeated herein

for the sake of brevity.

3. The Petitioner submits that it has a good prima facie case. It is respectfully

submitted that the impugned Act (especially Sections 2, 3, 5 and 6 thereof) is

unreasonable, arbitrary, illegal and thus, violative of Article 14 of the

Constitution of India. It is submitted that the impugned Act has been passed

under extraneous political considerations and is in derogation of the rights of

Indian citizens living in India, and especially the north eastern part of India.

Further, the impugned Act is not in public interest and welfare. The result of

the impugned Act will be that a large number of non-Indians, who have

surreptitiously entered India, without possession of valid passport, travel

documents or other lawful authority to do so, will be able to take citizenship

and reside therein. The Petitioner submits that the impugned Act seeks to do

away with any sort of regulation for Hindus, Sikhs, Buddhists, Jains, Parsis and

Christian foreigners entering India illegally from Bangladesh, Afghanistan and

Pakistan. The balance of convenience lies in favour of the Petitioner and

irreparable harm and injury will be caused to the Petitioner if interim reliefs as

prayed for are not granted. On the other hand, no prejudice would be caused to

the Respondents herein if such relief is granted. It is, therefore, be in the interest

of justice that the interim reliefs as prayed for may be granted.

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PRAYER
It is, therefore most humbly and respectfully prayed that, pending the

admission and final disposal of the present writ petition, this Hon’ble Court

may be pleased to:

(i) Stay the operation and implementation of the Citizenship (Amendment

Act), 2019; and

(ii) Pass any other order or direction as this Hon'ble Court may deem fit in

the facts and circumstances of the present case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY

BOUND SHALL EVER PRAY.

FILED BY:

(T. Mahipal)
ADVOCATE FOR THE PETITIONER
Filed on: 16.12.2019
New Delhi