Case BriefsHigh Courts

Calcutta High Court: Sabyasachi Bhattacharya, J., while addressing a petition regarding the citizenship of a person, held that,

“An application has to be made to acquire citizenship under Section 5(1)(c) of the Citizenship Act, 1955 mandatorily in Form III as given in Rule 5(1) of Citizenship Rules, 2009.”

Petitioner states its grievance that he has been denied citizenship of India since he was not able to file an application under Section 5(1) (c) of the Citizenship Act, 1955 as the online application that has to be filed now requires a copy of the passport as a mandatory requirement for such application.

Counsel for the Petitioner, submitted that the petitioner was a Pakhtoon citizen and due to political turmoil in the said State he had to migrate to India with his father. Petitioner was a 5-year-old child at that time. Under such circumstances, the petitioner could not have any opportunity of having a valid passport since they were refugees under distress.

Counsel for the State submitted that in view of the petitioner not complying with the mandatory requirement of submitting a copy of the passport. State Government cannot, under the law forward such an application to the Union Government.

Court’s Analysis & Decision

Petitioner has to make an application to acquire citizenship under Section 5(1)(c) of the Citizenship Act mandatorily in Form III as given in Rule 5(1) of 2009 Rules. On perusal of Form III, Court stated that clause 9 of the same requires passport particulars of the applicant and documents to be attached with application include a valid foreign passport.

Further, the Court noted that,

A compliance of Rule 5(1)(a), although contemplates that an application shall not be entertained unless the application is made in Form III, such provision ipso facto does not make the availability of a passport a mandatory requirement, since the Form given with the Rules or the Rules themselves cannot override the provision of the statute itself, under which the said Rules are framed, which does not stipulate such a mandate on the applicants for citizenship under Section 5 (1)(c) of the 1955 Act mandatorily to carry a passport.

 Thus, the Court held that, it is nowhere indicated in Form III that particulars regarding passport of the petitioners have to be furnished mandatorily along with a copy of a valid foreign passport. The Bench also added that, there has to be a relaxation in such requirement in the case the petitioner is able to satisfy the appropriate authorities the reasons for non availability of such passport.

Hence, the requirement of having a passport has to be read as optional in Form III of the Citizenship Rules, 2009.

Further, the Bench made an observation that,

“…despite the provision of making applications online, a provision has to be made for persons who do not have all the particulars of their passport, which is read as optional, to file applications manually, which are to be treated as valid applications under Rule 5 of the Citizenship Rules, 2009, alternatively to amend the necessary software so that the online applications can be presented with or without passports, in the latter case furnishing detailed reasons as to non-furnishing of passports.”

[Bismillah Khan v. Union of India, 2020 SCC OnLine Cal 540, decided on 24-02-2020]

Case BriefsForeign Courts

Supreme Court of Canada: A Full Bench of Wagner, CJ. and Moldaver, Grason, Cote, Brown, Rowe and Martin, JJ. is pertaining to the validity of Registrar’s decision in a case of withdrawal of citizenship.

The petition has been filed by Ministry of Citizenship and Immigration against the orders of Court of Appeal that dismissed the order of Registrar where the reasonableness of his decision and correctness of the interpretation of Section 3 (2) (a) of the Canadian Citizenship Act, R.S.C. 1985, C-29 by him is in question.

The facts of the case are that Alexander Valivov is born to a Russian Couple who were the spies planted in Canada by the Russian Intelligence Agency, a fact unknown to Alexander. The couple was caught for spying in 2010. Alexander who holds Canadian citizenship, got his certificate of citizenship cancelled by the Registrar in 2014 citing Section 3 (2) (a) of the Citizenship Act, which states that if either parent of a Canadian born is an employee of another country in Canada the child don’t get citizenship by birth. Alexander moved to a federal court where his appeal got dismissed. Further, he took the issue to the Court of Appeal which allowed Alexander’s appeal. Hence, the minister of Citizenship and Immigration has challenged the Court of Appeal’s decision in the Supreme Court.

The Court considered the case Dunsmuir v. New Brunswick, 2008 SCC OnLine Can SC 9 and clarified the law applicable to judicial review of administrative decisions. There are two aspects that need clarification. First is the analysis of determining the standard of review. Second is the guidance of the Court on a reasonableness standard. The court decided that the standard applicable in the registrar’s decision is reasonableness. In reasonableness review Court intervenes to safeguard legality, rationality and fairness of the administrative process, failure in which may lead it to be set aside.

The Court observed that Registrar did not take note that Section 3 (2)(a) applies only to the children of those individuals whose parents had been granted the diplomatic privileges by the Canadian Government. The Court held the decision rendered by Registrar to be unreasonable, as the interpretation of Section 3 (2) (a) of Citizenship Act done by him was improper and hence the Court found uplifted the decision given by the Court of Appeal and Canadian citizenship got restored to Alexander Vavilov. [Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, decided on 19-12-2019]

Legislation UpdatesStatutes/Bills/Ordinances

The Citizenship Amendment Bill, 2019 was introduced in the Lok Sabha on 08-01-2019. The Bill seeks to facilitate acquisition of citizenship by 6 identified minority communities namely Hindus, Sikhs, Jains, Buddhists, Christians and Parsis from Afghanistan, Pakistan and Bangladesh who came to India before 31-12-2014.

Highlights :

  • The Act is not confined to the State of Assam, and will be applicable to all States and Union Territories of the country.
  • The beneficiaries of Citizenship Amendment Bill can reside in any state of the country.
  • The burden of these persecuted migrants will be shared by the whole country.
  • Assam alone would not have to bear the entire burden and Government of India is committed to give all help to the State Government and people of Assam.
  • The Act will provide relief to persecuted migrants who have come through western borders of the country to States like Gujarat, Rajasthan, Delhi, Madhya Pradesh and other States.

Migrants from these communities were earlier given protection against legal action in years 2015 & 2016. Long term visa provision was made for them. The proposed amendment will make these persecuted migrants eligible to apply for citizenship.  Citizenship will be given to them only after due scrutiny and recommendation of district authorities and the State Government. The minimum residency period for citizenship is being reduced from existing 12 years under the present law to 7 years.

The present Government has taken several measures to implement the Assam Accord. An important pillar of Assam Accord is Clause 6 dealing with constitutional, legislative and administrative safeguards for protection of cultural, social and linguistic identity and heritage of Assamese people.  MHA has notified on 05-01-2019, a High Level Committee consisting of eminent and knowledgeable persons from Assamese society with a very wide mandate to suggest such safeguards for protection of the Assamese identity, including reservation in the State Assembly and in jobs. The Committee will submit its report within 6 months.

Government has given approval to move the Bill in parliament granting ST status to 6 communities of Assam namely Tai Ahom, Koch Rajbongshi, Chutia, Tea Tribes, Moran and Matak. Government has waived the requirement of Cabinet approval.

At the same time, full safeguards will be provided to protect the interests, rights & privileges of existing Scheduled Tribes of Assam.  A separate Bill will be brought to grant ST status to Bodo Kacharis in Hill districts of Assam and Karbis in the rest of Assam. Schedule VI of the Constitution is also proposed to be amended to strengthen the Autonomous District Councils.

OP. ED.

Articles 10[1] and 11[2] of the Constitution of India permits Parliament to make provisions in the matters of citizenship. Using this power Parliament had enacted the Citizenship Act, 1955 and a special law for Assam titled the Immigrants (Expulsion from Assam) Act, 1950.

There was a massive influx of illegal immigrants from Bangladesh (formerly East Pakistan) into the State of Assam. This lead to social and political conflict in the border State of Assam. In 1985, Assam Accord was signed between the Government and leaders of Assam agitation. It brought the first amendment of the Citizenship Act[3] and thereby Section 6-A was inserted in the Act.

Section 6-A divided the illegal immigrants of Indian origin (i.e. those whose parents or grand-parents were born in undivided India) into three groups:

  1. Those who entered into the State before 1966 were deemed to be the citizen of India.
  2. Those who entered into the State between 1966 to 25-3-1971 (official date of announcement of the Bangladesh war) were deemed to be citizens but their names were deleted from the electoral rolls. This was done because the political parties in order to increase their vote bank were giving citizenship arbitrarily to every immigrant without NRC (National Register of Citizens).
  3. Those who entered into the State after 1971 were to be detected and deported in accordance with the law.

To detect the illegal immigrants in the State of Assam, Parliament passed the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), two years before the Assam Accord. Under the Act the Government framed the Illegal Migrants (Determination by Tribunals) Rules, 1984 (IMDT Rules). The Act and the Rules taken together, made some departure from the procedure under Foreigners Act, 1946 and Foreigners (Tribunals) Order, 1964 which was applicable for whole India.

IMDT Act and Rules were challenged before the Supreme Court in Sarbananda Sonowal v. Union of India[4] and the Court held the Act and the Rules to be unconstitutional. Thereafter, the Tribunals under IMDT Act ceased to function and statutory regime reverted to Section 6-A of the Citizenship Act, the Foreigners Act and the Foreigners (Tribunals) Order.

Section 6-A of the Citizenship Act was challenged before the Supreme Court in Assam Sanmilita Mahasangha v. Union of India[5]. A two-Judge Bench of the Supreme Court (Justice Ranjan Gogoi and Justice R.F. Nariman) framed 13 questions of law and passed it to Constitution Bench under a referral order under Article 145(3)[6]. The first issue raised in the referral order is:

Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6-A of the Citizenship Act inasmuch as Section 6-A, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4(2) read with Article 368(1)?

Under Article 6 of the Constitution, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India if he, or either of his parents or any of his grandparents, was born in undivided India and in addition, has fulfilled either of the following two conditions:

  1. in case he migrated to India before 19-7-1948[7], he had been ordinarily resident in India since the date of his migration; or
  2. in case he migrated on or after 19-7-1948, he had been registered as a citizen of India.

A person could be so registered only if he had been resident in India for at least 6 months preceding the date of application for registration.

The migration envisaged in Article 6 only means coming to India from outside and it must have taken place before, and not after the commencement of the Constitution.

Section 6-A of the Citizenship Act provides cut-off date for the entry into the State of Assam different from that provided in Article 6 of the Constitution. Thus, there posed a conflict between Article 6 and Section 6-A as Section 6-A is said to be contradictory to Article 6.

The main point to be considered is that whether Articles 10 and 11 of the Constitution empowers Parliament to make provisions contrary to the provision of the Constitution without an amendment to the constitution itself.

Section 6-A was inserted by an amendment to the Citizenship Act but there was no amendment of the Constitution w.r.t. variation of Article 6 for the enforcement of Section 6-A.

Articles 2 and 3 of the Constitution states about the territory. If we go by literal interpretation of the word “territory” it means the geographical area under the jurisdiction of a sovereign State. State includes both territory as well as population. Any law made for a territory is directly related to the people residing over the territory. There can be no existence of a territory without the existence of living flesh in that territory. Thus, it may be said that territory does not only include the land but it consists of all living creatures residing in the territory.

A territory is a combination of both land and living creatures residing over there. Article 6 provides for rights of the citizenships of certain persons who have migrated to the territory of India from the territory now included in Pakistan. Articles 2 and 3 talks about territory w.r.t. land. As territory includes both land as well as living creatures, it can be said that Article 6 stands on the same footing as Articles 2 and 3.

Since Articles 2 and 3 are immunised from the constitutional amendment under Article 368(1)[8] by virtue of Article 4(2) then Article 6 shall also come under the scope of Article 4(2) and shall be immunised from the amendment under Article 368(1) of the Constitution. If this interpretation is true it may be said that Article 6 of the Constitution need not to be amended and no such law made thereunder shall be deemed to be an amendment of the Constitution.

Section 6-A of the Citizenship Act may be said to be an expansion of the Article 6 of the Constitution considering the socio-economic conditions of the country. And in enforcement of Section 6-A there is no requirement of the amendment of the Constitution.

———

*Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1.

Ekta Rai is a first year student at National University of Study and Research in Law, Ranchi.

[1]  Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.

[2]  Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to acquisition and termination of citizenship and all other matters relating to citizenship.

[3]  Citizenship (Amendment) Act, 1986.

[4]  (2005) 5 SCC 665.

[5]  (2015) 3 SCC 1.

[6] The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five:

Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.

[7]  On this date, the influx from Pakistan (Control) Ordinance introduced a permit system to control the admission into India of persons from West Pakistan.

[8]  Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

Case BriefsHigh Courts

Meghalaya High Court: While considering three petitions addressing the issue wherein the petitioners (they being children of Tibetan parents and born in India on or after 26.01.1950 and before 01.07.1987) were denied the status as citizens of India under the Citizenship Act, 1955, the Division Bench of Dinesh Maheshwari, C.J., and Ved Prakash Vaish, J., held that, on interpreting an unambiguous provision such as Section 3 of the Citizenship Act, 1955, the petitioners are Indian citizens in every respect and thus are entitled to all benefits and privileges available to the Indian citizens.

The three petitions which were addressed jointly by the Court, stated that the petitioners are citizens of India by virtue of Section 3 (1) (a) of the Citizenship Act, 1955, but they were denied the status of citizens and the rights attached therewith by the Union of India and the State of Meghalaya without any justification and reason. It was further contended that they were being compelled by the authorities to carry registration certificate as refugees. The respondents however contended that if the petitioners are having a claim of citizenship, then they need to apply to the authorities concerned under Section 3 read with Section 9 of the Citizenship Act, 1955 and the requisite declaration in their favour could be made only after due enquiry. The respondents claimed that the petitioners have furnished false information related to their birth and that they obtained the registration in the Electoral Rolls by suppressing the fact that they were registered Tibetan refugees and were not holding the citizenship certificate.

Perusing the facts of the case and the clarity of Section 3 (1)(a) of the Citizenship Act, 1955, the Court outright observed that the respondents were unjustified in denying the rights to the petitioners as citizens of India though such rights flow directly and unfailingly by the operation of the plain provisions of law. Moreover each of the petitioners was born within the cutoff year as provided by the law. Referring to the decisions of the Delhi High Court and Karnataka High Court in Namgyal Dolkar v. Government of India, 2010 SCC OnLine Del 4548 and Tenzin Choephag Ling Rinpoche v. Union of India, 2013 SCC OnLine Kar 5932 respectively, the Court stated that the plain reading of unambiguous provisions of law, as contained in Section 3 of the 1955 Act, leaves nothing to doubt and, “any decision by any Ministry cannot override the plain provisions of law nor any correspondence or any communication could do so.” [Tenzing Choden Sherpa v. Union of India, 2017 SCC OnLine Megh 35, decided on 15.02.2017]