Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., directed the State to remove from all Government portals and facebook sites of government institutions and departments the publications that are Anti Citizenship (Amendment) Act, 2019 and National Register of Citizens (NRC).

Court further asked the Eastern Railway and Southern-Eastern Railway to place reports with respect to actual details of loss caused to railway property and damages incurred therein. The reports will also contain a statement in regard to the action taken and the action to be taken for recovery of loss caused for such damages to the railway property.

The Bench decided to leave open the legal issue as to whether the State or the Government could issue such publications at State expense or using the government machinery.

Court also noted the Advocate General Kishore Datta’s response with respect restrictions on internet services, that the same have been lifted throughout the State and the publication material which is anti-CAA and NRC to be withdrawn from circulation.[Sri Surajit Saha v. State of W.B., 2019 SCC OnLine Cal 5228, decided on 23-12-2019]

Case BriefsHigh Courts

Meghalaya High Court: A Division Bench of Mohammad Yaqoob Mir, CJ and H.S. Thangkhiew, J. set aside the controversial judgment passed last year by Justice S.R. Sen in Amon Rana v. State of Meghalaya, 2018 SCC OnLine Megh 274 wherein, now retired, Justice Sen had observed that India ought to have been declared a “Hindu Rashtra”.[1]

Respondent herein had applied for issuance of domicile certificate for recruitment in armed forces but was denied the same by Meghalaya Government. In a petition assailing the denial order of Government, Justice Sen had set aside two notifications issued by the Meghalaya Government relating to the issuance of permanent residence certificate and domicile certificates. He stated that the ongoing National Register of Citizens (NRC) process was defective, and also had observed that anyone opposing Indian laws and the Constitution should not be considered a citizen of India. He had remarked that India should have declared itself a Hindu country like Pakistan declared itself an Islamic nation. When he drew flak from various quarters for his observations, Justice Sen issued a clarification stating that his judgment was not politically motivated or influenced by any party.

In the present appeal, the learned Advocate General, A. Kumar, contended that the said notifications quashed by Justice Sen were not even challenged in the petition filed by the respondent. Hence, a case for adjudication could not be made out for a subject which was not even part of the pleadings. The learned Advocate General, further contended that the direction for taking necessary steps to bring a law to safeguard the interest of Hindus, Sikhs, Jains, Buddhists, Christians, Parsis, Khasis and Garos and certain other observations made in the judgment were not consistent with the Preamble and other provisions of the Constitution.

At the outset, the Court noted that while an SLP seeking an expunction of Justice Sen’s remarks and observations was pending before the Supreme Court, the same would not be a bar for deciding the instant appeal.

It was held that the setting aside of the two notifications by learned Single Judge in absence of any challenge in the writ petition was totally impermissible, and therefore, findings regarding the same were unsustainable. The Court observed that the petition filed by the respondent herein before Single Judge was for seeking issuance of domicile certificate. There was no requirement to go into the superfluous issues not brought up by either party. Direction of policy framing in the exercise of writ jurisdiction was impermissible. Reliance in this regard was placed on Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364 where it was held that “The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive.”

Further, any direct or indirect observation which offends the Preamble of the Constitution could not be sustained. It was noted that directions of the Single Judge Bench offended the “secular colour of the country and the provisions of the Constitution of India”.

The impugned judgment was set aside observing that, “After bestowing our thoughtful consideration to the entire gamut of the matter we have reached to a firm conclusion that the judgment impugned dated 10-12-2018 is legally flawed and is inconsistent with the constitutional principles, the observations made and directions passed therein are totally superfluous, therefore, is set aside in its entirety, as such shall be non est.”

However, it was opined that writ petition for issue of the requisite certificate be allowed and provisional certificate as issued in pursuance to the interim direction in favour of the respondent herein based on which he had joined the armed forces be treated as final.[State of Meghalaya v. Amon Rana, 2019 SCC OnLine Megh 95, decided on 24-05-2019]

[1] https://blog.scconline.com/post/2018/12/13/first-we-are-indians-then-good-human-beings-then-comes-the-community-india-should-have-become-hindu-country-but-it-remained-secular-meghalaya-hc/

Hot Off The PressNews

Supreme Court: The Court has reserved its order on whether a judicial decision of the Foreigners Tribunal in Assam will supercede the decision of the National Register of Citizens (NRC) on declaring a person as a
foreigner.

A bench headed by Chief Justice Ranjan Gogoi reserved the order on the plea after hearing arguments of petitioner’s advocate Kapil Sibal, and advocates appearing for the Centre and Assam.

During the hearing, senior advocate Kapil Sibal, appearing for one Abdul Kuddus, told the bench that Supreme Court should carve an appellate forum for such persons who figure in NRC but are declared foreigner by tribunals.
The court has to decide that if the name of a person has been included in NRC under an executive exercise and the same person has
been judicially determined as a foreigner, and such finding has attained finality by courts at different stages, which of the contrary view will supersede.
Sibal argued that if the name of a person is there in the NRC but he has been declared a foreigner by the tribunal, he should have the right to appeal. He also argued that though the NRC (/search?query=NRC) statute does not have a specific remedy, the Supreme Court can carve out an appeal procedure.
State of Assam and Centre had earlier said that judicial verdict will supercede the NRC executive exercise. The court had, on March 26, directed the Chief Secretary and Home Secretary of Assam to appear before it.

(Source: ANI)


Also read:

Decision of Foreigners Tribunal versus NRC: Senior Assam bureaucrats to appear before SC on March 28

Hot Off The PressNews

Supreme Court: The Court has directed the Chief Secretary and Home Secretary of Assam to appear before it on March 28 in the matter where it has to decide whether a judicial decision of the Foreigners Tribunal will supersede the decision of the National Register of Citizens (NRC) authorities. State of Assam and Government of India have submittedthat judicial verdict of the tribunal will supersede the NRC executive exercise.

Senior advocate Kapil Sibal appearing for the petitioner has argued that if the name of a person is there in the NRC but he has been declared a foreigner by the tribunal, he should have the right to appeal. He also argued that though the NRC statute does not have a specific remedy, the Supreme Court can carve out an appeal procedure.

CJI Ranjan Gogoi asked petitioners to show how the Supreme Court can pass orders to create a right to appeal and an appellate authority in case of contradicting orders. He asked:

“What happens if the decision of Foreigners Tribunal says one thing and the NRC decides opposite?”

The court will be hearing the matter next on March 28.

Conference/Seminars/LecturesLaw School News

Indian Journal of Law and Public Policy & Ayyubi Law Practices, Alumni Association of Jamia Millia Islamia; New Delhi conducted a National Conference on Identity, Citizenship, and National Register of Citizens, Assam on February 2nd, 2019 at Auditorium, Faculty of Engineering and Technology.
The event was held in two sessions:
The first session dealt with National Register of Citizens, Legal Framework and Implementation and D-Voters: Abundance Precaution or Legal Persecution and was joined by very esteemed panelists, namely:
  1. Prof. Anupama Roy (Centre for Political Studies, School of Social Sciences-II, Jawaharlal Nehru University)
  2. Prof. Sanjoy Hazarika (International Director, Commonwealth Human Rights Initiative)
  3. Mr. Venkitesh Ramakrishnan (Chief of Bureau, The Frontline)
  4. Dr. Ghulam Yazdani (Academic Advisor, IJLPP)
  5. Mr. Fuzail Ayyubi (Advocate on Record, Supreme Court of India)
The panelist heard a number of research papers which were presented by students and independent writers all over India.
Professor Anupama Roy addressed the gathering by stating that “Statelessness is an issue which we need to look at whether our Constitution allows it within the ambit of Constitutional morality”.
The second session dealt with Citizenship Laws in India: Leaning towards Political Rhetoric or Constitutional Morality and Post NRC Regime and Issues regarding Illegal Migrants and Detention Camps. The session was joined by esteemed panelists, namely:
  1. Prof. Mahendra P. Lama (Professor of South Asian Economies, School of International Studies, Jawaharlal Nehru University)
  2. Mr. Mohan Katarki (Advocate, Supreme Court of India)
  3. Ms. Jayshree Satpute (Co-founder, Nazdeek and Human Rights Lawyer)
  4. Mr. Mohammad Nizam Pasha (Advocate, Supreme Court of India)

On several papers, Prof. Lama commented, “The entire discourse we’ve lost the major discourse of how, close to 40 lakh people are illegal and as to who brought them and the role played by paramilitary forces in this. This issue should be looked at from an inter-disciplinary aspect, for instance, the impact on relations of India with its neighbors due to this issue, the shape of the borderline to be considered, etc. Further, it becomes necessary to go beyond legal interpretations and to examine this issue in the context of public interest.”
The valedictory speech was attended by Mr. Salman Khurshid (Advocate, Supreme Court of India) as a Chief Guest. He spoke about the big problem of lack of communication existing in Indian politics with the Congress Party in Assam being unaware of the issue and having never been consulted on this issue. Further, he pointed out that the apex court is incompetent to find a solution to this issue and that it is doubtful whether the people involved in the entire NRC exercise have been given the appropriate training to conduct this exercise. NRC has no mitigating factors and no law can be without its mitigating factors.
For more information, please visit: http://ijlpp.com/conference-proceedings/