[Exclusive] 'Offends Secular Colour Of The Country': Meghalaya HC Had Cautioned Against The Very Idea Of CAA

A Division Bench of the Meghalaya High Court, on 24th May 2019, had sounded a word of caution against the very idea of granting citizenship based on religion to minorities from Pakistan, Bangladesh and Afghanistan, which the Citizenship Amendment Act, 2019, now, more or less, proposes to do. It had observed that such an idea has 'a colour of offending secular colour of the country.'

On 10th December 2018, Justice Sudip Ranjan Sen of Meghalaya High Court made controversial observations in his "Hindu Rashtra" judgment, which was later set aside by the Division bench of the High Court.

In the judgment, Justice Sen, also urged the Centre to bring in a legislation to allow citizenship to Hindus, Sikhs, Jains, Buddhists, Parsis, Christians, Khasis, Jaintias and Garos who have come from Pakistan, Bangladesh and Afghanistan, without any question or documents. The judge observed thus, in his controversial judgment.

"Even today, in Pakistan, Bangladesh and Afghanistan, Hindus, Sikhs, Jains, Buddhists, Christians, Parsis, Khasis, Jaintias and Garos are tortured and they have no place to go and those Hindus who entered India during partition are still considered as foreigners, which in my understanding is highly illogical, illegal and against the principle of natural justice."

"Therefore, I request our beloved Prime Minister, Home Minister, Law Minister and Hon'ble Members of the Parliament to bring a law to allow the Hindus, Sikhs, Jains, Buddhist, Parsis, Christians, Khasis, Jaintias and Garos who have come from Pakistan, Bangladesh and Afghanistan to live in this country peacefully and with full dignity without making any cut off year and be given citizenship without any question or production of any documents. Similar principle should be taken to those who live in Pakistan, Bangladesh and Afghanistan. They may be allowed to come at any point of time to settle in India and Government may provide rehabilitation properly and declare them citizens of India. Similar principle to be adopted for those Hindus and Sikhs who are of Indian origin and presently residing abroad to come to India at any time as they like and they may be considered automatically as Indian citizens. This Court expects that the Government of India will take a conscious decision to protect the innocent Hindus, Sikhs, Jains, Buddhist, Parsis, Christians, Khasis, Jaintias and Garos who have come from Pakistan, Bangladesh and Afghanistan and who are yet to come as well as from abroad as they have the same right to come to India as Indian citizens. Though Boundary Commission was appointed at the time of partition but the Boundary Commission did not do any work and drew an imaginary line to divide India into two pieces. A burning example is that if we visit the border, it is difficult to understand which land falls within India and which is in Bangladesh as somebody's kitchen is in India and their bedroom is in Bangladesh."

CAA Passed Exactly An Year Later

It is very interesting that the Citizenship Amendment Bill was passed by Lok Sabha, exactly a year later, on 10 December 2019. A day before, it was introduced in Lok Sabha, and a day later it was passed in Rajya Sabha. The President gave his assent on 12th December 2019 and it was notified on the Gazette the same day. The Act is yet to come into force.

Offends Secular Colour: Warning By Division Bench

But, it is pertinent to point out here that, on 24th May 2019, the Division Bench of Chief Justice Mohammed Yakoob Mir and Justice H S Thangkhiew observed that the judgment by Justice Sen was "legally flawed and inconsistent with constitutional principles". While setting aside the judgment, the bench had said thus:

So far as the observations and appeal for legislation are concerned, judgment impugned has travelled beyond the pleadings. The observations and directions being not in-conformity with law, in-consistent with constitutional principles and being superfluous in the context of the memo of writ petition and provisions of the Constitution shall have to be ignored, as such shall be treated as non est.

On the 'request' made by Justice Sen to the Centre, the bench remarked thus:

Learned Advocate General was right in contending that in exercise of writ jurisdiction even otherwise direction for any policy framing is impermissible. According to him, in effect, while referring to the different faiths, observations have been made to bring a law so as to safeguard the interest of Hindus, Sikhs, Jains, Buddhists, Christians, Parsis, Khasis and Garos who have already come to India and who are yet to come from Pakistan, Bangladesh and Afghanistan as well as persons of Indian origin who are residing abroad. These were not the issues at all and have a colour of offending secular colour of the country and the provisions of the Constitution of India. 

A petition filed in early 2019 is still pending before the Supreme Court which seeks removal of the observations made by Justice Sen in his judgment. Now, more than fifty writ petitions are pending before the Supreme Court challenging the Citizenship Amendment Act, 2019. The Amendment Act endorses, though not fully, the idea mooted by Justice Sen in his judgment, which was later set aside by the Division Bench. Perhaps the Supreme Court should decide both, i.e. the petition seeking removal of Justice Sen's observations and the set of petitions challenging CAA, together.