Advocates' Association for Indigenous Rights of Assamese Moves SC Against CAA [Read Petition]

The plea broadly contends that the CAA is repugnant to the fundamental as well as constitutional rights of the people of Assam, as guaranteed to them under Articles 14, 15, 19, 21, 25, 29, 325, 326 and 355 of the Constitution. It is also alleged to be violative of the Assam Accord and the Immigrants (Expulsion From Assam) Act, 1950, that were enacted to protect the indigenous inhabitants of Assam.

As per the CAA, Hindus, Sikhs, Buddhists, Parsis, Jains and Christians who migrated to India without travel documents from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014 will not be regarded as illegal migrants.

The Petitioners have pointed out that the case relating to influx of illegal immigrants in Assam and other areas of the north-east between 1951 to 1971 was already pending before a Constitution Bench of the Supreme Court. In these circumstances, the government could not to have introduced the impugned Act, since it only creates haywire and adds burden on the courts.

The grounds taken by the Petitioner are enlisted as follows:

Violative of Article 21 of the Constitution

The plea states that the impugned Act infringes the right to life and liberty of the people of Assam inasmuch as they will be affected adversely by the massive influx of illegal immigrant.

It has been submitted that legitimizing the entry and continued stay of "illegal migrants" will massively affect the socio-economic condition of the State and will reduce the indigenous people of Assam to a minority in their home State. The Petitioner has further contended that the Act will have serious implications on the State's internal security.

"State of Assam has repeatedly witnessed ethnic clashes and violence leading to loss of human lives and destruction of properties. The State is unable to ensure the safety and security of its inhabitants thereby resulting in a direct infringement of Article 21 of the Constitution of India," the plea read.

Reliance was placed on Sanmilita Mahasangha & Ors. v. Union of India & Ors., (2015) 3 SCC 1.

The Petitioner also states that the Act will surge Indian population, and will burden the hitherto scarce natural resources.

"The State cannot arbitrarily increase the population of the state without an effective policy for settlement, economic and political rights of the migrant population. Any action by the State without laying down any measures for protection of the said cultural and economic rights of the Citizens of India living in the state of Assam which are guaranteed as fundamental right under 21 of the Constitution of India would be both constitutionally as well as judicially susceptible," it was submitted.

Violative of Article 29 (1) of the Constitution

The plea states that Article 29(1) of the Constitution confers a fundamental right on all sections of citizens residing in the territory of India, having a distinct language, script or culture of its own, to conserve the same. However, the impugned Act, in complete derogation of the same allows immigration from the three countries, posing a real threat to the language, cultural and ethnic identity of the Assam.

"The application of section 3 of the CAA in allowing citizenship to large numbers of illegal migrants, to non-Tribal areas of Assam without adopting international standards for the intake of refugees and leaving the burden of proof of religious/ persecution largely on the state, seriously endangers its local people's right to conserve its own culture language and culture," the plea states.

Violative of Article 14 of the Constitution

(1) The plea denigrates Section 6B (4) to the Citizenship Act, 1955, introduced by Section 3 of the CAA, for being violative of Article 14 of the Constitution.

It has been submitted that the provision was introduced to constitutionally protect indigenous people in North Eastern states by classifying the State of Assam into tribal and non-tribal areas for the purpose of application of the impugned Act. However, it has been contended that the provision bears no rational nexus to its objective of protecting indigenous people who are dispersed across the entire state, including its non-tribal areas.

Moreover, it has been submitted that Section 6B(4) excludes the entire states of Mizoram, Nagaland, Arunachal Pradesh and Manipur from having to grant citizenship to any persons from Bangladesh, Afghanistan or Pakistan under the CAA, to protect their indigenous cultures. Thus, it has been contended that not exempting the entire state of Assam is a wholly unreasonable classification vis-a-vis the other North Eastern states.

(2) The plea further states that the Act grants arbitrary and unfettered power to the Centre, inasmuch as it does 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.

"Home Minister, Central Government in his debate in parliament has stated that a self declaration from Hindu,- Sikh, Buddhist, Jain, Parsis and Christian Illegal Immigrant stating that he/she entered India prior to 31st December 2014 will acceptable to consider his citizenship. If this procedure is adopted to consider the citizenship of a illegal immigrant then any person can enter anytime into India and claim citizenship. Even any other person who does not fall in the definition of the amended Act can change his name and swear a false affidavit. This as such shows that the entire Act is absurd," it was argued.

(3) The Petitioner also questions the rationale behind excluding various other persecuted communities from the neighboring countries.

"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 other minority communities 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," the Petitioner submitted.

Violative of Assam Accord

The Petitioner has contended that the CAA defeats the entire purpose of the Assam Accord and has the potential to open floodgates to more illegal immigration.

It points out that the amended Sections 2, 3, 5 and 6, are inconsistent with Section 6A of the principal Act (which was inserted pursuant to the Assam Accord) inasmuch as, while the latter was inserted to ensure that illegal migrants entering the state of Assam after 25.03.1971 are deported back to Bangladesh, the former provisions legitimize the entry and continued stay of "illegal migrants", even if they entered India after 25.03.1971.

Moreover, Section 3 of the CAA by not excluding the application of section 6B (3) to non-Tribal areas of Assam frustrates the terms of the Assam Accord that disallows citizenship to illegal immigrants even in the state's non-tribal areas.

Further, it was submitted that Section 2 of the CAA which grants the Central Government excessive and uncanalized discretionary power to exclude any class of persons of the Hindu, Sikh, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan as illegal migrants; grossly violates the guarantee of Article 5.3 of the Assam Accord "to detect, delete and expel foreigners entering Assam after 24.03.1971".

Violative of Article 355 of the Constitution

It has been pleaded that by promulgating the impugned Act, the government has failed to discharge its duty under Article 355 of the Constitution to take all measures for protection of the State and it rather undermines the interest of people of Assam.

Reliance has been placed on Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, wherein the Supreme Court specifically observed that there can be no manner of doubt that the State of Assam is facing "external aggression and internal disturbance" on account of large scale illegal migration of Bangladeshi nationals.

The Petitioners added that the Act also violates Article 325 and 326 of the Constitution as it dilutes the political rights of the citizens of Assam.

Violative of Part II (Citizenship) of the Constitution

The Petitioner submitted that Article 6 of the Constitution (Part II) clearly stipulates that any person who came to India from Pakistan, should've entered India on or before January 19, 1949, to acquire citizenship. However, the impugned Act, in complete derogation of the Constituional mandate, fixes the cut-off date as December 31, 2014 for people of 6 minority communities who claim themselves to be victims of religious persecution in Pakistan, Afganistan and Bangladesh.

"there cannot be any other cut-off date which is at a variance with the one that is given in the Constitution. The above provisions contravene Articles 14 & 21 of the Indian Constitution. In this view of the matter the impugned Act is ultra-vires the Constitution and hence liable to be quashed," the plea states.

On December 18, the Supreme Court had issued notice on nearly 60 petitions challenging the validity of the CAA and had asked the Centre to submit its reply by the second week of January and posted the matter on January 22.

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