Chief Justice pushing back. The Supreme Court on Monday kept in abeyance a challenge to two notifications on the Passport Act and the Foreigners Act that permitted religious minorities facing persecution in the neighbouring countries, except Muslims, to stay in India even if they had entered without valid documents.
A bench of Chief Justice Ranjan Gogoi and Justices Ashok Bhushan and Sanjay Kishan Kaul kept the petition pending by the Nagarikatwa Aain Songsudhan Birodhi Mancha observing that a Bill to amend the Citizenship (Amendment) Act was pending before the Rajya Sabha after being passed by the Lok Sabha.
Observing they can’t hear a plea challenging the Citizenship Act (Amendment) Bill and that it was not a law, the court kept the petition pending pointing to propriety.
The petitioner, Forum Against Citizenship Act Amendment Bill, have sought deceleration that the Passport (Entry into India) Amendment Rules 2015 notified on September 7, 2015, was discriminatory, arbitrary and illegal.
Similarly, the Forum and others including Hiren Gohain, Manjit Mahanta and Harekrishna Deka have sought that the Foreigners Amendment Order, 2015, also notified on September 7, 2015, be declared illegal.
Besides seeking the striking down of 2015 notifications and the 2016 order of the Union Home Ministry, the petitioners want direction to the Centre to take effective steps for the “conservation and preservation of the distinct culture, heritage and traditions of the indigenous people of Assam”.
The Forum has contended that the government could not have issued the two notifications in 2015 without amending the law, which was only now being done.
Pointing to the “uncontrolled influx of illegal migrants from Bangladesh to Assam causing huge demographic changes reducing the once majority indigenous people to a minority in their own land, the Forum has sought the protection of their fundamental rights guaranteed under Article 14 (equality before law), Article 15 (Prohibition of discrimination), Article 19 (Freedom of speech and expression), Article 21 (Right to life) and Article 25 (Right to freedom of religion).
The petitioners have contended that religious persecution may in the given facts and circumstances could be a reasonable principle for differentiation but “it cannot be articulated in a manner that dilutes the republican and secular foundation of citizenship in India and goes against constitutional morality”.
Contending that under the theory of basic structure of the Constitution certain characteristics that could not be taken away by any legislation, the petitioner have asserted that any legislation that “fails the test of basic structure of the Constitution is unconstitutional and secularism is part of the basic structure of the Constitution”.
The petitioners contend that the Amendment bill under challenge was violative of the Assam Accord which treated all those who entered the state post-March 1971 as illegal migrants.
The amendment defeats the purpose of the Assam Accord and opens floodgates to more illegal immigration and consequently increases claims on diminishing resources, they said.