Case BriefsSupreme Court

Supreme Court: The bench of Ranjan Gogoi, CJ and RF Nariman, J has refused to re-open the National Register of Citizens (NRC) process in Assam.

The Court elaborately discussed the NRC exercise as below:

  • Section 6A of the Act which was inserted with effect from 7th December, 1985 by the Citizenship (Amendment) Act, 1985 (Act No.65 of 1985), carves out a special category of citizens in the State of Assam.
  • In view of the special category of citizens so created a special procedure came to be prescribed by Rule 4A of the 2003 Rules read with the Schedule thereto in the matter of preparation of National Register of Indian Citizens in the State of Assam whereby the claims of all persons (including persons born in India) for inclusion in the NRC were to be related to the entries 19 either in the National Register of Citizens 1951 or any of the electoral rolls prepared upto the midnight of the 24th day of March,1971 or on the basis of any of the additional documents referred to earlier.
  • The above said procedure was necessitated on account of a large number of persons who acquired citizenship by virtue of Section 6A of the Act without being actually born within the territories of India. Yet, as Section 6A of the Act confers citizenship on such person(s), a special procedure, indicated above, has to be devised for inclusion in the NRC in the State of Assam. This is what was agreed upon under the Assam Accord which led to the introduction of Section 6A in the Citizenship Act, 1955 with effect from 7th December, 1985.

Considering the abovementioned procedure, the Court said,

“The entire NRC exercise having been performed on the aforesaid basis, the same cannot be now ordered to be reopened by initiation of a fresh exercise on certain other parameters that have been suggested on behalf of the intervenors/applicants on the strength of the provisions of Section 3(1)(a) of the Act.”

On the issue of the maintenance of security of the NRC data, the bench directed the Central Government to enact an appropriate regime for on lines similar to the security regime provided for AADHAR data. Only thereafter, the list of inclusions and exclusions shall be made available to the State Government, Central Government and Registrar General of India.

The Court further directed,

  • only hard-copies of the supplementary list of inclusions be published at the NRC Seva Centers, Circle Offices and Offices of the District Magistrates of the State.
  • the list of exclusions be published on 31st August, 2019 shall be published only on on-line and shall be family-wise.

[Assam Public Works v. Union of India, 2019 SCC OnLine SC 1025, decided on 13.08.2019]

Case BriefsSupreme Court

Supreme Court: Deciding the conflict between sub-paragraph (2) to paragraph 3 and paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, the 3-judge vacation bench of Ranjan Gogoi, CJ and Deepak Gupta and Sanjiv Khanna, JJ, held,

“Paragraph 8 does not envisage and provide for a second round of litigation before the same authority i.e. the Foreigners Tribunal constituted under the 1964 Order on and after preparation of the final list. Provisions of paragraph 8 of the Schedule to the 2003 Rules will apply when there has not been an earlier adjudication and decision by the Foreigners Tribunal.”


  • Paragraph 3 deals with the preparation of consolidated list of original inhabitants of Assam, their children and descendants if their citizenship is ascertained beyond reasonable doubt and to the satisfaction of the Registering Authority.
  • Paragraph 8 provides for a right of appeal to the person who had filed objections and is not satisfied with the outcome of the decision under the final list published under paragraph 7. Such persons may prefer an appeal before the designated Tribunal constituted under the 1964 Order within a period of sixty days and on disposal of appeal by the Tribunal, such persons can accordingly be included or deleted from the National Register of Indian Citizens in the State of Assam.
  • Paragraph 8, therefore, makes the Foreigners Tribunal under the 1964 Order as the appellate forum to decide claims and objections under paragraph 7 of the Schedule.

The Court held that the person concerned should be permitted to double-dip and be entitled to a second round of litigation before the Foreigners Tribunal notwithstanding the earlier opinion expressed by the Foreigners Tribunal is far-fetched, and completely unacceptable.

It said that where the issue and question of nationality has already been determined under the 1964 Order, an appeal would not be maintainable under paragraph 8 of the Schedule to the 2003 Rules. The determination would be final and binding on the Registering Authority under the Schedule and the Local Registrar.

The Court also held,

“Any order passed in case of close family members, subsequent to adjudication order determining the citizenship status of a person, would necessarily be a material evidence which can be duly taken note of and considered while deciding a writ petition or a review application.”

It was held that in a given case, the person aggrieved would have liberty to invoke writ jurisdiction, or if necessary, review jurisdiction before the High Court or this Court to ensure that no injustice is done.

[Abdul Kuddus v. Union of India, 2019 SCC OnLine SC 733, decided on 17.05.2019]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Sanjiv Khanna, JJ dismissed a plea seeking direction to the Centre and the Election Commission to debar Congress President Rahul Gandhi from contesting Lok Sabha elections till the issue of his citizenship is decided.

The Court rejected the contention of the petitioners, who said that in a form along with the annual data of a UK-based company in 2005-06, it was allegedly mentioned that Rahul Gandhi is a British citizen. It said,

“If some company in some form mentions his nationality as British, does he become a British citizen.”

(Source: PTI)

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/
Case BriefsForeign Courts

Supreme Court of Pakistan: The Seven-Judge Bench of Mian Saqib Nisar, HCJ and Gulzar Ahmed, Azmat Saeed, Mushir Alam, Umar Ata Bandial, Ijaz Ul Ahsan and Mazhar Alam Khan Miankhel, JJ. was hearing a suo motu case pertaining to dual nationality of civil servants and officials of autonomous bodies.

Article 63(1)(c) of the Constitution of Islamic Republic of Pakistan states that a person is not eligible to be elected as a Member of Parliament if “he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State”. Section 14(1) of the Pakistan Citizenship Act, 1951 does not permit dual citizenship, as a general principle. However, Section 14(3) of the said Act extends the privilege of dual nationality to persons acquiring citizenship of, inter alia, USA, Canada and the United Kingdom countries.

In view of the exception created under Section 14(3) of the Act, the question before Court was as to the interpretation of the word “or’ in Article 63(1)(c).

The Court affirmed the dictum in Syed Mehmood Akhtar Naqvi v. Federation of Pakistan, 2012 SCC OnLine Pak SC 59 and held that the intention of Constitution framers was to use the word “or” in Article 63(1)(c) disjunctively. This was done to cater for a separate distinct situation where a Pakistani citizen acquires a dual nationality of a foreign State under Section 14(3) of the Act, without loss of his Pakistani citizenship in terms of Section 14(1) of the Act. An interpretation to the contrary would render the phrase “acquires the citizenship of a foreign State” under Article 63(1)(c) of the Constitution redundant.

In view of the above, the Court examined the documents submitted by newly elected senators who were alleged of having dual nationality; and disqualified two of them as members of the Senate.[Dual Nationality of Parliamentarians, In re, 2018 SCC OnLine Pak SC 17, Order dated 17-10-2018]

Call For PapersCase BriefsLaw School News

The National Law School of India Review (NLSIR) is now accepting submissions for its upcoming issue – Volume 31(2). Volume 31(2) will a special issue of the NLSIR and will follow the theme of the XII NLSIR Symposium, i.e., ‘Sovereign-Rights Dichotomy: Exploring Issues of Migration, Refuge and Citizenship’ in the context of India.

Since, this is a special issue of the journal, papers relevant to the above theme, i.e., those engaging with the issues of Migration, Refuge or Citizenship will be considered only. Please send in your submissions before March 31, 2019 in order for them to be considered for our special issue, i.e., Vol. 31(2)

About NLSIR

The NLSIR is the flagship law review of the National Law School of India University, Bangalore, India. The NLSIR is a bi-annual, student edited, peer-reviewed law journal providing incisive legal scholarship on issues that are at the forefront of contemporary legal discourse. In the past 30 years, the NLSIR has regularly featured articles authored by judges of the Indian Supreme Court, senior counsels practicing at the Indian bar, and several renowned academics from national and foreign universities.

The most recent volume of the NLSIR, Vol. 30 will feature contributions by Professor Jonathan Herring, Vice Dean and Professor of law, Faculty of Law, University of Oxford, and Professor Steven Freeland, the Dean of the School of Law and Professor of International Law at Western Sydney University, Australia, among several others. Moreover, NLSIR has the unique distinction of being the only Indian student-run law journal to be cited twice by the Supreme Court of India, with the latest one in the landmark judgment in Justice K.S. Puttaswamy v. Union of India. NLSIR has also recently been cited in Justice R. S. Bachawat’s Law of Arbitration and Conciliation, a leading treatise on arbitration law in India.

Submission Categories:

Submissions are accepted for the following categories:

  1. Long Articles:Between 5,000 and 10,000 words. Papers in this category are expected to engage with the theme and literature comprehensively, and offer an innovative reassessment of the current understanding of that theme. Purely theoretical pieces are also welcome.
  2. Essays:Between 3,000 and 5,000 words. Essays are far more concise in scope. These papers usually deal with a very specific issue and argue that the issue must be conceptualized differently. They are more engaging and make a more easily identifiable, concrete argument.
  3. Case Notes and Legislative Comments:Between 1,500 and 2,500 words. This is an analysis of any contemporary judicial pronouncement or a new piece of legislation whether in India or elsewhere. The note must identify and examine the line of cases in which the decision in question came about and comment on implications for the evolution of that branch of law. In case of legislative comment, the note must analyze the objective of the legislation and the legal impact the same is expected to have.

All word limits are exclusive of footnotes. The journal is flexible regarding the word count depending on the quality of the submission. Pieces in any of the above categories with relevance to India or Indian law are particularly welcome. This, however, is not a pre-requisite.

Formatting and Citation Guidelines

The body of the manuscript should be in Times New Roman, font size 12 with double linespacing. The footnotes should be in Times New Roman, font size 10 with single line spacing.

The manuscript should contain only footnotes (and not end notes) as a method of citation. Citations must conform to the Bluebook (20th edn.) style of citation.

Authors are required to adhere to the NLSIR Style Guide which can be found here.

How to submit?

The NLSIR only accepts electronic submissions. Submissions may be emailed to mail.nlsir@gmail.com under the subject heading “31(2) NLSIR – Submissions.” All submissions must contain the following:

  1. The manuscript in .doc or .docx format. The manuscript should not contain the name of the author or his/ her institutional affiliation or any other identification mark.
  2. A cover letter containing the name of the author, professional information, the title of the manuscript, and contact information.
  3. All manuscripts must also contain an abstract of not more than 150 words.

NLSIR shall shortly release a call for papers for Volume 32(1). This volume will be a general issue and papers on any contemporary theme with relevance to India or Indian law will be welcome.

More Information

For more information on NLSIR, please log on to www.nlsir.com.

Subscribe to the NLSIR

You can subscribe to the NLSIR here.

Warm regards,

Sharan A. Bhavnani

Editor-in-Chief, National Law School of India Review

Case BriefsForeign Courts

High Court of South Africa, Western Cape Division: This application was brought before N.P. Boqwana, J., seeking an order to declare DPB as a Citizen by Birth of South Africa and to issue an unabridged electronic birth certificate in terms of Section 9 of the Births and Deaths Registration Act, 1992 by respondent.

Facts of the case were that the two applicants who had filed this application were parents of DPB, holding South African permanent residence permits. DPB had a handwritten birth certificate which in practice was given to a child whose details were not included in the National Population Register. The grievance of the applicant was that the birth certificate did not contain any identity number. It is to be noted that the issue revolved around interpretation of Section 2 of the South African Citizenship Act, 1995 which stated the conditions under which a person would be considered a citizen of South Africa by birth before its amendment was enforced in 2013.

Respondents accordingly in the answering affidavit held the view that DPB was not a South African citizen, as contemplated by the old Section 2(1)(b) of the Citizenship Act read with Section 2(2).  After Court interpreted the old provision to be in favour of applicants, respondent argued that amended provision was retrospectively applicable to DPB according to which DPB would not be a citizen of South Africa.

Court was of the view that if amended provision is made applicable in the instant application then DPB would not be eligible to be a South African citizen by birth due to the fact that his parents were not a South African citizen at the time of his birth. But Court viewed the old provision to be applicable as a person born in South Africa whose parents have been lawfully admitted to the Republic for permanent residence ought to acquire citizenship by birth. On the question of retrospectivity of provision Court did not accept its applicability. Therefore, Court declared DPB to be South African citizen by birth and directed respondents to grant necessary documentation, birth certificate, issuance of unabridged electronic birth certificate and registration of DPB as citizen expeditiously. [FB v. Minister of Home Affairs, 2018 SCC OnLine ZAWCHC 1, dated 12-11-2018]

Case BriefsSupreme Court

Supreme Court: In the issue relating to admissibility of the certificate issued by Gram Panchayat Secretary as a proof of citizenship, the bench of Ranjan Gogoi and RF Nariman, JJ held that the said document can be used to establish a linkage between the holder of such certificate and the person(s) from whom legacy is being claimed after it clears a 2-step verification process. The steps include:

  • authenticity of the certificate itself.
  • the authenticity of the contents thereof.

The Court explained:

“The latter process of verification is bound to be an exhaustive process in the course of which the source of information of the facts and all other details recorded in the certificate will be ascertained after giving an opportunity to the holder of the certificate.”

The Court was hearing a batch of appeals against the order of the Gauhati High Court had held the Gram Panchayat certificate, submitted under ‘illustrative list of documents admissible’ as a supporting document, to be invalid in law.

Noticing that the Gram Panchayat Certificate merely acknowledges the shifting of residence of a married woman from one village to another, the Court made it clear that the said certificate by itself and by no means establishes any claim of citizenship of the holder of the certificate but will only its holder to establish a link between the holder and the person from whom legacy is claimed.

The Court, however, said:

“If the document and its contents is to be subjected to a thorough search and probe we do not see why the said certificate should have been interdicted by the High Court, particularly, in the context of the facts surrounding the enumeration and inclusion of the documents mentioned in the illustrative list of documents, as noticed above.”

Stating that the said document can in no manner be considered a ‘private document’, the Court held that Gram Panchayat Certificate can, however, be acted upon only to establish a linkage between the holder of such certificate and the person(s) from whom legacy is being claimed. It was made clear that the certificate will be put to such limited use only if the contents of the certificate are found to be established on due and proper enquiry and verification. [Rupajan Begum v. Union of India, 2017 SCC OnLine SC 1411, decided on 05.12.2017]

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]

 

Case BriefsHigh Courts

Calcutta High Court: While deciding a case where it was contended by the petitioner that Aadhar card was proof of his citizenship, the Single Bench of Joymalya Bagchi, J. held that in accordance with Section 9 of the Aadhar Act, the Aadhaar card by itself shall not confer any right of  proof of citizenship or domicile in respect of the holder thereto.

It was submitted by the petioner that aadhar card was submitted to him in view of his long residence in the country. It was argued by the State that relying on the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016  issuance of aadhar card cannot be treated as a proof of citizenship . The Court reaffirming the State’s view held that under Section 9 of said Act,  Adhaar Card by itself shall not confer any right of citizenship to petitioner.

Apart from this the petitioner also placed reliance of his claim of his citizenship on the residence certificate issued by a representative of a local body. The Court also did away with this claim by holding the letter issued by the representative of the local body as to the residence of the petitioner also does not, ipso facto, confer citizenship on the petitioner. [In Re, Rani Mistri, 2016 SCC OnLine Cal 8283, decided on 30.11.2016]

Amendments to existing lawsLegislation Updates

Citizenship (Amendment) Bill, 2015 was introduced in Lok Sabha on 27-02-2015. The objective of the Bill is to further amend the Citizenship Act, 1955. Salient features of the Bill are as follows:

  • Substitutes the words “overseas citizen of India” in the Citizenship Act, 1955 with that of “overseas citizen of India Cardholder” and provides a new definition thereto
  • Substitutes the words “has been residing in India for one year” with that of “is ordinarily resident in India for twelve months”
  • Inserts Section 5 (1 A) which provides that the Central Government, if it is satisfied that special circumstances exists, may after recording the circumstances in writing, relax the period of twelve months (mentioned above) upto a maximum of thirty days which may be in different breaks
  • Substitutes Sections 7A, 7B, 7C and 7 D of the Citizenship Act to provide for-

Ø  registration of Overseas Citizen of India Cardholder and also that the Persons of Indian Origin Cardholders shall be deemed to be Overseas Citizen of India Cardholders;

Ø  conferment of rights on Overseas Citizen of India Cardholder;

Ø  renunciation of Overseas Citizen of India Card;

Ø  cancellation of registration as Overseas Citizen of India Cardholder.

  • Repeals the Citizenship (Amendment) Ordinance, 2015.

-Lok Sabha

Legislation UpdatesStatutes/Bills/Ordinances

On 06-01-2015, the President of India promulgated the Citizenship (Amendment) Ordinance, 2015. The objective of the Ordinance is to amend the Indian Citizenship Act, 1955 with immediate effect. The Ordinance provides for the following amendments:

  • To relax the mandatory provision of one year continuous stay in India for Indian Citizenship, with that of a maximum thirty days (which may be in different breaks), if the Central Government is satisfied that special circumstances exist and after recording such circumstances in writing.
  • To enable for registration as Overseas Citizen of India (OCI) by a minor, whose parents are Indian Citizens.
  • To enable for registration as Overseas Citizen of India (OCI) by a child or a grand-child or a great grandchild of an Indian citizen.
  • To enable for registration as Overseas Citizen of India (OCI) by such spouse of a citizen of India or spouse of an OCI registered under Section 7A and whose marriage has been registered and subsisted for a continuous period of not less than two years immediately preceding the presentation of the application.
  • In respect of existing PIO card holders, the Central Government may specify a particular date from which all existing PIO card holders will be deemed to be OCI card holders.

 

-Ministry of Home Affairs