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IN THE SUPREME COURT OF POCHINKI
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 1234 OF 2019
(Arising out of P.I.L. (civil) nos. 987 of 2019) DECIDED ON 13/05/
1. ALL KAMESHKI STUDENTS UNION **...PETITIONERS VERSUS
- UNION OF POCHINKI** **...RESPONDENTS AUTHOR: ABC, CJ BENCH: ABC (CJ), PQR (J), CT (J), RDX (J), SN (J) Present:
- Mr. XY, counsel for the petitioner in Writ petition no. 1234 of 2019
- Attorney General of the State, Mr. XYZ for the State of Pochinki.**
CONTENTS
S.NO(s). HEADING PAGE NO(s). A. INTRODUCTION……………………………………………... 3 B. REFERENCE…………………………………………………... 3- C. ISSUES INVOLVED…………………………………………... 6- D. ANALYSIS OF THE ISSUES………………………………… 10- E. ORDER………………………………………………………… 16-
read with Order XXXVII of the Supreme Court Rules, 2013 the petition is admissible and maintainable.
- A PIL can be filed against the state for the violation of fundamental rights^1 under Article 32 of the constitution –therefore, the PIL is maintainable against Union of Pochinki. In S.P Gupta and Ors. v. President of India and Ors.^2 , the 7- member bench of the Supreme Court held that any member of the public having sufficient interest can approach the Court for enforcing constitutional or legal rights of other persons and redressal of a common grievance.
- The present case has had a chequered history so far. Not only the constitutional validity of an Act is under question on the ground of violating Article 14 of the constitution, but the Nation’s commitment to jus cogens , especially in view of a vacuum in domestic laws with respect to the issue of asylum seekers faces a serious impediment. We find that sufficient public interest is involved in the present matter. Thus, the petitioner is allowed to argue on the basis of merits of the case.
- At the outset, it is necessary to state the facts in detail to appreciate the questions which arise for determination before this court. The Citizenship Act, 1955 defines acquisition and determination of Citizenship. Over the years, Ralivs and Galivs tribes from Mylta infiltrated into Kameshki much to the chagrin of the natives of Kameshki who feared adverse effect on demography, language and culture. Thus in 1978, the students and youths of Kameshki started an agitation against the illegal migrants irrespective of their religion. This resulted into Kameshki accord of 1985 that was signed between the Government of Pochinki and leaders of the Kameshki Agitation. The leaders of the agitation accepted 24th March, 1971 as the date after which anyone who came to Kameshki would not be considered eligible for citizenship of Pochinki and would have to be deported back to Mylta. In the meanwhile, influx of immigrants continued in (^1) Sukhdev & Ors. V. Bhagatram & Ors. AIR 1975 SC 1331, P95. (^2) AIR 1982 SC 149; ABSK Sangh (Rly) v. Union of India, AIR 1981 SC 298.
Kameshki from Mylta. In 2016, the bill named Citizenship (Amendment) Bill, 2016^3 was passed in both the houses of the parliament. The purpose of the bill was to provide Citizenship to the non-Galivs who came to Pochinki fleeing religious persecution from Gatka and Mylta and were residing in different parts of Pochinki. Subsequently, the Citizenship (Amendment) Bill, 2019 was introduced in the Parliament which leads to the enactment of the Citizenship (Amendment) Act, 2019 which came into effect in November 2019 which allowed illegal immigrants who entered into Pochinki before December 31, 2014 belonging to non-Galivs religions from Gatka and Mylta to acquire Pochinki citizenship. The blatant exclusion of Galivs from the act along with the situation in Kameshki caused nationwide protest to break out.
- All Kameshki Student‘s Union, approached the Supreme Court to declare the Pochinki Citizenship (Amendment) Act, 2019 as constitutionally invalid and thus scrap it.
- This court is presented with three issues: First, whether the impugned act is violative of basic structure of the constitution? Second, whether the impugned act is violative of the Kameshki Accord and is it detrimental to the culture, language and land rights of the Kameshkians? And third, whether the impugned act violates fundamental rights of the people of Pochinki?
- We place a great appreciation for each Counsel who appeared in the case and rendered assistance to enable us to deal with this unusual matter in manner considered appropriate for this nature. (I) WHETHER THE IMPUGNED ACT IS VIOLATIVE OF BASIC STRUCTURE OF THE CONSTITUTION (^3) Annexure-1 of the amended proposition.
the Kameshkians while stating that the influx of immigrants has created a crisis of identity among the indigenous people.
While furthering their contentions the petitioners submitted that impugned act is violative of the Sixth schedule of the Pochinkian constitution.
The petitioners contended that the impugned act is violative of Article 29^6 of the Constitution. The court is provided with the case of Jagdev Singh Sidhanti v. Partap Singh Daulta^7 , wherein it was held that right to conserve the language of citizens includes the right to agitate for the protection of language. The petitioners went on to saying that the impugned act is a planned move of the central government to make Kameshki a dumping ground for the non- Galiv Myltans.^8
The further submission advanced by the petitioners was that the state is unable to ensure the safety and security of its inhabitants thereby resulting in a direct infringement of Article 21 of Constitution. Attention of the court was invited to the case of Assam Sanmilita Mahasangha &Ors. V. UOI & Ors.^9 , wherein the Court observed that illegal migration has resulted in periodic clashes between the citizens and migrants, leading to loss of life and property, and thereby violating the constitutional rights of the Kameshkians.
Further the petitioners contended the amendment violates Article 355 of the Constitution and Clause (9) of the Kameshki Accord. (^6) Article 29-Protection of interests of minorities: (1)Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. (^7) AIR 1965 SC 183. (^8) Amended proposition,P14. (^9) Assam Sanmilita Mahasangha & Ors.V Union of India &Ors Writ Petition (civil) No. 562 of 2012 On December17,
For the second issue, the respondents had put forward a dual stance. The first being that the Kameshki Accord is a mere political settlement between the leaders of student parties, and Union of Pochinki and not a law as defined under Article 13(3) of the Constitution and thus cannot be used to challenge the constitutionality of the Act which is well within the competence of the Union.
And the second stance being that the act is not detrimental to the culture, language and land rights of the indigenous people of Kameshki. The repository of this argument is that on a closer look of the Sixth schedule of the Constitution the governor has power to make certain acts made by the government non applicable in the state of Kameshki.^10 Check on education, health, culture, language and land rights of the indigenous people of Kameshki. Therefore the Act cannot be declared unconstitutional as it does not violate Article 29 and 30 of the Constitution. (III) WHETHER THE IMPUGNED ACT VIOLATES FUNDAMENTAL RIGHTS OF CITIZENS OF POCHINKI?
Petitioners argued with astuteness that the legislative mandate runs counter to the command of Article 14. Key reliance was placed on Olga Tellis v. BMC & Ors. Etc.^11 wherein this Court stated that Article 14 is conferred to citizens and non-citizens alike. To barter this right, would be to strangulate a sovereign democracy. Furthering their argument the petitioners has submitted that this amendment act fails the test of reasonable classification as set out in Article 14 of the Constitution
The petitioners thus contended that the impugned act amounts to an infringement upon the excluded minorities’ fundamental right to equality. (^10) Para 12, Schedule Sixth, The Constitution of Pochinki, 1950. (^11) Olga Tellis v. BMC &Ors. Etc., AIR 1986 SC 180.
ANALYSIS OF THE ISSUES
- A democratic Constitution like ours is an organic document which adapts to its surroundings. It is this sacrosanct which permits even an insignificant minority to find its true identity.
- The role of the judiciary gains more importance while answering questions pertaining to classes of people who have been the brutalized subjects of prejudice, separation, hostility and discrimination. The stunted growth of such classes is a disgrace and an abomination to our Constitution.
- It is in the light of these principles that the Court would proceed to adjudicate upon the matter at hand.
- It is pertinent to consider that seven of the thirteen judges in Kesavananda Bharati case^14 , observed that parliament in the exercise of its amending power under Article 368, could not alter the basic structure or framework of the constitution. The basic structure^15 has been, thus, held to be a limitation on the amending power of the parliament. It provides a touchstone to test the extent of parliament’s power to amend the constitution.^16
- Article 11^17 of the Constitution – that deals with citizenship – contains no such express limitation. Commentators have pointed to the width of these words to argue that in matters of citizenship, Parliament has virtually unlimited power (apart from the usual touchstone of the fundamental rights chapter). (^14) Kesavananda Bharati v.State of Kerela, AIR1973 SC 1461 at 1903-4. (^15) The “doctrine of basic structure” is essentially developed from the German constitution. See M.nagraj v. Union of India, AIR 2007 SC 7. (^16) I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861. (^17) It gives to Parliament the right to “regulate citizenship by law”, and allows Parliament to make “any” provision with respect to acquisition and termination of citizenship, and “all other matters” relating to citizenship.
- What this argument ignores, however, is that express limitations are not the only manner in which constitutional authorities are constrained. As noted in Kesavananda Bharati , there also exist implied limitations that flow from the structure of the Constitution. When
- and how – do we discern implied limitations? A short answer will suffice: power under the Constitution to do “x” is limited at the point at which doing “x” will frustrate or destroy another, equally important constitutional principle. This principle was most recently reiterated by the UK Supreme Court in Miller v. The Prime Minister^18.
- What is the implied limitation in the present case? The answer is the constitutional principle of secularism. To put it in a single sentence: the principle of secularism acts as an implied limitation upon Parliament’s power to legislate on citizenship. Parliament, therefore, has all powers to prescribe conditions of citizenship except and insofar as such conditions frustrate the Constitutional commitment towards preserving a secular polity.
- Secularism envisages a cohesive society whereby the State does not interfere in religious matters and in reciprocation, religious considerations are not be factored in for State policy determination.
- The court upholds the petitioners stance that basic structure also extends to ordinary legislation as has been held by a constitutional bench of the Supreme Court in Madras Bar Association v. Union of India^19 , wherein J.S. Kher, speaking for the majority, held that “basic structure” was inviolable and that the rule would apply to all other legislations (other than amendments to the constitution).
- Same principle was followed in Supreme Court Advocates on Record Association v. Union of India^20 and L. Chandra Kumar v. Union of India & Ors^21. (^18) [2019] UK SC 41. (^19) AIR 2015 SC 1571. (^20) AIR 1994 SC 268. (^21) AIR 1997 SC 1125.
“For satisfying the test of Article 14, the geographical factor alone in making a classification is not enough but there must be a nexus with the objects sought to be achieved.” The object of the Act is to facilitate granting of Citizenship to people of only two religious communities who have migrated to Pochinki. The legislature is well within its right to define the class based on geography. However, the object will not be satisfied if only two nations are chosen as a class. Exclusion of other neighboring nations from the classification renders the Act hit by the prohibition of Article 14 and hence, it is not constitutionally tenable. (B) Religious Persecution Religious persecution is not limited to only two nations. The CAA ignores religious asylum seekers from other countries, e.g., Rohingyas from Myanmar. Secondly, religious persecution is not limited to the two religions alone. The CAA ignores “illegal migrants” who entered India because they faced non-religious persecution – e.g., persecution based on sexual orientation(LGBTQ+), atheists or political views, or race (such as Sri Lankan Tamils). Hence, there is no reasonable basis to classify only two religions as a separate group on the presumption that only those religions face persecution. The criterion of intelligible differentia is not fulfilled. (C) Immigration to Pochinki It is not only “illegal migrants” from Gatka and Mylta who may have faced religious persecution in their countries. In neighboring countries like Nepal, Bhutan or Sri Lanka, or countries that are not Pochinki’s neighbors but in which members of the specified religious groups might still face persecution. Hence, only two countries cannot be singled out as the dominant contributor of immigrants to India. Besides, reference may be made to P Royappa v State of Tamil Nadu^26 and Maneka Gandhi v Union of India^27 where the (^26) AIR SC 555. (^27) AIR 1978 SC 597.
Courts have held that Article 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment. The Act is fraught with arbitrariness as it has intended to bring in artificial difference between migrants of different Nations. Hence, the Act is bound to fail the test of Article 14 of the constitution.
- We find no as such conflict as raised by the respondents between rights of refugees and fundamental rights of the citizens in general. Rather we find that both the concepts have different faces and are to be dealt individually.
- As Pochinki is not a signatory to the Refugee convention of 1951 or the Refugee protocol of 1967, it is not legally bound to the principle of non-refoulment with respect to refugees. However, Jean Allain in his article^28 has demonstrated that non-refoulement is a peremptory norm of international law. No derogation from it is permissible. It means, non-refoulment comes under customary international law and Pochinki is obligated to abide by the principle.
- Besides, Pochinki is a signatory to certain other international treaties which impose a moral obligation on Pochinki with respect to asylum seekers. Some of such international instruments are described below.
- Pochinki has acceded to International Covenant on Civil and Political Rights in 1979. Advisory issued by UNHRC has explicitly stated that the Covenant Rights must also be available to all individuals regardless of nationality or statelessness. Similarly, Article 6 and Article 7 of the Covenant are applicable to the Galivs in Pochinki. They should be read with Article 21 of the Constitution. (^28) Jean Allain, The Jus Cogens Nature of Non-- Refoulement', 13 Int'l J. Refugee L. 533 (2001).
- The court acknowledges the fact that the Kameshkians have suffered huge loss of culture, language and land rights due to the influx of illegal immigrants. This suffering is majorly due to the fallacious enforcement of schedule six which was framed solely for the purpose of safeguarding cultural and land rights of the people. Under the schedule six, provisions are provided for appointment of Commissions by Governor to make inquiries and reports to keep the check on education, health, culture, language and land rights of the indigenous people of Kameshki. However, the harsh reality is that such provisions are being barely adhered to and being faintly followed. In view of the reasoning thus cited, this court believes that the cultural and land rights of the people of Kameshki are being flouted because of the faint implementation of the sixth schedule. ORDER We hold that the Citizenship (Amendment) Act, 2019 is unconstitutional based on the principle of basic structure of which secularism is a part and Right to Equality enshrined under Article 14 the Constitution. It is this richer and more substantive vision of equality and equal treatment that demonstrates the unconstitutionality of the CAA in starkest terms. Each of the three “conditions” under the CAA – country of origin, religion, and date of entry into Pochinki – are effectively beyond the control of the individuals the law is targeted at. A person cannot choose which country they were born in, which religious community they were born into, and when persecution forced them to flee into Pochinki. But the CAA takes the category of migrants and divides them precisely on these three bases. This is why it goes against the basic tenets of equality. The government must come up with strict and efficient policies to track down the commissions set up under the schedule 6 in the tribal areas of Kameshki, Manipur etc and formulate a policy to provide constitutional safeguards to indigenous people. The Government may come with a coherent National refugee policy to deal with the refugee and asylum seeker crisis.
The Reference is answered accordingly. In view of the above findings, the Writ Petition is allowed. ……………..……..…………………CJ. (Mr. ABC, CJ.) New Delhi; May 13, 2020.
