Declining to stay the Citizenship (Amendment) Act or postpone implementation of the National Population Register, the Supreme Court Wednesday sought a reply from the Centre in four weeks even as it indicated that the matter may be referred to a Constitution Bench. It also asked High Courts not to take up petitions on the subject in the interim.
The bench of Chief Justice of India S A Bobde and Justices S Abdul Nazeer and Sanjiv Khanna, which took up 144 petitions challenging the CAA, NPR and amendments to the Passport Rules and Foreigners Order, also remarked verbally that any action by authorities will be subject to the outcome of pending petitions.
“I don’t think anything is irreversible,” CJI Bobde said as senior advocate Abhishek Manu Singhvi, appearing for a petitioner, sought interim directions, saying states had already started the process under the impugned legislation and rules, and that the process would be irreversible.
Issuing notice on all fresh petitions, the bench granted the Centre four weeks to file its reply and said it will fix the week after that for orders on how to go about the hearing. It asked the government counsel to file the reply in two sets — one pertaining to Tripura and Assam, and the other for the rest.
Senior advocate Kapil Sibal said he was of the opinion that the matter should go to a Constitution Bench. “May be it should… The matter is uppermost in everybody’s mind… The suggestion is it should go to a Constitution Bench. We will see,” the CJI said.
Sibal too sought interim directions, saying he was not praying for a stay but only postponement of the process by a few weeks till the time the court takes up the matter at an early date. “Heavens are not going to fall,” he said.
Singhvi echoed this, and said “if it has not been done for 70 years, why not a few weeks more”. But Attorney General K K Venugopal opposed the submission, saying the prayer was the same as seeking a stay. The bench did not grant Sibal’s request.
Venugopal countered the argument that the process, once set in motion, cannot be reversed. He said there were provisions in the law for withdrawal of citizenship, if necessary.
Senior advocate Rajeev Dhavan said the court must take up the irreversibility question as a preliminary issue. “We will consider,” the CJI said, adding “we do not know what they (authorities) are going to do”.
Senior advocate K V Viswanathan said the “real concern” was that are no rules for marking a person as doubtful under the impugned process. “It is something sinister… A different kind of gerrymandering of the electoral rolls will take place” and “not only Muslims, large number of Hindus will also be disenfranchised,” he said.
Sibal and Singhvi agreed with Viswanathan and said that was the “real concern”. Singhvi said Uttar Pradesh had already started the process and in 19 districts, people had been marked as doubtful. He said this was being done without framing rules. He said the chaos can be avoided if the process starts after two months by which time the court can hear the matter.
Senior advocates Shyam Divan and Vikas Singh, appearing for petitioners from Assam, also pressed for an interim stay. Divan said when a person is granted citizenship, there is presumption that he or she has given up the original citizenship. In such an event, it will be difficult to reverse once citizenship is granted. “Don’t stay the process, but stay only final grant of formal naturalisation certificate,” he requested the bench.
“We are not saying anything either way. Wait for next day,” the CJI replied. Given the large volume of cases before the bench, he remarked “if we pass any order on an isolated batch of petitions, somebody may challenge and consume more time… so should we wait for 99 per cent of the petitions and then take it up?”.
The AG suggested that the court order a freeze on fresh petitions and direct that any new petition will be taken on file, but not considered for the purpose of deciding the matter. At this, the CJI said those who are denied opportunity may demand that they also want to be heard.
Solicitor General Tushar Mehta drew the attention of the court to what a three-judge bench had done in the matter of petitions challenging restrictions in Jammu and Kashmir in the wake of the abrogation of Article 370. That bench, he said, had asked the Registry not to accept any fresh petition, and those who wanted to file fresh pleas could file intervention applications. He suggested that the same could be followed in the CAA matter too.
As the court was dictating the order, Sibal requested the bench to add that actions will be subject to the decision on the petitions. The CJI remarked orally “my understanding is that is the law. Any order passed by any authority is subject to the outcome of the petitions”.
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