Name of Authors

 Anandita Bhargava

 Smita Gupta

Name of College/University

 Rajiv Gandhi National Law University (Punjab)

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 IN THE SUPREME COURT OF INDIGO
REVIEW PETITION NO. _XX_OF 2018
Arising out of W.P. ___ /2018

Committee of Citizenship Rights …Petitioner

VERSUS
Union of Indigo …Respondent

Judgment Delivered on: 10.10.2018

Bench: ABC, CJI
DEF, GHI, JKL, MNO, JJ.
For the Petitioner: _________
For the Respondent: __________

JUDGMENT
MNO, J.
A. Introduction
1. Not for nothing, the Father of our Nation, Mohandas Karamchand Gandhi, had said, “No
two leaves are alike and yet there is no antagonism between them or between the branches on
which they grow.” Such a compassionate idea which embodies peaceful coexistence is inherent
in our magnificent Constitution. It reflects the source of its nourishment in the Fundamental
Rights, supplemented by various judicial precedents which place due emphasis on active
inclusiveness. It is in the lighted path of this truism, that essentiality of equality among religions
gains a new meaning.

Commencing with the aforesaid prefatory note, it is profitable to state that the case at hand
enjoins the Constitutional Court to relook into the treacherous simplicity of the Citizenship
(Amendment) Act, 2016.

2. The second count of the nature of lis pertains to the deportation of Rohingya Muslims to
Uyanmar. The gravamen of the same is placed on a weight of scales which tests the strength

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of human rights vis-a-vis national interests. National security is the first duty of the government
but so is the commitment to reverse the substantial erosion of civil liberties.

3. At the very outset, it is necessary to state that though the Constitution contains certain
intrinsic features which are inexplicably mixed with the Constitutional provisions, the duty of
this Court is to interpret the same broadly to maximise the meaning it gives to the lives of the
people who are concerned. Entrenching itself in historical frameworks and societal prejudices
would mean to accord itself a hindrance in the way of holistic certitude. To explicate, despite
conferring a secular stance on State affairs, the subjugation of religious minorities is a
pragmatic plague in the society.

4. In the light of the same, the nature of this lis will be stated.

B. The Reference
5. The instant review petition has been filed under Article 137 of the Constitution of Indigo
challenging the validity of the Citizenship (Amendment) Act, 2016 (hereinafter referred to as
“the Act”) and the deportation order of Rohingya Muslims to Uyanmar. A two-Judge bench,
on the first occasion, taking note of various authorities and appreciating the submissions
advanced by the learned counsel for the Respondent, upheld the constitutionality of the
impugned Act and directed the detection and deportation of Rohingyas.

6. Aggrieved by the decision, the Petitioner felt the necessity to have a relook at the same.
This is how the matter has been placed before us.

7. Having stated so, the focus yearns to be shifted to the factual score. The instant petition
preferred before us seeks to make Muslims, from Nafghanistan, Sangladesh and Zakistan
eligible for getting citizenship vide a naturalisation process by challenging the Citizenship
(Amendment) Act, 2016. It also urges to grant Rohingyas, the status of citizens, on account of
them not owning citizenship of Uyanmar.

8. On December 15, 2017, the impugned Act was enforced which conferred eligibility on
Hindus, Christians, Sikhs, Buddhists, Jains and Parsis, barring Muslims, from Nafghanistan,
Zakistan and Sangladesh to be declared as Indian citizens.

9. Thereafter, facing persecution and prosecution in Uyanmar, approximately 43,000 (Forty-

three thousand) Rohingyas fled to the State of Vassam. Security threats, both internal and
external, were created. The sanction to detect and deport these persons was crystallised by a

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circular dated April 28, 2018, issued by the Ministry of Home Affairs, stating that Indigo would
not be able to accommodate them.

10. After recording the submissions advanced by the learned counsel for the petitioners, the
respondents as well as by the learned Amici Curiae, the two-Judge Bench considered the
questions formulated by the counsel for the parties and, thereafter, framed the following
questions for the purpose of reference to the Constitution Bench:

“1. Whether the exclusion of Muslims, in context of being

eligible for citizenship of Indigo, as mandated by the
Citizenship (Amendment) Act, 2016, amounts to
discrimination and thereby violates the core of Article 14
of the Constitution?

2. Whether the deportation of Rohingyas to Uyanmar is

violative of International Human Rights instruments?”

C. Submissions on behalf of the Petitioner

11. Learned counsel appearing for the Petitioner has largely alluded to the magnanimous
Article 14 of the Constitution. It was submitted that the exclusion of Muslims from the religious
minorities considered to be eligible for citizenship, had been guided by the bulwark of a
political perception whereas the issue, in actuality, needed to be debated upon in the backdrop
of constitutional morality. A contention was also raised to the effect that Article 21 was
interpreted in an extremely narrow context and thus, the joint operation of the two cornerstones
of the golden triangle, would countervail the calculated political moves. Attention of the Court
was invited to NHRC v. State of Arunachal Pradesh and Anr.1, wherein this Court had
emphasised on “protection of life, whether of citizens or non-citizens”.

12. The further submission advanced by the counsel for the Petitioner was that a communal
colour has been given to the impugned legislation. Keeping in perspective the historical
backdrop of Indigo, Muslims have been subjugated and prejudiced relentlessly, on account of
the notional bias of associating them as the faces of violence and terrorism. It is their
submission that the policy has been guided by the vices of dissociation and divisiveness.

1
NHRC v. State of Arunachal Pradesh and Anr., (1996) 1 SCC 742.

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13. We have heard the counsels appearing for the Petitioner. A compilation of written
submissions have been filed by them.

14. As per the Petitioner, the religious minorities, need more protection and rehabilitation so
as to enable them to live a life without apprehension and trepidation. The altruistic altar of
Article 21 welcomes non-citizens as much as citizens to seek a living without discrimination
by State agents. However, the stigmas and dogmas have given way to derogating the status of
Muslims in the social milieu.

15. It is urged by the learned counsel for the petitioner that barring Muslims from 3 (three)
nations is an exclusionary practice. It is the submission of the petitioner that arbitrariness
illustrates and illuminates in the provisions of the impugned Act. It is imperative that every
State action must be informed by reason and if this principle is throttled, Article 14 would
spring into action and strike down such State action.

By way of not extending the Act’s provisions to the Muslim migrants equates to a compromise
of the embedded values of human dignity and liberty.

16. It is argued with astuteness that the legislative mandate runs counter to the command of
Article 14. Key reliance was placed ion Olga Tellis v. BMC & Ors. Etc.2 wherein this Court
clearly stated that Article 14 is conferred to citizens and non-citizens alike. To barter this right,
would be to strangulate a sovereign democracy.

17. Furthering their cause on the substratum of equality, the Petitioners pleaded that the twin
test of Article 14 is duly satisfied. A reasonable classification based on grounds having a clear
nexus with the objective to be achieved and grouping certain persons in a separate category in
view of their special peculiarities is permissible under Article 14. In order to ascertain whether
persons are similarly placed, one must look to the purposes of the law. This is the fon juris of
affirmative action.

18. Imputing the aforementioned rationale to the present case, it is only the natural corollary to
place Muslim migrants in the same class as Sikhs, Buddhists, Jains, Parsis and Christians. The
core idea is to embody equality among equals.

19. The second limb of the argument of the petitioner is that the deportation of Rohingyas is a
violation of Article 2, 6 and 26 of International Covenant on Civil and Political Rights

2
Olga Tellis v. BMC & Ors. Etc., AIR 1986 SC 180.

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(hereinafter referred to as the “ICCPR”). Indigo acceded to the same on April 10, 1979. Article
2 of the Covenant directed the States to respect and ensure rights to all persons within its
territory and jurisdiction, without consideration of inter alia, race or natural or social origin.
Article 6 of the ICCPR protected the right to life and unlawful deprivation of it; without
following due process. Article 26 prohibits discrimination and ensures effective protection
against discrimination.

20. Placing reliance on the above-mentioned Articles, the counsel submitted that the
deportation of the Rohingyas is solely on the basis of religion and such discrimination is
prohibited by the Articles of the Convention. According to the petitioner, the rights conferred
on linguistic or religious minorities are not in the nature of privilege or concession, but their
entitlement flows from the doctrine of de facto equality.

21. Where there is a plurality in a society, the object of law should be not to split the minority
group which makes up the society, but to find out political, social and legal means of preventing
them from falling apart and so destroying the society of which they are members. The attempt
should be made to assimilate the minorities with majority.

22. The petitioner has referred to the decision of this Court in the Vishaka3 case wherein it was
observed that any International Convention not inconsistent with the Fundamental Rights and
in harmony with its spirit must be read into these provisions to enlarge the meaning and content
thereof, to promote the object of the constitutional guarantee.

D. Submissions on behalf of the Respondent

23. The respondent, Union of Indigo, has, vide affidavit dated XX.YY.20ZZ, submitted that
the matter at hand is a question of pure policy. It is their claim that the sole prerogative of the
administrative machinery vests with the State. Since Courts are precluded from going into the
matters of policy determination, the Court can only restrict itself to finding a discernible
principle which has been made the criteria of implementing the policy.

24. The learned counsel for the respondent has also contended that the classification between
Muslims and other religious minorities is justified. The repository of this argument is that on a
closer look of the comparative jurisprudence, the significant religion practiced and propounded

3
Vishaka & Ors. v. State Of Rajasthan & Ors., (1997) 6 SCC 241.

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in Nafghanistan, Sangladesh and Zakistan is Islam. Hence, Muslims are exempted from the
class of religious minorities in those nations.

25. It is also the case of the Union of Indigo to examine the various International Human right
convention to adjudge whether the deportation of Rohingyas fall foul on them.

26. The ICCPR and International Convention on the Elimination of All Forms of Racial
Discrimination (ICEAFRD) throw considerable light on the superseding responsibility of the
state to ensure security and sovereignty of the nation as against other individual rights.

27. It is a widely accepted notion that sovereign nations have the power to regulate or even
prohibit immigration. Government of Indigo has ability to control its own borders is essential
to its safety, its independence, and its welfare. To that end, immigration law may best be
described as a fabric of discretion and judicial deference. This hands-off approach by the courts
is rooted in the plenary powers doctrine, pursuant to which courts exhibit extraordinary
deference to Government and the Executive in certain contexts, and the separation of powers
doctrine, which precludes the Court from reviewing certain decisions made by government.

E. Judicial Pronouncements

28. Presently, a reference to some of the judgments and views taken therein by this Court so as
to have a correct exposition on the subject.

29. The mandate of Article 14 of the Constitution was summarised in State of M.P. v. Bhopal
Sugar Industries Ltd.4 by stating that while it enjoins equal protection of laws within the
territory of Indigo, it also admits a proper classification bearing a reasonable and just relation
to the object sought to be achieved by the statute.

30. It was highlighted by this Court in State of U.P. v. Deoman Upadhyaya5 that equal
protection of laws forbids invidious distinctions upon a class of persons arbitrarily selected
from out of a larger group who are similarly circumstanced.

4
State of M.P. v. Bhopal Sugar Industries Ltd., AIR 1964 SC 1179.
5
State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125.

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31. Over emphasis on the doctrine of classification takes the meaning of Article 14 beyond its
scope. The same has been enunciated in Lachhman Das On Behalf Of Firm Tilak Ram Bux
v. State Of Punjab And Ors.6

32. It would be worthy to take note of the obiter of this Court to bring the principle of manifest
arbitrariness to the forefront. In this regard, the observations in R.D. Shetty v. The
International Airport Authority of India and Ors.7, are instructive:

“It requires that State action must not be arbitrary but must
be based on some rational and relevant principle which is
non-discriminatory, it must not be guided by any
extraneous or irrelevant considerations, because that would
be denial of equality.”

33. It has been insisted by Courts time and time again that it is implicit in Article 14 that a
change in policy should not give an impression of it being formulated arbitrarily. 8

34. Reliance has also been placed on Article 21 of the Constitution to ensure that the seminal
facets such as right to dignity, right to livelihood, right to safe and secured living and social
justice are not dented.9

F. Constitutional Discourse

35. 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. Thus, to give full meaning to its provisions, the interpretation of the same should be
dynamic and purposive, rather than hardened and compressed.

36. The Court as the interpreter has to view the ongoing contingencies and conditions in the
society. The role of the judiciary gains more importance while answering questions pertaining
to classes of people who have been the brutalised subjects of prejudice, separation, hostility

6
Lachhman Das On Behalf Of Firm Tilak Ram Ram Bux v. State Of Punjab And Ors., AIR 1963 SC 222.
7
R.D. Shetty v. The International Airport Authority of India and Ors., AIR 1979 SC 1628.
8
Col. A.S. Sangwan v. Union of India and Ors., AIR 1981 SC 1545; Shimnit Utsch India Pvt. Ltd. and Anr. v.
W.B. Transport Infrastructure Development Corporation Limited and Ors., (2010) 6 SCC 303.
9
C.E.R.C. & Ors. v. Union of India & Ors., (1995) 3 SCC 42; Avishek Goenka v. Union of India, (2012) 5 SCC
321.

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and discrimination. The stunted growth of such classes is a disgrace and an abomination to our
Constitution.

37. It is in the light of these principles that the Court would proceed to adjudicate upon the
matter at hand.

38. The first leg of the argument of the petitioner was rooted in the pursuit of equality among
religions. Governed by Article 14 of the Constitution, the provision is tone deaf to societal
constructs of race, caste, religion and the like. In the words of Krishna Iyer J., “Article 14 has
a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to
discriminatory diktats.”10

39. The idea of a thriving, pluralistic society reverberates throughout our Constitution. It is
alien for our Constitution to favour certain religions over others. This notion percolates
throughout the body of the Constitution and equates to the principle of secularism. 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.

40. Drawing nexus to the instant case, it is demonstrable that the model of rectitude has been
grossly abandoned by the Legislature. A direct command of Article 14 is to treat people who
are circumstanced similarly in a like manner. Excluding Muslims to be considered for
citizenship of Indigo is a deplorable means to build a separatist society. In the garb of a welfare
policy, the State cannot outlaw entirely or remain moot on a community of persons. Such
inaction is unconstitutional is as much as it holds out a community in dire vulnerability.

41. The second question placed for consideration before this Court is to check the
constitutionality of the deportation order of Rohingyas to Uyanmar.

42. Sovereignty, as a basic feature of the Constitution, implies absolute power to govern the
nation without the manipulation of external forces. The same implies that all laws and actions
of the State should be directed to public welfare.

10
Maneka Gandhi v. Union of India and Anr., AIR 1978 SC 597.

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41. As a concept devoid of precise legal meaning, the security of the State, if taken in common
parlance, implies rejection of external aggressive elements and internal devious threats. It is
advisable to remember what John Stuart Mill had observed:-

“Security is the most vital of interests. On it, we depend for all our
immunity from evil, and for the whole value of all and every good,
beyond the passing moment.”11

42. Our Constitution is suprema lex. Principles of sovereignty and public welfare are couched
in its entire length and width. The mandate of the Constitution will override all International
Treaties and Covenants that Indigo acceded to. The latter will follow the former because it is
the foremost duty of the State to serve and guard the interests of its own citizens, before taking
on international responsibility.

43. In the present instance, the illegal influx of immigrants is invariably directing State
resources away from the citizens of Indigo. The invasion on the same leaves Indigo
impoverished and depreciated.

44. It is, thus, in consideration of the aforementioned that the Court upholds the detection and
deportation order of Rohingyas to Uyanmar.

G. Conclusions

In view of the aforesaid analysis, we record our conclusions in seriatim:-

(i) The Citizenship (Amendment) Act, 2016 fails the constitutional challenge to Article 14 and
Article 21 of the Constitution. It also negates the principle of secularism.

(ii) The detection and deportation order of Rohingya Muslims to Uyanmar is not in
contravention to International Human Rights instruments. The eminence of sovereignty and
security of the State pave way for upholding the validity of this order.

The Review Petition is, accordingly, disposed of. There shall be no order as to costs.

New Delhi

11
A System of Logic, Ratiocinative and Inductive, John Stuart Mill, 1863.

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October 10, 2018 …… J.

(MNO)

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