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IN

SYNOPSIS

The Petitioner is a practising lawyer and an Advocate on Record of this

Hon’ble Court. The Petitioner is Hindu by birth. Petitioner is inspired by the
teachings of Swami Vivekananda who advocated not just tolerance but
universal acceptance. As Swami Vivekananda proudly proclaimed the
Petitioner is proud to belong to a nation which has sheltered the
persecuted and the refugees of all religions and all nations of the earth. It
is the understanding of the Petitioner that neither the Faith to which he is
born, nor the Nation to which he belongs discriminated human beings
belonging to other parts of the world, on account of their Faith. Petitioner
is deeply disturbed by the brazen manner in which the basic feature of the
Constitution is tampered with.

The Constitution of India expressly bar discrimination on the basis of

“religion” and the amendment to Citizenship Act, 1955 is ex facie un-
Constitutional. It is submitted that there are catena of judgments of this
Hon’ble Court holding the nature of our Constitutional democracy to be
“Secular” and the Petitioner seeks to rely on the same if occasion arises.
(including Kesavananda Bharati v State of Kerala (1973)4 SCC 225 and S.R.
Bommai v. Union of India, (1994) 3 SCC 1 N.B.Ponnuswmi v. Returning
Officer AIR 1952 SC 64, Dharma Raja Bhagare v.State of Maharashtra
(1973) 1 SCC 537, Abhiram Singh v. C.D.Commachen (2017) 2 SCC 629)

Though the Constitution envisages certain special provision for religious or

linguistic minorities under Articles 30 or special provision for linguistic
minority groups under Article 350A or Article 350B it is clear that those are
for citizens within India and not for a minority group within another
country. The amendment Act which proceeds on the basis of “persecuted
minorities” within certain other countries as the group which need special
protection under the Indian law, is ex facie irrational, manifestly arbitrary
and ultra vires the scheme of Indian Constitution.

It is submitted that though this Hon’ble Court would not look into the
intention of the legislature, when the enactment is on an erroneous factual
premise, the legislation must fail. It is submitted that the Amendment Act
which is discriminatory, is tried to be justified on the ground that the
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religions named therein are persecuted minorities. While it may or may

not be true, there is no reason to assume that all those illegal immigrants,
Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who have came to
India from three countries have come here necessarily on account of
religious persecution. Government of India has not justified such wide
assumptions, which formed the basis of this discriminatory legislation.
There is no intelligible differential here and the discriminatory legislation
must fail the test of judicial scrutiny.

There is no exercise undertaken by the Government of India, regarding the

economic causes of migration and therefore, the factual premise upon
which the law is built, viz. religious persecution in the Muslim countries,
must fail the test of judicial scrutiny.

Though the United States Supreme Court by its judgment in Trump v.

Hawaii by a thin majority of 5:4 upheld the travel ban policy of President
Trump, the majority of Judges relied on the fact that religion was
conspicuously absent in the policy. Amendment Act passed by Indian
Parliament expressly mentions certain religions and exclude some other
religions, and it must fail the test of judicial scrutiny as India is not a
theocratic State.

This Hon’ble Court was monitoring the NRC policy of the Government in
Assam and passed various orders. However, the present Amendment Act
will have the effect of excluding certain section of people out of those
names found to be ineligible solely on the basis of their religious identity
and country of origin. Such a law is also against the basic structure of
“separation of powers” as it defeats the judicial verdict in an impermissible
way.

The policy adopted by the Government is arbitrary grant or non-grant of

citizenship. It is submitted that the Government has already made it clear
that it will go ahead with the NRC throughout the country. It is submitted
that unless the policy is stayed at the earliest, it will lead to inequal
treatment of persons who are within India and abrogation of civil rights of
large number of people.
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It is submitted that it would be ideal if India could afford to grant

citizenship to all the persecuted groups from across the globe, if it can
afford to do so. Since that is beyond the means of a modern nation State,
it would be ideal if India could raise the issue of persecuted groups in
international forums like UNO and make sure that the countries to which
they belong treat them as equal citizens. On the other hand, if the policy
of Government of India is to accommodate illegal migrants, then that
policy must meet the Constitutional requirement of equality before law, for
all persons.

Petitioner wishes to be treated as equal citizen irrespective of his religion, if

he gets an opportunity to migrate to any other country and acquire
citizenship of that country. Petitioner expects that his country would treat
others who are coming to India, the same way.

Lastly it is submitted that this is a litmus case before this Hon’ble Court as
to whether India is a secular democracy in essence or it is only on paper.

For all these reasons, it is prayed the Amendment Act be quashed as un-
Constitutional.

LIST OF DATES
23.11.1946 Foreigner Act, 1946 was enacted in order to confer certain
power to Central Government in respect of dealing with
foreigners in India.

Section 2 (a) of the Foreigner Act, 1946 defines a foreigner

as follows:

"foreigner" means a person who is not a citizen of

India.

In view of the powers granted under Article 11 of the

Constitution of India, the Citizenship Act, 1955 was enacted
to provide a substantive and procedural framework with
respect to acquisition and determination of the Indian
Citizenship.

Section 2 (1) (b) of the clearly provides the definition

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of illegal migrant and it is defined as follows;

2(1) (b)illegal migrant means’ a foreigner who has

entered into India-

(i) Without a valid passport or travel documents and such

other documents or authority as may be prescribed by or
under any law in that behalf; or

(ii) With a valid passport or other travel documents and such

other document or authority as may be prescribed by or
under any law in that behalf but remains therein beyond the
permitted period of time;

10.12.2003 In the exercise of power conferred under Section 18 of the

Citizenship Act, 1955 the respondent have promulgated the
“Citizenship (Registration of Citizens and Issue of National
Identity Cards) Rules, 2003”. The Rule 3 and 4 of the
Citizenship Rules, 2003 provides outline for the maintenance
and preparation of National Register of Citizens throughout
the country.

During the verification process, particulars of such

individuals, whose Citizenship is doubtful, shall be entered by
the Local Registrar with appropriate remark in the Population
Register for further enquiry and in case of doubtful
Citizenship, the individual or the family shall be informed in a
specified proforma immediately after the verification process
is over.

The persons excluded from the National Register of Citizens

in pursuant to Rule 4 of the Citizenship Rules, 2003, have to
finally represent the proceedings before the Foreigner
Tribunal in order to establish Citizenship of the person. A
person declared as Foreigner by the Tribunal shall result in
detention at the detention centre.

The Ministry Home Affairs, on 08.09.2015 published

notification dated 07.09.2015 bearing number GSR 685(E)
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and GSR 686(E) and made an amendment in the Passport

(Entry into India) Rules, 1950 and Foreigners Order, 1948
and allowed entry to persons belonging to minority
communities in Bangladesh and Pakistan, namely, Hindus,
Sikhs, Buddhists, Jains, Parsis and Christians who were
compelled to seek shelter in India due to religious
persecution or fear of religious persecution, who entered into
India on or before the 31st December, 2014 without valid
documents.

Further on 18.07.2016, the Ministry of Home Affairs vide

Notification No.GSR 702 (E) and 703(E) dated 18.07.2016
published in Gazette No. 495 and made an amendment in
the Passport (Entry into India) Rules, 1950 and Foreigners
Order, 1948 substituted the word “Bangladesh”, for words
“Afghanistan, Bangladesh”.

31.07.2019 The office of the Register of General Citizens and

Registration issued notification in pursuant to Rule 3(4) of
Citizenship (Registration of Citizens and Issue of National
Identity Cards) Rules 2003, wherein the Central Government
decided to prepare and update the population Register
between 1st April to 30th September 2020.

12.12.2019 The President gave its assent to the Citizenship

(Amendment) Act, 2019 No.47 of 2019, wherein it amended
the Section 2(1)(b) and amended clause is as follows:

“Provided that persons belonging to minority

communities, namely, Hindus, Sikhs, Buddhists, Jains,
Parsis and Christians from Afghanistan, Bangladesh
and Pakistan, who have been exempted by the Central
Government by or under clause (c)of sub-section (2)
of section 3 of the Passport (Entry into India) Act,
1920 or from the application of the provisions of the
Foreigners Act, 1946 or any order made thereunder,
shall not be treated as illegal migrants for the
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purposes of that Act:”

'6B. (1) The Central Government or an authority

specified by it in this behalf may, subject to such
conditions, restrictions and manner as may be
prescribed, on an application made in this behalf,
grant a certificate of registration or certificate of
naturalisation to a person referred to in the proviso to
clause (b) of sub-section (1) of section 2.

(2) Subject to fulfilment of the conditions specified in

section 5 or the qualifications for naturalisation under
the provisions of the Third Schedule, a person granted
the certificate of registration or certificate of
naturalisation under sub-section (1) shall be deemed
to be a citizen of India from the date of his entry into
India.

(3) On and from the date of commencement of the

Citizenship (Amendment) Act, 2019, any proceeding
pending against a person under this section in respect
of illegal migration or Citizenship shall stand abated on
conferment of Citizenship to him:

Provided that such person shall not be disqualified for

making application for Citizenship under this section on
the ground that the proceeding is pending against him
and the Central Government or authority specified by it
in this behalf shall not reject his application on that
ground if he is otherwise found qualified for grant of
Citizenship under this section:

(4) Nothing in this section shall apply to tribal area of

Assam, Meghalaya, Mizoram or Tripura as included in
the Sixth Schedule to the Constitution of India and the
area covered under “The Inner Line” notified under the
Bengal Eastern Frontier Regulation, 1873.

Provided further that the person who makes the

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application for Citizenship under this section shall not

be deprived of his rights and privileges to which he
was entitled on the date of receipt of his application on
the ground of making such application.

The amendment make two classification (1) classification

based on religion by excluding Hindus, Sikhs, Buddhists,
Jains, Parsis and Christians from the ambit of illegal migrants
(2) classification based on the country, wherein the benefit
of restricting the benefit of naturalization is extended to
religious minorities only from Afghanistan, Pakistan and
Bangladesh. The Citizenship excluded such benefit to a
similarly situated class of persons, viz. Muslim migrants from
those three countries or Hindu or any other migrants from
countries like Sri Lanka etc.

17.12.2019 Hence the present Writ Petition.

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IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. OF 2019

[Under Article 32 of the Constitution of India]

BETWEEN

Prashant Padmanabhan, Petitioner

Ch.No.340, M.C.Setalvad Block,
Bhagwan Dass Road,
Supreme Court of India
New Delhi-110 001

Versus

1. Union of India, Contesting

Through Cabinet Secretary, Respondent
Parliament House, No.1
New Delhi-110001.

2. Union of India, Contesting

Through its Secretary, Respondent
Ministry of Home Affairs, No.2
North Block,
New Delhi-110001.

3. Union of India, Contesting

Through its Secretary, Respondent
Ministry of Law and Justice, No.3
Shastri Bhawan,
New Delhi-110001.

WRIT PETITION UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA
TO
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF
THE HON’BLE SUPREME COURT

THE WRIT PETITION OF

THE PETITIONER ABOVE NAMED:
MOST RESPECTFULLY SHEWETH:

1. The present Writ petition under Article 32 of the Constitution of

India read with Order XXXVIII Rule 12 of Supreme Court Rules,
2013 is preferred by the Petitioners herein since the Petitioners are
aggrieved by the enactment of Citizenship (Amendment) Act, 2019
No.47 of 2019 which is paving the way for admitting illegal migrants
 in the country on the basis of their religion. The same is violative of
Article 14 and 21 of the Constitution of India. The Petitioner is
seeking the issuance of a Writ of Mandamus or any other declaration
or order declaring the the proviso to Section 2(1)(b) of Citizenship
(Amendment) Act, 2019 No.47 of 2019, as void, for being in
violation of Article 14 and 21 of the Constitution of India.

2. The details of the Petitioner filing the present Public Interest

Litigation are as follows:

(a) The Petitioner is a practising lawyer before this Hon’ble Court. His
email id is advocatepprasanth@gmail.com Aadhar No………………
Occupation: lawyer, annual Income is ……… PAN No.:…………. The
Petitioner is a practising lawyer and an Advocate on Record of this
Hon’ble Court. The Petitioner is Hindu by birth. Petitioner is inspired
by the teachings of Swami Vivekananda who advocated not just
tolerance but universal acceptance. As Swami Vivekananda proudly
proclaimed the Petitioner is proud to belong to a nation which has
sheltered the persecuted and the refugees of all religions and all
nations of the earth. It is the understanding of the Petitioner that
neither the Faith to which he is born, nor the Nation to which he
belongs discriminated human beings belonging to other parts of the
world, on account of their Faith. Petitioner is deeply disturbed by the
brazen manner in which the basic feature of the Constitution is
tampered with.

(b) The Petitioner is aggrieved by the passing of the present Citizenship

(Amendment) Act, 2019 No.47 of 2019 as the same allows a
selective and arbitrary basis for granting Citizenship to Illegal
Migrants on the basis of their religion.

(c) By the said Act, the benefits of naturalization to the illegal migrants
is being extended to certain a class of illegal migrant belonging to
the following religion Hindus, Sikhs, Buddhists, Jains, Parsis and
Christians coming from Afghanistan, Bangladesh and Pakistan. The
classification of the illegal migrants who are entitled to naturalization
as per the Act is selective and arbitrary as it is restricted only to
 migrants into India on account of religious persecution from three
countries, viz; Pakistan, Bangladesh and Afghanistan

3. FACTS OF THE CASE.

3.1. On 23.11.1946, Foreigner Act, 1946 was enacted in order to confer

certain power to Central Government in respect of dealing with
foreigners in India.

Section 2 (a) of the Foreigner Act, 1946 defines a foreigner as

follows:

"foreigner" means a person who is not a citizen of India.

3.2. In view of the powers granted under Article 11 of the Constitution of

India, the Citizenship Act, 1955 was enacted to provide a
substantive and procedural framework with respect to acquisition
and determination of the Indian Citizenship.

Section 2 (1) (b) of the clearly provides the definition of illegal

migrant and it is defined as follows;

2(1) (b)illegal migrant means’ a foreigner who has entered

into India-

(i) Without a valid passport or travel documents and such

other documents or authority as may be prescribed by or
under any law in that behalf; or

(ii) With a valid passport or other travel documents and such

other document or authority as may be prescribed by or
under any law in that behalf but remains therein beyond the
permitted period of time;

3.3. On 10.12.2003, in the exercise of power conferred under Section 18

of the Citizenship Act, 1955 the respondent have promulgated the
“Citizenship (Registration of Citizens and Issue of National Identity
Cards) Rules, 2003”. The Rule 3 and 4 of the Citizenship Rules, 2003
provides outline for the maintenance and preparation of National
Register of Citizens throughout the country.
3.4. During the verification process, particulars of such individuals, whose
Citizenship is doubtful, shall be entered by the Local Registrar with
appropriate remark in the Population Register for further enquiry
and in case of doubtful Citizenship, the individual or the family shall
be informed in a specified proforma immediately after the
verification process is over.

3.5. The persons excluded from the National Register of Citizens in

pursuant to Rule 4 of the Citizenship Rules, 2003, have to finally
represent the proceedings before the Foreigner Tribunal in order to
establish Citizenship of the person. A person declared as Foreigner
by the Tribunal shall result in detention at the detention centre.

3.6. The Ministry Home Affairs, on 08.09.2015 published notification

dated 07.09.2015 bearing number GSR 685(E) and GSR 686(E) and
made an amendment in the Passport (Entry into India) Rules, 1950
and Foreigners Order, 1948 and allowed entry to persons belonging
to minority communities in Bangladesh and Pakistan, namely,
Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were
compelled to seek shelter in India due to religious persecution or
fear of religious persecution, who entered into India on or before the
31st December, 2014 without valid documents.

3.7. Further on 18.07.2016, the Ministry of Home Affairs vide Notification

No.GSR 702 (E) and 703(E) dated 18.07.2016 published in Gazette
No. 495 and made an amendment in the Passport (Entry into India)
Rules, 1950 and Foreigners Order, 1948 substituted the word
“Bangladesh”, for words “Afghanistan, Bangladesh”.

3.8. On 31.07.2019, the office of the Register of General Citizens and

Registration issued notification in pursuant to Rule 3(4) of
Citizenship (Registration of Citizens and Issue of National Identity
Cards) Rules 2003, wherein the Central Government decided to
prepare and update the population Register between 1st April to
30th September 2020.
3.9. On 12.12.2019, The Hon’ble President of India, gave his assent to
the Citizenship (Amendment) Act, 2019 No.47 of 2019, wherein it
amended the Section 2(1)(b) and amended clause is as follows:

“Provided that persons belonging to minority communities,

namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians
from Afghanistan, Bangladesh and Pakistan, who have been
exempted by the Central Government by or under clause (c)of
sub-section (2) of section 3 of the Passport (Entry into India)
Act, 1920 or from the application of the provisions of the
Foreigners Act, 1946 or any order made thereunder, shall not
be treated as illegal migrants for the purposes of that Act:”

A true copy of the Citizenship (Amendment) Act, 2019 No.47 of 2017

dated 12.12.2019 issued by the Ministry of Law and Justice is hereto
and marked as Annexure P-1 (Page Nos. ).

3.10. The amendment make two classification (1) classification based on

religion by excluding Hindus, Sikhs, Buddhists, Jains, Parsis and
Christians from the ambit of illegal migrants (2) classification based
on the country, wherein the benefit of restricting the benefit of
naturalization is extended to religious minorities only from
Afghanistan, Pakistan and Bangladesh. The Citizenship excluded
such benefit to a similarly situated class of persons, viz. Muslim
migrants from those three countries or Hindu or any other migrants
from countries like Sri Lanka or China.

4. GROUNDS

Being aggrieved, the Petitioner with leave of this Hon’ble Court is

filing the present writ petition under Article 32 of the Constitution of
India on inter-alia the following grounds:-

4.1. The Constitution of India expressly bar discrimination on the basis of

“religion” and the amendment to Citizenship Act, 1955 is ex facie un-
Constitutional. It is submitted that there are catena of judgments of
this Hon’ble Court holding the nature of our Constitutional
democracy to be “Secular” and the Petitioner seeks to rely on the
 same if occasion arises. (including Kesavananda Bharati v State of
Kerala (1973)4 SCC 225 and S.R. Bommai v. Union of India, (1994)
3 SCC 1 N.B.Ponnuswmi v. Returning Officer AIR 1952 SC 64,
Dharma Raja Bhagare v.State of Maharashtra (1973) 1 SCC 537,
Abhiram Singh v. C.D.Commachen (2017) 2 SCC 629)

4.2. Though the Constitution envisages certain special provision for

religious or linguistic minorities under Articles 30 or special provision
for linguistic minority groups under Article 350A or Article 350B it is
clear that those are for citizens within India and not for a minority
group within another country. The amendment Act which proceeds
on the basis of “persecuted minorities” within certain other countries
as the group which needs special protection under the Indian law, is
ex facie irrational, manifestly arbitrary and ultra vires the scheme of
the Indian Constitution.

4.3. It is submitted that though this Hon’ble Court would not look into
the intention of the legislature, when the enactment is on an
erroneous factual premise, the legislation must fail. It is submitted
that the Amendment Act which is discriminatory, is tried to be
justified by the Government on the ground that the religions named
therein are persecuted minorities. While it may or may not be true,
there is no reason to assume that all those illegal immigrants,
Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who have
came to India from three countries have all come here necessarily
on account of religious persecution. Government of India has not
justified such wide assumptions, which formed the basis of this
discriminatory legislation. There is no intelligible differential here
and the discriminatory legislation must fail the test of judicial
scrutiny.

4.4. There is no exercise undertaken by the Government of India,

regarding the economic causes of migration and therefore, the
factual premise upon which the law is built, viz. religious persecution
in the Muslim countries, must fail the test of judicial scrutiny.
4.5. Though the United States Supreme Court by its judgment in Trump
v. Hawaii by a thin majority of 5:4 upheld the travel ban policy of
President Trump, the majority of Judges relied on the fact that
religion was conspicuously absent in the policy. Amendment Act
passed by Indian Parliament expressly mentions certain religions and
exclude some other religions, and it must fail the test of judicial
scrutiny as India is not a theocratic State.

4.6. This Hon’ble Court was monitoring the NRC policy of the
Government in Assam and passed various orders. However, the
present Amendment Act will have the effect of excluding certain
section of people out of those names found to be ineligible solely on
the basis of their religious identity and country of origin. Such a law
is also against the basic structure of “separation of powers” as it
defeats the judicial verdict in an impermissible way.

4.7. The policy adopted by the Government is arbitrary grant or non-

grant of citizenship. It is submitted that the Government has already
made it clear that it will go ahead with the NRC throughout the
country. It is submitted that unless the policy is stayed at the
earliest, it will lead to inequal treatment of persons who are within
India and abrogation of civil rights of large number of people.

4.8. It is submitted that it would be ideal if India could afford to grant

citizenship to all the persecuted groups from across the globe, if it
can afford to do so. Since that is beyond the means of a modern
nation State, it would be ideal if India could raise the issue of
persecuted groups in international forums like UNO and make sure
that the countries to which they belong treat them as equal citizens.
On the other hand, if the policy of Government of India is to
accommodate illegal migrants, then that policy must meet the
Constitutional requirement of equality before law, for all persons.

4.9. Petitioner wishes to be treated as equal citizen irrespective of his

religion, if he gets an opportunity to migrate to any other country
and acquire citizenship of that country. Petitioner expects that his
country would treat others who are coming to India, the same way.
4.10. Lastly it is submitted that this is a litmus case before this Hon’ble
Court as to whether India is a secular democracy in essence or it is
only on paper.

4.11. For all these reasons, it is prayed the Amendment Act be quashed as
un-Constitutional.

5. The Petitioner has not filed any other writ petition or any other
petition before this Hon’ble Court or any other Court.

PRAYER
In the circumstances it is most respectfully prayed that this Hon’ble
Court may be pleased to::

(a) Issue a writ or declaration or any other appropriate writ or direction

declaring the Citizenship (Amendment) Act, 2019 No.47 of 2019
dated 12.12.2019 to be in violation of Article 14 and 21 of the
Constitution of India and strike down the same;

(b) Pass such other and further order/orders as are deemed fit and
proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY

BOUND SHALL EVER PRAY.

DRAWN AND FILED BY:

Drawn on: 16.12.2019 Prashant Padmanabhan

Filed on: 17.12.2019 Party in person
 APPENDIX

THE CONSTITUTION OF INDIA

PREAMBLE

We, The People of India, having solemnly resolved to constitute

India into a (Sovereign Socialist Secular Democratic Republic) and to
secure to all its citizens;

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

And to promote among them all

FRATERNITY assuring the dignity of the individual and the (unity

and integrity of the Nation);

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of

November, 1949, do HEREBY ADOPT, ENACT AND GIVEN TO OURSELVES
THIS CONSTITUTION.

ARTICLE 14 & 21

14. Equality before law.—The State shall not deny to any person
equality before the law or the equal protection of the laws within the
territory of India.

21. Protection of life and personal liberty.—No person shall be

deprived of his life or personal liberty except according to procedure
established by law.

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