So just sorry just two I’ll just State the points two aspects with regard to article 14 which remain please consider also the principle of unequals being treated equally and being violated here full-fledged citizens on the one hand illegal migrants on the other hand and illegal migrants are being conf who are complet
According to us completely unequal they are unequal in the eye of the law for the rest of the country and they are being treated here by this impune provision as equal to Citizens so that I would respectfully sub bit fails the article 14 test as well on or at least one dimension of
It uh we also believe in conclusion on article 14 that we have discharged our primary burden and now it’s really for the state to uh defend now I come to article 21 I’ll go very rapidly with your per Mission because I’ve already stated the Essential Elements so in article
21 I want to Simply emphasize three or four aspects and you may then consider it because it’s very widely interpreted please consider the community rights dimension of article 21 apart from my cultural rights well living in a community ensuring that your community is not disrupted that your community is not marginalized that your
Community itself is able to continue to interact hold its land these are very important facets of 21 please keep that in mind the second element of 21 I’m for a moment keeping aside rights with respect to voting Etc but just think of self-governance aspects self-governance is also also according
To us a facet of 21 it’s elsewhere in the Constitution as well and here what we find is that apart from Community this whole element of self-governance within a region within a village within a town is being severely compromised as a direct impact and effect and we have those studies which
We referred to yesterday the third element of 21 is meeting aspirations economic social and political and by allowing this type of huge illegal immigrant regularization with potentially future Generations also making a claim without any time frame it severely undermines economic social and political aspirations which are facets of article 21 and
Finally your Lordships will also consider the impact of the destructive or the negative impact I will describe it as a negative impact on future generations of Indian citizens in Assam belonging to the communities who are here as petitioners before the court your Lordships have already noted the sonal case would your lordship like
Me to just give the place where that is mentioned I’ll just give you where it is located in the paperbook so the sonal first case 2005 Volume 5 SEC 665 2005 5 SEC 665 you will find it at serial number 122 in the index of Volume 5 the report itself begins at page
7047 sorry uh serial number 122 Volume 5 page 7047 par and the relevant paragraphs you know there lots to read but 6263 at 7095 in the context of article 355 correct so that I have made the point now again I will just make points as far as article 29 is concerned I’m
Endeavoring to link this up to the studies which were placed before this court yesterday on cultural rights language and script your lordship saw those statistics and the dilutions ETC and according to us 6A operates to severely abridge article 29 and this type of abridgment of cultural rights language script Etc false
Foul of part three now may I just take you to the next point where again I I wonder whether your Lordships now have uh Volume 5 b we gave it yesterday it was that new if you have 5B or we have the physical also if you no we have it
So here I want to just I I’ll just State the point and then the fraternity I’ve indicated to your Lordships is a value a high value which is mentioned and recorded in our uh uh in the Preamble itself we understand it as being fraternity among citizens and finally I
Have made the point that this fraternity is used in the context of the Integrity of India and the unity of India lordship recalls that yeah now we have the advantage of three con sorry three judgments of our court so including a constitution bench so please just if your Lordships would go to the
Constitution Ben judgment we are now concerned with Volume 5 b the name of the case is ragunath RA versus ganpat ra sorry ragunath ra ganpat ra versus Union it’s a constitution bench reported at 1994 sub one sec 191 and it’s at serial number three index serial number three of this uh volume
5B there are two relevant paragraphs one sorry page will be 79 and the two paragraphs I wish to place are Paras 109 and 111 P at Pages 111 and 112 ragunath ragunath was the case where they said after it was cited in 370 judgment 370 hearings which was post
Madur cindia because madur cindia struck down the abolition of PR pures on the ground that you could not buy an executive act they recognize the ruler that after that they introduced a constitutional amendment once the Constitutional Amendment came they upheld the Constitutional Amendment because on the ground that the absence
Of a law and you couldn’t have done something contrary to the Constitution was then substituted by a legislation which operated to abrogate the prie person the definition 366 the definition of yes so it’s in that context where LM sh judgment yes just the one I’m relying upon is Justice pandan
Pan but lordship is Right Justice LM Sharma chief justice presided over this bench so may I just Place those two paragraphs because there’s some discussion I’ll just read they page 111 112 I’ll read them after carefully going through the above discussion which relates to service matters we are afraid
That such an argument as one made by Mr nariman could be substantiated on the principles laid down in those two decisions that article 14 will be violated if unequals are treated as equals in our considered opinion this argument is misconceived and has no relevance to the facts of the present
Case one of the objectives of the Preamble of our constitution is fraternity assuring the Dignity of the individual and the unity and integrity of the nation it will be relevant to cite the explanation given by Dr ambedkar for the word fraternity explaining that fraternity means a sense
Of common Brotherhood of all Indians in a country like ours with so many disruptive forces of regionalism communalism and linguis it is necessary to emphasize and reemphasize that the unity and integrity of India can be preserved only by a spirit of Brotherhood India has one common citizenship and every citizen should
Feel that he is Indian first irrespective of other bases in this view any measure of bringing at bringing about equality should be welcome there is no legitimate in the legitimacy in the argument in favor of continu of princely privileges since we have held that the abolition of privy purses is
Not violative of article 14 it is unnecessary for us to deal with the case cited by Mr nariman which according to him go to say that any law violating 14 is equally violative of the basic structure of the constitution in as much as article 14 is held to be a basic
Postulate of the Constitution and then para 111 as repeatedly pointed out Supra the only question is whether there is any change in the basic structure of the Constitution by deletions of article 291 362 and the insertion of article 363a and amendment of clause 22 of article 366 we have already answered the
Question in the negative observing that the basic structure or essential features of the Constitution is or are in no way changed or altered by the impune Amendment we cannot make surmises on ifs and buts and arrive at a conclusion that articles 291 and 362 should have been kept intact as special
Provisions made for minorities in the Constitution it is but a step in the historical Evolution to achieve fraternity and unity of the nation transcending all regional linguistic religious and other diversities which are the Bedrock on which the Constitutional fabric has been raised the distinction between the earth while
Rulers and the citizenry of India has to be put to an end so as to have a common brother so this is the context in which they Ro they mention fraternity but clearly it is fraternity among citizens and therefore in our respectful sub and the other two decisions which I which
Are in the same volume are uh uh PR Raj Chan which is versus Union that your lordship there’s a detailed discussion yes of justice rindra bhat and I’ll just give you the paragraphs it’s a three judge men judgment It Is 2020 for SEC page 7 727 it’s at serial number two of volume
5B and the relevant paragraphs are 15 to 18 21 and 34 Justice B actually goes and explores this whole notion of fraternity he traces it down to the to how it was introduced by Dr edar Etc so that may be of some assistance to the course so these are then my submissions and
There’s a third decision of nandini Sund it’s in the same compilation where again uh your lordship will recall that there was an enlistment of certain person citizens against citizens salv salv and there uh the court said that no pinning part of its reasoning on the element of fraternity and recognizing we can’t
Really turn one against the other so just please keep that in mind as well so that is a two judge bench decision 2011 7 SEC 547 yes there is a passage here which says that political expediency you can as your lordship rightly said Sal so you
Can there may be some reason for or justification but that in itself political expediency is no justification for in terms of enacting a valid law then M on 326 and 327 I’ve made my submission when I read the provisions regarding dilution of voting rights and your Lordships have seen that impact
Again in terms of the material which we placed yesterday now as far as my submission on legislative competence this will be developed more fully by Mr Chri Etc but I’ll just State the point so your lordship were quick to point to us that look this is citizenship is
Certainly mentioned in so far as schedule one is uh seven schedule is concerned list one we are on another aspect and the aspect that I want to just pinpoint is that the date given in the Constitution and which remains till this day for an automatic uh recognition of citizenship for migrants from
Pakistan remains in the Constitution as 9th July 1948 sorry 19th oh 19th my my mistake it’s 19th July 1948 so until that provision stands in the Constitution as it does till this date one cannot have a legis legislation which runs contrary to an extent constitutional provision now with regard to the points
On basic structure which we have Amplified in our written submissions Etc I’ll again just State the point three values which according to us are Central to basic structure democracy federalism and rule of law stand undermined your Lordships have now held that while ordinarily the basic structure Doctrine is invoked for the
Purposes of challenging a constitutional amendment it would also inform your lordship’s decision- making process in the context of say manifest arbitrariness or certain other infirmities so these m values in our respectful submission 6A uh undermines these i’ I’ve explained it I mean your LS will take it that it’s
In the context of the material which we placed on record yesterday now so I now conclude on two aspects one aspect is I believe I mean my primary case is that as far so I will make my short submissions on what what ought to happen so first in our
Respectful submission 68 ought to be declared I think it’s vital that this court declares 6A as unconstitutional if you are persuaded eventually to do so according to us it really can’t stand any constitutional scrutiny at all that’s one however what is to be done thereafter should 6A be struck down because
Obviously there will be a number of people involved so we would respectfully submit that the course which would be open for the government are several and those are the ones which apply with regard to Illegal migrants outside Assam so you could have directions which are passed in terms of a scheme that you
Must locate yourselves at places a b and c that’s one possibility you this is where you have to confine yourself that uh sort of dovetails in with that other alternative submission which I’m also going to make so in the second submission what is the cause open
To the government that no so what would happen supposing these were illegal migrants are detected deported no so that’s one Avenue which is you’re absolutely right there is a a deportation Machinery which is available but there are also other powers which are available to the government which require that a person who’s identified
As an illegal migrant go and restrict his movements or place the person at a particular location so there so this is Lord sorry there are several persons Lords there are for example your recalls that passage from Justice naran’s judgment which says that as far as Refugee law is
Concerned in our country we’re dealing with it at an administrative level the reference order which came up over here so you have situations where certain communities if they are found to be say refugees or are recognized have as having come but they are they haven’t come with the appropriate passports and
Appropriate documentation then they may be required to remain at X place or Y place so you can frame a complete scheme with respect to these but it ought to be something less than citizenship one and number two it ought to be a scheme that cannot visit the consequences of illegal
Migration only on the population of Assam and the people of Assam and the communities of Assam now this is if it is to be held as invalid relief may be molded in this manner these are suggestions the government may have others the other aspect which I want to
Me but certainly according to if you’re right it ought to be less than citizenship now supposing we are wrong and we are unable to persuade your Lordships to issue the Declaration we seek even so in our respectful submission having regard to the enormous impact this has and the manner in which
6A works by which you have to remain ordinary resident over there I believe there is an obligation on the union government to ensure that the full impact now this feeds into the observation made by the chief justice that look if you have to preserve the Integrity of India preserve all right if
That eventually argument appeals to the court I don’t believe it should then surely you can’t just have one set of districts on a border of one state which takes the and those communities which take the entire brunt then the national interest has to be dispersed in some
Manner by which the impact is not on me alone me as in the petitioners before the court so you have to come up with a scheme nevertheless even even if we are wrong they will have or ought to have ought to be a set of directions so
That we are not visited in perpetuity and for generations to come with these type of impacts and some states I must say I was some states on affid have recognized this problem maybe they have problems but they’ve said that yes if there are issues and directions we realize that
Assam has a problem uh we will of course extend our full Cooper I’m very grateful thank you Mr thank you you really kept your time given I don’t started at 5 to1 and to the dot you finished at 12:25 thank you I I don’t have a brief for my learned
Friends but M I don’t think having regard to the scope of this case they should I mean I I was you know as a first batsman who didn’t get out within the first five minutes or first five balls I was able to continue but I think this will require an exposition on
Their part which may take more than the time which your Lordships had initially contemplated I’m very grateful thank M pleas what is the Mr CH which petition are you appearing in I’m appearing in WPC 562 of 2012 my Lord 560 562 of 2012 item number and broadly which is the ground
Which you are covering now Mr actually my Lord I’ll adopt the argument which my esteem colleague mran has done but I’ll supplement the argument on all the points my but will kindly give me that Liberty so long as you’re not repeating anything no I not repeat a single
Argument I’ll not even repeat the facts which my learned friend has referred I I’ll of course refer to some facts which my learning friend is not referred and which we consider it’s my Lord I mean relevant for the adjudication of the case yeah my Lord the first aspect which I would like
To highlight is my Lord the reference order itself recognizes what we have sa mind of course to a due deference to be give extended bio Lin B my Lord the reference B has taken note of the fact that entire people of the state including the tribal people are
Before the court and they adjudicate they’re expressing a gance which has got legitimacy Min now therefore our duty is to satisfy your Lordships that this legislation in the form of section 6A was wholly misconceive my Lord can we conceive of a situation the government of India wants to to protect the
Immigrants at the cost of the indigenous people of the state can this be an object my Lord my friend Mr dwan has referred to the Judgment my Lord we said that 1973 my Lord that just now he has referred to the judg nagpur Improvement tra where the object itself is
Dis now my Lord will kindly say in sonal’s case the honorable Supreme Court has went to the extent of sorry this honorable court has we in the high court my Lord we are used to saying or Supreme cour so I forgot for a moment that I am
In the Supreme Court my Lord so my Lord there their Lordships have say my Lord the object has to be lawful my Lord where is the difficulty in my Lord Nasi deportation of aliens aliens said will these are all aliens at will but there is a distinction between an illegal migrant and
Foreigner my Lord I’ll satisfy your lord sakes why this legislation is bad my Lord now kindly see detected to be a foreigner is an expression which is defined in section 68 right and you see my Lord this does not take note of the legislation called my Lord immigration expulsion from Assam act
1950 my Assam had this problem even post partition my Lord Assam had the problem on the eve of the partisan post partisan 65 War 1971 War we are saturated today my Lord I may tell your Lordships out of 126 assembly constituencies indigenous people can win election only in 57 constituencies that
Is the State of Affairs yesterday L wanted to know what is the extent of immigration which has taken place between 1951 and 61 I’ll give the figures there are figures in fact it is the prime minister of India at the relevant point of time who made a statement in the parliament Mone those
Are Place M so therefore what I propose to do my Lord my ground of challenge is this is a legislation which was brought in by a regime who had a brute force of 400 plus MPS this is a legislation not at all call for my La it’s my Lord if a
Lordship kindly permits me I would say it is a parliamentary joke to have such a legislation can we conceive my lord of a situation where a parliament has enacted a law instead of protecting the my Lord the indigenous people or the people of the state or people of the country
Living in that part of the state and my Lord come to the rescue of these immigrants only for the sake of political experiencing I’ll first refer to that uh article my Lord where my Lord these figures are given that your LS will get at page number 3224 of volume 4
What the page number my Lord page page number 3224 of volume four lot kind permission can I have okay my Lord uh it’s an article written in Oriental times on July the 7th on 1999 my I’ll read the second s in spite as a l got in in spite of
These legal Provisions a steady flow of migrants from East Bengal to Assam continued unated so with a view to stopping illegal infiltration Parliament enacted on December 24 1949 immigration expulsion from Assam act 1950 in the statement of objection reasons of the bill it was said that
Stay of such person or class of person is detrimental to the interest of the general public of India or any section thereof the tribal people of Assam have been the major victim from the migration of infiltrators from East Bengal close on the hills of the bill being passed by the parliament Pakistan started
Complaining whereupon discussions followed between Pandit jawaharlal neheru the prime minister of India and lakat Ali Khan the prime minister of Pakistan on April the 6 1950 neheru lakat P was signed which provided for return of East Pakistani Muslims this was taken advantage of in full measure by the East Pakistani Muslims where
Earlier being pushed back from Assam the whole purpose of 1950 Act was defeated part more the national register of citizens prepared in 1951 taking resort to the cover efforted by the Neu lakat P include a good citizen those of East Pakistani Muslim whom the act of 50 describ as foreign infiltrator and
Directed their expansion but could not be expelled due to neheru lakat pack neheru became a party this pack mainly for two reason he wanted to see so India was so secular that Muslims and other religious minorities preferred India to their countries of origin ostensibly created on the basis of the religion
Secondly the congress party of which neeru was the Parliamentary leader had in the meantime struck an understanding with the Muslim religious leaders that Muslim Community would be a solid and stable vot bank for the congress party then my Lord May kindly skip that kindly to come to the SAA starting with the
1961 census showed a 34.97 percentage of increase of Assam ‘s population against the national average of 21.64% in the decade 1951 61 the census of 61 estimated that not less than 7 lakh 50,000 East Pakistani Muslim infiltrated into Assam within the decade of 51 and
61 in 65 prime minister of India made a statement on the floor of the L SAA to this effect on the basis of the report of the Indian intelligence service late BP chalia the D minister of Assam however estimated the influx at 3.5 lakhs only however 10 tribunals set up
To hear the appeals they appeal the confirmed infiltrators therefore in the year 1967 68 and 69 1.2 lakh infiltrators were expelled deported from Assam there upon 33 Congress legislators belonging to Muslim Community lad by manul CH Dean bwa Sarat SRA demonstrated against the chief minister and said if
All expulsions of the Alle Muslim infiltrators be not sto forth Muslim block of Congress vote would be lost forever now it is in any case lost The Liberation struggle of East Pakistan and formation of Bangladesh State resulted in increased infiltration of Muslims from that reason to Assam sh muur Rahman
Openly said that Assam was the natural field for expansion of Bangladesh during the the period from March 25 1971 to December 12th 1971 it is on record that more than 12 lakh people came over to Assam from East Pakistan and took shelter here with their relatives friends acquaintances who had
Come over earlier most of them did not return now this is very important the ministry of Home Affairs government of India VI memo dated September 13 1972 informed the government of Assam that indraa Gandhi prime minister of India had arrived at an understanding with the prime minister of Bangladesh SE
Mu ramman to the effect that such person as has come over to India from artw East Pakistan before March 25 1971 shall not be deported in case of person who had illegally entered India after March 25 1971 the state government should prepare list and forward the same to the brand
Secretary at external Affairs government of India at Kolkata duplicate which should submit a list to the deputy High Commissioner Bangladesh at Kolkata to Lee with him for a deportation but no such deportation took place in substance this amounted to the pro proposition that article 5 and six of the
Constitution of India would have no relevance to regard to the inform infiltration such Bangladeshi infiltrators to Assam became thus well protected so my Lord this is the background now my Lord will kindly appreciate now there was an understanding between the then prime minister of India and the
Then prime minister of muu Rahman that people who illegally entered Assam prior to 25th of March 1971 they will not be deported my Lord that agreement is not the basis of this act or the amendment at least the statements of objections reasons do not disclose that now ordinarily under the Constitutional
Scheme my Lord under that agreement was that what was it recorded in writing that agreement between the then prime minister we could not lay our hands feet I think it exists the Indo there’s a friendship treaty where this proposition is not there but it is widely acknowledged my
Lord that there was an agreement to that effect that’s why this is memo of the government of India Ministry of Home Affairs now my humble submission is my Lord if you want to give effect to the treaty assuming it’s an treaty between bang the then government of Bangladesh
And the then government of India then my Lord in terms of article 253 there ought to be a parliamentary legislation there is none therefore this date 25371 loses all its significance Assam Accord cannot Assam Accord does not say 25351 mil Assam Accord is a political settlement mil now can a political settlement be
The basis of an agreement and for a moment we are not questioning the competence of the union of India to make the amendment but the question is we we’re concerned with the subject matter it’s not the source of the power there could be a source of power source of
Power is there article 11 read with article 245 readit my Lord ent7 list one but the question is what is the subject matter subject matter is acquisition of citizenship by a class of person who admittedly are illegal migrants that is an aspect which needs your lordship’s consideration my now question
Is if you are an illegal migrant and for which an Act was ened way back in 1950 it was duty of the government of India to stick to that act and my Lord Deport them instead of doing that my Lord what they did they came up with this amendment
My Lord I think the article which I have my Lord shown reflects the political expediency involved in the entire scheme of things it’s a vot bank politics it is not only perceived it is my Lord acknowledged now therefore my Lord since there is no parliamentary legislation in terms of article
253 since Assam Accord which is the premise of on which my Lord the amendment impune amendment was carried out does not speak of 25371 where from this date 25371 has my Lord followed has it fallen from the heaven it couldn’t have been so in the eff filed by the
Government of India other than a statement that foreign illegal migrants who came before 19725 through 71 there not to be deported they’ have not given any disclose any reason what is the SA of this particular day 25 371 end of the day lordship is testing at the legitimacy of a parliamentary
Exercise that to my Lord where the own people are have been rendered my Lord I mean minority in their own State my Lord there are section of the citizens who cannot enjoy their puas in the state of Assam if we go to the old guara District my Lord it is almost 90%
Plus immigrants we can’t even move we cannot Venture into those areas how do we enjoy our right under article 21 how do we enjoy our right under article 29 my Lord government of the day must create a situation where the citizens can enjoy their cultural right they need not spend money to
Develop our culture but they have a duty constitutional duty to create an atmosphere where citizens can enjoy their cultural rights where are those my now my Lord I’ll refer to two three paragraphs from this onal then I my Lord uh refer to the legal submissions which I propose to
Make pleas give us a Paris yes my Lord one second my Lord this onal judgment starts at page number 7090 sorry uh it’s at 7047 yeah 747 volum five yes I’ll have your lordship’s kind attention to page number 7090 my not onwards just give us a Paras and tell us
What it says while you’re relying on it yes no my Lord there are one par 70 I’ll have to read my 70 my Lord I’ll rely upon paragraph 51 52 53 56 57 63 70 73 79 80 and 83 but lots of people kindly permit me to read this par 7 page
710 what does it say you can just formulate it you need not read the whole par so you can just formulate it what is it my it speaks about the effect of the presence of the stream of IM illegal immigrants where it says my Lord asmi people has been rendered minority in
Their own State and it has set in my Lord demographic profile change irreversible if a lot with a L’s kind permission may I read it yes as mentioned earlier par 70 at page number milot 710 influx of Bangladesh Nationals who illegally migrated into a Sam POS a
Threat to the integrity and security of the northeastern region their presence has changed the demographic character of the that region and the local people of Assam have been rendered reduced to a status of minority in certain District in such circumstances if Parliament had ened a legislation exclusively for the state of
Assam which was more stringent than the foreigners act which is applicable to the rest of India and also in the state of Assam for identification of such person who migrated from territory of the present Bangladesh between 1166 and 24371 such a legislation would pass the test of article 14 as the
Differentiation show made would have had the rational National Nexus with the avol policy and objective of the ACT but the mere making of a geographical classification cannot be sustained where the ACT instead of achieving the object of the legislation deits the very purpose for which the legislation has
Been made as discussed earlier the provisions of the foreigners act are far more effective in identification and deportation of foreigners have ille Al crossed the international border and have entered India without any authority of Law and have no authority to continue to remain in India for satisfying the
Test of article 14 geographical Factor alone in making the classification is not enough but there must be Nexus with the objects sought to be achieved then my Lord there one more paragraph now if lot would kindly come to par 75 m at 7102 here my Lord I’m I’ll deal with
That aspect of my Lord the scope of foreigners Act and the act of 1950 now International Covenant on civil right to which India is a signatory my Lord Article 13 thereof mandates that a person who enters another country lawfully he alone is entitled to the due process of
Law a foreigner at illegal migrant at will he is not entitled to due process of law my Lord will kindly appreciate if this is the legal position if the legal position is my Lord in the international law as well as our honorable Supreme Court has said my Lord our dishonorable
Court has said that nmas deportation is a course which is open to the government of the day what was the obligation what was that compelling reason my Lord why this legislation was made this is very important my Lord on one hand you had the option of deporting
Them which you did not do now kindly appreciate my Lord interpreting article 355 of the Constitution of India this honorable Court my Lord while upholding the Armed Forces special Powers Act had said that article 355 enabled the making of legislation like Armed Forces special power if that is the position my Lord
Why my Lord 355 should not be invoke in this case not I therefore I’ll submit my Lord we are before Lord under article 32 where this honorable court has said it is the duty of this honorable Court to protect the interest of the citizens mind we are before your Lordships now
Kindly see my Lord in Solon and the son my Lord these aspect was taken note of at par 77 in introduction to international law by JG start the law Point has been stated thus Most states claim in legal Theory to exclude all aliens at will affirming that such unqualified right is
An essential attribute of The Sovereign government the court of Great Britain and the United States have laid it down that right to exclude aliance at will is an incident of territorial sovereignity unless Bound by International treaty to the country states are not subject to a duty under international law to admit
Aliance or any Duty there under not to expel them nor does the international law impose any Duty as to the period of stay and as admitted aliens like the power to refuse admission this is regarded as an incident of the state’s territorial sovereignity international law does not prohibit the expulsion enmy
Of el aliens reference has to be made to Article 13 of the international Covenant of 1966 on civil and political right which provides that an alien lawfully in the territory of a state party to the Covenant may be expelled only person to decision reach by law and except her
Compelling regions of National Security and otherwise required is to be allowed to submit the regions against his expulsion and to have his case reviewed by and to be represented for the purpose before competent Authority it is important to note that this Covenant of 66 would apply provided an alien is
Lawfully in indiaan nly with valid passport visa and not otherwise who have entered illegally unlawfully similar view has been expressed in so and so versus so and so the author has said that reception of alien is a matter of discretion and every state by reason of his territorial Supremacy competent to
Exclude aliens from the whole or any part of his territory in paraso and so it is said that right of states to expel alien is generally recognized it matters not whether the alien is only on a temporary visit or has settled down for professional business or any other purpose in its territory having
Established his domicile there a bager may consider it convenient to expel all hostile Nationals residing or temporarily staying within its territory although such a measure may be very harsh on individual aliens it is generally accepted that such salson is justifiable having regard to Article 13 of the international Covenant on civil
And political right an alien lawfully in a state’s territory may be expelled only in persons to a decision reached in accordance with law so my Lord there was no obligation on the part of the government of India even to admit them my Lord I can appreciate my Lord some
People are seeking Refugee status though there is no legal regime of the country as yet my Lord from time to time executive by executive fi decisions are being taken but question is millions of millions of people my Lord You Were My Lord under part two of The Constitution
Which is the premise on which the law of C law citizenship rests does it conceive of a concept called deemed citizenship it is only for political experience nothing else my lord rip will certainly not give judicial impr premature to such a legislation my lord it’s a legislation
Which is on the face of it my Lord ex con illegal my lord it’s unconstitutional as arged by my esteemed colleague Mr D my Lord it can’t be save from whatever angle we view at it my Lord yes we are not for a moment questioning the my Lord uh the power of
The parliament to make the legislation it is there but question is when you make a law when a question what is one more thing my Lord when it comes to article 14 of course we’ll say my Lord there is no intelligible difference here and there is the objects ought to be
Achieved has no rational etc etc is it also not a case of a protective discrimination my Lord when you are making a classification qu a class of foreigners that means you are extending a benefit of protective discrimination if it is a case of protective discrimination then my lot is the burden
Of the Union of India to satisfy Lots with empirical data unlike in the other case where the burden is upon the Citizen M yes there is a presumption in favor of the legislation but the moment we discharge it the b shs in my humble submission my lord it’s
A case of protective discrimination so you must have the data where are those datas in jagaran case I’m sorry that judgment is not a part of the compilation where this honorable court has said my Lord when it’s a case of protective discrimination then my Lord
The hus is on the state to thech charge with not only it not it must not only be pleaded it must be pleaded and it must be established that’s the language used my Lord can I hand over that copy my Lord sorry my lord it’s not the part of the
Compilation my Lord will kindly come to par 34 at page 783 my Lord does the constitutional principles and limitations are clear and the Norms are delighted by the precedents but their application to the specific situation is an exacting Tas burden when protective discrimination promotional of Equalization is pleaded
Is on the party who seek to justify XY deviation from equality what Delhi University stated here the Learned attorney general frankly admitted that student agitation without more could not validate reservation and the excessive reservation was an obvious inequality nor indeed it is a good plea that illegal reservation is being
Practiced by other universities and the University is forced to act illegally in self-defense lawlessness under our own system is corrected by law not by counter lawful lawful law lawlessness so it is strange for the Delhi University to say our disorderly behavior is orderly because other universities behave similarly once this misguided
Defense of direct action by students of reprisal against other universities are breast assard we come to the grip with the real issues is there circumstance justification for constitutionalizing the reservation strategy especially at 70% plus then my Lord will kindly come to paragraph 37 par 37 mil the argument AR in answer is
That those for admission to the post-graduate medical courses are almost completely closed for Delhi graduates by all other universities so protective reservation becomes necessary as the only hope of Delhi student for postgraduate studies those real life factors will show that Delhi graduates are Deni defacto equality on a national
Scale by exclusionism of other universities and that therefore they deserve sheltered equal opportunity in actuality by barriers of reservation of a high percentage of seats such being the University’s defense must be made out not merely asserted I am on this point so empirical data are required
What is the next point now yes Lord if lot of kindly permit me I would like to uh place the pleadings of the government of India on this my Lord what’s the point that you making yes point that I’m making was my Lord actually I was on
Facts incidentally my Lord I made a submission regarding that protective discrimination so that is how I refer to the Judgment I was basically referring to to the factual aspects my Lord first I relied upon that article second I relied upon my Lord don’t treat it as
Facts that’s a God knows what is the authenticity of that article it’s an article in a some Journal called oriental times we don’t know what the authenticity is no l with all stop you from reading but it’s not a primary source no my Lord it it it refers to the
Statement made by the prime minister of India s stat sing statements are it can be verified my Lord whether go to the you will file plenty of invective on both sides yes we can’t just rely on some article and you know decide a con case on that basis any my Lord since my
Lord this appeared in the article my Lord we place for lordship’s kind consideration the lordship will take an appropriate view of the matter my Lord we felt my Lord it is I mean it is of some relevance to it’s a point of view yes no my they’re referring to facts
It’s not a question of fact what facts it’s not footnote there’s not single footnote in the article how do we know that they are facts how are they even ascertainable okay my Lord we’ll try to we’ll try to come up with some more authentic I mean materials to support
Those facts by by by Reiner my Lord will place that nothing new in rejoiner what is I’m not speaking about otherwise they will have it be to them what I’m saying is my Lord while giving my re while giving a rejoiner argument we’ll try to have that by that time I’m meaning that
One I’m not asking for any time no no but no new material in rejoin them okay everything is concluded when you reply yes there’ll be no Ambush join okay yes if a lot will kindly come to my Lord volume Mr Mr CH why do you do why
Don’t you do this you’re about at 1:00 you formulate your submissions now yes you’ve heard the matter almost for a day and a half you can formulate your submission and then tell us briefly what under each head so that yes at 2:00 I’ll do that my Lord so you I’ll just refer
To two facts my Lord one a committee was constituted by the government of India post Carill War my Lord where the committee was headed by the defense minister of the country they made some recommendations my Lord which includes my Lord or rather deals with the Insurgency and illegal immigrant issue
Of Northeast I’ll refer to that then I’ll formulate my legal points all right and Mr CH you in that article yes there is a reference to this immigration exposion from Assam act 1955 1950 that must have defined who are the the people who are treated as migrants or immigrants under that act is
There any definition CLA no no my Lord under the 1950 act this was just just find out during lunch that what is defined there in that okay and is it in consistent or in conflict with what is defined or what is what can be inferred now from section 6 a the persons of
Indian origin who were settled in Assam does the definition does it in these two statutes are they referring to the same set of persons or they are wearing okay I’ll I I’ll look into it and get back to your lot at 2:00 the act itself is on
The record of this case it’s in volume 4 Page 424 yes just a onepage act and in fact makes an exemption it’s called the expulsion from Assam act the ACT is specific to Assam and it enables the government to expel people from Assam but it makes an exemption within the act
For people who have come here on account of civil disturbance so it doesn’t confer citizenship on them it doesn’t certainly doesn’t confer citizenship on them but it provides for expansion but not your Lo people find it at page 424 it’s a mechanism under which there is a provision for expulsion 1950 it
Must be referring to the 1950 Act is on record I’ll come to this as there is a kind of Tolerance of people who come on account of civil disobedience in that act so Mr uh CH now we’ll give you about half an hour 2 to
230 hour I cannot oh you will not make any Headway for the next 5 days but we not going to give you five days because we don’t see you made any Headway in the last 35 minutes you can’t H the initially my Lord you have to comply
With the time schedule which I said for you no Lots people kindly appr we very clear we did that ini understand Mr Mr we did that in something as sensitive as article 370 if you can’t make a point in 30 minutes you’re not going to make it
In 300 minutes you have to make your point make your formulations and then we’ll give you time but half an hour and that’s it thank you okay half an hour for formulation that’s good good half an hour for concluding your argument please so if you can just formulate your
I’m my Lord the first point is which have of course already argued but may kindly take note of that there was no compelling reasons for making that enactment that that point you made in the M it has gotten my Lord two sub part first sub part is Assam Accord being a political
Settlement it would not have been the basis and second part is my Lord regarding the date of 25371 there is no parliamentary legislation assuming my Lord there is an agreement between the prime ministers of the two country but there is no I mean uh parliamentary enactment ratifying that
Agreement as required under article 253 of the Constitution of India and the just repeat the point my Lord first point was uh that uh Assam Accord that’s Point next Point next point is my Lord next no basis to ad 253 regarding the date sanctity of the
Date no sanctity of the date that is 25371 all right that section yes yes that’s the first point then the and another Another Part limb of that point is my Lord it is actuated by political expediency that you have made you said that yes then second point is my
Lord section 6A is violative of part two of The Constitution of India there I’ll elaborate little bit my Lord part two first you can there I I I’ll try to satisfy your Lordships what is the third Point third point is my Lord valid of part three of the Constitution of India
Including Article 13 my Lord because I’ll submit that this is a steel born legislation why is it still born my Lord on the day the legislation came into being imdt Act was holding the field which made detection of Foreigner practically impossible it it was struck down by this honorable code only in May
20 2005 so from 85 to 200 uh 2005 that is for two long decades nothing moved my Lord not a single Foreigner was detected all right then four yeah yes forth my Lord section six away takes away the political right of the people of Assam in as much as it is valuative
Of 326 and 327 that Mr Divine is already yes yes I’ll just place two judgments on that my Lord and last but not the least my Lord I’ll deal with certain aspect of the citizenship Act how examp formulate formulate yes a violation of section uh the provision
Could not have been inserted because of section 52 of the act because a person of undiv how you formulate how you formulation would be my Lord the section 6A is ultrav virus the act itself that is section 52 how can a statutory provision be alra is the act no my Lord what I
Subordinate legislation can be ultra is the statute statute can be ultra is the Constitution it will be ultra as the enabling provision that is the Constitution Ultra is what the Constitution my Lord but that you have said that in point point number three what I’m trying to Al is which
Constitution provision article 11 my Lord by by taking recourse to article 11 this legislation could not have been framed all right article 11 without without variation of article six section 6 is ultra is article 6 yes my Lord because without variation of article six no you said article 11
That’s why Artic 11 read six all right all right now you covered the first point now tell us on the second Point yes how is it violative of part two yes now my Lord will uh kindly have the Constitution for a moment my article 11 my my friend Mr diwan has already
Referred to article six to contend that as far as migration from Pakistan or present the Bangladesh is concerned my Lord yes there is a date already given in the Constitution that is 19th of July 1948 our submission is my Lord without variation of article 6 section 6 a would not have been
Enacted without the variation of article six six because article 6 provides a cut of Dee that is 19 of July 1948 now my Lord if Lordships kindly comes to article 11 nothing in the forgoing provisions of this part shall derogate from the power of the parliament to make any provision
With respect to acquisition and termination of citizenship but article six is for migration from Pakistan no my Lord this is this is my Lord a date which is adopted by the Constitution for the purpose of migration from Pakistan M 6 19th July 1948 in fact my Lord not any
Person who has migrated into India as of 19th July 1948 shall be deemed to be a citizen yes what I’m trying to submit for L’s kind consideration is my Lord present the madesh the denish Pakistan is a part of the he was a part of Pakistan right now when the Constitution
Was adopted on that day my Lord this provision was there anybody who wants to migrate from Pakistan to India there is a cut of De now it will definitely relate back to that date when SE 6A gives protection Bangladesh has a successor State successor their uh their citizens are
Also Bound by the date of 19 July 194 all right we got the point yes yes now my Lord will why I’m making this submission article 6 is a constituent provision Now by or by exercising ordinary legislative power Parliament cannot my L Tinker with the constituent provision now in the Constitution my
Lord there are certain Provisions where without taking resort to article 368 some Pro iions of the Constitution can be tinkered with and it has been expressly provided for example in Article 2 article 3 article 42 article 1693 article 239 capital A within bracket 2 article 239 capital a a7b article
243m sub article 4 B 243 2c3 and 244 A4 provisor so my Lord wherever the Constitution maker intended that any provision of the Constitution can be tinkered with it can be done without taking resort to 368 these are the provisions now now my Lord by giving a
Day cut of that which is different from Artic what is given in article six is violated all right we’ll hear the other side because we made you have made the point labor the point yes so that covers your point number two yes now the point number three then my Lord article
Regarding article 11 my point is article 11 does not start with a non Oban clause on the contrary my Lord it starts with the expiration nothing in the forgoing provision of this part my Lord article 11 Visa article 6 has never failed for consideration of this h Court
This is the first time my Lord that issue is being raised there are judgments on article 11 Vis article 9 that is what is nothing in the foregoing provisions of this part what is it but a non Oban law we are concerned with constition parliamentary legisl will not come there my Lord with
At most with at most respect I’ll submit my Lord in my humble understanding ing subject or Lis may say the meaning is my Lord by invoking article 11 certainly power vest in the parliament to make law with regard to acquisition and termination of citizenship but in doing
So it cannot Tinker with the provisions as contained in part to that is my argument got so it has to be that means the exercise of power has to be done keeping in view my Lord the part two all right now we are left with your argument the
Last argument on part three now yes where you are saying that it is still born tell us now why is it still born yes now my Lord it is still born for the simple reason it is violative of part three of the Constitution it is violative of part
Toic this is topological anything which is violative of article you can’t say it is but then you have to still show us why it is violative of part three it is VI it is violative of part three because it is Vala of article 14 as I have
Already submitted my La it is Vala of article 29 which my leared friend has already said it is Vala of article 21 which my learning friend has already therefore still born according therefore it is vo yes to that extent it is vo all right thank you thank you Mr
CH what is the next point then tell us now next Point what is the next Point yes next point is that is most important article 355 yes now in sanand sonal’s case my Lord at par 6 63 at page 70696 of part four my volume 4 par 63 par 63 at page 7096
Right this honorable court has Sav my Lord that there is an external aggression SL my Lord there is internal disturbance on account of unabated influx therefore time has come for government of India to invoke 355 yes now my Lord if 355 is to come to the
Rescue of the people of Assam can we conceive of such a legislation on the contrary my Lord this honorable Court while upholding Arm Forces special Powers Act has held my Lord that such a legislation has become Possible only because of Provisions like 355 so if 355 is supposed to protect the
Interest of the people then my Lord the actions has also to be commensurate not to my Lord make illegal immigrants Foreigner that at the cost of the indigenous people of the state so that is how my Lord by invoking 355 government of India should have made certain provision right that that point
Mr dwan also made we’ll have to hear the other side yes that point is already made yes then my Lord I’ll come to my Lord will kindly permit me to place Section 5 of the citizens act 52 yes two three aspects on citizenship act I’ll just within your half an hour time
My Lord I’ll no conclude lot said L 15 minutes now yes if L would kindly come to five subsection five my Lord section five uh the alternative benches will be discharged for the day so the members of the bar who are waiting for the altern interventions need not wait you’re most
Welcome to hear the interesting arguments but you’re not compelled to Yes uh 51 my Lord subject to the provisions of this section and such other conditions and restrictions as may be prescribed the central government May on an application made in this behalf register as a citizen of India any
Person not being an illegal migrant who is not already such citizen by virtue of the Constitution or any other provisions of this act if he belongs to any of the following categories please come to B my Lord a person of Indian origin who is ordinar resident in any country or place
Outside undivided India that means under the scheme of section five of the citizenship Act My Lord right it is only people who is outside undivided India he can be conferred citizenship by registration can can we visualize a situation under the same very statute where my Lord people from undivided
India are being sought to be given dim citizenship they must have overlooked this aspect so therefore my humble submission is my Lord is a total non application of mine on the authority my Lord although my Lord when it comes to challenge legislation whether that ground is available that is also another
Point but kindly see my Lord a person from undivided India he cannot be conferred citizenship by registration on the contrary by the same act by section 6A now and demm citizenship is s to be there’s a little problem with this argument because yes any legislature forget it’s Parliament even the state
Legislature when the state legislature enacts a law it is not bound by the existing provisions of the law it is subject to the constraints of the Constitution so in the same law the legislature can make alternative Provisions they can make Provisions for eventuality a they may make Provisions
For eventuality B and this applies across the board whether it’s a tax law it’s a land law it’s a planning law a law on education the legislature is not bound that oh we have already enacted this provision namely that registration by citizenship by registration can be only if you are a resident outside
Undivided in India this does not prevent Parliament from making a law which in effect grants citizenship by registration to a person even in undivided India of course your point still is that you can’t therefore confer citizenship on illegal immigrants that point is a separate point but I’m just
Telling you that this there is no such constraint on the power of parliament or the state legislator within their Dominion State legislatures can they’re not bound by a previous provision which they have enacted but still my Lord same act says undivided India out I know but
That’s not your best point Mr I felt by this is a you made the point we have made a note of it but that’s not your best the second point is article 9 NVC say that there will be no dual citizenship all right now none of this
My Lord de benefit beneficiary of De citizenship they have renounced their citizenship at least there is nothing on record government of India in the counter has not brought record anything to suggest that these people had renowned citizenship all right you made the point last that is my Lord in terms
Of the act as it stood on 85 my Lord a pre- amended act fortunately they are not claiming bu citizen that’s difficult effect is there today they citizen of Bangladesh they citizen of India citizen then yes that come only after being a citizen of India you op to something then
Will yes then my Lord the other aspect on the citizenship Act is yes my Lord that no mechanism has been provided that my learned friend is argu so I’ll not make that argument my Lord and my Lord as prescribed by section 52 of the old Act My Lord six a
Permits dim citizens to become C or acquire citizenship without taking oath of allegiance to the Constitution under the ACT 52 as it I think Mr you’ve made your point now let’s say Mr one more point my Lord finally now my Lord assuming my Lord process assuming in a given
Situation lordship is not inclined to my Lord interfere with Section 6 a now my I have an alternative prayer now lot it knows government of India constituted a committee headed by retired judge of the guti high court justice BK Sharma committee to provide measures for providing safeguards in terms of clause
Six of the Assam the committee has submitted his report my Lord we have brought on record that report that report my Lord where the committee has suggested certain measures including my lord for protection of the political right of the people of the indigenous people of the
State can I just take your logic just two minutes time my Lord yes where is it what is the yes my Lord the report is at page 14 of volume 4 My Lord 14 14 and if a l would kindly come to page number
145 or if a l would kindly come to yes 145 yes no 145 of volume four is it four can I read it my Lord yes the committee was constituted by notification reproduced Below in respect of Clauses six of the Assam Court the committee initially consisted of 13 members with joint secretary nor
Minister of where are you reading yes page 145 my Lord that’s the notification oh yes okay introduction my Lord on top so what’s the point that you’re making you not read out the whole report tell us what the point is now the committee has suggested or other suggested certain
Measures to be taken by the government of India show us those measures yes uh my Lord will kindly come to page number 14 one2 my Lord take us right through to their conclusion because that your favor we’ll put it to them yes Mr J the reason we are rushing you is
Because these factors are already in our mind we want to put it to the government of India yes yes yes this last point which you made what measure are you taking this are certainly thing which are which we are going to we going to place before the we going to ask the
Government of India yes please come to 1452 7.4 on top my Lord measures to protect ASM and under indigenous languages so for protection of the language my Lord under this heading some measures has been given then what else on this very aspect what is they said yes I see my lot at page
1453 go to page 145 six I mean if yes 1456 three my Lord regarding the language part 1453 asmi language shall continue to be the official language of Assam as for the provision provisions of the Assam official language act that of the Constitution bench reference go to page 1456 there’s something in
Your favor implementation of just go to 145 in employment under the central government we can’t that’s not is not within our Ambit we can’t direct the government to make reservations other measures to protect reserve and promote the cultural social and linguistic identity go to 7.6.1 implementation of the Assam Accord
Committee noted that Assam Accord is yet to be fully and effectively implemented and even after 35 years of its signing it is fa that complete implementation of all clauses of Assam Accord especially Clauses five .1 to 5.9 and clauses 7 10 and 11 are essential for the safeguards
To be provided under Clause 6 of the Assam Accord yes then my Lord 7.6.2 my Lord reservation of seats in Parliament that is that’s that’s not within the Ambit of the reference let’s skip it no my Lord sest talk but it’s not certainly constitutional talk for us
To they have also suggested measures for Amendment of the Constitutional we can’t direct Parliament to amend the Constitution so what’s the point in you know taking time on issues which don’t fall within our image let’s go to what we can do to really yes then my Lord will kind my
Lord basically my Lord if I if I’m correct my Lord they have suggested measures for protection of the language and culture then my Lord employment then land rights and my Lord uh political right by uh request I mean suggesting measures for reservation of seats in this assembly and Parliament all right we’ll broadly
We as has been done in case of sikim and other states mil there are special we got the point Thank you Mr CH one last point two minutes my this report 1462 just said that in fact I’m also on 1462 now what there are two things which we one final point my not
My Lord lot of has seen that expression detected to be Foreigner means a foreigner detected under foreigners Act and the I mean this foreigners order right right now my Lord by referring to my Lord Article 13 of the international Covenant on civil right which was referred by The Honorable Court in s and
Sunal one my Lord I have already referred to paragraph 75 where Supreme Court has said my Lord the benefit of due process of law can be conferred only to a citizen who lawfully enters an illegal migrant is not entitled to process of law now kindly see my Lord in
Sanand sonal in paragraph 86 3 after striking down my Lord the imdt ACT supre this honorable Court gave a direction that now onwards all the acts because by virtue of section four of the imdt ACT which was given an overriding I mean power my Lord all other acts were in
Limo so therefore my Lord it was ordered that now now onwards the detection of the Foreigner will be done under Foreigner Act Act 10 of 1950 Etc meaning thereby my Lord when it comes to person who has entered lawfully his case would be considered by my Lord foreigners act and
When it comes to my Lord illegal migrant his case would be considered under my Lord 1950 act now by confining the I mean the the class of persons only to be covered by foreigners Z my Lord the purpose of this act has been I mean
Taken away how can that be done my Lord we consider that so therefore my submission is point yes therefore thank you Mr we have to get on now yes Mr H please and my Lord there is one Judgment of the Supreme Court which I wanted to show my
Lord which I’m not doing my Lord what I have done my Lord citation Mr s what what judgment my Lord there is a judgment on on article 11 which other side will definitely rely upon which I wanted to distinguish it my Lord in my written argument my Lord from P keep
Your powder dry for the rejoiner if they cite it you will have to distinguish it let them site it I thought my Lord which is the judgment’s case isar Ahmed yes what does it say my isar Ahmed was a case where my Lord it was in the context of article 9
Read with Section n of the foreigners act sorry citizenship act there the there is a case ofation of citizenship that takes the that takes the view that article 11 is untrammeled by the provisions of the earlier but there was no occasion like unlike in the presentation let them site it my Lord
Will kindly in my written argument my Lord From Page 3 to 43 I have dealt with all the 13 points formulated by the referral V my Lord page 3 to 43 of my written argument of volume one and in fact all the case laws and all I have
Dealt with my yes thank you Mr J thank you yes Mr anaria I’m appearing in rate petition 68 of 2016 and Lut find my return submissions in volume one page 143 volume 1 page 143 milot my return return submissions are there with an index meot with the point points which
Are there which I’m going to Mr CH where are what is the page of your written submissions volume one page 3 to 14 screen page 3 to 14 details all the points both in for Mr sham D’s written submissions are volume one page IND any any Junior can also tell us on
The just one so we’ll just make it so we don’t yes I’m so sorry 42 stages 44 to 142 yes this is the name volum so easy 44 14 it says on behal of peti it doesn’t have the name that’s what we are looking though my return submissions are in 311
Of 2015 it indicates that but at pointed out that was mainly on Nar so I’m not going that that’s why I said in 68 of 2016 the prayer of 68 has been there L treated as a written submissions on 68 of 2016 let me my first formulate the points which I be
Nice the first blot or it’s sort of an index blot the Juris Prudence principles internationally recognized on immigration law Visa is Citizens there are six principles which I’ll just for tell you lot that’s that’s the first me principle which I’ll be addressing your lordship which is subject to your lordship
Permission secondly me no one second Juris Prudential principles principles internationally recognized on immigration laws Visa citizens right and they’re all part of my written submissions I’ll give the par numbers also I’ll develop each one of them subject to Lots permission all right second me the global Refugee policy me as me n as
Declared in United Nations Refugee policy 1951 Refugee polic of 1951 to which 146 members are signat India is not a signatory recognizes only right to aboard and not to right of citizenship right to abort right to abort with basic human rights meots such as food Education Health I’ll develop that but
Mr what that means is no individual can move a court yes relying on a International Covenant and say you are bound to confer citizenship or meid right but this can never preclude The Sovereign right of a Nation I’m not saying parament is not sovereignly competent on this I’m just broadly
Saying what are the internationally recognized principles on that I cannot get a m or from that six must be struck down on this but these are the broad principles keep in mind while interpreting and I’m going to submit these are part of our Preble and constitutional all right I’ll
Three as Mr Chri has said I will demonstrate that with a with a with article there section 6A in effect amends article six of the Constitution I I’ll show that how and it could not have been done without going through the process of 368 that me article in effect section
Article six of the Constitution six and seven of the Constitution it amends article 6 and 7 of The Constitution in effect I have got the chart by how it has been amended in effect fourth I’m so sorry yes Mr di said there you cannot discriminate within homogeneous group
I’ll show some materials to show Lord Assam along with four border states of the eastern part of the country are homogeneously placed with materials to to support that that Assam has been singled out and discriminatory a lot this so far if you’re making it applicable only to Assam the effect isot
Not only that they are staying back they are coming from the neighboring states ifot knows from ghati to shilong ifot go one side is Assam one side is meala if you are in this part you are Indian citizen if you are in this part you are
You are an illegal migrant so all that it requires cross that road and claim citizenship and I will show a lot from the materials on record what is the extent of lot illegal migrants in those States and what is the extent of illegal migrants in in Assam
And what is the extent of border meot of the four states and us to show their homogeneously placed meot and you have discriminated only Assam that I’ll show that fifth me as Mr CH said I’ll just develop that little more that subscribing an oath of allegiance to the
Constitution of India is a basic feature of the Constitution and the persons who have come they have not come from Bangladesh because Bangladesh is not born on 26 March 1971 Bangladesh is born on 26 26th March 1971 not on 25th March 1971 and on that day there the citizens of Pakistan in
Which Lord the prophet says Prophet Allah is the only person who has made the Earth I’ll show that I quoted it so unless they renounce their citizenship of another country which believes in aot religious particular religion you cannot become a citizen of the India or which is a a secular country without
Subscribing an oath of Reliance and that is what is required in section five and six me Lord that wherever you become a citizen by naturalization what’s the next Point next point is meot the India has a refugee policy meot Tibetan qu chakmas Tamil and qu Ras none of the
Refugee policies Lord confer an automatic deemed provision for conferring citizenship all these are there on record I’ll show that the PES policies for Tian for chakmas for tamils and for Ras Sri Lanka there definite policies of Rehabilitation for the refugees what these four groups my lot none of them confer an automatic
Citizenship much less a Citizens by an application and this is discrimin first and the finally B committee report L seen 146 to what it says finally it says in case it is to in the mean what is to be happened and I will give a case lawel to your on discrimination under article
14 I’ll give you list yes can you go straight to your third Point that’s section 6A in effect amends article 6 and I’m grateful to then we come back to your earli I’m extr the done I typed article six engrafted 6A how it is aligned to just it will be
Easier for for me to demonstrate that it it has article six and how article 6 has been Incorporated there just give it to I have let give it what are the track changes in no this is article six of the Constitution right which is there me Lord what I’ve struck
Off is what is the effect of six section 6A and me Lord how it is been so article 6 if kindly keep the Constitution side by side I have typed article six melot and whatever has been changed because of section 6 I struck off and in italic I
Have put what is the section 6A has in as in as imp superimposed on that so L May kindly keep side by side article six of the Constitution says right of citizens of certain persons who have migrated to India from Pakistan what six years do not who has migrated to Assam
From Bangladesh in effect in effect I’ll show section 6 also section 6A not withstanding anything in Article Five a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be citizen of India at the commencement of so there’s a
Deing by way of a deing fiction melot a person who would not become a citizen of India is deemed to be citizen of India in respect of those persons who have come from Pakistan now this specified territory is a part of Pakistan is a 25th March 1971 is the cut off date on
Which date it is a part of Pakistan being East Pakistan Bangladesh is born on 26th of March 201 71 just one second in paper 26 March in actuality 2016 December 1971 after India won the war what is the date on which India recognized Bangladesh 16 December 1971
When India won the war but then what is the relevance of 26th 25th because 2 Bangladesh declared itself to be country it declared it independ itself to be independent on 26th March we recognized Bangladesh in December December because after IND indopak war from 11 December to 20 on 16th December 11 December and
It declared it Independence on on 25th March according to you yes Bangladesh was an integral part of and it I I have and if you from Pakistan yes then the only date was 19th July 1948 please but even there there’s a problem in your argument yes let me understand I
Mean theoretically yes Parliament may not do it yes but it was always open to Parliament to say what does section six do sorry what does article six do yes article six is qualified at the commencement of this constittution my Lord that is to say persons who had already migrated from Pakistan in fact
This I must share just as brother Sund pointed this out to me a short while ago persons who had migrated from Pakistan prior to the birth of the Constitution on 26 January 1950 they would be conferred citizenship or they would be deemed to be subject to certain conditions one was
Either of the parents was citizen or or they were either the parents or Grandparents were born in India then B in the case where such person so migrated yes before 19th July 1948 and has been an ordinary resident of the territory since my Lord the date of the
Migration yes right because 19 July 1948 they probably took as the partitional yes yes therefore what article six does is to confer citizenship on a class of citizens on a class of persons who had migrated from Pakistan prior to the date of the adoption of the Constitution
Freezes it at has that but that does not prevent or does that does not dilute the power of parliament under article 245 and 246 and entry 17 entry 17 and particularly in the context of article 11 even to confir an extended citizenship on Persons coming from Pakistan itself I’m saying my Lord I’m
Forget Bangladesh but test it only for the purpose of a hypothesis I’m not saying that they will do it but there’s nothing to stop Parliament from saying that we are now in exercise of power under article 11 also conferring citizenship on a group of persons from Pakistan post
1948 in which case the fact that technically on 25th March 1971 Bangladesh was still a part of Pakistan my Lord would not really affect the power of parliament may I meet that I’m extremely grateful to lot what article 6 and seven says by diing fiction you have pre you have it could
Have said meot on before the commencement of the Constitution as article three has said Article 5 has said all persons born before the commencement of the Constitution it has chosen to fix a date my lord of 19th July 1948 who will be deemed to be citizen otherwise they will not become a
Deem citizen so you are reading article six as exhaustive is exhaustive so far deing fiction is concerned of people coming from Pakistan in effect fact does it or does it not L test it amend the Constitution say that those who come before 1st July 1966 and come to Assam from
Bangladesh would be deemed to be S I have no difficulty they can make an application naturalization Parliament has make section 67 Etc no difficulty but can you make a diming provision myot by saying no I’m so sorry imig by I’m so sorry but so my I’m so sorry so my submission I’m black
Black lot tast it I’m so sorry look yes understood your argument right we’ll phrase it in a proper way yes article six provides for a deeming fiction by virtue of which persons who had originated in Pakistan were given conferred citizenship provided they met the cut off of 19 July 1948 or in some
Cases even Beyond when Parliament legislates under article 11 in respect of persons originating in Pakistan you cannot introduce any other deeming friction my Lord because that deeming fiction is provided by by by the by thetion and on that day 25th March 1971 these areas in specified territories were a part of Pakistan and
Therefore Parliament cannot really by deeming fiction in exercise of its power under article 11 introduce a contary deeming fiction that’s the point we we hear the other would test my argument just one more sentence suppose could the parliament has say 25th January 195 26 January because Article 5 say
Commencment of the Constitution lot would test my argument could the parliament say anybody who entered on till 25th January 1950 it could not have if it could not have said 25th January 1950 which is a day prior to the commencement of the Constitution it definitely cannot say a lot on 1 January
1966 on what basis because it is in the tee of article 6 if article 6 completely lot encompasses the persons of Dem migration who has come to India from Pakistan ah that actually what you said Is Right your argument would be correct yes provided we accept the hesis that
Artic article 66 is a complete code in respect of persons who are migrating from a territory which was in Pakistan by deing fiction again I’m saying by application different you right that article six is a complete code then there may be some substance yes but the whole basic your argument is article six
Is a code yes you can’t on somebody coming in from a territory in Pakistan Parliament cannot legislate to the country by deeming fiction by deeming that’s it’s a complete quote because because it clearly very well because if see now cluse B also which I have given it in chart but this is a
Matter of a lot great great importance especially for the people of Assam as lots are hearing very patiently we grateful to your lot lot lot heard the 370 matter in the same way cl to also lot would kindly see I’m so sorry so that M next technically you may be right that
It was part of Pakistan on 25th March it’s it’s fact I mean on The Sovereign principle it is right look at the history of the liberation of Bangladesh that started thereafter that’s what I’m saying it start the war is one in December 2 in December 1971 Indo Park
War but people have flat people FL can you can you can you attribute to Parliament when they enacted section 6A that they wanted to confer citizenship on citizens of Pakistan I don’t want to say that Lord no but in they have I’m not saying confering what is the
Int banglades they were cons of the can you know article six let’s also we can’t look at constitutional Provisions in the abstract article six deals with the travil of partition my Lord a large number of persons were fleeing Pakistan India because of the the sheer scale of violence which took place at partition
So article six therefore protected those people my Lord it even extended it Beyond 19 July 1948 uh therefore article 6 was a complete 19 extend any point last thing which I think we can attribute to Parliament was that they were confering anything that’s look the question of M doesn’t come to Parliament
At all obviously but so therefore they are looking at Parliament was looking at the whole the human suffering are human sufferings in wrong I’ll show to you lot how they are opposing and that’s why policy comes in they human Tibetans they human tamils and they’re not giving citizens that’s a different issue I’m
What I’m saying L testing on constitutional principles this is not a subject matter yes yes India is not a sign convention not very well I’m not going into it I’ve said India is not a signatory to so they cannot SE whether they can make a law Parliament can make
A law Lord in the of article 6 and 7 that’s what that’s if a lordship permit me to show further me Lord it will show further that in effect they have further Al Mr we have to make basic principles of constitutional law should be very clear in our mind yes Lord if Parliament
Is entitled to legislate to confer citizenship it is not bound to recognize the refugee status and confer citizenship on people of every human Dimension there will be people from different parts of the global South who want to come in human problem globally three and half Parliament is not to pick
Out everybody that look we’ll do it for every because Parliament can certainly say that look we look at the impact on our resources our public that’s what the principle is if I said started saying there are internationally recognized principles and this is one of the principle how much burden you can have
That’s one of the international principles because one of the principles and which is globally accepted is mot that the pre-immigration and welfare state does not go together it has an adverse impact on the welfare activities of the citizens blot it is and it’s a quotation you cannot simultaneously have
Free immigration and welfare state from Noble laate and which is sees disquotation it’s recognized everywhere that’s why five principles I will I wanted to show to yourip after I complete anyway now we have deal argument we complete just complete some part of it the provisor in effect been deleted
I’ve shown to lot you just see this because this is very important this is the Bally the main argument which I’ll be developing to B provides further says Lord B two may I read this this article six argument is Lord my best argument perhaps L may consider in the case where
Such person so migrated on or after 19th July 1948 then L May ignor that part italic part he has been registered as a citizen by an appointed so and so now Proviso provided that no such person shall be so registered unless he has been resident in the territory of India for 6 months
Immediately preceding the date of his application so what it requires if you have come after after 19 July 48 you have to be there for minimum for six month all these requirements are completely given even if you are there on 24th of March 1971 in Assam 24th of
March no no requirement of nothing this this this is a mandatory requirement of article six and the these are very important fundamental principles which the Constitution has made and similarly article 7 article 7 is also breach Lord and it’s a complete arot that the person who has gone to Pakistan shall not be
Deemed to be citizen of India if you see article 7 again there there a problem with the argument yes my Lord 6A yes my Lord was introduced in 1985 my Lord right my Lord by the time that it was introduced yes uh when 682 came into
Force yes at the least 14 years had gone by yes the cut off date for entry into India under 6 A2 is 25th March 1971 my Lord between that date and the date on which section 6A is enacted 14 years OFW 14 years yes my Lord 6 A2 Clause 6 A3
Clause c b my Lord says has since the date of his entry into Assam been ordinarily resident in Assam yes in other words a person who had entered into Assam between that period 66 to 71 my Lord would have been ordinarily resident in Assam at the least for 14
Years at the highest for 19 years so cly therefore Parliament is in that provisor it is 6 months yes by enacting that legislation in 1985 they have ensured that somebody has been resident for at the least 14 years my Lord my Lord but what I’m saying Lord
This I I I qu say see what is following from my Lord the chief justice but there is a specific requirement which is My Parliament 368 route is possible whether 245 route is possible or not that’s why see article 7 also article 7 which is there in the same chart article 7 for
A minute article 7 right of citizens of certain migrants to Pakistan not withstanding anything in five and six a person who has or after the first day of March 1947 migrated from the territory of India to the territory now in Pakistan shall not be deemed to be citizen of India so anybody
Who is in Pakistan on this date after this date he will not be deemed to be citizen of India and all these persons who are there were in in Pakistan on the 25th March 1971 the cut off date now Proviso provided that nothing in this article shall apply to a person after
Being so migrated to the territory now included in Pakistan has returned to the territory of India now this is what the article says India under a permit for resettlement or permanent return issued there under by the authority of any law now what the ACT say does return to
Assam on or after 1925 March 1971 this is in effect the the amendment that’s my submission has to consider that all right now let’s go to now rapid will complete the next point if second I I first my first was that there are certain internationally recognized put them in a submission
Would just permit me to say formulate those uh Five Points your which are there in my submissions but I just I want to I want one there are submissions in two pages just to one one sentence for each first is you cannot simultaneously have immigration and free immigration and welfare state that’s the
First principle recognized which is there in Par 38 of my written submission second meod ad admitting strangers should not significantly harm the current members of the community that’s the second principle if it significantly harm and I’ll will show to you lot of 18% are the immigrants on the date of 2001 we have
Figures available for 2001 I’ll demonstrate that none of the watering state it has that much of immigrants I’m not saying which cast which religion ET illegal immigrants as per the official figures given by the home minister on the floor of parliament third I’m so sorry third principle unrestricted immigration threatens the continuity of
Identity of the members of the nation unrestricted immigration unrestricted immigration threatens the continuity of identity shared by the members of a Nation because we have a continu identity we are secularism and I’ll show to a lot persons who have come have o of allegiance to a constitution where they
Require require where they recognize Islam as the final we I’m not saying anybody cannot but we do not share that meel as an Indian fourth meel human rights cannot be extended to include within its Ambit the right of citizenship just repeat human right cannot be extended to include within its
Ambit the right to citizenship yes as citizenship is a political right and not a basic human right thus thus there cannot be any immigration policy which has an adverse impact on the domestic cohesiveness that’s the fifth Point that’s the fifth and there’s one more sixth that’s sixth what is the
Fifth Mr there cannot be an immigration policy and this is part of basic structure I’ll show to you immigration policy which has adverse impact on domestic cohesiveness that is the fraternity part Mr Shaman has said or a threat to national identity yes I’m so sorry or identity of a federal unit of the
Nation or threat to National University or or identity of federal unit of a Nation or is against National Economic interest look these are all flows from the Preble itself we are a federal structure we have fraternity amongst ourselves and finally I’m Sor finally finally refugees not under
Article 21 21 is all person any person who campass not article 14 also article 21 to every person applies to not any every person refugees have a right to with certain basic rights such as yes education food health and not right of citizenship all right and I have given
Me under the UN convention actually there can’t be any dispute about these propositions which you have laid down as tested on these propositions you are giving citizenship to persons which is affecting lot the welfare activities of the state because there huge but I immediately may I come that Mr Divine is
Made also yes just can I show come to Volume 4 P 342 there can’t be any doubt about these principles you have laid down now if this I’m so sorry absolutely no doubt about these princi there no person can claim that look I’m a refugee you shall give me citizenship you were
To file a rit in the in a court under article 226 that person would be turned out saying that where is the right you have to fall within the framework of Indian law to claim Indian citizens my Lord my Lord so these principles which you have formulated they’re absolutely
Unexceptionable there’s no no doubt about I’m grateful to would you lot kindly come to Volume 4 a page 3420 what is that to show them a lot a map lot of the noreast because which how many kilometers India Assam has the border and how much population has official
Official map or official 3420 and I’ll show MH the map is from the map of India the figures which I’m giving it in my submission are from the ministry of Home Affairs 42 of volume 4 a just one let’s all go to it this is just to show lot
How the Assam is located with VAB is other four B bordering state no problem yes 4 3420 and these are part of our if a lot see lot Bangladesh borders five different St 34 3 420 I’m so sorry 3 420 3 420 just to give a Topography of the area yes it B
West Bengal meala Assam tripura and mizoram and how much does it me it is on the MH in my submission I just prepared some sort of a chart again for convenience it is there in the I’ll give the I’ve given the page numbers also here so Bangladesh’s largest border is
Really with West Bengal yes it has I give it has 2,216 kilom with West Bengal and these are from theot I’ve given the source also and they are part of my submission also Lord which page of the submission these are part of my submission also but border with meala
Appears to be larger than that’s right so that’s what it’s happening people go to meala immediately cross over the road come to Assam claim citizenship that’s a huge problem for Assam because if lot travel from go to Shang one side is Assam Road one side
You have to only cross the road and to say claim citizenship of the country if lot see this Assam borders 263 kilomet with Bangladesh in this in this map where is goti goti is dispur dis Capital so it doesn’t it the GOI doesn’t border Bangladesh but it borders when
You travel from disput to shilong you have I’m want to know when was meala created in 1971 no before the cut off date or after this cut off date 69 it becomes an autonomous State and me lot would give me a minute noreast are deog act it became a UT for some
For it is 1969 it became an autonomous state within the state and that become lot under the Northeast areas reorganization act it became 19 21st January 1972 so then this would be the Assam border only yes my yes it was an page page 154 all these figures which I’m giving
It here are part of the I’ve given the source and it is in part of my return submission in paragraph 15 yes it became an autonomous state in 1969 69 69 act 69 act I don’t know that 1969 69 Assam state within a state it was a New Concept which was developed
And then it became a full-fed state in 71 act with effect from 72 so Assam has 263 kilm bordering West Bengal has 2,216 kilom bordering meal has 443 kilom bordering mang mizoram has 318 kilomet tripura has 856 kilom now Lots you would see the extent of illegal population in 2001
Which is as per the statement of the home minister on the floor of parliament it is not from any individual studies and these figures are there part of L my submission and this is part of the statement of the home minister L would 50 lakhs are the population in
2001 of out of 266 lakhs is the total population for the sensus of 61 18% are illegal in and you give citizenship to all where is that homogen article 14 has to have some meaning not for an individual to a group of individual staying in Assam claiming their ethnic
Rights but in in West Bengal 57 lakhs out of 88 81 lak 8 CR it is 7 7% meala it has 30,000 out of 23 lakhs it is 1% mum figures are not available tripura has 10% so you’re not giving it toot the person who has 1% or 7% or 10% you’re
Giving citizenship what is the basis for giving citizenship mainly because you want it political isue you have an Assam Accord that does not satisfy the test of constitutionalism at that may satisfy the test of your political experience you have taken the figures as of 2001 20
These figures the figures of 200 of 1971 how many people were actually we have put my friend has given about five laks that it was stated on the floor of the house by Minister my no but they’re going to give us the official solicitor pointed out on that day was during the
Debate Mr B Islam said this is the figur but officially D said nobody has come out with the figures we have the figure only of 1971 from Esa report who was the governor of Assam we have figures from the law Commission of India and we have figures from the
Home minister of India these are the three figures which are available on record which I pointed out in my return submissions in paragraphs one in paragraphs I have given those figures in paragraph 18 of my return submissions Bel these figures are given with the source and the links actually you look at it
See lot now the second scheduled of the citizenship act for a minute but every person who wants to be citizen of India makes an application for registration under Section Five or by naturalization under Section six they cannot become a citizen of our country lot without subscribing an oath
Of Allegiance as prescribed under second second schedule I and this is Section 5 I’m so sorry citizens p schedule to the citizenship acts well yes oath of Allegiance Section 5 and 62 not are application for reg by registration or by natur do hereby Sol affirm or swear that I will be a true
Faith and allegiance to the constitution of India as by law estblished and that I will faithfully and observe the laws of India and fulfill my duties as a citizen of India in contrast would your kindly come to my return submissions notot page 161 of that compilation volume
One what just just just just just a just a minute none of the persons M Lord who are given deem citizenship me Lord subscribe any such oath in fact they born and the subscribing an oath under the constitution of Pakistan which says if can permit me to read par 920 same
Applies to section 6 also same applies to section 6 if you say so yes the same applies to section 6 also any anybody got they have to make an application subscribe both there let them this provision cannot stand scrutin lot at least they have to say you have
To subscribe or to get a citizenship of my country you do not subscribe both and you give citizens to lacks of people by deeming fiction how it will impact the legality of the provision now because Lord because we have a sovereignty of India my lord it’s the basic fun basic feature
Lord of our constitution a person who believes is bound by his by by the Preamble of his parent Constitution which says me Lord sovereignty over the entire universe belongs to Allah alone and the ex and the authority exercisable by the people within the limits prescribed by him in
The secret State trust and whereas the founder of Pakistan K aam Muhammad Ali J expressing the will of the people decare Pakistan should be Sovereign Republic of Islamic State can a person who is subscribing this oath my Lord become an Indian citizen without subscribing an oath of Allegiance under SE under
Schedule two it all depends on what Parliament assumed if Parliament assumed that these people were fleeing their motherland yes for because of the atrocities in the motherland for a variety of reasons the violence the atrocities all all refugees let me let me be very cand all refugees are people become refugees
Because they to flood their their home state nobody wants to leave their home FL for for a good cause for under compelling circumstances right but then the last thing which the refugee wants to do is to still plead allegiance to the motherland because they have been they have left the Mother Land because
Of the conditions of the no that’s what I’m saying no refugees which are three and a half CR globally recognized under the UN figures Lord refugees leave their home without a compulsion everybody anybody who becomes a refugee is under compulsion Lord so can you give a that’s
What I said you can give a right to abot which is a human humanitarian human right we have given vaccines Sri Lanka recent judgment recognizes that India helped them with billions of dollars to to come over the crisis but for that I’ll give that citation to Constitution
Bench of five judges of the Sri Lanka Supreme Court in the Judgment recognized Mot it is but for the help of India during the financial crisis the the sing po would have been much worse all that I’m saying all that I’m saying all that I’m saying individual case if they
Deciding individual can do if this is on a contingency basis the logic which you apply Bas upon what I’m saying if you cannot give it to individual can you give to a lacks of people my Lord citizenship by fiction anybody who I’m so sorry he h look
So my submission is unless you cannot become a citizen you have to subscribe in orop relance which is basic fundamental of we got the point anything else Mr I think you have wrapped up your submission yes I just finish yes as I L this court has struck down various legislations on manifest
Aress I’ll I prepared a just to update it I’ll give all these parts of their compilations starting from the Justice Jud very very not manifest no it is it says what will be the Discrimination of course manifest arbitr with relevant paragraphs and the and the compilation pages I preparing
I’ll just tomorrow morning I’ll give that one two pages where the relevant judgments and with the relevant paragraphs and the relevant compilation page numberers so dual citizenship again those persons who have been given my Lear friend has dealt with it article 9 requires you denounce without denouncing
How can you become they have not given up they don’t they nobody has said give me a citizenship lot May presume that it is presume but It ultimately somebody has to say I don’t want the citizenship of the country I want the citizenship of your country but I cannot get a
Citizenship of anywhere in the world but you can buy Parliament by deing fiction you give a citizenship of person even you don’t want they can go back they they continue to have both way they stay here they canot stay here so they they claim claim citizenship of that Pakistan
Also or now Bangladesh or claim citizen of India malot there can be there can be any such law you can choose citizenship at the same time you have to denounce one and then to get another and finally as I said ifot see Mr Sol doesn’t want but there are Refugee policies of this
Country mot I have given those paragraphs only make a note of this that it has something to do Mr solicitor it has something to do with if you persons who are in India from last 50 years from L Tibetans Etc you have not given citizenship tamils you have not given
Citizenship the RAS you have not given citizenship lot chakas you have not given chakma there are judgments of this court but again against atrocities on them but citizenships are not given meot to the people so country must have a consistent a refugee policy you cannot
Just say people of so far as Assam is concerned no policy matters thank you Mr I’m extremely grateful for such a patient hearing and and I’ll just for this give the CH tomorrow morning if has to something thank you m I’m grateful to Mr would you like to start tomorrow morning
Because now we are almost in the r that know just so that you will only barely open otherwise it will start today start tomorrow so Mr solicor will argue first then then uh after that I’ll make CP will be following and then list after mril I will AR I appear for ASU
Which is respondent number six in the petition whenever I can have five minutes I can sum up my arguments five minutes I would also only be taking if you can all the others apart from the solicitor they’ve already filed submission Mr solic Mr Cil M J Singh the
Others the others if you can just give us a page of this bullet point party in fact the other your submissions are F Shan also Mr Sing also difficulty my friends on this side AG wants to argue after you the Lear AG may take some time not not
Very long time ago he’s out of station he’s coming returning to but you can tomorrow I will start two friends on this side have given submissions I’ll give the page number subm the matter in which Mr has appeared and answer they are on record appr What fail from yours
On expulsion act that is also there my just give us a page tomorrow on the strict scrutiny doct from that’s also covered in my I given the judgments also thank you great please than
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