Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.274 OF 2009
ASSAM PUBLIC WORKS PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. RESPONDENT(S)
WITH
I.A. NOS.114781, 114788,
114807, 114814, 116964, 117074, 117697 and
117689 of 2019
O R D E R
RANJAN GOGOI, CJI.
rd
1. In our order dated 23 July, 2019 we had
extracted paragraphs 7 and 8 of the Report of Shri
th
Prateek Hajela, learned State Coordinator dated 10
July, 2019. After setting out the contents of aforesaid
th
two paragraphs of the Report dated 10 July, 2019 we
had deemed it appropriate to direct the learned State
Coordinator to issue a public notice to enable all stake-
2
holders to appear before this Court, in a representative
capacity, to contest the prayers made by the learned
State Coordinator in the aforesaid two paragraphs of the
th
Report dated 10 July, 2019, if so desired. The said
two paragraphs read as follows:
“7. Another matter which the undersigned
wishes to bring to the kind attention is about
such cases of descendants of D Voter (DV)/
Declared Foreigner (DF)/Cases Pending at
Foreigners Tribunals/Other Courts (PFT),
whose one parent is DV/DF/PFT but the
parent from whom the legacy is drawn for
inclusion in NRC is not WP(C) 274/2009 4
DV/DF/PFT and is also found eligible for
inclusion in NRC. The Hon’ble Supreme Court
in their order of 2 July 2018 have ordered that
those persons who are DVs or PFTs as well as
their descendants are not to be included in
updated NRC. As descendance can be drawn
from either of the parents, clarification
appears to be required in cases where one of
the parents is clear from all angles (not
DV/DF/PFT and eligible for NRC inclusion)
while the other parent is a DV or DF or PFT.
It also appears that while deciding eligibility
of descendants, provisions of Section 3(1)(b) &
(c) of the Citizenship Act, 1955 may be
important to be taken into account, though
citizenship purely by birth and not by
descendance (Section 3(1)(a) is not eligible for
inclusion in NRC. It is humbly felt that the
sustance of Section 3(1)(b) & (c) is that while
3
determining citizenship of any descendant
born up to 3 December, 2004, citizenship
eligibility of any one of the parents suffices,
while for those descendants born on or after 3
December 2004, citizenship eligibility of both
the parents needs to be taken into account.
From a conjoint reading of Hon’ble Supreme
Court’s order dated 2 July 2018 and the
provisions contained in Section 3(1)(b) & (c) of
the Citizenship Act, 1955, the following
appears to be the best course of action:
a. For any NRC Applications/Claimants, if
parent/legacy person through whom
eligibility is sought to be established is a DV
or DF or PFT, then such persons will not be
included in NRC irrespective of the status of
the other parent.
b. For those persons born before 3 December
2004, if the parent through whom legacy is
drawn is not DV or DF or PFT and is found
eligible for inclusion in NRC, but the other
parent from whom legacy is not drawn is a DV
or DF or PFT, then, such descendants may be
included in NRC.
c. For those persons who are born on or after
3 December 2004, they will not be included in
NRC if any of the parent is DV or DF or PFT
even if the parent from whom legacy is drawn
is clear from all angles.
In this regard, it is submitted that the
aforementioned matter was submitted by the
deponent before the Judges Committee for
opinion but the Committee advised to seek the
4
order of the Hon’ble Court on the matter. As
such the WP(C) 274/2009 5 above is
submitted for kind approval.
8. That the deponent also would like to seek
clarification on the matter of validity of orders
passed under the Illegal Migrants
(Determination by Tribunal) (IMDT) Act. Some
of the applicants have submitted orders
passed under IMDT declaring them as Indian.
This matter was also referred by the deponent
to the Judges Committee, however, the
Committee advised the deponent to seek order
from the Hon’ble Court on the matter. As
such, directions are sought about
acceptability of orders of IMDT, whether
declaring the person to be Indian or Illegal
Migrant.”
rd
2. Pursuant to our aforesaid order dated 23 July,
2019, several Interlocutory Applications (I.As) have been
filed contesting the action proposed under paragraph
th
7(a) of the said Report dated 10 July, 2019 of the
learned State Coordinator primarily on the ground that
the said action runs contrary to the provisions of
Section 3 (1)(a) of the Citizenship Act, 1955 (hereinafter
referred to as “the Act”) which deals with acquisition of
citizenship by birth in the case of every person born in
5
th
India on or after the 26 day of January, 1950 but
st
before the 1 day of July, 1987.
3. The aforesaid objection against the prayer made by
the learned State Coordinator is sought to be fortified by
reference to the following statement contained in the
th
report dated 10 July, 2019.
“It also appears that while deciding
eligibility of descendants, provisions of
Section 3(1)(b) & (c) of the Citizenship
Act, 1955 may be important to be taken
into account, though citizenship purely
by birth and not by descendance
(Section 3(1)(a) is not eligible for
inclusion in NRC.”
[underlining is ours]
4. We have heard the learned counsels for the parties
as well as the learned State Coordinator who is present
in Court in person. The purport and effect of the
provisions of Section 3 (1) (a) and (b) of the Act is
presently pending consideration before a Constitution
Bench of this court in Writ Petition (Civil) No.311 of
6
2015. Reference to the Constitution Bench was made
st
by the order of this Court dated 21 July, 2015 in the
said Writ Petition (Civil) No.311 of 2015. The issue
pending is whether the expression “every person born in
India” would apply only to persons born to Indian
citizens and whether the expression “either of whose
parents is a citizen of India at the time of his birth” in
S.3(1)(b) of the Citizenship Act, 1955 would apply to
only a person who is born to parents one of whom is a
citizen and the other a foreigner, provided he or she has
entered India lawfully and his/her stay in India is not
in contravention of applicable Indian laws.
5. The suggestions/prayers made in paragraph 7(b)
th
and (c) of the Report dated 10 July, 2019 of the learned
State Coordinator are in consonance with the provisions
of Section 3 (1) (b) and (c) of the Act and the Standard
Operating Procedure (SoP) for disposal of claims and
objections. Therefore, we find no reason to refuse leave
7
to the learned State Coordinator to act in terms of the
action proposed in the said suggestions/prayers made
in Paragraph 7(b) and (c) subject to such orders that this
Court may pass in Writ Petition (Civil) No.311 of 2015.
Moreover, as suggested by the learned State
Coordinator, the issue raised could be best decided by
the Tribunal, if so required as and when appeals are
filed.
6. This will bring the Court to a consideration of the
prayers made/suggestions offered by the learned State
th
Coordinator in paragraph 7(a) of the Report dated 10
July, 2019 and the objections raised in this regard to
the effect that the same overlooks the provisions of
Section 3 (1) (a) of the Act.
7. Even though the contours of the provisions of
Sections 3 and also 6A of the Act are pending
consideration by the Constitution Bench of this Court
8
in W.P.(C) No.562 of 2012 and W.P.(C) No.311 of 2015,
and will be governed by such orders as may be passed,
we may, at this stage, take note of the provisions of Rule
4A the Citizenship (Registration of Citizens and Issue of
National Identity Cards) Rules, 2003 (hereinafter
referred to as “2003 Rules”) which are set out
hereunder.
“4A. Special provisions as to National
Register of Indian Citizens in the State
of Assam—
(1) Nothing in rule 4 shall, on and after the
commencement of the Citizenship
(Registration of Citizenship and Issue of
National Identity Cards) Amendment Rules,
2009, apply to the State of Assam.
(2) The Central Government shall, for the
purpose, of the National Register of Indian
Citizens in the State of Assam, cause to
carry out throughout the State of Assam for
preparation of the National Register of
Indian Citizens in the State of Assam by
inviting applications from all the residents,
for collection of specified particulars
relating to each family and individual,
residing in a local area in the State
including the citizenship status based on
the National Register of Citizens 1951, and
the electoral rolls up to the midnight of the
9
24th day of March, 197l.
(3) The Registrar General of Citizens
Registration shall notify the period and
duration of the enumeration in the Official
Gazette.
(4) The manner of preparation of the
National Register of Indian Citizens in the
State of Assam shall be such as specified in
the Schedule appended to these rules.”
8. Rule 4A of the 2003 Rules carves out special
provisions in the matter of preparation of National
Register of Indian Citizens in the State of Assam. The
provisions of Rule 4A are a departure to the provisions
contained in Rule 4 of the 2003 Rules which deals with
preparation of National Register of Indian Citizens in the
rest of the country. Rule 4A(2) specifically provides that
the National Register of Indian Citizens in the State of
Assam shall be prepared by inviting applications from
all the residents calling for specified particulars relating
to each family and individual including the citizenship
status based on the National Register of Citizens 1951
10
th
and the electoral rolls upto the midnight of the 24 day
of March,1971. The aforesaid two documents have been
supplemented by an additional list of documents, any
of which can be utilized by a claimant in support of
his/her claim for inclusion in the NRC that the claimant
or his ancestor had been residing in the State of Assam
th
on or before 24 March, 1971. The particulars of the
documents included are as follows:
“LIST A -LIST OF LEGACY DOCUMENTS
ADMISSIBLE
1. Extract of NRC, 1951
2. Extract/certified copy of Electoral Rolls
th
up to the midnight of 24 March 1971
(midnight)
3. Land records including tenancy records
th
of relevant period [upto 24 March,
1971 (midnight)
4. Citizenship Certificate issued by
th
competent authority (upto 24 March,
1971 (midnight)
5. Permanent Residential Certificate
th
issued from outside the State upto 24
March, 1971 (midnight) (which all
should be got verified from the issuing
11
authority by the Registering authority)
6. Refugee registration certificate issued
th
upto 24 March, 1971 (midnight)
7. Passport issued by the Government of
th
India upto 24 March, 1971 (midnight)
8. Life Insurance Corporation of India
Insurance Policy (LICI) of relevant
th
period upto 24 March, 1971
(midnight)
9. Any license/certificate issued by any
Government authority of relevant
th
period i.e. upto 24 March, 1971
(midnight)
10. Document showing
service/employment under
Government/Public Sector Undertaking
th
upto 24 March, 1971 (midnight)
11. Bank/Post Office Accounts of relevant
th
period i.e. upto 24 March, 1971
(midnight)
12. Birth certificates issued by the
th
competent authority upto 24 March,
1971 (midnight)
13. Educational certificate issued by
th
Board/Universities upto 24 March,
1971 (midnight)
14. Records/processes pertaining to court
th
upto 24 March, 1971 (midnight)
12
Supporting Documents
15. Ration cards issued by competent
authority with official seal and
th
signature upto 24 March, 1971
(midnight)
Note: Any of the documents specified in the
above List of Documents would be
accepted except Document mentioned
against Sl. 15 which may be regarded as
supporting document only.”
9. Rule 4A(4) also provides that the manner of
preparation of National Register of Indian Citizens in the
State of Assam will be as laid down in a separate
Schedule appended to the 2003 Rules. Clauses 2 and
3 of the Schedule are extracted below to show that a
specific procedure for entry into the NRC in the State of
Assam is provided for.
“2. Manner of preparation of draft
National Register of Indian Citizen in
State of Assam- (1)(a) The District
Magistrate shall cause to be published the
copies of the National Register of Citizens,
1951 and electoral rolls up to the midnight
th
of the 24 day of March, 1971, as available,
13
in sufficient numbers and publish it and
send the same to the Local Register of
Citizens Registration for wide circulation
and public inspection in each village and
ward.
(b) The Local Registrar of Citizen
Registration shall select centrally located
public place for display of the records and
for issue and receipt of the application
forms.
(c)The Local Registrar of Citizens
Registration shall be the custodian of the
records in the area under his jurisdiction
and shall be responsible for its display
during the office hours.
(2) The Local Registrar of Citizen
Registration shall receive the filled up
application forms, at the same place where
the applications are issued, and issue the
receipt thereof of the applicant.
(3) The Local Registrar of Citizen
Registration, after the receipt of the
application under sub-paragraph (3) shall
scrutinize the applications and after its
verification, prepare a consolidated list
thereof which shall contain the names of the
following persons, namely:--
(a) persons whose names appear in any of
the (electoral rolls up to the midnight of the
th
24 day of March, 1971) or in National
Register of Citizens, 1951;
14
(b) descendants of the persons mentioned
in clause(a) above.”
“3.Scrutiny of applications.-(1) The
scrutiny of applications received under sub-
paragraph (3) of Paragraph 2 shall be made
by comparing the information stated in the
application form with the official records and
the persons, of whom the information is
found in order, shall be eligible for inclusion
of their names in the consolidated list.
(2) The names of persons who have been
declared as illegal migrants or foreigners by
the competent authority shall not be
included in the consolidated list:
Provided that the names of persons who
came in the State of Assam after 1966 and
th
before the 25 March, 1971 and registered
themselves with the Foreigner Registration
Regional Officer and who have not been
declared as illegal migrants or foreigners by
the competent authority shall be eligible to
be included in the consolidated list;
(3) The names of persons who are
originally inhabitants of the State of
Assam and their children and
descendants, who are Citizens of India,
shall be included in the consolidated list
if the Citizenship of such persons is
ascertained beyond reasonable doubt and
to the satisfaction of the registering
authority;
15
(4) The Local Registrar of Citizens
Registration may, in case of any doubt in
respect of parental linkage or any particular
mentioned in the application received under
sub-paragraph (3) of Paragraph 2, refer the
matter to the District Magistrate for
investigation and his decision and Local
Registrar of Citizens Registration shall also
inform the same to the individual or the
family;
(5) The Local Registrar of Citizens
Registration may, in respect of a person
who-
(a) was residing in a place other than the
th
State of Assam up to the midnight of the 24
day of March, 1971; or
(b) has shifted from one district to another
within the State of Assam up to the midnight
th
of the 24 day of March, 1971,
verify information relating to such person
through inter-State correspondence, or, as
the case may be, through inter-district
correspondence.”
10. An extract from the order of this Court dated
21.07.2015 will further clarify the issue with regard to
original inhabitants of Assam as well as citizens who
may have migrated from other parts of the country to
16
Assam after 24.03.1971.
“Insofar as clause 3(3) of the Schedule
appended to the Rules is concerned, we
clarify that the expression “original
inhabitants of the state of Assam” would
include the “Tea Tribes” and the inclusion of
such original inhabitants would be on the
basis of proof to the satisfaction of the
Registering Authority which establishes the
citizenship of such persons beyond
reasonable doubt. Any directions by the
Registrar General of India in this regard
shall also be followed by the Registering
Authority.
Insofar as clause 3(5) of the Schedule to the
Rules is concerned, we clarify that Indian
citizens, including their children and
descendants, who may have moved to the
th
State of Assam subsequent to 24 March,
1971 would be eligible for inclusion in the
NRC on adducing satisfactory proof of
residence in any part of the country (outside
th
Assam) as on 24 March, 1971.”
11. The special provision contained in Rule 4A of the
2003 Rules read with the Schedule framed thereunder,
for preparation of National Register of Indian Citizens in
the State of Assam, had been necessitated on account
of the provisions contained in Section 6A of the Act
17
which are special provisions as to grant citizenship to
persons covered by the Assam Accord. Under Section
6A(2) of the Act, all persons of Indian origin who had
st
come to the State of Assam before 1 day of January,
1966 from the specified territory (defined as territories
included in Bangladesh) immediately before the
commencement of the Citizenship (Amendment) Act,
1985, including such persons whose names were
included in the electoral rolls for purposes of the
General Election to the House of the People held in
1967, and who have been ordinarily resident in Assam
since the dates of their entry into Assam are deemed to
st
be citizens of India as on and from 1 day of January,
1966.
st
12. Person(s) who had entered Assam between 1 day
th
of January, 1966 but before the 25 day of March 1971
and who has been ordinarily resident in Assam, upon
being detected as a foreigner(s), was/were liable to
18
register himself/themselves in accordance with the
Rules made by the Central Government. On such
registration, under Section 6A(4) of the Act, such a
person would have the same rights and obligations as a
Citizen of India; but for a period of ten years he/she
shall not be entitled to have his/her name included in
any electoral roll.
13. Section 6A of the Act which was inserted with effect
th
from 7 December, 1985 by the Citizenship
(Amendment) Act, 1985 (Act No.65 of 1985), thus,
carves out a special category of citizens in the State of
Assam. In view of the special category of citizens so
created a special procedure came to be prescribed by
Rule 4A of the 2003 Rules read with the Schedule
thereto in the matter of preparation of National Register
of Indian Citizens in the State of Assam whereby the
claims of all persons (including persons born in India)
for inclusion in the NRC were to be related to the entries
19
either in the National Register of Citizens 1951 or any
of the electoral rolls prepared upto the midnight of the
th
24 day of March,1971 or on the basis of any of the
additional documents referred to earlier.
14. The above said procedure was necessitated on
account of a large number of persons who acquired
citizenship by virtue of Section 6A of the Act without
being actually born within the territories of India. Yet,
as Section 6A of the Act confers citizenship on such
person(s), a special procedure, indicated above, has to
be devised for inclusion in the NRC in the State of
Assam. This is what was agreed upon under the Assam
Accord which led to the introduction of Section 6A in the
th
Citizenship Act, 1955 with effect from 7 December,
1985.
20
15. The entire NRC exercise having been performed on
the aforesaid basis, the same cannot be now ordered to
be reopened by initiation of a fresh exercise on certain
other parameters that have been suggested on behalf of
the intervenors/applicants on the strength of the
provisions of Section 3(1)(a) of the Act.
16. Insofar as the prayer of the learned State
Coordinator with regard to maintenance of security of
the NRC data is concerned, we direct that an
appropriate regime be enacted on lines similar to the
security regime provided for AADHAR data. Only
thereafter, the list of inclusions and exclusions shall be
made available to the State Government, Central
Government and Registrar General of India. We further
direct that only hard-copies of the supplementary list of
inclusions be published at the NRC Seva Centers, Circle
Offices and Offices of the District Magistrates of the
State. We also direct that the list of exclusions to be
21
st
published on 31 August, 2019 shall be published only
on on-line and shall be family-wise.
17. So far as the validity of orders passed under the
IMDT Act are concerned, we direct that such cases shall
be governed by the decision of the Gauhati High Court
in Anowar Ali v. State of Assam reported in 2014 (3) GLT
500.
18. We make it clear that subject to orders as may be
passed by the Constitution Bench in Writ Petition (C)
No.562 of 2012 and Writ Petition (C) No.311 of 2015,
National Register of Citizens (NRC) will be updated.
………………......................CJI.
[RANJAN GOGOI]
………………......................J.
[ROHINTON FALI NARIMAN]
NEW DELHI
AUGUST 13, 2019