Centre’s order on giving citizenship to refugees separate from CAA, SC told

The Centre has told the Supreme Court that its May 28 order delegating collectors of select districts to grant citizenship to non-Muslims from Afghanistan, Pakistan and Bangladesh is distinct from the Citizenship Amendment Act (CAA) of 2019. While the former is merely a delegation by the Centre to consider applications of foreigners staying legally in India, the latter applies to illegal migrants, the government told the court.

The government was responding to an intervention application filed in the apex court earlier this month by Indian Union Muslim League (IUML), a political outfit that had earlier challenged the CAA. The application, drawn by advocate Haris Beeran, dubbed the May 28 order an "indirect" attempt to secure the purpose sought to be achieved under CAA, and sought a stay on it as it felt the government was trying to "circumvent" the apex court that had refused to stay the 2019 legislation on the Centre's assurance that its rules were yet to be framed.

The affidavit filed by the ministry of home affairs on Monday said, "The delegation of power vide notification dated May 28, 2021, is in respect of those foreign applicants who fulfil the eligibility criteria and who are in possession of valid documents like passports and Indian visa. It is submitted that the same would not be relatable to the legislative steps taken through the CAA which provide for a classification with a rational nexus and intelligible differentia."

The government further explained that the notification does not violate the right to equality of any citizen under Article 14, as a foreigner of any faith having a valid residential permit to stay in India is free to apply for citizenship.

"The existing law and procedure for acquiring citizenship of India is in no way sought to be amended through the impugned notification. It is submitted that any foreigner of any faith can apply for citizenship of India at any time. The central government shall decide that application as per law and rules," the affidavit stated.

On Tuesday, a vacation bench of Justices Hemant Gupta and V Ramasubramanian adjourned the hearing in the matter by two weeks after senior advocate Kapil Sibal appearing for IUML sought time to file a response to the Centre's affidavit. Attorney general K K Venugopal, appearing for the Centre, agreed to the deferment.

The Centre informed the court that the May 2021 notification does not add or modify the eligibility criteria applicable to foreigners and such notifications delegating power to the district collectors have been issued from time to time by the central government in 2004, 2005, 2006, 2016 and 2018.

The government claimed that the order has been issued under Section 16 of the Citizenship Act which allows the government to delegate its powers to grant citizenship by registration or naturalisation to district collectors. It also gave examples of past instances when this was done.

In 2004, an amendment to the Citizenship Rules delegated the power to grant Indian citizenship by registration to Pakistani nationals of Hindu community displaced due to the 1965 and 1971 wars. In 2016, using its power under Section 16 of the Citizenship Act, the Centre delegated district collectors of 16 districts and home secretaries of seven states to process citizenship applications of legal migrants belonging to six specified minority communities of Afghanistan, Pakistan, and Bangladesh — Hindus, Sikhs, Buddhists, Jains, Parsis and Christians — for a period of two years. Later in 2018, this delegation of powers was extended till further orders.

The Centre recently received requests from other states and districts having a sizeable number of such legal migrants staying within their territories. So, it decided to further delegate its power to grant citizenship to eligible categories of foreigners to collectors of 13 districts — four in Gujarat (Morbi, Rajkot, Patan, Vadodara), five in Rajasthan (Jalore, Udaipur, Pali, Barmer, Sirohi), two in Chhattisgarh (Durg, Balodabazar), Faridabad in Haryana, and Jalandhar in Punjab. Additionally, home secretaries of Haryana and Punjab were also given this power.

At present, district collectors of 29 districts can exercise powers of the central government to grant citizenship to six categories of religious groups from Pakistan, Afghanistan and Bangladesh who are eligible under the Citizenship Act and Rules.