Mahua Moitra to Assom Gana Parishad: Who is challenging the citizenship law in the Supreme Court

The President’s ratification of the Citizenship Amendment Bill, 2019, on December 12 triggered a slew of petitions in the Supreme Court less than 12 hours later. By midday, at least a dozen petitions had been filed challenging the constitutional validity of it. Now, five days later, the number of petitions keep rising.  

The matter — almost 60 petitions in all — was heard today by a bench led by Chief Justice of India SA Bobde. This figure may change since the number of petitions being filed for, or against, the Act rises on a daily basis. The bench issued a notice on all pleas, directing the Centre to file their replies by the second week of January. The case will be heard on January 22. 

A notice has also been issued on a plea seeking a stay on the law. Amid a cacophony of voices — advocates representing various petitioners all tried making their case at one go — advocate Ashwini Kumar Upadhyay urged the court to allow the Centre to publish the aims, objectives and benefits of the law in regional language newspapers. 

There is a lot of misinformation about the law, he said. “Especially after my visit to Seelampur,” Upadhyay said. Seelampur, a minority-dominated area in Delhi, has seen wide-spread protests against the law. The top court however has not taken any decision on this issue. 

Even as university students across the country and others opposing the act have taken to the streets, a select few — NGOs, parliamentarians, former bureaucrats, civil rights activists, among others — have chosen the legal route to challenge the law that paves the way for an easier path to citizenship for migrants, except Muslims, from three neighbouring countries. The linking of this act to the National Register of Citizens, that will require a citizen to prove their citizenship, has also raised alarm bells.

The Indian Union of Muslim League along with four Members of Parliament filed the first plea when the CAA was just a Bill. Trinamool Congress MP Mahua Moitra became the first person to challenge the Act, quickly followed by NGOs Rihai Manch and Citizens Against Hate. By 2.45 pm on December 12, there were at least 12 petitions filed with the apex court registry.

Newslaundry profiles some of those who have sought to challenge the Bill in court.

Mahua Moitra

This first-time MP from West Bengal is not afraid to poke a bear — sleeping or otherwise. A former investment banker with JP Morgan Chase, Moitra, 44, returned to the country in 2008 to join politics. Moitra is one of the few politicians who has taken a firm stand against policies she does not believe in.

Earlier this year, Moitra catapulted to fame with her maiden speech in the Monsoon Session of the parliament. Moitra spoke for 10 minutes and even managed to silence “professional hecklers” as she spoke about the seven signs of fascism. Her speech, hailed as “speech of the year” on social media, referred to the increasingly partisan policies backed by the Narendra Modi-led Bharatiya Janata Party.

“We are in the Opposition, so we have to bring up the issues,” Moitra told the BBC a day after her speech. “We have to speak up and we have to point it out. We will speak up on whatever issues there are.” Her speech has garnered more than 400,000 views on YouTube.

Moitra does not shy away from controversies, or mincing her words while expressing her opinion. In January 2015, while debating on a show on Times Now, Moitra showed Arnab Goswami the middle finger when he refused to let her to speak. “Arnab, just keep talking. This is a one-man show, keep talking,” she said while flipping him off.

While debating on the equally contentious Unlawful Activities (Prevention) Amendment Act in the Monsoon Session of the parliament, Moitra questioned why the Opposition was called “Anti-National”.  During the motion of thanks to the President’s address, which she gave with her senior party colleague Derek O’Brien, Moitra warned, “Only if you would open your eyes, you would see that there are signs everywhere, that this country is being torn apart.”

Moitra was the first person to file a petition in the apex court challenging the constitutional validity of the CAA.  Condemning the act, Moitra told ANI that the law “seeks to divide the country”.

“The Act is completely unconstitutional and seeks to divide the country,” she said. “Earlier, the Assam Accord of 1985, which stated that immigrants from 1971 would not be citizens of India, was not based on religions. Around 19 lakh people were identified, out of which 12 lakh were Hindus.”

In her plea, she stated: “By introducing a religion test in India’s citizenship law, the Amendment strikes a body blow to the basic structure of India’s constitution, specifically its non-denominational character; and is manifestly arbitrary, constitutionally immoral, both in letter and in spirit.”  

The petition continued: “The Act does not prescribe any standard principle or norm behind choosing aforesaid three neighbouring countries, whereby it does not extend the benefit to religious minorities belonging to other neighbouring countries such as Sri Lanka, Myanmar, Nepal and Bhutan. The classification of Afghanistan, Pakistan and Bangladesh is not founded on rationale principle to justify a separate special treatment for the religious minorities facing persecution on the basis of religion.”

Moitra has filed at least two other pleas in the apex court. She moved the court on the heels of UIDAI’s plan for a social media surveillance hub and challenged a Home Ministry notification granting sweeping powers to 10 government agencies to tap personal computers. 

On Tuesday, the top court examined a reply filed by UIDAI where it indicated that they had withdrawn any proposal for the proposed social media surveillance hub. 

Derek O’Brien

For those who grew up watching TV shows in the Nineties, Derek O’Brien will always be remembered as the quizmaster of the popular show Bournvita Quiz Contest. However, since 2004, O’Brien has seen a meteoric rise within the Trinamool Congress and became the party’s whip in the Rajya Sabha in 2012. He became the first Anglo-Indian to cast a vote in the presidential elections to vote for the thirteenth President of India.

He was re-nominated as the party whip in 2017, and is slated to hold the post till 2023. 

O’Brien is an active participant in the parliament and has debated on a range of issues, including the abrogation of Article 370 in Jammu and Kashmir, demonetisation, net neutrality, and the NRC. 

Last week, the Rajya Sabha debated the Citizenship Amendment Bill for more than eight hours before it was passed. Speaking on the floor, O’Brien said the Bill was “eerily similar” to citizenship laws the German Nazi party had introduced in 1933.  

In response to Prime Minister Narendra Modi’s statement ahead of tabling the Bill in the Rajya Sabha that it was “historic” and would be “written in golden letters for people who are persecuted on the basis of religion”, O’Brien said: “I read that PM said this will be written in golden letters. I will tell you where it will be written; it will be written on the grave of the father of the nation, but which father of the nation? In Karachi, on Jinnah’s grave.” 

Strongly opposing the bill, he said: “The lie today is ‘Bharat Khatre mein hai (India is in danger)’…This is the fake agenda being pushed in the country today just like it was pushed in Germany decades ago. In 1933, there were concentration camps…we have we have detention camps in 2018…In 1935, there were citizenship laws to protect people with German blood…Today we have a faulty bill that wants to define who true Indian citizens are. 

He continued: “In 1935 you needed an identity to prove your Aryan lineage…you were given something called an ‘ancestor pass’. In 2018 you need a piece of paper to prove you are an Indian citizen. In 1940 there was a plan to deport Jews…called Madagascar Plan…now we have the ‘Maha’ Plan, also called NRC.” 

Like Moitra, O’Brien has also challenged the constitutional validity of the CAA in the apex court.

All Assam Students’ Union

The student’s union from Assam is best known for its six-year agitation, the Assam Movement, against the inclusion of illegal Bangladeshi immigrants in the voter list. The AASU contended that the massive influx of illegal immigrants resulted in a demographical change in the state and threatened the existence of the indigenous people of Assam.

In 1985, AASU leaders signed the historic Assam Accord with the central government. The Accord allowed citizenship to those who came from East Pakistan in the intervening years of 1951-1971. The Accord further stated that while citizenship was doled out to the immigrants, constitutional protection would be extended to the original inhabitants of Assam.

On Sunday, the AASU indicated that it would float its own political party. The announcement was made at a cultural programme organised by singer-actor Zubeen Garg in the state’s capital. AASU president Dipanka Kumar Nath informed the 15,000-strong crowd that they were thinking of fighting the CAA through a political route.

 “We are in talks with artistes and people for an alternative. We will remain apolitical but if necessary, we will go for political means by taking the permission of the people,” Nath said. “We have to overthrow the ruling dispensation. If speaking about our love for the mother is a crime, we are ready to commit such crimes again and again. We are at a critical stage. Since yesterday, chief minister Sarbananda Sonowal has started saying ‘Joi Aai Axom’ rather than his usual ‘Bharat Mata ki Jai’. He has no moral right to say so.”

A day later, AASU kicked off a three-day peaceful rally against the CAA. The rally began at the Latashil playground and continued onto Meghdoot Bhawan from where thousands of protesters were detained and later released. .

The AASU was also one of the key petitioners in the top court for the effective implementation of the NRC which was conducted in the state. The final list of the NRC was released on July 31 and excluded around 19 lakh people. In August, the AASU said it would challenge this list.

The organisation has filed a petition in the top court challenging the CAA. In its plea, it states that the amended law violates the Assam Accord. Speaking to PTI, chief advisor Samujjal Bhattacharya said: “Our stand is clear. We will not accept, never accept the new law. The MPs have voted in favour of the bill but people of Assam have rejected it through a mass movement.”

In its petition, AASU, through its general secretary Lurinjyoti Gogoi, said the petition was being filed in “their personal as well as representative capacity for a large number of people living in Assam who have suffered and are still suffering the consequences of illegal immigration of Bangladeshi citizens in Assam…”

The petition read: “Sections 2, 3, 5 and 6 of the impugned Act are in violation of the non-religious and secular fabric of the Constitution of India which is contained in the Preamble to the Constitution, as well as in Articles 15 and 25 to 27 of the Constitution of India. It is further submitted that a discrimination based on religion is not permissible.”

Asaduddin Owaisi

Owaisi leads the All India Majlis-e-Ittehadul Muslimeen and represents the constituency of Hyderabad in the Lok Sabha.

Hailing from a family of politicians, Owaisi has often courted controversy for his remarks on Islam and his views on Dalits. “Every child is born a Muslim. His parents and society convert him to other religions,” Owaisi had said in 2015 on the eve of Eid Milad Un-Nabi. His remark was a counter to statements from Hindu organisations that claimed all Indians had Hindu ancestors.

Earlier this year, Owaisi hit back at Union Minister of State for Home, G Kishan Reddy, for the latter’s comment linking terrorism to Hyderabad. Reddy reportedly said that Hyderabad is a safe zone for terror. Owaisi retorted, “I’d like to ask him that in the last five years, how many times have NIA, IB and RAW given in writing that Hyderabad is a safe zone for terror? It is unfortunate the he is saying such things.” 

During the Winter Session of the parliament, Owaisi tore up a copy of the Citizenship (Amendment) Bill in protest, saying the Bill was trying to divide the country. He linked this to Mahatma Gandhi opposing the British administration issuing registration certificates to Indians in South Africa.

“You know, madam, how Mahatma Gandhi became Mahatma? He tore the national register card in South Africa,” Owaisi addressed the chair. “Since Mahatma tore that card, I am tearing this as it tries to divide the country.” He said the government “is hatching a conspiracy” and he opposed the Centre’s move on the grounds that by the Bill and the NRC would make Muslims “stateless”. 

He added: “I oppose this Bill as it is against the Constitution and an insult to our freedom fighters.”

Owaisi’s petition in the Supreme Court said the impugned provisions of the amended Bill offend the principle of “constitutional morality”. Owaisi has challenged several notifications issued by the Home Ministry amending the Passport Rules, the Foreigners Order, and protection extended to Afghan nationals.

His petition said: “In these times of absolute majorities in Parliament, this Court, as the sentinel of our Constitution, has a burden higher than ever before to satisfy its conscience that the impugned actions of the government and of Parliament are in keeping with this ‘guiding spirit’ and ‘soul’ of our Constitution embodied by the principle of constitutional morality.”

Assom Gana Parishad

The Assom Gana Parishad is a regional party formed by AASU leaders who successfully signed the Assam Accord in 1985. The AGP’s success and popularity led to Prafulla Kumar Mahanta, the leader of the Assam Movement, being elected as the youngest chief minister of the state in 1985.  

The party went through several splits and mergers since its inception. Once a force in the region with a strong presence at the Centre, the AGP now seems sidelined. Sarbananda Sonowal, the current chief minister of Assam, was once a firebrand leader associated with the AGP. 

However, in 2011, Sonowal broke away. He resigned from all posts due to his dissatisfaction with the senior leadership and their attempts at forging political alliances with those opposing the scrapping of the controversial Illegal Migrants (Determination by Tribunal) Act. While resigning, Sonawal said: “The AGP was born out the illegal foreigners’ issue after the six-year-long Assam agitation; 855 people laid down their lives in the agitation.” He then joined the BJP.

The AGP, a BJP ally at the Centre, was one of the key supporters of the Citizenship Amendment Bill in the parliament. Birendra Prasad Baishya, an AGP member in the upper house, even voted in favour of the legislation.

Party chief Atul Bora said if the Centre wanted to bring this law, nobody could do anything about it. To this, Mahanta, who staunchly opposes the Act, claimed the party did not formally decide on this issue and Bora had voiced his personal opinions.

The passage of the Bill has seen some particularly violent protests in the state and surrounding region. Though petitions have been filed by people and organisations from across the country, there is a strong representation from West Bengal and Assam. Noting the sense and mood of the state and its people, the AGP has now decided to challenge the bill in the top court.  

Party leader Kumar Deepak Das told PTI: “We will take the legal route to seek revocation of the amended Act as the indigenous people of Assam are apprehensive that their identity, language might come under threat.” 

There is disquiet among the party leadership over differences on the passage of the Bill. Many low-level leaders have resigned en masse over the issue.

Kamal Haasan

In Tamil Nadu, the Makkal Needhi Maiam, a political party started by Tamil superstar Kamal Haasan, has joined the fray to oppose the citizenship law.

Haasan has been associated with the film industry for almost 60 years. Considering he is 65 years old now, that’s all his life. Padma Bhushan, National Awards, Filmfare awards — Haasan has won them all.

On joining politics, Haasan had said: “I will choose when the time comes, which one will be good for the country and I will not be alone. I am a billion – that is my strength. That is how I want every Indian to feel, that you are choosing civil servants, not your leaders.”

Haasan founded the Makkal Needhi Maiam in 2018. Haasan refused to align with other parties during the party’s poll debut in 2019 election. While he didn’t contest himself, the party emerged third in at least 11 out of the 36 parliamentary constituencies it contested in Tamil Nadu.

Haasan is one of the 60 petitioners challenging the CAA. In his plea, Haasan submitted, “…the classification based on the religious identity of the individual offends the fundamental principle of ‘secularism’, which is enshrined as basic structure of the Constitution of India.”

The petition said: “The classification of the illegal migrants who are entitled to naturalization as per the Act is also selective and arbitrary as it is restricted only to migrants into India on account of religious persecution from three countries, viz; Pakistan, Bangladesh and Afghanistan for which there is no basis and also excludes refugees from other countries such as Sri Lanka, Myanmar, etc.”

Other oppositions

Deb Mukherjee, the former Indian ambassador to Nepal and the former Indian high commissioner to Bangladesh, challenged the citizenship law in the Supreme Court, along with two retired IAS officers. They contended that the law “violates every known principle of equality and equal treatment” and “damages and destroys the Constitution’s basic feature of secularism”.

The petition said: “The impugned act states that refugees and asylum seekers belonging to the right religion (Hindu, Sikh, Jain, Christian, Parsi and Buddhist) and the right country of origin (Pakistan, Afghanistan and Bangladesh) will be granted amnesty from prosecution as illegal migrants, and set on the fast track to citizenship.

“It is respectfully submitted that this constitutes invidious discrimination and an indefensible denial of equal respect and concern. The impugned act violates every known principle of equality and equal treatment, ‘damages and destroys’ the Indian Constitution’s basic feature of secularism, and ought to be struck down as unconstitutional.”

The petition continued: “In 1947, this nation was founded on certain inalienable truths. Chief among them was that the land of India had always been — and would always be — home to all faiths, welcoming diversity and pluralism and excluding none.

“India was founded on the idea of ‘civic nationalism’ — that allegiance to the Constitution and its values was what it meant to be ‘Indian’ — and the rejection of the ‘two-nation theory’ that triggered Partition. The impugned act rends these foundational principles as it places some faiths and religions as implicitly more worthy of protection than others.”  

Civil rights activists Harsh Mander, Aruna Roy, Nikhil Dey, Irfaan Habib and Prabhat Patnaik also filed a joint petition in the Supreme Court. 

Others opposing the Bill include NGOs Rihai Manch and United Against Hate, political party Dravida Munnetra Kazhagam, the Democratic Youth Federation of India, and politicians Jairam Ramesh and Debabrata Saikia.  

International concerns

The passage of the Bill and subsequent ratification of the Act received international condemnation as well. 

On December 9, three days before President Ram Nath Kovind gave his assent to the legislation, the United States Commission on International Religious Freedom issued a statement saying the Bill was a “dangerous turn in the wrong direction”. The federal commission has threatened American sanctions against Home Minister Amit Shah.

The statement said: “If the CAB passes in both houses of parliament, the United States government should consider sanctions against the Home Minister and other principal leadership.”

The commission said the Bill “enshrines a pathway to citizenship for immigrants that specifically excludes Muslims, setting a legal criterion for citizenship based on religion”. It continued: “The CAB is a dangerous turn in the wrong direction; it runs counter to India’s rich history of secular pluralism and the Indian Constitution, which guarantees equality before the law regardless of faith. In conjunction with the ongoing National Register of Citizens (NRC) process in Assam and nationwide NRC that the Home Minister seeks to propose, USCIRF fears that the Indian government is creating a religious test for Indian citizenship that would strip citizenship from millions of Muslims.”

Jeremy Laurence, a spokesperson with the Office of the UN High Commissioner for Human Rights, said the Act is “fundamentally discriminatory”. At a press briefing in Geneva, Laurence said: “The amended law would appear to undermine the commitment to equality before the law enshrined in India’s constitution and India’s obligations under the International Covenant on Civil and Political Rights and the Convention for the Elimination of Racial Discrimination, to which Indian is a State party, which prohibit discrimination based on racial, ethnic or religious grounds.  Although India’s broader naturalization laws remain in place, these amendments will have a discriminatory effect on people’s access to nationality.”