The Great Indian Citizenship Mess

The Supreme Court is largely responsible for the chaos around the CAA and the NRC

- Faizan Mustafa & Aymen Mohammad

On January 22, the Supreme Court will hear 60-plus petitions challenging the constitutionality of the Citizenship (Amendment) Act (CAA). As a matter of fact, it is the apex court that is largely responsible for the current mess. Its Sarbananda Sonowal judgment (2005), which struck down the Assam-specific Illegal Migrants (Determination by Tribunal) Act (IMDT), was the turning point of the debate on ‘illegal migrants’. Some observations made in the ruling bordered on the xenophobic and were filled with paranoia about ‘outsiders’. Now, some of these ‘outsiders’ will become beneficiaries if the court does not rule against the CAA.

In the Sonowal judgment (2005), the Supreme Court struck down the Assam-specific Act that had put the burden of proof on the state rather than on the person alleged to be a foreigner. Without providing any evidence, the court went on to say that “unabated influx of illegal migrants from Bangladesh into Assam [had] led to a perceptible change in the demographic pattern of the State and reduced the Assamese people to a minority in their own State.” The National Register of Citizens (NRC), monitored by the Supreme Court itself, has proved these fears to be exaggerated. Even if all the 19 lakh excluded people are considered ‘illegal migrants’, their composition as a proportion of Assam’s population is just 4%.

CAA is territory-specific

The CAA, just like the IMDT that was deemed unconstitutional by the Supreme Court, is territory-specific and exempts certain Northeastern States from its scope. The IMDT had created a separate regime for the determination of citizenship for Assam while a different regime would operate for the rest of India. The court in the