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.

1. In our order dated 23

rd July, 2019 we had

extracted paragraphs 7 and 8 of the Report of Shri

Prateek Hajela, learned State Coordinator dated 10

th

July, 2019. After setting out the contents of aforesaid

two paragraphs of the Report dated 10

th July, 2019 we

had deemed it appropriate to direct the learned State

Coordinator to issue a public notice to enable all stake-

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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

Report dated 10

th 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

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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

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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.”

2. Pursuant to our aforesaid order dated 23

rd July,

2019, several Interlocutory Applications (I.As) have been

filed contesting the action proposed under paragraph

7(a) of the said Report dated 10

th 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

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India on or after the 26

th day of January, 1950 but

before the 1

st 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

report dated 10

th 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

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2015. Reference to the Constitution Bench was made

by the order of this Court dated 21

st 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)

and (c) of the Report dated 10

th 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

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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

Coordinator in paragraph 7(a) of the Report dated 10

th

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

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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”) whi ch 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

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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

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and the electoral rolls upto the midnight of the 24

th 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

on or before 24

th 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

up to the midnight of 24

th March 1971

(midnight)

3. Land records including tenancy records

of relevant period [upto 24

th March,

1971 (midnight)

4. Citizenship Certificate issued by

competent authority (upto 24

th March,

1971 (midnight)

5. Permanent Residential Certificate

issued from outside the State upto 24

th

March, 1971 (midnight) (which all

should be got verified from the issuing

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authority by the Registering authority)

6. Refugee registration certificate issued

upto 24

th March, 1971 (midnight)

7. Passport issued by the Government of

India upto 24

th March, 1971 (midnight)

8. Life Insurance Corporation of India

Insurance Policy (LICI) of relevant

period upto 24

th March, 1971

(midnight)

9. Any license/certificate issued by any

Government authority of relevant

period i.e. upto 24

th March, 1971

(midnight)

10. Document showing

service/employment under

Government/Public Sector Undertaking

upto 24

th March, 1971 (midnight)

11. Bank/Post Office Accounts of relevant

period i.e. upto 24

th March, 1971

(midnight)

12. Birth certificates issued by the

competent authority upto 24

th March,

1971 (midnight)

13. Educational certificate issued by

Board/Universities upto 24

th March,

1971 (midnight)

14. Records/processes pertaining to court

upto 24

th March, 1971 (midnight)

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Supporting Documents

15. Ration cards issued by competent

authority with official seal and

signature upto 24

th 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

of the 24

th day of March, 1971, as available,

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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 Citiz en

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

24

th day of March, 1971) or in National

Register of Citizens, 1951;

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(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

before the 25

th 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;

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(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

State of Assam up to the midnight of the 24

th

day of March, 1971; or

(b) has shifted from one district to another

within the State of Assam up to the midnight

of the 24

th 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

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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

State of Assam subsequent to 24

th March,

1971 would be eligible for inclusion in the

NRC on adducing satisfactory proof of

residence in any part of the country (outside

Assam) as on 24

th 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

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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

come to the State of Assam before 1

st 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

be citizens of India as on and from 1

st day of January,

1966.

12. Person(s) who had entered Assam between 1

st day

of January, 1966 but before the 25

th day of March 1971

and who has been ordinarily resident in Assam, upon

being detected as a foreigner(s), was/were liable to

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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

from 7

th 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

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either in the National Register of Citizens 1951 or any

of the electoral rolls prepared upto the midnight of the

24

th 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

Citizenship Act, 1955 with effect from 7

th December,

1985.

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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

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published on 31

st 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