In its counter affidavit filed in the writ petitions challenging CAA, the Central Government has said that the preparation of a national register of citizens is a necessary exercise and that there is a responsibility entrusted on the Central Government to identify/detect illegal migrants.
The identification of illegal migrants in the country, as a principle of governance, is a sovereign, statutory and moral responsibility of the government, the affidavit reads. It further says:
I state and submit that the legal provisions regarding the National Register of Citizens i.e. Section 14A of the 1955 Act have been part of said 1955 Act since December, 2004. It is submitted that said provisions consist merely of the procedure and the authority concerned for the preparation of a national register of citizens. It is submitted that the preparation of a national register of citizens is a necessary exercise for any sovereign country for mere identification of citizens from non-citizens. It is submitted that as per the existing statutory regime, there are three classes of persons residing in India – Citizens, Illegal migrants and foreigners on valid visas. It is therefore, the responsibility entrusted on the Central Government, on a combined reading of the Foreigners Act, The Passport (Entry into India) Act, 1920 and the 1955 Act to identify/detect illegal migrants and thereafter, follow the due process of law.
System of Issuance of Citizenship Cards in Afghanistan, Bangladesh and Pakistan
The Government also stated that the Section 14A and the Rules thereunder broadly govern the process of registration of Indian citizens and issuance of national identity cards to them.
It may not be out of place to mention that as per information available in open sources in many countries, there is a system of maintaining register of their citizens. In fact, national identification cards are issued based upon the exercise of identification of citizens in these countries. In Afghanistan, Bangladesh and Pakistan also there is a system of issuance of such cards.
Unrestricted right to expel foreigners
The Foreigners Act, 1946, the Central Government says, confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains, it said. It also refers to Hans Muller of Nurenburgvs Superintendent, Presidency Jail, Calcutta & ors., AIR 1955 SC 367 which upheld the classifications made therein while examining the scheme, scope and ambit of the legislation and expanse of powers conferred upon the Central Government under the said Act. The Affidavit, in this regard, reads as follows:
It is submitted that in light of clear mandate of the Foreigners Act, 1946 and the 1955 Act, no illegal migrant can crave leave of this Hon'ble Court under Article 32 seeking a right to settle and reside in India or further, make any claim for citizenship. It is submitted that the Central Government has unfettered discretion in matter concerning deportation of illegal migrants whilst following a due process of law. It is further submitted that powers of Central Government to detain & deport an illegal foreigner have been entrusted since 1958 to State Government under Article 258(1) of the Constitution of India. It is submitted that the expanse of Article 21 is extremely wide in India and it cannot be argued that the whole expanse would be available to illegal migrants. It is further submitted that the procedure under the Foreigners Act has been consistently held by this Hon‟ble Court, to be just fair and reasonable. It has further been held that foreigners, especially illegal immigrants, would not be entitled to place a challenge to the provisions of the said Act. It is submitted that therefore, the identification of illegal migrants in the country, as a principle of governance, is a sovereign, statutory and moral responsibility of the government and is in conformity with Article 21.
Read Counter Affidavit