# Rajat Gangwar v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 87
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-06
- **Case number:** PIL No. 2497 of 2019
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajat-gangwar-v-state-of-u-p-ors-45321
- **Pages:** 15

## Headnote

88 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Sri Nimai Das

A. Constitution of India - Entry 17, list I
Schedule VII - Citizenship Act, 1955 -
Citizenship Amendment Act, 2019 - Power to
make law - The statement of object and
reasons for CAA, 2019 provides that in order to
give protection to the persecuted members of
certain minority communities in the three
countries, namely, Pakistan, Bangladesh and
Afghanistan, amendments have been made in
Act, 1955 vide it - Entry 17, list I Schedule VII
of Constitution provides subject of 'Citizenship,
naturalisation and aliens' - Thus, power to
make law in respect of citizenship is within the
ambit of Parliament (Para 22 and 37)

B. Constitution of India - Article 19 -
Right of peaceful protest and assembly -
Voice
of
dissent
-
Limitation
and
Restriction - Fundamental right of speech
and includes right of assembly or right of
taking peaceful procession - A voice of
dissent is fundamental in a democracy -
Persons taking out processions are also
under an obligation to take care that their
exercise of fundamental right does not
infringe fundamental rights of others as
both have to be maintained and enjoyed
simultaneously - Fundamental right of an
individual or group of individuals cannot
override similar fundamental rights of
others, who are similarly situated, though
not
participants
of
such
protest
or
procession. (Para 42)

C. Constitution of India - Article 226 -
Guidelines issuing power - Exercise - In
the presence of enough provision under
the
statute,
the
power
of
issuing
Guidelines for taking out procession etc.
cannot be exercised. (43)

Writ Petition dismissed. (E-1)

List of cases cited :-

## Text

_Characters 0–39,860 of 49,170. This is a partial read: ask again with offset=39860 for what follows._

2 All. Rajat Gangwar Vs. State of U.P. & Ors.
87
 appearance envisaged therein can either
be by personal attendance of the accused
or through his advocate. This can be
understood from Section 205(1) of the
Code which says that:

"205. (1) Whenever a Magistrate
issues a summons, he may, if he sees
reason so to do, dispense with the
personal attendance of the accused and
permit him to appear by his pleader."

17. Thus, in appropriate cases
the Magistrate can allow an accused to
make even the first appearance through a
counsel. The Magistrate is empowered to
record the plea of the accused even when
his counsel makes such plea on behalf of
the accused in a case where the personal
appearance of the accused is dispensed
with. Section 317 of the Code has to be
viewed in the above perspective as it
empowers the court to dispense with the
personal attendance
of
the
accused
(provided he is represented by a counsel in
that case) even for proceeding with the
further steps in the case. However, one
precaution which the court should take in
such a situation is that the said benefit
need be granted only to an accused who
gives an undertaking to the satisfaction of
the court that he would not dispute his
identity as the particular accused in the
case, and that a counsel on his behalf
would be present in court and that he has
no objection in taking evidence in his
absence. This precaution is necessary for
the further progress of the proceedings
including examination of the witnesses.

18. A question could legitimately
be asked -- what might happen if the
counsel engaged by the accused (whose
personal appearance is dispensed with)
does not appear or that the counsel does
not cooperate in proceeding with the case?
We may point out that the legislature has
taken care of such eventualities. Section
205(2) says that the Magistrate can in his
discretion direct the personal attendance
of the accused at any stage of the
proceedings. The last limb of Section
317(1) confers a discretion on the
Magistrate
to
direct
the
personal
attendance
of
the
accused
at
any
subsequent stage of the proceedings. He
can even resort to other steps for
enforcing such attendance."

14. Thus, it is found that the
Examination in Chief of PW1 was
recorded in absence of the applicant as
well as his counsel. Therefore, the order
dated 06.11.2019 passed by the Special
Judge P.C. Act-VII, Lucknow in Case
No.1302 of 2018 arising out of Case
Crime No. 240 of 2018, under Sections
7/13(1)(d), r/w 13(2) of P.C. Act is hereby
set aside.

15. The trial court is directed to
recall PW1 and record his Examination-inChief in accordance with the observation
mentioned here and above and also
proceed strictly, in accordance with law.
----------
(2020)02ILR A87
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.12.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

PIL No. 2497 of 2019

Rajat Gangwar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kunal Shah, Sri Abhinav Bhattacharya

Counsel for the Respondents:
88 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Sri Nimai Das

A. Constitution of India - Entry 17, list I
Schedule VII - Citizenship Act, 1955 -
Citizenship Amendment Act, 2019 - Power to
make law - The statement of object and
reasons for CAA, 2019 provides that in order to
give protection to the persecuted members of
certain minority communities in the three
countries, namely, Pakistan, Bangladesh and
Afghanistan, amendments have been made in
Act, 1955 vide it - Entry 17, list I Schedule VII
of Constitution provides subject of 'Citizenship,
naturalisation and aliens' - Thus, power to
make law in respect of citizenship is within the
ambit of Parliament (Para 22 and 37)

B. Constitution of India - Article 19 -
Right of peaceful protest and assembly -
Voice
of
dissent
-
Limitation
and
Restriction - Fundamental right of speech
and includes right of assembly or right of
taking peaceful procession - A voice of
dissent is fundamental in a democracy -
Persons taking out processions are also
under an obligation to take care that their
exercise of fundamental right does not
infringe fundamental rights of others as
both have to be maintained and enjoyed
simultaneously - Fundamental right of an
individual or group of individuals cannot
override similar fundamental rights of
others, who are similarly situated, though
not
participants
of
such
protest
or
procession. (Para 42)

C. Constitution of India - Article 226 -
Guidelines issuing power - Exercise - In
the presence of enough provision under
the
statute,
the
power
of
issuing
Guidelines for taking out procession etc.
cannot be exercised. (43)

Writ Petition dismissed. (E-1)

List of cases cited :-

1. In Re: Destruction of Public and Private Properties
vs. State of Andhra Pradesh and others, 2009(5)
SCC 212

2. Mazdoor Kisan Shakti Sangathan vs. The Union of
India (UOI) and Ors., AIR 2018 SC 3476

3. Kodungallur Film Society and Ors. vs. Union of
India (UOI) and Ors., 2018(10) SCC 713.

4. Ramlila Maidan Incident vs. Home Secretary,
Union of India (UOI) and Ors., 2012(5) SCC 1

5. Writ Petition No. 36634 of 2019, Varaaki vs. Chief
Secretary Tamil Nadu, decided on 22.12.2019

6. Mohammad Shujauddin vs. State of U.P. and
others, 2011(1) ADJ 63

7. State of U.P. and others vs. Shah Mohammed and
others, (1969) 1 SCC 771

8. Izhar Ahmad Khan vs. Union of India, 1962 AIR
1052

9. Joginder Kumar vs. State of U.P. and others
1994(4) SCC 260

(Delivered by Hon'ble Sudhir Agarwal, J.
& Hon'ble Rajeev Misra, J.)

1. Heard Sri Kunal Shah and Sri
Abhinav Bhattacharya, Advocates for
petitioner and Sri Nimai Das, learned
Additional Chief Standing Counsel
assisted by Sri B.P. Singh Kachhawah,
Standing Counsel for respondents.

2. Petitioner-Rajat Gangwar, has
filed this writ petition claiming himself
to be an Advocate registered with U.P.
Bar Council, Enrollment No. U.P. (G)
6734/2014 and Advocate on Roll No.
1494/2016, practicing with Sri Mohd.
Arif Khan, Senior Advocate and Sri
Amrendra Nath Tripathi, Advocate, at
Lucknow.

3. The writ petition has been filed as
Public Interest Litigation (hereinafter
referred to as 'PIL') with following prayer:
2 All. Rajat Gangwar Vs. State of U.P. & Ors.
89

"(a) Issue a writ, order or
direction in the nature of a mandamus
directing the Respondents to formulate
guidelines for grant of permission of
peaceful demonstrations after taking into
consideration the competing interests of
various stake holders.

(b) Issue a suitable order for
setting up of Claims Commissioner in
the light of the guidelines stipulated by
the
Hon'ble
Supreme
Court
in
Destruction of Public and Private
Properties v. State of A.P. and Others
(2009) 5 SCC 212.

(c) Issue a writ, order or
direction in the nature of a mandamus
directing the Respondents to upload
information on accessible electronic
database with respect to detainees who
have been arrested in the aftermath of
the protests that ensued in the State of
Uttar Pradesh after the enactment of
Citizenship
Amendment
Act,
2019,
status
reports
of
the
investigation/trials
and
provide
visitation rights to their lawyers and
friends, as per law.

(d) Issue any other suitable
writ, order or direction, which this
Hon'ble Court may deem fit and proper
in the facts and circumstances of the
case;

4. Petitioner claims to espouse the
cause of residents of State of U.P.
including peaceful protesters, persons who
have suffered loss of property and life due
to protests, turning violent, and injured
police personnel of State of U.P. Petitioner
also
seeks
enforcement
of
various
guidelines laid down by Supreme Court in
In Re: Destruction of Public and Private
Properties vs. State of Andhra Pradesh
and others, 2009(5) SCC 212; Mazdoor
Kisan Shakti Sangathan vs. The Union
of India (UOI) and Ors., AIR 2018 SC
3476; and, Kodungallur Film Society
and Ors. vs. Union of India (UOI) and
Ors., 2018(10) SCC 713.

5. Brief facts stated in the writ
petition
are
that,
on
19.07.2016
Citizenship (Amendment) Bill, 2016 was
introduced
in
Lok
Sabha
and
on
12.08.2016 it was referred to Joint
Parliamentary Committee. It was passed
by Lok Sabha on 08.01.2019 but due to
dissolution of Lok Sabha, Bill lapsed.
Later on Citizenship (Amendment) Bill
2019 was introduced on 09.12.2019 in
17th Lok Sabha and passed on 10.12.2019.
On 11.12.2019 Rajya Sabha also passed
Bill. It received assent of President of
India
on
12.12.2012
and
became
Citizenship
(Amendment)
Act,
2019
(hereinafter referred to as "CAA, 2019").
It is also stated in Para 15 of writ petition
that vires of CAA, 2019 has been
challenged before Supreme Court by filing
writ
petitions
under
Article
32
of
Constitution of India. On 18.12.2019
Supreme Court issued notices and has
fixed 22.01.2020 for hearing. In the
meantime several protests ensued across
the country which included protests held at
Jamia Millia Islamia University, Delhi
(hereinafter referred to as 'JMIU') and
Aligarh
Muslim
University,
Aligarh
(hereinafter referred to as 'AMU'). In State
of U.P. also similar protests ensued at
Lucknow on 19.12.2019 which turned
violent resulting in damage to public
property as also loss of life and injuries to
several persons. Print and Electronic
Media have reported information of
spreading of similar protests which turned
violent in different cities of State of U.P.,
i.e.,
Aligarh,
Meerut,
Muzaffarnagar,
Bijnor, Bulandshahr, Kanpur, Rampur,
Gorakhpur and Varanasi, wherein about 17
90 INDIAN LAW REPORTS ALLAHABAD SERIES
persons lost their life, to the best
knowledge of petitioner. Police outpost
and several private and government
movable and immovable properties were
vandalized and set ablaze. At some places
stone pelting and firing by belligerent
protesters
also
took
place.
District
authorities imposed restrictions under
Section 144 Cr.P.C. but violating the same
various protests which turned violent were
raised. Protests continued at different
places in State of U.P. As per newspaper
report the restrictions under Section 144
Cr.P.C. imposed on 20.12.2019 have been
extended upto 31.01.2020. Chief Minister
is also reported to have stated that no
permission
was
granted
by
State
authorities to anyone to observe protest
amidst operation of restriction under
Section 144 Cr.P.C. Similar statement was
made by Director General of Police, State
of U.P. (hereinafter referred to as
'DGPUP'). It is further stated that though
petitioner
does
not
dispute
that
requirement
of
prior
permission
to
exercise fundamental rights of peaceful
protests and peaceful assembly guaranteed
under Article 19(1)(a) and 19(1)(b) of
Constitution of India is valid restriction,
but respondents-authorities under the garb
of restrictive orders, passed under Section
144 of Cr.P.C., cannot scuttle, efface or
throttle fundamental rights of peaceful
protesters and demonstrators. Their exists
a duty on the part of State to balance
competing interest i.e. rights under Article
19(1)(a) and 19(1)(b) of citizens vis-a-vis
duty of State to maintain law and public
order. It is to be undertaken in the manner
as stated by Supreme Court in Para 29 of
the
judgments
in
Ramlila
Maidan
Incident vs. Home Secretary, Union of
India (UOI) and Ors., 2012(5) SCC 1; In
Re: Destruction of Public and Private
Properties vs. State of Andhra Pradesh
(supra);
Mazdoor
Kisan
Shakti
Sangathan vs. The Union of India
(supra); and, Kodungallur Film Society
and Ors. vs. Union of India (supra).
State is under a dual obligation to bolster
and foster fundamental rights of citizens
under Article 19 of Constitution. At the
same time, it is under an obligation to
ensure public order, tranquility and social
order. Rights of citizens can be regulated
with reasonable restrictions but cannot be
prohibited altogether. However, State has
failed in its obligation to secure law and
order and protect fundamental rights of
citizens inasmuch as State Government did
not conceive of any guidelines qua
granting/refusal of permission in the wake
of operation of orders under Section 144
Cr.P.C. State has failed to conceptualize
guidelines for granting permission and
regulating protesters. It is imperative upon
State, as a part of regulative measures, to
demarcate area, time slot of protest,
identification
etc.
of
protesters
and
credentials thereof, before grant of any
permission
for
observing
protests,
processions etc. State is also under
obligation to deploy adequate security
forces, provide medical facilities, drone
photography/videography, availability of
fire brigades etc. It is also obligatory to
deploy requisite strength of water cannons
to ensure peaceful procession and to
overcome any untoward incident.

6. Some directions were issued in
similar matter by a Division Bench of
Madras High Court in Writ Petition No.
36634 of 2019, Varaaki vs. Chief
Secretary Tamil Nadu, decided on
22.12.2019 and the same are relied in para
37 of the writ petition.

7. It is pleaded by petitioner in para
39 onwards that State of U.P. is engulfed
2 All. Rajat Gangwar Vs. State of U.P. & Ors.
91
in a very sorry state of affairs. There have
been widespread destruction of public and
private properties. The incident of violence
has continued unabated for the past a few
days and have gripped various cities of
State of U.P. The said demonstrations/
protests have thrown public and private
life and property in jeopardy. News of
violence is continuing with each passing
hour. Several police personnel, innocent
citizens and protesters have sustained
injuries. Some have lost lives. Public and
private property have also been damaged
by certain miscreants and anti-social
elements. The miscreants have sabotaged
peaceful protests and hindering the right of
free speech of innocent citizens. They
have also committed criminal acts qua
private and public properties. It is
imperative upon Government to assess
damages caused to public and private
property,
by
appointing
a
Claims
Commissioner and thereafter to make
investigation into the liability. Print and
Electronic
Media
report
shows
that
respondents have started identification of
miscreants and to recover loss of public
and private property, fixing liability and
recovering
the
amount of
damages.
However, a road map or procedure qua
assessment of damages has to be prepared
in the light of guidelines laid down by
Supreme Court in In Re: Destruction of
Public and Private Properties vs. State
of Andhra Pradesh (supra).

8. Petitioner has also stated in Para
46
that
respondents
must
upload
information
on
accessible
electronic
database with respect to the detainees and
provide visitation rights to their lawyers,
family members and friends, as per law.
Respondents-authorities after the protest
turned violent instead of devising a
mechanism and participating with persons
organising protests, have started a massive
unprecedented crackdown on activists and
other persons, arresting and detaining
several of them. A number of activists
including lawyers have also been detained
by respondents.

9. Petitioner claims to have received
telephonic
calls
in
the
evening
of
21.12.2019, stating that some activists of
Peoples
Union
for
Civil
Liberties
(hereinafter referred to as 'PUCL') have
been arrested and detained in Lucknow
and Muzaffarnagar.

10. One Mohd. Shoaib, Advocate
was detained in Lucknow by respondents
and his whereabouts were not known to
his kith and kin, resulting into filing of
Habeas Corpus Writ Petition No. 36848 of
2019 before Lucknow Bench of this Court,
wherein
an
order
was
passed
on
21.12.2019 (copy of the said order has
been placed on record as Annexure 9 to
the writ petition). In Para 51 of the writ
petition, it is stated that petitioner has
received information from colleagues and
other persons that various persons detained
are facing similar predicaments and their
whereabouts are not known to their kiths
and kins. In this regard, a reference is
made to the cases of Shamim Ahmad,
Shavez Ahmad, Abdul Haffez and Ibad
Ahmad, whose whereabouts have not been
communicated to their kiths and kins and
in this regard, a letter dated nil (Annexure
10 to the writ petition) has been submitted
by one Raees Jahan, wife of Irshad Ahmad
to the District Magistrate, Lucknow. In
this backdrop, it has been prayed that
directions be issued as prayed in the writ
petition, which we have quoted above.

11. Learned counsel for petitioner
contended that peaceful protest and
92 INDIAN LAW REPORTS ALLAHABAD SERIES
assembly is a part of fundamental right of
speech and movement. Though reasonable
restrictions
may
be
imposed
but
fundamental rights of protest and assembly
or raising voice of dissent cannot be
prohibited in an arbitrary manner. In the
garb of taking action against protest
march,
which
turned
violent,
State
authorities
cannot
penalize
innocent
protesters, ignoring the fact that violent
activities have been dominated by some
miscreants and anti-social elements who
have intruded the peaceful protests.
Instead of identifying those miscreants and
anti-social elements, State is illegally
arresting and detaining innocent people,
attaching
their
properties,
denying
information, which they, under law, are
bound to disclose, to their kith and kin. A
large number of residents of State of U.P.
are being denied their fundamental rights
of free movement etc. at the pretext of
arrest and detention. He further submitted
that various guidelines and preventive
actions which State authorities are obliged
to observe in such circumstances as laid
down by Supreme Court in various
authorities are being ignored and blatantly,
being violated. Since the number of such
persons is so much that everyone cannot
approach this Court, hence, this writ
petition for protection of their rights in the
hands of arbitrary and illegal action of the
respondents.

12. Shri Nimai Das, learned
Additional
Chief
Standing
Counsel
(hereinafter
referred
to
as
'ACSC')
assisted by Shri B.P. Singh Kachhawah,
Standing
Counsel,
after
receiving
instructions,
has
stated
that
as
on
25.12.2019 in all, 1022 persons have been
arrested at different places and details
thereof are as under :-

Sl.No.
District
Number of persons
arrested
1.
Meerut
13
2.
Ghaziabad
62
3.
Muzaffarnagar
1
4.
Bareilly
63
5.
Pilibhit
10
6.
Amroha
10
7.
Bijnor
236
8.
Moradabad
2
9.
Rampur
50
10.
Sambhal
45
11.
Firozabad
24
12.
Aligarh
26
13.
Hathras
2
14.
Kanpur Nagar
24
15.
Fatehgarh
7
16.
Jhansi
4
17.
Lucknow
170
18.
Raebareilly
2
19.
Sitapur
19
20.
Ambedkarnagar
6
21.
Fatehpur
1
22.
Pratapgarh
5
23.
Hamirpur
8
24.
Deoria
17
25.
Gorakhpur
5
26.
Kushinagar
23
27.
Sant Kabir
Nagar
1
28.
Gonda
1
29.
Bahraich
66
30.
Varanasi
68
31.
Jaunpur
3
32.
Azamgarh
13
33.
Mau
20
34.
Bhadohi
15

Total
1022
2 All. Rajat Gangwar Vs. State of U.P. & Ors.
93

13. He has also placed before us a
copy of letter dated 26.12.2019 sent by the
Additional
Chief
Secretary
(Home)
(hereinafter referred to as 'Add. CS
(Home)') to the District Magistrates of
Lucknow, Meerut, Hapur, Saharanpur,
Rampur,
Firozabad,
Kanpur
Nagar,
Muzaffarnagar, Mau, Aligarh, Gorakhpur
and Bulandshahar, directing them to make
assessment of loss of public and private
property and take action for recovery of
damages
from
responsible
protesters
causing such damage, in accordance with
Government Order dated 27.04.2011,
which was issued pursuant to Supreme
Court's judgment in In Re: Destruction of
Public and Private Properties vs. State
of Andhra Pradesh (supra) and this
Court's
judgment
in
Mohammad
Shujauddin vs. State of U.P. and others,
2011(1) ADJ 63. Learned ACSC further
stated that after making due identification
of guilty persons i.e. after collecting video
clipping, photographs etc. which have
been prepared by individual residents of
the affected area, media and police
authorities etc., notices are being sent to
those persons who are identified prima
facie, giving them opportunity to reply and
thereafter, appropriate action is under
process. He clearly stated that without
proper identification and ascertaining
involvement of individual in destructive
activities, causing damage to public and
private property etc., no action would be
taken by State against any individual who
is otherwise innocent. Every care and
precaution, as far as possible, to the
highest extent, is being taken by State
authorities in ensuring this objective.

14. We have heard parties at length.
The entire genesis of dispute raised in this
writ petition is Citizenship Act, 1955
(hereinafter referred to as 'Act, 1955') and
amendment made therein vide CAA, 2019.
It would, therefore, be appropriate to have
a glimpse of aforesaid statute.

15. Part-II of Constitution of India
deals with subject of 'Citizenship'. It has
Articles 5 to 11. Article 5 provides that at
commencement of this Constitution, every
person who has his domicile in territory of
India and (a) was born in the territory of
India; or (b) either of whose parents was
born in the territory of India; or (iii) who
has been ordinarily resident in the territory
of India for not less than five years
immediately
preceding
such
commencement, shall be a citizen of India.

16. Therefore, every person who had
his domicile in territory of India and born
before 26th January, 1950 or any of his
parents was born in the territory of India or
the individual was residing in territory of
India for a period not less than five years
before 26th January, 1950, shall be a
citizen of India. This is 'Citizenship'
conferred
by
Article
5
at
the
commencement of Constitution.

17. The term "territory of India" has
been defined in Article 1. Article 6 talks of
citizenship of such persons who migrated
to India from Pakistan. Giving overriding
effect over Article 5, Article 5 provides
that a person who has migrated to territory
of India from territory now included in
Pakistan, shall be deemed to be a citizen of
India
at
the
commencement
of
Constitution if (i) he or either of his
parents or any of his grandparents was
born in India, as defined in Government of
India Act, 1935 (as originally enacted);
and (ii) in case where such person has so
migrated before 19th July, 1948, he has
been ordinarily resident in territory of
India since the date of his migration; or in
94 INDIAN LAW REPORTS ALLAHABAD SERIES
the case where such person has so
migrated on or after 19th July, 1948, he
has been registered as a citizen of India by
an officer appointed in that behalf by
Government of the Dominion of India on
an application made by him therefor to
such officer before the commencement of
Constitution in the form and manner
prescribed by Government.

18. There is a proviso also that no
person shall be so registered unless he has
been resident in territory of India for at
least six months immediately preceding
the date of his application.

19. Article 7 talks of rights of
citizenship of certain migrants to Pakistan
after 1st March, 1947. It is stated that a
person, who has after 1st March, 1947,
migrated from territory of India to territory
now included in Pakistan, shall not be
deemed to be a citizen of India. There is a
proviso, however, providing that a person
who had so migrated to Pakistan, but then
returned to territory of India under a
permit for resettlement or permanent
return issued by or under the authority of
any law, every such person shall, for the
purposes of Article 6 (b), be deemed to
have been migrated to territory of India
after 19th July, 1948. Article 7 has been
given overriding effect over Articles 5 and
6 both.

20. Article 8 talks of right of
citizenship to certain persons of Indian
origin residing outside India. Article 9
talks of loss of citizenship of India if any
person has voluntarily acquired citizenship
of any foreign State. Article 10 provides
that every person who is or is deemed to
be a citizen of India under any of the
provisions of Part-II of Constitution, shall,
subject to the provisions of any law that
may be made by Parliament, continue to
be such citizen. Article 11 provides that
nothing in the foregoing provisions of
Part-II shall derogate from the power of
Parliament to make any provision with
respect to acquisition and termination of
citizenship and all other matters relating to
citizenship.

21. Considering the above provision,
in State of U.P. and others vs. Shah
Mohammed and others, (1969) 1 SCC
771, Court held that Constitution does not
intend to lay down a permanent or
comprehensive law relating to citizenship
of India. Power to enact such a law is left
to Parliament and it is not fettered by
Articles 5 to 10. It is competent for
Parliament, in exercise of power conferred
by Article 11, to take away or effect
citizenship already acquired under other
articles of Part-II of the Constitution. This
is what was also held in Izhar Ahmad
Khan vs. Union of India, 1962 AIR
1052.

22. Entry 17, list I Schedule VII of
Constitution
provides
subject
of
"Citizenship, naturalisation and aliens"
and thus, power to make law in respect of
citizenship
is
within
the
ambit
of
Parliament.

23. In exercise of aforesaid power,
Parliament enacted Act, 1955. Section 3 of
Act, 1955 deals with the subject of
'Citizenship by birth'; Section 4 talks of
'Citizenship
by
descent';
Section
5
provides 'Citizenship by registration' and
Section 6 deals with 'Citizenship by
naturalisation'. Section 8 confers power
upon any citizen to renunciate citizenship
and Section 9 talks of termination of
citizenship.
Section
10
talks
of
'Deprivation of citizenship' in certain
2 All. Rajat Gangwar Vs. State of U.P. & Ors.
95
cases. Section 13 makes a provision for
Certificate of Citizenship in case of doubt,
which
can
be
issued
by
Central
Government.
It
provides
that
such
certificate,
when
issued,
shall
be
conclusive evidence that person was
citizen on date of such certificate, but this
is without prejudice to any evidence that
he was such a citizen at an earlier date.
Section 16 confers power upon Central
Government to delegate its powers, except
Sections 10 and 18, to such officer or
authority as may be so specified. Section
18 confers power of making rules upon
Central Government.

24. Initially, there were four
Schedules appended to Act, 1955, but First
and Fourth Schedule having already been
omitted, now, there remained only two
schedules i.e. Second and Third Schedule.
The
Third
Schedule
provides
qualifications for naturalisation i.e. in the
context of subject of citizenship governed
by Section 6(1) of Act, 1955.

25. After initial enactment, Act, 1955
has undergone four amendments vide Act
65 of 1985, Act 6 of 2004, Act 32 of 2005
and Act 1 of 2015.

26. The first amendment of 1985 i.e.
Act 65 of 1985 was necessitated due to
Memorandum
of
Settlement
(Assam
Accord) relating to foreigners' issue. It
resulted in insertion of Section 6A, making
special provisions as to citizenship of
persons covered by Assam Accord.

27. The next amendment of 2004
was necessitated due to policy accepted by
Central Government for providing dual
citizenship to persons of Indian origin
belonging to certain specified countries. It
resulted in insertion of Sections 7A, 7B,
7C and 7D, which came into force on
3.12.2004, but these provisions have been
substituted in order to give effect the later
modified policy of Government of India
by substitution of Section 7A to 7D w.e.f.
6.1.2015 vide Act 1 of 2015.

28. The amendment of 2005 i.e. Act
32 of 2005 resulted in omission of Clause
2(gg)
and
Fourth
Schedule
w.e.f.
28.06.2005.

29. The present amendment made in
Act, 1955 i.e. CAA, 2019 has resulted in
amendments
of
Section
2(1)(b)
by
insertion of a Proviso, insertion of Section
6B, insertion of Clause (da) in Section 7D
and also insertion of Proviso after Clause
(f) in Section 7D. It has also inserted
Clause (eei) in Section 18 (2) and a
Proviso in Clause (d) of Third Schedule.

30. Section 2(b) of Act, 1955 defines
"illegal migrant". Earlier provision was
substituted by Act 6 of 2004 w.e.f.
3.12.2004, replacing Clause (b) and (c)
and Proviso, as existed earlier. Initially,
Section 2 (b) and (c) read as under :-

"(b) "citizen", in relation to a
country specified in the First Schedule,
means
a
person
who,
under
the
citizenship or nationality law for the time
being in force in that country, is a citizen
or national of that country;

"(c) "citizenship or nationality
law", in relation to a country specified in
the First Schedule, means an enactment of
the Legislature of that country which at
the request of the Government of that
country, the Central Government may, by
notification in the Official Gazette, have
declared to be an enactment making
provisions
for
the
citizenship
or
96 INDIAN LAW REPORTS ALLAHABAD SERIES
nationality of that country:"

(emphasis added)

31. The aforesaid Clauses (b) and (c)
of Section 2 were substituted by Clause (b)
w.e.f. 3.12.2004 and it reads as under :-

(b) "illegal migrant" means a
foreigner who has entered into India-

(i) without a valid passport or
other travel documents and such other
document
or
authority
as
may
be
prescribed by or under any law in that
behalf; or

(ii) with a valid passport or
other travel documents and such other
document
or
authority
as
may
be
prescribed by or under any law in that
behalf but remains therein beyond the
permitted period of time;

 (emphasis added)

32. Now, after Section 2(b)(i), a
Proviso has been inserted by CAA, 2019
and it reads as under :-

"Provided
that
any
person
belonging to Hindu, Sikh, Buddhist, Jain,
Parsi or Christian community from
Afghanistan, Bangladesh or Pakistan, who
entered into India on or before 31st day
of December, 2014 and who has been
exempted by the Central Government by
or under clause (c) of sub-section (2) of
section 3 of the Passport (Entry into
India) Act, 1920 or from the application of
the provisions of the Foreigners Act,
1946 or any rule or order made
thereunder, shall not be treated as illegal
migrant for the purposes of this Act;"

(emphasis added)

33. Section 6B has been inserted for
making special provisions as to citizenship
of person covered by proviso to clause (b)
of sub-section (1) of Section 2 and it reads
as under :-

"6B.
(1)
The
Central
Government or an authority specified by it
in this behalf may, subject to such
conditions, restrictions and manner as
may be prescribed, on an application
made in this behalf, grant a certificate of
registration
or
certificate
of
naturalisation to a person referred to in
the proviso to clause (b) of sub-section (1)
of section 2.

(2) Subject to fulfilment of the
conditions specified in section 5 or the
qualifications for naturalisation under
the provisions of the Third Schedule, a
person
granted
the
certificate
of
registration or certificate of naturalisation
under sub-section (1) shall be deemed to
be a citizen of India from the date of his
entry into India.

(3) On and from the date of
commencement
of
the
Citizenship
(Amendment) Act, 2019, any proceeding
pending against a person under this
section in respect of illegal migration or
citizenship
shall
stand
abated
on
conferment of citizenship to him:

Provided that such person shall
not be disqualified for making application
for citizenship under this section on the
ground that the proceeding is pending
against him and the Central Government
or authority specified by it in this behalf
shall not reject his application on that
ground if he is otherwise found qualified
for grant of citizenship under this section:

Provided further that the person
who makes the application for citizenship
under this section shall not be deprived of
his rights and privileges to which he was
entitled on the date of receipt of his
application on the ground of making such
application.
2 All. Rajat Gangwar Vs. State of U.P. & Ors.
97

(4) Nothing in this section shall
apply to tribal area of Assam, Meghalaya,
Mizoram or Tripura as included in the
Sixth Schedule to the Constitution and
the area covered under "The Inner Line"
notified
under
the
Bengal
Eastern
Frontier Regulation, 1873."

 (emphasis added)

34. A perusal of Section 6B(4) shows
that it has not been extended to tribal area
of Assam, Meghalaya, Mizoram and
Tripura as included in Sixth Schedule of
Constitution and also to area covered
under "The Inner Line" notified under
Bengal Eastern Frontier Regulation, 1873.

35. Section 7D of Act, 1955
conferred power upon Central Government
to cancel registration granted under
Section 7A(1) to Overseas Citizen of India
cardholders. Such power can be exercised
by Central Government if it is satisfied
that the conditions provided in Clauses (a)
to (f) mentioned therein exist. By inserting
clause (da), one more such condition has
been provided in Section 7D. Further, at
the end of Section 7D i.e. after Clause (f),
a Proviso has been inserted that no order
shall be passed under Section 7D without
giving reasonable opportunity of being
heard to the persons concerned i.e.
Overseas Citizen of India cardholders.
Section
18
is
Rule-making
power
conferred upon Central Government and
by inserting Clause (eei) in sub-Section (2)
of Section 18, one more subject has been
added in respect whereof rules can be
framed by Central Government. Clause
(eei) reads as under :-

"(eei) the conditions, restrictions
and manner for granting certificate of
registration or certificate of naturalisation
under sub-section (1) of Section 6B;"

36. As we have already said that
Third Schedule deals with qualification for
naturalisation with reference to Section
6(1) of Act, 1955. By inserting a Proviso
in Clause (d), a modified qualification has
been provided with respect to period of
residence or service of Government in
India and instead of 11 years provided in
Clause (d), it has been reduced to 5 years
for the category of persons mentioned in
said proviso.

37. The statement of object and
reasons for CAA, 2019 provides that in
order to give protection to the persecuted
members of certain minority communities
in the three countries, namely, Pakistan,
Bangladesh and Afghanistan, amendments
have been made in Act, 1955 vide CAA,
2019.

38. Learned ACSC submitted that
under the Constitution of India, people of
India, the source of power of making
Constitution, as a matter of policy, while
contemplating equality in all respects to
the residents of India, still have protected
on certain aspects, rights of minorities by
virtue
of
Articles
29
and
30
of
Constitution. Similarly, Parliament in its
policy of protecting certain minority
communities
of
three
neighbouring
countries, who are being persecuted
thereat on account of the fact that they are
religious minorities in those countries,
have desired to provide protection to such
persecuted persons and therefore aforesaid
amendments have been made by CAA,
2019. He stated that earlier also, when
dual citizenship to persons of Indian
Origin was contemplated and given effect
to by Amendment Act 6 of 2004, it was
confined to Indians belonging to certain
specified countries, but at that time also,
persons of Indian Origin of Pakistan and
98 INDIAN LAW REPORTS ALLAHABAD SERIES
Bangladesh
were
excluded.
When
Amendment Act 32 of 2005 was enacted,
exclusion of Pakistan and Bangladesh
continued
for
the purpose
of dual
citizenship. He urged that selection of
countries was within the realm of
Parliament and made in accordance with
policy. This time, when three countries
have been chosen, integral reason is to
protect continuous persecution of members
of certain minority communities in the
aforesaid countries only on account of
their being religious minorities.

39. However, We need not go in
further details of this aspect for the reason
that neither rational of the aforesaid
amendment is up for consideration before
this Court nor anything has been argued on
this aspect, but reference to the aforesaid
provisions have been made only to
understand the backdrop of large-scale
protest, agitation and processions which
have erupted, giving rise to the present
writ petition. We are also informed that
Supreme Court is already ceased with this
matter.

40.

Learned
counsel
for
the
petitioners
stated
that
protest
and
procession
is
against
discriminatory
amendment based on religion, inasmuch
as, members of other religion residing in
aforesaid three countries viz. Pakistan,
Bangladesh and Afghanistan, who do not
belong to religions mentioned in the
provisions, added by way of amendment
by CAA, 2019 have been singled-out, only
on the ground of religion, which is not
permissible in the Constitution and it is per
se arbitrary and discriminatory, hence, to
oppose this discrimination founded only
on religion, a large number of people at
different places, have protested, taken out
processions, which have resulted at some
places, some violence and destructive
activities. It is contended that petitioner is
not, either supporting the amendment or
opposing it; he is also not looking into
genuineness
of
protest,
march
and
processions taken out by individuals or
groups of people, but what he is concerned
about, is that every individual has a
fundamental right of speech, assembly and
movement and such fundamental right of
individuals cannot be thwarted away by
Executives by means of either resorting to
restrictive provisions like Section 144
Cr.P.C. or by involving such individuals in
various criminal cases, etc. He said that
individual fundamental rights are being
breached with impunity by resorting to
illegal
arrest
and
without
following
guidelines laid down by Supreme Court in
the matters of arrest, etc. in Joginder
Kumar vs. State of U.P. and others
1994(4) SCC 260, which read as under :

"1. An arrested person being
held in custody is entitled, if he so requests
to have one friend, relative or other person
who is known to him or likely to take an
interest in his welfare told as far as is
practicable that he has been arrested and
where is being detained.

2. The Police Officer shall
inform the arrested person when he is
brought to the police station of this right.

3. An entry shall be required to
be made in the Diary as to who was
informed of the arrest. These protections
from power must be held to flow from
Articles 21 and 22(1) and enforced
strictly."

41. Per contra, Sri Nimai Das,
learned Additional Chief Standing Counsel
stated that State has taken all precaution
and care to protect fundamental right of
every individual, but simultaneously, it has
2 All. Rajat Gangwar Vs. State of U.P. & Ors.
99
not allowed and cannot allow the so-called
"protesters" to breach fundamental rights
of other innocent peaceful residents. State
is obliged to protect life, liberty including
property of such people. State is also
obliged to ensure non-infringement of
their fundamental rights of movement,
speech,
assembly,
etc.
by
creating
obstruction, destruction and damage in
various
ways
by
such
Protesters.
Individual rights of non protesters and also
protecting
their
property
involves
fundamental rights of non-protesters. He
said that State has made all attempts to
keep a balance in maintaining all such
rights,
but
where
protesters
and
processionists have crossed the limit of
lawful
and
peaceful
protest
and
demonstration and their act has entered
into the realm of offence or criminal
activity, State Authorities are bound and
they have actually intervened at that stage
to prevent commission of offence or
unlawful activities.