New Delhi: The Supreme Court’s verdict Thursday upholding the Constitutional validity of Section 6A of the Citizenship Act, 1955, may have a “big impact” on the pending petitions challenging the Citizenship (Amendment) Act (CAA), 2019, according to experts.
Section 6A is a special provision pertaining to Assam inserted into the 1955 Act, in furtherance of the Assam Accord signed in 1985 by the then Rajiv Gandhi government at the Centre with the leaders of the Assam Movement (1979-1985) against alleged “illegal” residents of the state. The provision declares 25 March, 1971, as the final cut-off date for legalised entry into the state, making those entering the state after that illegal immigrants.
As against this, the 2019 amendment—which adds Section 6B to the 1955 law—makes illegal migrants eligible for citizenship if they (a) belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian community and (b) are from Afghanistan, Bangladesh or Pakistan. It only applies to migrants who entered India on or before 31 December, 2014. Certain areas of Northeast India—tribal regions of Assam, Meghalaya, Mizoram or Tripura as included in the sixth schedule of the Constitution and the area covered under the Inner Line—are exempt from the amendment.
The passage of the 2019 law was met with protests all across the country ever since it was tabled in Parliament. And objections to the law were taken to courts as well.
According to experts, the Supreme Court’s judgment could lay the groundwork for the hearing of petitions challenging the 2019 amendment in the apex court. Several petitions challenging CAA have also submitted that the amendment is contrary to Section 6A of the 1955 law, since it legitimises the entry and continued stay of illegal migrants even if they entered India after the 25 March, 1971, deadline.
Also Read: Aligns with concept of ‘live & let live’. What SC said to uphold Section 6A of Citizenship Act
‘Humanitarian grounds’
One of the lawyers associated with the petitions against Section 6A, who did not want to be named, told ThePrint that the court’s observations on the legislative objective of Section 6A to rule that the provision does not violate Article 14 of the Constitution may have an impact on the CAA petitions.
Chief Justice of India (CJI) D.Y. Chandrachud had noted that “the legislative objective of Section 6A was to balance the humanitarian needs of migrants of Indian Origin and the impact of the migration on the economic and cultural needs of Indian States”.
The petitions challenging CAA have asserted that the Act is contrary to the “solemn promise made to the Assamese people by way of the enactment of Section 6A of the 1955 Act”, since it legitimises entry of migrants into the state after the 1971 cut-off date. They emphasise that the CAA “invalidates the guarantees given to the people of Assam by the Union of India in the Assam Accord dated 15 August, 1985”.
The Supreme Court’s observations, while upholding Section 6A and the 1971 cut-off date for Assam, could, therefore, provide further fodder for arguments on the applicability of Section 6B to Assam.
However, Guwahati-based lawyer Aman Wadud, who works on citizenship cases, explained to ThePrint that although both pave the way for citizenship, Section 6A of the Citizenship Act, 1955 and CAA, 2019 are “two completely different things based on different premises; while 6A is religion neutral, CAA discriminates on the basis of religion”.
He said that he does not think the 6A judgment will have any implications on the petitions against CAA pending before the Supreme Court.
However, he added that the petitioners might argue that CAA threatened the preambular idea of fraternity, as was evident during the 2019 protest, while the government might quote the Supreme Court’s verdict upholding Section 6A.
“Difficult to say how things will pan out,” he added.
‘Live and let live’
In the petitions challenging Section 6A before the court, the petitioners had sought to submit that the idea of fraternity, as referred to in the Indian Constitution, is to be interpreted in the context of the unity and integrity of the nation. They urged that the Constitution uphold national fraternity, not global fraternity, and that the presence of Bangladeshi immigrants in Assam poses a threat to the unity and integrity of the country.
The petitioners also argued that fraternity, as mandated in the Preamble of the Constitution, pertains to fraternity among citizens and that this notion of fraternity might be destroyed when a provision like Section 6A threatens to destroy the cultural demography of that citizenry.
In other words, they contended that the influx of immigrants from Bangladesh into the state of Assam has jeopardised the very ideal of fraternity in India.
As against this, the Centre argued that Section 6A reinforces the idea of fraternity, in the absence of which society would be broken into a division between ‘others’ and ‘us’.
Justice Surya Kant rejected the petitioners’ contention, asserting that the petitioners want fraternity to be interpreted in a highly restrictive manner, which allows them to choose their neighbours. Citing the Constitution and precedents, the judge asserted that fraternity requires people of different backgrounds and social circumstances to ‘live and let live’.
“In this light, when faced with the dilemma of disenfranchising millions or safeguarding a community’s endogamous way of life, this Court would certainly be compelled by the principles of fraternity to prioritize the former,” the court observed.
‘Ideals of fraternity’
While the 1955 law prohibited all “illegal migrants” from acquiring Indian citizenship, the 2019 amendment excludes specific categories of people, as listed earlier, from being treated as illegal migrants.
The 1955 law defines illegal migrants as those foreigners who entered India without a valid passport or other travel documents, or remained in the country beyond the permitted period of time.
It also fast tracks Indian citizenship for these categories of immigrants. The 1955 law allows a person to apply for citizenship by naturalisation, if the person meets certain qualifications. One of the qualifications is that the person must have resided in India or been in central government service for the last 12 months, and at least 11 of the preceding 14 years. However, the amendment reduces the residency requirement for the specified categories to five years.
In its defence of the CAA, 2019, the Centre has claimed that it is correcting “historical injustice” against the communities benefited by the law.
In its response filed in the court, the Centre asserted that “history clearly depicts that persecuted minorities in the said three countries were left without any rights and the said historical injustice is sought to be remedied by the amendment without taking away or whittling down the right of any other person”.
It told the court that CAA furthered the Indian ideals of “secularism, equality and fraternity”, asserting that “the recognition of religious persecution in the particular neighboring states, which have a specific state religion and long history of religious persecution of minorities, is actually a reinstatement” of these ideals.
Senior Advocate Vijay Hansaria, who was one of the counsels arguing against Section 6A, told ThePrint that the judgment upholding Section 6A would have a “big impact” on the pending petitions challenging Section 6B of the 1955 law.
He pointed out that Justice Surya Kant—who wrote the majority verdict on behalf of himself, Justice M.M. Sundresh and Justice Manoj Misra—dealt with global fraternity.
“Justice Surya Kant dealt with global fraternity. This principle based on fraternity will definitely have an impact on the outcome (on the petitions challenging Section 6B),” Hansaria asserted.
6A versus 6B
Among other things, the petitioners have contended that CAA 2019 violates Article 14 (equality before law), which guarantees equal protection of laws “to any person”, and not just citizens. They also challenge two classifications of the new Act—one that identifies six communities but leaves out Muslims, and the second that applies to persons from just three countries.
The amendments have also been attacked on several other grounds, including violation of secularism, Articles 21 (right to life), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 19 (right to freedom), as well as provisions on citizenship and constitutional morality.
As against this, the petitions challenging Section 6A argued that the application of this provision to the state of Assam alone has led to a perceptible change in the demographic pattern of the state and has reduced the people of Assam to a minority in their own state.
Among other things, they objected to the “singling out” of Assam for application of the provision and contended that the application of the provision only to Assam was discriminatory, because migrants from Bangladesh (East Pakistan) had also entered other border states, including Bihar and West Bengal. Hence, they have said that Section 6A violates the constitutional guarantee of equality for Assam.
(Edited by Radifah Kabir)