Supreme Court’s direction to update the NRC while recognising that questions involved need to be settled by a larger bench is baffling.
The tragedy in Assam is the result of many institutional actors. One such actor is the Supreme Court. The court’s place in the ongoing saga has been mentioned by both leading political actors and public commentators. But what exact relationship does the court have with the updating of the National Register of Citizens (NRC)?
The legal matters here have a long history. The Immigrants (Expulsion from Assam) Act, 1950 sought to address the problem of illegal migration in Assam, and was followed by an NRC prepared in 1951. As migration and political turmoil only increased after the 1971 war, the Illegal Migrants (Determination by Tribunal) Act, 1983 (the IMDT Act) was enacted to swiftly determine illegal migrants. Protests continued to disturb the state of Assam, and a major agreement (the Assam Accord) was forged in 1985 between different stakeholders and Section 6A was introduced into the Citizenship Act, 1955. The developments allowed migrants before 1966 and, under certain conditions, migrants between 1966 and 1971, to become Indian citizens.
Although the IMDT Act’s professed goal was to curb illegal migration, its actual provisions were allegedly at odds with this aspiration, and the law was challenged. In a 2005 verdict, the Supreme Court struck down the law, declaring that its exclusive application to Assam was baseless and violated the equality guarantee in Article 14 of the Constitution. The court further noted that the law violated Article 355 of the Constitution, which imposes a duty on the central government “to protect every state against external aggression and internal disturbance”.
The law was admittedly a departure from India’s general framework in the Foreigners Act, 1946, and the 2005 verdict did raise some important procedural points. But, as Professor Niraja Gopal Jayal has carefully shown, the verdict was laced with communal undertones and its logic was far from followed consistently in other instances, such as those involving Hindu migrants entering Rajasthan and Gujarat. Two years later, the Supreme Court viewed a new executive order as merely a fresh attempt to take the matter of illegal migration trivially and not follow the 2005 verdict, and struck down the order as being arbitrary.
Political unrest in Assam only increased and, in 2014, the question of illegal migration again reached the Supreme Court. The challenge was based on the 2005 verdict, with the broad claim that migration had continued unabated and that provisions like Article 355 were still being violated. The two-judge bench recognised that several legal issues were at stake here. For example, what precisely does the protection to minorities in Article 29 of the Constitution guarantee? Is illegal migration a form of internal disturbance or external aggression? Does Article 6A of the Citizenship Act, introduced after the Assam Accord, violate the equality guarantee in the Constitution? On what basis can cut-offs be based when it comes to the question of migration?
After recognising the importance of the questions involved, the court rightly referred the matter to a larger constitutional bench. Yet, oddly enough, it proceeded to provide a remedy that was far reaching and had serious implications. It did not merely assume Section 6A to be valid until the larger constitutional bench determined matters. Rather, it issued directions ranging from border guarding to establishing tribunals to the NRC being completed, all within a specific timeline.
The court’s direction to update the NRC while recognising that questions involved need to be settled by a larger bench is baffling. On the one hand, the court acknowledged that grave legal questions relating to citizenship are unsettled. On the other hand, it issued a direction that is impossible to fulfil without making determinations on the test for citizenship. This is like a situation where one first holds that the meaning of property is undecided and that it merits further examination and, simultaneously, orders the creation of a list of property owners and interests.
The court could have done a number of things differently. The directions issued could have been avoided until the larger bench settled matters, and the larger bench could have settled the matter in a timely fashion rather than left it hanging (the verdict was, after all, delivered in 2014). If some directions had to be issued, they could have been done so with adequate safeguards, not because courts should necessarily care about the political or social implications of their orders but because of the legal uncertainty that the directions would create for millions of Indian residents.
There is no doubt that the question of illegal migration has been exploited by a number of political parties. Much remains to be seen in this episode, from whether India can address the matter in ways that are civilised and viable, to whether it can shift attention from current residents to future migration. Regardless of what happens, however, the Supreme Court has only complicated the legal issues, provided protection for all kinds of political manoeuvres, and reminded us of much of what we already know about the unfortunate exercise of judicial review in India.
Madhav Khosla, co-editor of the Oxford Handbook of the Indian Constitution, is a junior fellow at the Harvard Society of Fellows. His Twitter handle is @M_Khosla.