New Delhi: The Supreme Court Tuesday reserved verdict on a batch of petitions challenging Section 6A of the Citizenship Act, 1955.
The matter is being heard by a bench comprising Chief Justice of India D.Y. Chandrachud, Justice Surya Kant, Justice M.M. Sundresh, Justice J.B. Pardiwala and Justice Manoj Misra. Hearings were conducted for four days before the bench reserved its verdict.
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 against alleged “illegal” residents of the state.
The provision of the memorandum of understanding (MoU) declares 24 March, 1971, as the final cut-off date for legalised entry into the state, making those entering the state after that “illegal immigrants”.
The final National Register of Citizens in Assam, which was published in 2019, was conducted with this cut-off date.
However, Section 6A is currently under challenge before the Supreme Court, with the petitioners arguing that the provision is arbitrary, discriminates against Assam and is constitutionally invalid.
What does Section 6A of the 1955 Act exactly say and why is it so controversial? ThePrint explains.
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The Assam Accord
The Citizenship Act, 1955, was amended in 1985 to insert Section 6A, following the Assam Accord, which was signed to address concerns of influx of illegal migrants from Bangladesh (or East Pakistan) to Assam.
Before the Accord was signed, the All Assam Students Union (AASU), in February 1980, presented a memorandum to then Prime Minister Indira Gandhi that “conveyed their profound sense of apprehensions regarding the continuing influx of foreign nationals into Assam and the fear about adverse effects upon the political, social, culture and economic life of the State”.
Gandhi then initiated dialogue with All Assam Students Union (AASU) and the All Assam Gana Sangram Parishad (AAGSP). According to the Assam Accord, talks were held at the Prime Minister’s and Home Minister’s level during the period 1980-83. Then several rounds of informal talks were held during 1984, and formal discussions were resumed in March, 1985.
However, in view of the continued large-scale agitations in Assam, an accord was signed on 15 August, 1985, between AASU and AAGSP and the central government. It said all signatories have been “most anxious to find a satisfactory solution to the problem of foreigners in Assam”.
This Accord set the base cut-off date for the detection and deletion of “foreigners”. It said that those who came to Assam prior to 1 January, 1966 would be regularised, those who came between 1 January, 1966 and 24 March, 1971 shall be detected in accordance with the Foreigners Act 1946 and Foreigners (Tribunals) Order, 1964, and their names “will be deleted from the electoral rolls in force”. It required such people to register themselves, and they would have to wait ten years before they could be granted citizenship.
What does Section 6A say
The statement of objects and reasons attached to the 1985 amendment bill spoke of the Assam Accord as a “political settlement”, adding that a law was required to give effect to the clauses of the Accord.
Section 6A of the Act makes special provision for citizenship of people covered by the Assam Accord. The provision classifies immigrants from Bangladesh (or East Pakistan) into Assam in three categories— those who entered before 1 January 1966, those who entered after 1 January, 1966 and before 25 March, 1971, and those who entered after 25 March, 1971.
It said that those belonging to the first category shall be deemed to be citizens of India. Those belonging to the second category shall be detected as “foreigners”, and would then have to register themselves according to the rules made by the central government. These people would be granted citizenship after a period of ten years, and during this period, they would have the same rights and obligations as a citizen, except for the right to vote.
The provision, therefore, granted the benefit of citizenship immediately to all immigrants from East Pakistan who had migrated before 1966, and after a period of 10 years to those who migrated before 25 March, 1971, after it had been established that had in fact settled in India between 1966 and 1971. Those entering the state after 25 March, 1971 were therefore deemed illegal immigrants.
Why has Section 6A been challenged?
Assam Sanmilita Mahasangha, an organisation which says it advocates for the rights of “indigenous” communities of Assam, along with three other organisations, filed a petition before the Supreme Court in 2012, challenging the constitutional validity of Section 6A of the citizenship law.
In December, 2014, a bench comprising Justice Ranjan Gogoi and Justice R.F. Nariman framed 13 questions and referred them to a five-judge Constitution bench.
This included the question whether Section 6A violates Article 21 (right to life and personal liberty) of the Constitution, as “the lives and personal liberty of the citizens of Assam have been affected adversely by the massive influx of illegal migrants from Bangladesh”. The bench also asked whether Section 6A of the Act violates Articles 325 (no person to be ineligible for inclusion in electoral roll on grounds of religion, race, caste or sex) and 326 (elections on the basis of adult suffrage) of the Constitution of India, by diluting the political rights of the citizens of the State of Assam.
Among other things, the bench also sought to know whether Section 6A violates Article 355 of the Constitution, which makes it the duty of the Union to protect States against external aggression and internal disturbance.
“Would an influx of illegal migrants into a State of India constitute ‘external aggression’ and/or ‘internal disturbance’? Does the expression ‘State’ occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?” the bench asked.
Additionally, the bench asked whether Section 6A violates Article 14 (equality before law) of the Constitution by singling out Assam from other border States and discriminating against it. It also asked whether there was no rational basis for having a separate cut-off date for regularising illegal migrants who enter Assam as opposed to the rest of the country.
In April 2017, a five-judge Constitution bench comprising Justices Madan B. Lokur, R.K. Agrawal, Prafulla Chandra Pant, D.Y. Chandrachud, and Ashok Bhushan was constituted. Currently, a new bench is hearing the challenge as three of these judges— Justices Lokur, Agrawal and Pant have retired.
What happened in SC
Before the Supreme Court, the petitioners took objection to a different cut-off date for granting of Indian citizenship in Assam than in the rest of India. They, therefore, allege that the provision is discriminatory and violative of the rights of “indigenous” Assamese people.
According to Article 6 of the Constitution, any person who migrated to India from Pakistan shall be deemed to be a citizen of India if they migrated before 19 July, 1948, and continued to be a resident since the migration. For people who migrated after 19 July, 1948 and the commencement of the Constitution in 1950, they had to be registered as a citizen by filing an application. It says that the people should’ve resided in India for six months before making such an application.
So the petition challenging Section 6A points out that Article 6 provides for two cut-off dates — 19 July, 1948 without application and January 1950 with application — for acquiring Indian citizenship. It then asserts that “the people of Assam cannot be compelled to waive off their fundamental right guaranteed under Article 14 and accept illegal immigrants who have entered the State from 1950 to 1971.
In addition to the constitutional provisions, citizenship in India is regulated by the Citizenship Act 1955. It provides for citizenship by various modes, including by descent, registration and naturalisation.
A 2019 amendment to this law made 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 and had faced religious persecution in their countries. It only applies to migrants who entered India on or before 31 December, 2014. Certain areas in the North-East are exempted from the provision.
In simpler words, the amendment fast-tracks Indian citizenship for these categories and for everybody else, the usual citizenship route would apply.
For instance, the 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 years of the preceding 14 years. For the specified class of illegal migrants under the amendment, the number of years of residency has been relaxed from 11 years to five years.
Petitions challenging this amendment are also pending before the Supreme Court.
The petitioners challenging Section 6A argue that the application of Section 6A 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.
The petitioners have also argued that the provision incentivises illegal immigrants to continue staying in Assam in violation of the law. They have also 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.
In response, the centre has told the Supreme Court that the provision “is a part of the legislative policy of Parliament, arising from a political settlement with relevant parties [a reference to the Assam Accord], based on certain relevant considerations of State policy and foreign policy”. It has, therefore, asserted that the provision is not arbitrary and has a rational nexus with the object sought to be achieved.
Earlier this month, the court had directed the Ministry of Home Affairs to submit data on the inflow of illegal migrants to Assam and North Eastern states after 25 March, 1971— that is post the declaration of Bangladesh independence— and to provide data-based disclosures on issues including the grant of citizenship to immigrants in different time periods and workings of the Foreigners Tribunals.
In response, the union government submitted an affidavit in the Supreme Court on 11 December, stating that 32,381 people were “detected to be foreigners” by foreigners tribunals in Assam since 1966. However, the government’s affidavit added that “it is not possible to collect accurate data of illegal migrants living in various parts of the country” as such foreign nationals enter the country in a “surreptitious and clandestine manner”.
(Edited by Poulomi Banerjee)
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