This case will decide the constitutional validity of Section 6A of the Citizenship Act, 1955, which is the result of the Assam Accord.
In 1971, Bangladesh gained independence from Pakistan. The liberation war led to a massive influx of migrants to India until 1983. In 1983, the Parliament enacted the Illegal Migrants (Determination by Tribunal) Act (IMDT Act). The IMDT Act laid down the procedure to detect illegal immigrants from Bangladesh and expel them from Assam. This Act was applicable to only Assam, while the Foreigners Act, 1946 was applicable to all other states.
In 1985, the Assam Accord was signed between the Government and leaders of the Assam agitation, to end years of rioting and protests against the massive migration. Section 6A of the Citizenship Act, 1955 – introduced in 1985 – was the legislative enactment of the Assam Accord. It classified ‘illegal’ immigrants of Indian origin who came into Assam from Bangladesh into three groups:
The first group (pre-’66) was to be regularised, i.e. given citizenship of India. The second group (’66 – ’71) was to be taken off the electoral rolls, and regularised after ten years. The third group (’71-onwards) was to be detected and expelled in accordance with law.
Consequently, the statutory framework for dealing with migration to Assam consisted of Section 6A of the Citizenship Act, 1955 and the IMDT Act, 1983.
The IMDT Act was challenged before the Supreme Court in Sarbananda Sonowal v UOI, since it made some departures from the Foreigners Act,1946 and Foreigner Tribunal Order, 1964. The IMDT Act reversed the burden of proof from individuals to State, made reference to tribunal more onerous, and indirectly made it harder to deport illegal immigrants. The Supreme Court struck down the IMDT Act and held it as unconstitutional. However, the large-scale illegal migration and political turmoil continued.
Assam Sanmilita Mahasangha, along with other organizations, challenged the constitutional validity of Section 6A of the Citizenship Act, 1955 in 2012. In 2014, A 2-Judge Bench of the Supreme Court heard the matter and passed an order under Art 145(3) of the Constitution, referring the matter to a larger Constitutional Bench. On 19th April, 2017 a 5-Judge Bench, comprising of Justices Madan B.Lokur, R.K.Agrawal, Prafulla Chandra Pant, D.Y.Chandrachud, and Ashok Bhushan was constituted.
The petitioners argue that there is no rational basis for having separate cutoff dates for regularising illegal migrants who enter Assam as opposed to the rest of the country.
1. Whether Section 6A violates fundamental rights in that no mechanism is provided to determine which persons are ordinarily resident in Assam since the dates of their entry into Assam, thus granting deemed citizenship to such persons arbitrarily?
2. Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to Government according to law?
3. Whether the Immigrants (Expulsion from Assam) Act, 1950 being a special enactment qua immigrants into Assam, alone can apply to migrants from East Pakistan/Bangladesh to the exclusion of the general Foreigners Act and the Foreigners (Tribunals) Order, 1964 made thereunder?
4. Whether Section 6A violates the fundamental basis of the Section 5(1) proviso and Section 5 (2) of the Citizenship Act (as it stood in 1985), in that they permit a class of migrants to become deemed Citizens of India without any reciprocity from Bangladesh and without taking the oath of allegiance to the Indian Constitution?
5. Whether Section 6A violates the basic premise of the Constitution and the Citizenship Act in that it permits citizens who have allegedly, not lost their East Pakistani citizenship, to become Indian citizens and thereby conferring dual Citizenship to such persons?
6. Whether, after a large number of migrants from East Pakistan have enjoyed rights as Citizens of India for over 40 years, any relief can be given in the petitions filed in the present cases?
7. Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution?
8. Whether Section 6A violates Article 21 in that the lives and personal liberty of the citizens of Assam have been affected adversely by the massive influx of illegal migrants from Bangladesh.
9. Whether Section 6A violates Article 14 in that, it singles out Assam from other border States (which comprise a distinct class) and discriminates against it. Also whether there is no rational basis for having a separate cut off date for regularizing illegal migrants who enter Assam as opposed to the rest of the country?
10. Whether Section 6A violates Article 355? What is the true interpretation of Article 355 of the Constitution? 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?
11. Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6A of the Citizenship Act in as much as Section 6A, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4 (2) read with Article 368 (1)?
12. Whether Section 6A of the Citizenship Act, 1955 violates Articles 325 and 326 of the Constitution of India in that it has diluted the political rights of the citizens of the State of Assam?
13. What is the scope of the fundamental right contained in Article 29(1)? Is the fundamental right absolute in its terms? In particular, what is the meaning of the expression “culture” and the expression “conserve”? Whether Section 6A violates Article 29(1)?