What does Section 6A of the Citizenship Act have to do with the NRC exercise in Assam?
As the Court gears up to decide the challenge against the special citizenship provisions for Assam, we outline the legal questions at stake
On 20 November 2019, home minister Amit Shah declared in Parliament that the Indian government would create a nationwide registry of citizens. This National Register of Citizens (NRC), previously introduced only for the state of Assam in 1951, would be a registry containing the names of—and relevant information about —genuine citizens of India.
On 12 December 2019, then president Ramnath Kovind assented to the Citizenship Amendment Act (CAA). The CAA amended the Indian Citizenship Act 1955, to make it easier for individuals who entered India from Afghanistan, Pakistan, and Bangladesh before 2014 to gain Indian citizenship. However, this benefit was to be extended only to those belonging to the Hindu, Sikh, Jain, Parsi, Buddhist and Christian faiths. Critics alleged that the NRC exercise and the CAA were connected and that the Bharatiya Janata Party-led government was attempting to intentionally exclude Muslim persons from being recognised as Indian citizens.
With the Supreme Court set to hear challenges to Section 6A of the Citizenship Act, 1955—effectively a challenge to the Assam NRC exercise—on 17 October 2023, we explore the history of the NRC and its journey to the apex court.
What is the Assam National Register of Citizens (NRC)?
The state in focus is Assam, because, as of now, it’s the only one that has been singled out for the NRC exercise. The register for Assam was first prepared in 1951, after the first-ever census in independent India. More recently, from 2013-2019, the Indian government carried out an “updation exercise” of the Assam NRC, with a view to identify illegal immigrants, mainly from across the border in Bangladesh.
This was also the context of the 1951 exercise, which was meant to quantify the influx of migrants from what was then East Pakistan. Notably, the NRC did not accomplish its objective as the Foreigners Act of 1946 did not treat Pakistani citizens as “foreigners”, effectively allowing them to enter and leave India conveniently.
The Assam Accord: What is it?
Almost 25 years on from Partition, there was another seismic event that altered the demography of the state: the Indo-Pakistan war of 1971. There was a large influx of Bengali-speakers in the wake of that conflict. In 1979, the All Assam Students’ Union (AASU), fearing that the Bangladeshi immigrants would overwhelm the indigenous population of Assam, launched an agitation that would last for six years and result in hundreds of deaths. They demanded that all illegal foreigners in the state should be identified and deported. In 1985, a Memorandum of Settlement called the Assam Accord was signed between the agitators and the Indian government. The Accord created three classes of immigrants based on which Indian citizenship would be granted:
- Immigrants who entered Assam before 1 January 1966 would be considered Indian citizens and were allowed to vote.
- Immigrants who entered Assam after 1 January 1966 but before 24 March 1971 would be considered Indian citizens but would not be allowed to vote for the first 10 years following their detection as Indian citizens.
- Immigrants who entered Assam on or after 25 March 1971 would be considered illegal immigrants and would be expelled from India.
Section 6A of the Citizenship Act, 1955, containing special provisions for the state of Assam, was introduced to give effect to the Assam Accord.
Why is the Assam NRC controversial?
The Assam NRC, which is based on the conditions laid down in Section 6A of the Citizenship Act, 1955, stands in stark contrast to Section 3 of the Citizenship Act which states the following:
- Any person born in India on or after 26 January 1950 but before 1 July 1987 shall be considered to be a citizen by birth.
- Any person born on or after 1 July 1987 up until 2 December 2004 shall be considered to be an Indian citizen if one of their parents was an Indian citizen at the time of their birth.
- Any person born on or after 3 December 2004 will be considered an Indian citizen if both their parents were born in India or if one parent is an Indian citizen and the other was not an illegal immigrant at the time of birth.
Notably, Assam is the only Indian state to have a cut-off date for citizenship. Consequently, over 40 lakh persons who were born in India or who had lived in India for several decades risked being declared stateless through what critics termed a “deeply flawed process.” Despite these concerns, and the Supreme Court’s statement in open court stating that persons born before 30 June 1987 would not be excluded from the NRC, the Court in 2019 upheld the NRC Coordinator’s recommendation to exclude lakhs of persons born in Assam between 1950 and 1987.
The final Assam NRC list was released on 31 August 2019. Nineteen lakh persons, including children whose parents were included in the final list, were excluded. Concerns were partially placated when former Attorney General K.K. Venugopal, on 6 January 2020, assured the Supreme Court that children excluded from the list would not be separated from their parents (whose names were included in the NRC) and sent to detention camps.
In November 2020, the Assam state government sought a revision of a “faulty” NRC list which they claimed excluded several indigenous persons. Two years later, in December 2022, the Comptroller and Auditor General flagged major concerns over the NRC exercise such as irregularities in fund utilisation and the software chosen for the task. Most notably, the CAG’s report stated, “The audit trail could have ensured accountability for the veracity of NRC data. Thus, the intended objective of preparing a valid, error-free NRC has not yet been met despite direct expenditure of Rs 1,579 crore, as well as manpower cost of deployment of a large number of government servants ranging from 40,000 to 71,000.”
What is the Supreme Court’s role?
The Supreme Court has been in the thick of the action. In fact, even the “updation” task had been kicked off following an order from the Supreme Court in 2013. Since then, the Court has been monitoring the process and passing orders from time and time.
In 2014, the SC directed that the Assam NRC exercise be completed by 31 January 2016. At the same time, the SC referred 13 questions on the constitutionality of Section 6A of the Citizenship Act, 1955, to a Constitution Bench. The questions tested Section 6A against various provisions of the Constitution and the Citizenship Act.
The fundamental rights-related questions were concerned with testing Section 6A against Article 14 (whether the provision treats Assam differently to other border states), Article 21 (whether the lives and personal liberty of Assamese citizens have been affected by the influx of illegal immigrants), and Article 29(1) (whether the right of a minority to “conserve” language, script and culture has been threatened by the influx). Some of the other questions were meant to test Section 6A against other provisions of the Citizenship Act, including one protecting against dual citizenship.
On 10 January 2023, while framing issues, the Bench whittled down the 13 questions to one overarching one: “whether Section 6A of the Citizenship Act 1955 suffers from any constitutional infirmity.” And now finally, on 17 October 2023, almost nine years after the matter was referred to it, a Constitution Bench will convene to decide a citizenship matter that has so much riding on it.