Sec. 6A of the Citizenship Act | Day 1: People of Assam should not be reduced to a minority, petitioners argueAssam’s National Register of Citizens
Today, a Constitution Bench of the Supreme Court began hearing a batch of petitions on whether Section 6A of the Citizenship Act 1955 suffers from any constitutional infirmity.
Today Senior Advocate Shyam Divan, appearing for various societies who have been demanding the identification and deportation of migrants from Assam, submitted arguments against the validity of Section 6A.
The Assam National Register of Citizens (NRC) was originally meant to identify illegal immigrants in the state who migrated from Bangladesh after 24 March 1971, following the outbreak of war with Pakistan.
In 1985, the Indian government and the representatives of the Assam Movement negotiated the Assam Accord. The Accord created three categories of immigrants:
- Persons who came to Assam before 1 January 1966. These persons were considered Indian citizens and were allowed to vote.
- Persons who came to Assam after 1 January 1966, but before 24 March 1971. These persons were considered Indian citizens, but would not be allowed to vote for a period of 10 years following the date of their “detection” as Indian citizens.
- Persons who came to Assam on or after 25 March 1971. These persons were considered illegal immigrants and were to be expelled from India.
Section 6A of the Citizenship Act was introduced to give effect to the Assam Accord. It provides the framework to recognise migrants in Assam as Indian citizens or to expel them based on the date of their migration.
In 2012, Assam Sanmilitia Mahasangha and other organisations representing “the tribal and non-tribal population” of Assam, challenged the constitutionality of Section 6A on the grounds that it threatened the “integrity” of India.
In 2013, the Supreme Court directed Assam to update the NRC. The process was closely monitored by a two-judge bench, comprising then CJI Ranjan Gogoi and Justice Rohinton Nariman. They sought to ensure that the NRC exercise complied with the Citizenship Act, 1955, and the Citizenship (Registration of Citizens and the Issue of National Identity Card Rules), 2003.
On 17 December 2014, the Bench referred the case along with 13 questions to a five-judge Constitution Bench. These questions were framed in a 2014 decision of the SC in a similar petition.
On 31 August 2019, the final NRC list was published. Of the 3.3 crore applicants, 19 lakh persons were excluded. One of the many controversies involving the list was the exclusion of children whose parents had been included in the final NRC list. In 2020, Attorney General K.K. Venugopal clarified that children would not be separated from their parents.
On 24 August 2022, the Supreme Court announced that it would hear 25 Constitution Bench cases including the challenge to the validity of Section 6A. .
On 7 September 2022, a five-judge Constitution Bench comprising Justices D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha listed the matter to be heard on 1 November 2022. Ultimately, on 22 August 2023, the Court announced that the matter would be taken up for directions by a bench led by CJI Chandrachud on 20 September 2023.
Divan: Why should Assam bear the “burden” alone?
Divan contended that while the Union government may enter into “political settlements” with any community or group, it must not be “contrary to the scheme of the Constitution with respect to dates and deadlines.”
He challenged the Union’s competence in determining an exclusive cutoff date for Assam with regard to granting citizenship to immigrants, especially without an amendment to the Constitution.
Divan then stated that if the Union government sought to enact a law that introduced a new cut off date, “it should be applicable for all states.” He added that a special law for Assam imposed an added burden on its resources. “If we are to allow outsiders to stay, all units of the federation must assume some part of the burden,” he said, asking why there was a “special regime only for Assam.” Seeking for uniform application of immigration and citizenship laws, Divan argued that “if border states constitute a separate class, then it must apply to all border states.”
The CJI stated that the burden of proof lies on the petitioners to prove that other border states were similarly situated and that it should have been included in the amendment to the 1955 Act. He further added that courts presume laws to be valid. “We have always allowed an under-inclusive legislation,” the Chief said, suggesting again that the burden is on the petitioners to prove the legislation’s inherent unconstitutionality.
Divan: Unfettered immigration is skewing Assam’s voter demographic
Divan referred to the 1961 and 1971 census figures to argue that the uncontrolled immigration in Assam had caused the voter demographic to change, having a direct and palpable impact on the democratic process of the state. In a 1988 report by former Governor of Assam, Lieutenant General (Retd) S. K. Sinha had warned that unfettered Bangladeshi immigration “poses a grave threat both to the identity of the Assamese people and to our national security.”
The petitioners also submitted that immigration must not create a situation where the cultural rights of one border state are undermined, and its people are “reduced to a minority.” The Bench insisted that a claim of “demographic invasion” must be substantiated with data which clearly shows that Section 6A has had the effect of ‘destroying’ cultural demography.
The CJI also stated that “Assam undoubtedly has a problem. There is no doubt about the fact that there is infiltration. But we are not testing that here,” reminding the counsel that the “the constitutional validity issue is on the cut-off adopted.” The Court sought to draw out clarity from the counsel on why any claims of “infiltration” have any bearing on the legal validity of the 1985 Amendment which brought in Section 6A to the Act.
The Bench will resume hearing the petitioners tomorrow, 6 December 2023.