Sec. 6A of the Citizenship Act | Day 2: The immigration issue persists in other border states, not just Assam, petitioners argueAssam’s National Register of Citizens
Today, petitioners concluded their arguments in a batch of petitions challenging the constitutional validity of Section 6A of the Citizenship Act 1955.
Senior Advocates Shyam Divan, K.N. Choudhary, and Vijay Hansaria, appeared for various societies which were demanding the identification and deportation of migrants from Assam.
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: Object of Section 6A is discriminatory
Divan stated that he “endeavours to attack the classification [under Section 6A] itself” contending that Section 6A violates Article 14 of the Constitution. He relied on the test of reasonable classification, stating that any classification under a statute must be related to the object of the statute.
Noting the state-specific nature of the provision, Divan argued that the object with which the provision was enacted was discriminatory. He relied on Nagpur Improvement Trust v Vithal Rao (1972) where a seven-judge Bench held that no statute can survive the test of classification if the object itself is discriminatory. He emphasised that Assam was “singled out” despite the presence of illegal immigrants in other border states, namely, West Bengal, Meghalaya, Tripura, etc. Moreover, he pointed out that non-border states like Bihar, Maharashtra, and Rajasthan also face issues with illegal immigrants.
Divan repeated his argument from yesterday that any law arising from a “political settlement” must follow the mandate of the Constitution, adding that any such settlement is not a sufficient basis for classification. Chief Justice D.Y. Chandrachud asked whether Parliament was bound to make a provision such as Section 6A for all persons similarly situated as Assam for the provision to be valid. Can Parliament not make a state-specific law in the interest of “maintaining peace in a state driven by strife?” he asked.
CJI Chandrachud inquired whether Divan would present a similar argument on discrimination had Section 6A applied to other states too. Divan responded in the negative, contending that the people of Assam would not be directly impacted in such a situation.
Divan highlighted that an illegal migrant who enters a state other than Assam is subject to arrest, detention, deportation, or criminal prosecution under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920, arguing that there is a “palpable arbitrariness” in having different laws for different states. In the petitioners’ written submission, they added that “non-identification of the foreigners has forced them to stay permanently in the state of Assam out of fear from detection and deportation in other states.”
Divan argued that Section 6A violates crucial aspects of Article 21, including the protection of community rights, the right to self-governance, and severely “undermines economic, social, and political aspirations” of the community residing in Assam. Section 6A operates to “severely abridge” the rights granted under Article 29 of the Constitution to all citizens to conserve their distinct language, script and culture. The Union has a duty to protect Assam from internal disturbances under Article 355. In his view, Section 6A has the potential to lead to internal disturbances, he said.
Divan: Illegal immigrants encouraged to stay in Assam
Section 6A fixes two cut-off dates for non-citizen persons of Indian origin. Section 6A(2) provides that all persons who came before 1 January 1966 from Bangladesh and who are “ordinary residents” or persons who have been residing in Assam without a “serious break” since their entry shall be deemed to be citizens of India from 1 January 1966. Meanwhile, 6A(3) provides that every person of Indian origin who came to Assam between 1 January 1966 and 25 March 1971 from Bangladesh and has, since the date of his entry into Assam, been ordinarily resident in Assam and has been detected to be a foreigner, shall register himself as per the Rules made by the Union Government.
The petitioners submitted that Section 6A has no mechanism to determine who may be considered as being of “Indian origin” or an “Ordinary Resident” of Assam. This has resulted in citizenship for an unspecified number of illegal immigrants, he argued.
Divan also argued that the provision does not set down a timeline for detection of foreigners by the Foreigners Tribunal, a precondition for acquiring citizenship by registration under Section 6A. Without any time frame for completing the process of detection and registration, “illegal migrants are incentivised to stay in Assam in violation of the law”.
He highlighted that a person identified as a foreigner who registers according to the rules made by the Union government is accorded the same rights and obligations as a citizen of India, albeit with no right to vote for 10 years from detection. After the expiry of this period, such a person is deemed to be a citizen for all purposes, according to 6A(5).
Petitioners: Section 6A indirectly amends the Constitution
Choudhury argued that Article 6 of the Constitution of India has already recognized 19 July 1948, as the date for the recognition of citizenship for persons entering from Pakistan. In contrast, Section 6A confers automatic citizenship upon immigrants who entered India from Bangladesh before 1 January 1966, offering a different date than what is laid down in the Constitution. A similar viewpoint was shared by Divan who asserted that Section 6A constitutes new legislation conflicting with an “extant constitutional provision.”
Hansaria nuanced this argument. Section 6A(3), grants citizenship without voting rights to migrants entering from Bangladesh between 1 January 1966, and 25 March 1971. He noted that East Pakistan became Bangladesh on 26 March 1971, implying that Bangladesh was part of Pakistan until 25 March 1971. Given that Article 6 grants citizenship only to those entering India from Pakistan before 19 July 1948, Hansaria argued that the new date of 1 January 1966 effectively amends the Constitution without using the constitutional amendment process laid down under Article 368. CJI Chandrachud appeared unconvinced and referred to Article 11 of the Constitution which allows the parliament to make any laws and provisions relating to citizenship. The Chief stated that the date given under Article 6 would not dilute the powers of the parliament to make new laws. Hansaria responded that the Parliament cannot introduce a new law for granting citizenship to persons who migrated from Pakistan.
Choudhury and Hansaria emphasised that migrants under Section 6A are granted citizenship without having to swear an oath of allegiance to the Constitution of India, a mandate for those applying for citizenship under Section 5 of the Citizenship Act. Hansaria pointed out that migrants who follow the Constitution of Pakistan, pledging allegiance to Islam, are exempted from this requirement. He asserted that this is in contrast with India’s secular Constitution. Adding to this argument, he noted that India does not allow for dual citizenship and there is no formal renouncement of citizenship by an immigrant under Section 6A.
Choudhury: International Agreement was not ratified by Indian Parliament
Choudhury highlighted that the date of 25 March 1971 under Section 6A(3) was the result of an agreement between the Prime Minister of India and East Pakistan. However, he pointed out that this international agreement was given effect by the Parliament through legislation, as prescribed under Article 253. When asked to produce the agreement in Court, Choudhury mentioned it was a friendly agreement and was unable to find the actual agreement. “I think it exists,” he replied. He noted that the March 1971 date was not included in the Assam Accord and questioned whether the date came “from the heavens.”
Hansaria: Assam has the highest population of immigrants
Hansaria referred to the 2001 Census to suggest that 18 percent of immigrants from Bangladesh to India currently reside in Assam. This is in sharp contrast to seven percent in West Bengal, one percent in Meghalaya, and 10 percent in Tripura. He also relied on the official map of India to show that Assam shares the smallest border with Bangladesh compared to these states. Hansaria seemed to suggest that Assam is the most preferred state for immigrants due to its citizenship provisions. He added that unrestricted immigration has the potential to affect the identity of the nation.
Solicitor General Tushar Mehta is expected to commence arguments on behalf of the Union government tomorrow i.e. 7 December 2023.