Sec. 6A of the Citizenship Act | Day 3: Court directs Union government to submit data on number of citizenships granted to immigrantsAssam’s National Register of Citizens
Today, the Union government and other respondents began arguments in favour of the validity of Section 6A of the Citizenship Act, 1955. Attorney General R. Venkataramani, Solicitor General Tushar Mehta, Senior Advocates Kapil Sibal and Indira Jaising argued on the parliament’s powers to make laws relating to citizenship, the historical background of immigration in Assam, and the preservation of culture under Article 29.
During the proceedings, the Constitution Bench pronounced an Order directing the Ministry of Home Affairs to submit data about the number of citizenships granted, the number of foreigners detected in Assam, and the overall number of immigrants who entered India.
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.
Mehta: Serious problem, but striking down Section 6A is no solution
Mehta, appearing for the Union and government of Assam, admitted that the petitioner’s concerns, over the burden on resources, job opportunities, and demographic changes due to an influx of immigrants in Assam, were true. “There is a serious problem, an ongoing problem. But Section 6A of the Citizenship Act is confined to a particular period of time and declaring it to be unconstitutional would not be the solution to this problem”, Mehta said.
Section 6A, he argued, was made by the Parliament based on considerations of state and foreign policy. Additionally, the Parliament was empowered to make laws on citizenship, which is a matter of legislative policy. In matters of such nature, he stated in his written submissions, it will be “very difficult, if not altogether impossible” for the court to judge the constitutional validity of the provision.
On the petitioner’s argument that Section 6A violates Article 14 for not applying the same laws to neighbouring border states, he responded that the constitutional mandate is not to apply every law universally. “The Legislature has always the power to make special laws to attain particular objects and for that purpose has authority to select or classify persons, objects or transactions upon which the law is intended to operate.” He submitted that differential treatment becomes unlawful only when it is arbitrary or not supported by a rational relation with the object of a statute.
Mehta referred to Ajoy Kumar Banerjee and Others v Union of India (1984) where the Supreme Court held that Article 14 doesn’t prohibit the Legislature from implementing a reform selectively. The classification can be justified on historical grounds or administrative necessity. Mehta contended that the Assam Accord was one such reform protected through historical grounds. He also referred to R.C. Poudyal v. Union of India (1993) which held that a territorial classification does not violate Article 14.
CJI Chandrachud: What steps did the Union government take to deal with migration?
While hearing Mehta’s arguments, Chief Justice D.Y. Chandrachud expressed the need for proper data which demonstrates the present situation in Assam. Additionally, he also observed that India has limited resources in education and healthcare, something which is likely to be impacted if immigration is not controlled. “What are you doing today [to prevent immigration]?” he asked.
Under Section 6A(3), a person who entered Assam between 1 January 1966 to 25 March 1971 is entitled to citizenship if they are “deemed to be a foreigner.” This is determined by a Foreigners Tribunal set up under the Foreigners (Tribunal) Order, 1964. CJI Chandrachud demanded figures of the total number of cases pending before the tribunals and the time taken by them to determine whether a person is a foreigner. Mehta agreed to file an affidavit containing relevant data.
The Constitution Bench reconvened after the lunch break and pronounced an Order directing the Union and Assam governments to provide details of the following:
- The number of individuals granted citizenship under Sec 6A(2) between 1 January 1966 and 25 March 1971.
- The count of individuals detected as foreigners by Foreigners Tribunals under the Foreigners (Tribunal) Order, 1964.
- An estimation of illegal migrant inflow into India, with a specific focus on Assam post 25 March 1971.
- The number of Foreign Tribunals set up by the Union government to adjudicate cases of illegal migrants who entered after 25 March 1971. This would include details of pending cases, cases disposed of, and the average time taken to dispose of them.
- Administrative steps taken by the Union Government to address illegal immigration, specifically in the northeastern states, outlining border fencing initiatives and projected completion timelines.
The Union and the Assam government were directed to submit the affidavit by Monday (11 December 2023).
Union Government: Parliament has power to make new laws on citizenship
On day two, petitioners argued that the deadline set down by Article 6 of the Constitution applies equally to migrants from Bangladesh, which was part of Pakistan till 25 March 1971. Venkataramani countered this today, stating that Article 6, which prescribes the deadline of 19 July 1948 for migrants from Pakistan, has no bearing on the Parliament’s power to enact laws relating to citizenship under Article 11.
Mehta referred to the Constituent Assembly Debates, specifically speeches made by Dr. B.R. Ambedkar, Rajendra Prasad, Alladi Krishnaswamy Ayyar, and Hriday Nath Kunzru, which conveyed that the Assembly very thoughtfully granted the Parliament powers to make laws relating to citizenship in the future. “The constitution makers intended for Article 11 to give such power to the Parliament to deal with specific situations relating to grant or refusal of citizenship”, the Union Government said in its written submissions.
Venkataramani stated that a state-specific resolution cannot be rendered “defective or illegal” only because of the Parliament’s disclination to resolve “larger questions” on the consequences of the provisions. He was responding to arguments from day two that Assam was unreasonably “singled out” despite the presence of illegal immigrants in other border states.
CJI Chandrachud: Section 6A prevented people from going stateless
Justice M.M. Sundresh stated that non-citizen persons of Indian origin who came before 1 January 1966 and have been residing in Assam without a serious break are deemed to be citizens of India.
Mehta informed the Court that an assurance was given by then Prime Minister of Bangladesh in February 1972 that all Bangladeshi nationals who had taken shelter in India since 25 March 1971 were to be taken back. Based on this, a circular was issued by the government of India in September 1972 stating that those who had arrived in India before 25 March 1971 were not to be sent back, and those who entered India after the said date were to be repatriated.
The Chief Justice called this “interesting understanding” between the two governments as it allowed people who had arrived before 25 March 1971 to be brought “into the mainstream by giving them citizenship” instead of leaving them stateless.
Sibal: Assam has had a dynamic demographic since the 1800s
Sibal focused exclusively on Assam’s history, tracing its trajectory from the 1824 partition from Burma (now Myanmar) to its subsequent merger and division with East Bengal in 1905. He delved into the influx caused by the India-Pakistan partition in 1947, followed by the separation of West and East Pakistan (now Bangladesh), leading to an influx of Bengali-speaking Hindus into Assam. His argument aimed to counter petitioners’ claims of immigration altering Assam’s demographics, asserting that the state’s historical demographics have been dynamic.
Sibal also emphasised that the petitioners have failed to demonstrate the impact on the state’s culture, traditions, and language. He highlighted that Assam is the most multi-linguistic and diverse state. Senior Advocate Shyam Divan, appearing on behalf of the petitioners, represents 10-11 petitioners from various cultural backgrounds, Sibal said.
Sibal envisioned a scenario where Section 6A was invalidated resulting in citizenship granted to migrants being revoked. In such a situation, Bangladesh will not accept them. CJI Chandrachud noted the risk of rendering people stateless as they will be considered foreigners without citizenship who cannot be deported. Sibal stated that as per international law principles the court should uphold laws whose striking down would result in statelessness. He stated that the petitioner’s arguments talk about creating divisions and counter the concept of “fraternity.”
Jaising: Immigration cannot be treated as external aggression
Jaising, echoing Sibal’s points, contended that the petitioners failed to prove a violation of Article 29. She asserted that their focus on the state’s demographics overlooked other factors influencing change, such as fertility rates and interstate migration. Jaising argued that Assam’s culture and language, with both Assamese and Bengali, recognised as official languages, remained unaffected.
Jaising further stated that there is no concept of state citizenship in India for the petitioners to demand that their culture and demographics are being hampered by migrants who are ultimately of “Indian origin.” “culture” has never been defined by the Supreme Court, she said, arguing that the Court only recognises “constitutional culture” and “constitutional morality.”
Jaising stated that immigration cannot amount to external aggression. She contested the Supreme Court’s decision in Sarbananda Sonawal v Union of India (2005) which held that the state is duty bound to protect Assam from external aggression and internal disturbances due to migration under Article 355. She proclaimed that it was a “black and white” judgement and requested the Court to revisit it.