Section 6A of the Citizenship Act | Day 4: Supreme Court reserves judgementAssam’s National Register of Citizens
Today, a five-judge Constitution Bench reserved judgement in the challenge to the validity of Section 6A of the Citizenship Act, 1955. The provision implements the Assam Accord which provides citizenship to immigrants from Bangladesh if they meet the criteria found under the provision.
Today, Senior Advocates Sanjay Hegde, C.U. Singh, Malvika Trivedi, Salman Khurshid, and Advocate Shadan Farasat argued in favour of the provision’s validity.
Senior Advocates Shyam Divan, K.N. Choudhury, and Vijay Hansaria concluded their rejoinder arguments in the second half of the hearings.
In the previous hearing, the Bench had directed the Union government to file an affidavit containing data on the number of persons detected to be foreigners, the number of Foreigner Tribunals and the administrative steps taken by the government to control illegal immigration. Solicitor General Tushar Mehta submitted this data today.
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.
Hegde: There is no “superior citizenship”
Hegde, who appeared on behalf of Assam Sankhyalghu Sangram Parishad, submitted that the nature of Indian citizenship is neither “ethno-nationalist” nor based on language, religion or culture. He further asserted that there is no “superior or inferior citizenship, based on ancestry of any type”, implying that persons who may have acquired citizenship other than by birth are considered by law to be equal citizens.
Hegde urged the Court to limit its judgement to the challenge to Section 6A of the Citizenship Act without venturing into the questions of history, foreign affairs or questions of administrative policy of the region.
The Constitutional architecture of Part II is to only define who is to be considered a citizen at the commencement of the Constitution, Hegde said, “Thereafter, Article 11 left the field open to the Parliament to do what it thought fit in the circumstances.”
Hegde urged the Bench to take note of the petitioners’ delay in challenging Section 6A. The first petitioner was filed in 2012, 27 years after the provision was introduced. The “belated challenge” should not be entertained, Hegde argued.
Singh: Striking down Section 6A will affect millions who benefited from it
Singh, who appeared for intervenor Citizens for Justice and Peace, an NGO, alleged that the petitioners’ motive is to take away the citizenship of persons who had benefited from Section 6A. He claimed that the petitioners also seek to undo the results of the “excruciating” National Register of Citizens (NRC) exercise conducted in Assam between 2013-14 for the identification of foreign nationals. The exercise was conducted at the behest of and under the supervision of the Supreme Court.
Singh submitted that striking down the provision 38 years after its enactment would not meet any purpose other than “causing harassment to millions” residing in Assam who will have to make claims of citizenship through other modes.
On the petitioners’ argument that Section 6A violates Article 14 of the Constitution by “singling out” Assam, Singh submitted that Section 6A is instead a step towards legalising the determination of foreigners. He suggested that Section 6A should be treated as an extension of Section 6 of the Citizenship Act, which provides the procedure for acquiring citizenship by naturalisation. “And just as grant of citizenship to any person under Section 6 does not violate Article 14, grant of citizenship to a class of persons under Section 6A does not violate the right to equality”, he stated.
Singh also noted that the unamended 1955 Act’s First Schedule (later repealed) contained a list of countries the citizens of which could register for Indian citizenship, Pakistan being one of them. With the creation of Bangladesh in 1971, “a special provision was needed” to deal with people from Bangladesh, Singh stated, which came in the form of Section 6A.
Trivedi: Continuing problems in Assam due to inadequate implementation of Section 6A
Trivedi appeared for All Assam Students’ Union (AASU), one of the original signatories to the 1985 Assam Accord. Trivedi submitted that the “continuing problems” in Assam arising out of illegal migration are a consequence of the “woefully inadequate” implementation of the accord, and not because of the enactment of Section 6A.
Trivedi argued that neither the Assam Accord, nor Section 6A provide any incentive for continued migration of people into Assam. She emphasised that the provision only grants citizenship to those who entered Assam prior to 1971, 14 years before the provision’s enactment.
Echoing submissions made earlier by Hedge and Singh, Trivedi questioned the delay observed in filing of petitions challenging Section 6A. To seek the intervention of the Supreme Court at “such a stage…may lead to turbulence”, she argued through her written submissions.
Trivedi stated that certain rights have accrued in favour of naturalised citizens as a result of enforcement of Section 6A and taking away those rights “would not only cause grave prejudice but will also lead to a situation of injustice and unfairness.”
Through written submissions, the AASU stated that the determination of validity of Section 6A only holds “academic significance, having lost its relevance with the passing of four long decades.”
Khurshid: The Court must choose between a “Salad Bowl” or a “Melting Pot” approach to making our society
Khurshid, appearing for the Assam Sanmilita Mahasangha, argued that India prefers a “salad bowl” approach, signifying a multicultural society, as opposed to a “melting pot” approach that aims to create a single identity. He added that Assam has a history of migration over centuries, resulting in a “variety of cultures, racial origins, identities, languages, and dialects,” as per his written submissions. He argued that Section 6A puts a stop to further migration while maintaining cultural diversity.
Khurshid then noted the different systems in Western Pakistan, where individuals entering India from Pakistan after 19 July 1948 required a permit under the permit system for citizenship. He stated that Eastern Pakistan (now Bangladesh) was a separate issue that necessitated its own provision under Section 6A. This was in response to arguments that a cut-off date for citizenship was already determined under Article 6 of the Constitution.
He pointed out that Bangladesh promised to take back every migrant who entered India after 26 March 1971. The date of 26 March 1971 was mentioned under the Bangladesh Citizenship (Temporary Provisions) Order, 1972. He contended that Indian law aligns itself with Bangladeshi law with “no gap between the two.”
Farasat: Right to Culture cannot justify denial of citizenship
Farasat, appearing for the Social Justice Forum, argued that Article 29 of the Constitution, which gives citizens the right to conserve their distinct language, script or culture, does not promote “cultural exclusivity.” Petitioners had argued that immigration has led to a change in the demographics of Assam, affecting their culture, language, and identity—all protected under Article 29. Farasat contended that Article 29 is premised on a multi-cultural society.
He argued that if the petitioners’ arguments were accepted, Article 29 would “cease to exist.” Presumably, Farasat was pointing out that the petitioners were claiming cultural superiority over the culture of the migrants, something which Article 29 does not envisage. He referred to Article 51A(f) of the Constitution which discusses “maintaining composite culture” i.e. maintaining a co-existence with other cultures. Farasat stated that India is a “bouquet of cultures,” and invoking the right to culture cannot be a ground for denying citizenship.
Union government’s affidavit: Prompt action against illegal immigrants
Responding to the Court’s direction to submit data in the previous hearing, Mehta informed the Court that between 1966 and 1971, a total of 32,381 people were detected to be foreigners. Detection as a foreigner by a Foreigners Tribunal is a precondition for acquiring citizenship by registration under Section 6A(3).
The Union government’s affidavit further stated that 100 Foreigners Tribunals in Assam have disposed of 3,34,966 cases. 97,714 cases are currently pending before the tribunals, and 8,461 appeals against Orders by the tribunals are pending before Gauhati High Court.
He further stated that in the past five years, the Ministry of Home Affairs has released Rs 122 crores for the creation and maintenance of Foreigner Tribunals.
The Union government holds periodic meetings to ensure the enforcement of legal provisions on illegal immigrants, the affidavit claims. “Prompt action” is taken for the detection, detention and deportation of illegal immigrants under the Foreigners Act, 1946 read with the Foreigners Order of 1948, it claims.
Mehta said that two lines of defence exist against illegal immigrants in Assam. The first line of defence comprises the Border Security Force (BSF), which is India’s border guarding organisation and is one of the seven Central Armed Police Forces. The second comprises the Assam Police border personnel who keep vigil and trace out infiltrators who might sneak past BSF outposts.
The government’s affidavit notes that there are 14 outposts, 14 patrol posts, 151 watch posts in Assam for the purpose of preventing infiltration.
India shares a border totalling 4096 km with Bangladesh. Out of this, the affidavit states, 3922 km of the border is “feasible” for fencing; on the “feasible” portion, 81.5% fencing is complete. The border with Bangladesh is “porous, criss-crossed by rivers, with hilly and mountainous terrain”, Mehta said.
It was further stated that 28.2% of the “non-feasible gaps” are covered with technological solutions, without specifying what technological solutions have been adopted. “All efforts are ongoing to cover the remaining border by fencing or technological solutions”, the affidavit states.
Out of the 263 km border that Assam shares with Bangladesh, the affidavit notes that 210 km are covered with fencing and the rest of the border is monitored through technological solutions.
In December 2022, the then BSF chief Pankaj Kumar Singh revealed a plan to install 5,500 security cameras along the borders with Bangladesh and Pakistan. The Union government had sanctioned Rs 30 crore for the procurement of cameras, drones and other gadgets to aid monitoring, it was stated.
With respect to West Bengal, which shares the largest border by length with Bangladesh, the government has stated that “despite all efforts, progress has been substantially hindered due to land acquisition issues with West Bengal.” Mehta said the hindrance is due to West Bengal’s non-adoption of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013, under which land can be acquired by the government on an urgent basis. West Bengal follows “a far slower, more complex direct land purchase policy, even for national security projects”, Mehta said.
Divan: Criteria for citizenship under Section 6A lack supporting mechanisms
Divan began his rejoinder arguing that the four criteria outlined in Section 6A(2) for immediate citizenship of those who entered Assam from Bangladesh before 1 January 1966 lack supporting mechanisms. For instance, although Parliament established criteria for deeming citizenship, such as Indian origin, entry before 1 January 1966, immigration from Bangladesh, and ordinary residency, it failed to create a mechanism to verify whether immigrants met these criteria. According to him, this results in citizenship without scrutiny, characterising it as “criteria-less citizenship” as the provision functions as if the criteria are nonexistent. CJI Chandrachud pointed out that Article 6 of the Constitution, which grants citizenship to persons who entered from Pakistan before 19 July 1948, also does not have supporting mechanisms. Divan responded that the “presumption” in the Constitution operates differently, highlighting that Section 6A(2) has “objective criteria” that warrant determination.
Divan then focused on the criteria for determining citizenship under Section 6A(3), which includes all the criteria under Section 6A(2) in addition to a person being detected as a foreigner by a foreigners tribunal under the Foreigners (Tribunal) Order, 1964. He pointed out that there is no time limit for completing the process laid down under Section 6A(3). Repeating his arguments from day 2, he argued that for these reasons, the statute is “vulnerable” and acts like a “magnet” for immigrants.
Further, Divan argued that Section 6A(3) also fails the test of validity due to the vagueness of the term “ordinary resident.” Provisions in the Income Tax Act, 1961 and the Foreign Exchange Management Act, 1999 have clearly defined the number of days to be considered an ordinary resident. In contrast, the Citizenship Act, 1955 lacks such determining criteria, making it “unconstitutionally vague.” Section 6A(1), the definition clause of the provision, does not define “ordinary resident” either.
He pointed out that one can be an ordinary resident for any number of days. He relied on Harakchand Ratanchand Banthia v Union Of India (1969), where the Supreme Court struck down vague expressions in the Registration Act, 1908 as they could lead to “a great deal of uncertainty.” CJI Chandrachud pointed out that Section 6A(3) has mechanisms in place for determining the criteria under that provision. Divan countered that the uncertainty of the expression “ordinary resident” does not trigger those mechanisms.
On Day 3, respondents had referred an agreement between the Prime Ministers of Bangladesh and India, where theBangladesh PM had agreed to take back immigrants who entered India after 26 March 1971. They had claimed that this agreement was one of the determining factors for including the date of 25 March 1971 found in the Assam Accord. In his rejoinder, Divan argued that the agreement between the two leaders had no specific mention of Assam. Additionally, the agreement also included other border states. He reiterated that there was no justification for singling out Assam, even under this agreement. He pointed out that even the Union’s own affidavit agrees that all border states near Bangladesh face immigration problems, not just Assam. He contended that the provision itself is inherently discriminatory.
Earlier, respondents had expressed concerns that declaring Section 6A unconstitutional would render many immigrants (determined as citizens) stateless. Divan countered that India has an existing regime outside of the state of Assam to address the issue of statelessness. The same regime would be applied to the immigrants in Assam, he argued.
Choudhury: Immigrants pose a security risk
Choudhury argued that the Union has treated citizenship data as a “trivial issue.” CJI Chandrachud interjected that the Union has clarified that immigration is a significant issue, to the extent that they couldn’t provide a specific number of immigrants entering India. Choudhury responded that the Union government should enact stringent laws as uncontrolled immigration poses the risk of citizens losing their identity in their nation. He contended that the Union’s affidavit downplays the number of immigrants in Assam, which in his estimate is not 32,000 but in the millions. Allowing citizenship in Assam would impose a security risk on the country, he said.
Hansaria: Legislation cannot amend the Constitution
Reiterating his arguments from Day 2, Hansaria contended that Article 6 had already established a cut-off date for determining citizenship for persons who entered from Pakistan as 19 July 1948. He argued that while Parliament can enact new laws on citizenship under Article 11, they must satisfy the constitutional tests under Article 6 and Article 14.
Section 6A, he said, fails both of these tests. When Section 6A determined the cut-off date for immediate citizenship as 1 January 1966 for immigrants from Bangladesh, it violated the cut-off date under Article 6 because Bangladesh was a part of Pakistan (referred to as East Pakistan). He referred to the Supreme Court’s judgement in the challenge to the abrogation of Article 370 where the Court held that the Constitution cannot be amended indirectly using the route of Article 367. Similarly, a circuitous method of Parliamentary legislation cannot amend it either, he contended.
After four days of hearings, the Court reserved Judgement.