Supreme Court Reserves Decision on Constitutionality of Citizenship Act’s Section 6A

BACKGROUND :

Following the 1985 Assam Accord, Section 6A was introduced as part of the Citizenship (Amendment) Act. The Assam Accord was a three-way agreement reached between the Central Government, the State Government of Assam, and the leaders of the Assam Movement to halt the flood of illegal migrants from Bangladesh. The Assam Accord, signed in 1985, added Section 6A to the Citizenship Act of 1955, which was only applicable to Assam.

This provision addresses the large-scale migration that occurred prior to the 1971 Bangladesh Liberation War. Notably, it requires the detection and repatriation of foreigners who entered Assam after March 25, 1971, when Bangladesh was formed. Section 6A illustrates the special historical and demographic issues that Assam experienced during this important period.

PROVISIONS AND CONSEQUENCES :

Section 6A established a specific provision for Assam under which persons of Indian origin who arrived in Bangladesh before January 1, 1966, were considered citizens of India as of that date. Persons of Indian heritage who arrived in Assam between January 1, 1966, and March 25, 1971, and were found to be foreigners, were forced to register and were awarded citizenship after 10 years of residence, subject to specified requirements. Persons who entered Assam after March 25, 1971, were required by law to be detected and removed.  

CONTENTIONS :

Senior counsel Sanjay Hegde’s comments today emphasised the historical background of Indian citizenship, emphasising the fluidity in the idenification of citizenship, particularly in the context of division. Hegde added that individuals crossing through the eastern border were permitted to do so since a significant number of Hindus had yet to enter Indian territory. We were a nation that had been divided. There was some debate about who was an Indian and who wasn’t. As a result, we defined only the starting situation, which had to include migration triggered by partition. Those who had left India needed a permit to return and resettle. That approval was extremely difficult to obtain. This mostly applied to the western border. Mr. Iyengar makes it plain that the permit system will not be used on the eastern border. and not without reason.

There were still a significant number of Hindus in former East Pakistan who had yet to move over. Among the Hindus who arrived was Pakistan’s first law minister. Hegde emphasized that Indian citizenship was not ethno-nationalist or based on criteria such as language, religion, or culture. He advised the court to avoid making statements that could be perceived as judgmental in sensitive areas, particularly the North East, and emphasized the potential ramifications of seemingly benign utterances in other cases. He offered the example of a seemingly benign statement made in a tax law dispute but was later erased owing to the repercussions in Sikkim.

Senior Advocate C.U. Singh said that the petitioners were aiming to deprive others of rights that had accumulated to them over several decades. He maintained that provision 6A of the Assam Accord, which permitted foreigners to be determined, did not violate Article 14 of the Constitution. He claimed that awarding citizenship to one group of persons did not inherently constitute a violation, and that denying citizenship to another group could not be challenged by another. He claimed that the petitioners are seeking a right that would deprive other persons of rights earned over the course of 27-30 years. Today, it has been 40 years, and Section 6A does not violate Article 14; rather, it is a step forward in legalizing the determination of foreigners as per the Assam Accord; simply because you offer citizenship to one class of persons does not mean there is a violation.

Shadan Farasat is an Advocate with the Social Justice Forum. Recognizing the importance of the right to culture, it is argued that it should not be used to deny citizenship. He also mentioned the situation in Malaysia, where citizenship is given to everyone but affirmative action is taken for indigenous people who are socioeconomically backward. He also stated that the citizenship regime should be non-discriminatory, citing article 325, which prohibits discrimination. He went on to say that Article 326, which defines the electorate, states that the electoral roll is always changing, showing that the electorate is not static.

HELD :

A Constitution Bench chaired by the Chief Justice of India has recently heard a series of petitions challenging the legitimacy of Section 6A of the Citizenship Act of 1955. The Constitution Bench clarifies that its investigation is restricted to Section 6A and not the Assam National Register of Citizens (NRC).

On 12 December 2023, a Supreme Court Constitution Bench deferred its decision in a batch of petitions contesting Section 6A of the Citizenship Act 1955. The panel, which included CJI DY Chandrachud and Justices Surya Kant, MM Sundresh, JB Pardiwala, and Manoj Misra, deliberated on the case for four days before reserving its decision. Section 6A of the Citizenship Act of 1955 allows foreign migrants of Indian ancestry who arrived in Assam after January 1, 1966 but before March 25, 1971, to apply for Indian citizenship.

Certain Assamese indigenous organizations have contested this provision, claiming that it legalizes unlawful infiltration of Bangladeshi foreign migrants. Today, the bench adjourned the proceedings after hearing the intervenors’ arguments and the petitioners’ rebuttal comments. During the proceedings, Tushar Mehta, the Solicitor General of India, also furnished the bench with information on illegal immigrants and individuals who had been awarded citizenship under Section 6A of the Citizenship Act of 1955. He also offered information on the border fencing. It may be recalled that on December 7, the Court ordered the Ministry of Home Affairs to provide data on the inflow of illegal migrants to Assam and the north eastern states after March 25, 1971 (the date of Bangladesh’s Independence) and to provide data-based disclosures under various headings, including the grant of citizenship to immigrants over different time periods and the functioning of the foreigners’ tribunals established.

The Solicitor General further stated that West Bengal’s non-cooperation had hampered the Union’s progress on fencing the border. West Bengal’s government has a far slower and more complicated direct land purchase approach. Even for national security concerns, such as border barrier, the state government is unwilling to cooperate. If the state of West Bengal cooperates in purchasing the land and hands it over to the central government for fencing.

Aditya Pratap is a lawyer and founder of Aditya Pratap Law Offices. He practices in the realm of real estate, corporate, and criminal law. His website is adityapratap.in and his media interviews can be accessed at http://www.youtube.com/@AdityaPratap/featured. Views expressed are personal.


This article has been assisted by Khushi Singh, a 3rd year law student pursuing B.A., LL.B. from NMIMS Mumbai.