Constitutional validity of Citizenship Act’s Section 6A

Source: By Sukrita Baruah: The Indian Express

A Supreme Court Constitution Bench, while hearing petitions challenging Section 6A of the Citizenship Act, said 10 January 2023 it would first decide whether the provision is constitutionally valid before proceeding to other issues raised in the pleas. What is this Section?

Questions around citizenship, “illegal immigrants” and rights of “indigenous Assamese” citizens in Assam largely revolve around the Assam Accord, which was signed in 1985 between the Rajiv Gandhi government and the All Assam Students’ Union at the end of a six-year-long agitation against the influx of migrants from Bangladesh into the state.

The plea before the Constitutional bench in the Supreme Court challenges one of the core elements of the Accord—which determines who is a foreigner in the state—and the basis of the final National Register of Citizens in Assam, published in 2019.

Clause 5 of the Assam Accord states that 1 January 1966 shall serve as the base cut-off date for detection and deletion of “foreigners” but it also contains provisions for the regularisation of those who arrived in the state after that date and up till 24 March 1971. The 1971 cut-off was arrived at as a consensus after extended negotiations among stakeholders.

Section 6 A of the Citizenship Act was inserted as an amendment to accommodate this. What Section 6 A essentially does is establish 24 March 1971 as the cut-off date for entry into the state, meaning that those entering the state after that would be considered “illegal immigrants”.

It states that while those who came to Assam on or after 1 January 1966 but before 25 March 1971 from Bangladesh shall be detected as “foreigners”, they would have to register themselves according to rules made by the Central Government. Till a period of 10 years from the date they were detected as foreigners, they would have the same rights and obligations as Indian citizens except being included in electoral rolls for any assembly or parliamentary constituency. At the end of the ten-year period, they were to be deemed citizens.

The final National Register of Citizens in Assam which was published in 2019 was conducted with this cut-off date of 24 March 1971.

The plea

The plea before the constitutional bench, while questioning the constitutional validity of Section 6 A, wants 1951 to be established as the cut-off date for inclusion in the National Register of Citizens instead of 1971. The primary petitioner is the Assam Sanmilita Mahasangha (ASM) — an organisation that says that it advocated for the rights of “indigenous” communities of Assam. Their core argument is that by establishing a different cut-off date for Indian citizenship in Assam than in the rest of India—which is July 1948— Section 6 A is “discriminatory, arbitrary and illegal” and violative of the rights of “indigenous” Assamese people.

Their petition, which had been filed more than ten years ago, in 2012, states that “ the application of Section 6-A to the State of Assam alone has led to a perceptible change in the demographic pattern of the State and has reduced the people of Assam to a minority in their own State. The same is detrimental to the economic and political well-being of the State and acts as a potent force against the cultural survival, political control and employment opportunities of the people.”

While the final NRC in Assam was released in 2019, Working President of the ASM Matiur Rahman said that the body is looking to an order passed by a two-judge bench led by then CJI Ranjan Gogoi as a possibility that the NRC can be updated according to the terms requested to them.

The order, passed on 13 December 2019 states, “We make it clear that subject to orders as may be passed by the Constitution Bench in Writ Petition (C) No.562 of 2012 and Writ Petition (C) No.311 of 2015, National Register of Citizens (NRC) will be updated.”

“By settling on the date of Banglesh’s independence in violation of the Constitution, the AASU has gone against the indegenous tribes of Assam by favouring the 70-80 lakh Hindu and Muslim Bengalis and Nepalis who fled from East Pakistan over the course of those years and illegally occupied the lands of indigenous tribes and government lands,” said Rahman.

What are the questions surrounding Section 6 A?

While hearing the 2012 plea by the ASM, a two-judge bench of Justices Ranjan Gogoi and Rohinton had framed 13 questions on Section 6 A for deliberation by a constitutional bench, in an order passed on 17 December 2014.

(i) Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6A of the Citizenship Act in as much as Section 6A, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4 (2) read with Article 368 (1)?

(ii) Whether Section 6A violates Articles 325 and 326 of the Constitution of India in that it has diluted the political rights of the citizens of the State of Assam;

(iii) What is the scope of the fundamental right contained in Article 29(1)? Is the fundamental right absolute in its terms? In particular, what is the meaning of the expression “culture” and the expression “conserve”? Whether Section 6A violates Article 29(1)?

(iv) Whether Section 6A violates Article 355? What is the true interpretation of Article 355 of the Constitution? Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”? Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?

(v) Whether Section 6A violates Article 14 in that, it singles out Assam from other border States (which comprise a distinct class) and discriminates against it. Also whether there is no rational basis for having a separate cut-off date for regularizing illegal migrants who enter Assam as opposed to the rest of the country; and

(vi) Whether Section 6A violates Article 21 in that the lives and personal liberty of the citizens of Assam have been affected adversely by the massive influx of illegal migrants from Bangladesh.

(vii) Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution?

(viii) Whether, after a large number of migrants from East Pakistan have enjoyed rights as Citizens of India for over 40 years, any relief can be given in the petitions filed in the present cases?

(ix) Whether section 6A violates the basic premise of the Constitution and the Citizenship Act in that it permits Citizens who have allegedly not lost their Citizenship of East Pakistan to become deemed Citizens of India, thereby conferring dual Citizenship to such persons?

(x) Whether section 6A violates the fundamental basis of section 5 (1) proviso and section 5 (2) of the Citizenship Act (as it stood in 1985) in that it permits a class of migrants to become deemed Citizens of India without any reciprocity from Bangladesh and without taking the oath of allegiance to the Indian Constitution?

(xi) Whether the Immigrants (Expulsion from Assam) Act, 1950 being a special enactment qua immigrants into Assam, alone can apply to migrants from East Pakistan/Bangladesh to the exclusion of the general Foreigners Act and the Foreigners (Tribunals) Order, 1964 made thereunder?

(xii) Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to Government according to law?

(xiii) Whether Section 6A violates fundamental rights in that no mechanism is provided to determine which persons are ordinarily resident in Assam since the dates of their entry into Assam, thus granting deemed citizenship to such persons arbitrarily?