The Supreme Court has upheld the constitutional validity of Section 6A of the Citizenship Act, 1955 by a 4:1 majority.
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- The Supreme Court also called for stricter implementation of laws against illegal immigration and judicial monitoring of the implementation of immigration and citizenship legislations.
About Section 6A of Citizenship Act
- Framework for Recognition: In 1985, in order to give effect to the Assam Accord, Section 6A was introduced in The Citizenship Act, 1955.
- Section 6A provides the framework to recognise migrants in Assam as Indian citizens or to expel them based on the date of their migration.
- Eligibility for Citizenship: The provision fixes March 25, 1971, as the cut-off date for granting citizenship to Bangladeshi migrants in Assam.
- All persons of “Indian origin” who entered the state before January 1, 1966 and have been “ordinarily resident” in Assam ever since “shall be deemed to be citizens of India”.
- Registration Requirements: Additionally, it provides that anyone who entered and resided in Assam after January 1, 1966 but before March 24, 1971 who has been “detected to be a foreigner” would have the opportunity to register themselves according to rules made by the Central Government.
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Challenges to Section 6A of the Citizenship Act
- Petitioners’ Concerns: Petitioners, including the Assam Public Works President and Assam Sanmilita Mahasangha, challenged Section 6A as discriminatory, arguing that it:
- unfairly targets Assam and
- facilitates mass immigration,
Background of Section 6A of Citizenship Act and Assam Accord
- Influx of Migrants: The 1971 war between India and Pakistan led to the independence of Bangladesh, causing a significant influx of Bengali-speaking refugees into India from East Pakistan.
- AASU Agitation: Concerned about demographic changes due to Bangladeshi immigration, the All Assam Students Union (AASU) launched a movement demanding the deportation of illegal migrants.
- This agitation lasted six years, marked by significant unrest and violence.
- Assam Accord: The protest concluded with the signing of the Assam Accord in August 1985, facilitated by the Rajiv Gandhi-led Central government.
- A critical aspect of the Assam Accord was the establishment of criteria for identifying “foreigners” in Assam.
- Clause 5 of the Accord set January 1, 1966, as the base cut-off date for determining foreigners in electoral rolls.
- It also provided a process for the grant of citizenship to those who arrived in the state after that date, upto March 24, 1971.
- Inclusion of Section 6A
- In December 1985, Section 6A was incorporated into the Citizenship Act to formalise the provisions of the Assam Accord.
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- alters the state’s demographics by granting citizenship to migrants claiming entry before the March 1971 cut-off date.
- making indigenous Assamese people a minority in their own state and adversely affecting their cultural rights under Article 29 of the Constitution.
- Inconsistent Cut-off Dates:
- Section 6 of the Constitution grants citizenship to any person who migrated from Pakistan before July 19, 1948.
- Petitioners asserted that Section 6A indirectly amends this constitutional provision, as they argued that Bangladesh was still part of Pakistan as of January 1, 1966.
- The insertion of a new cutoff date for granting citizenship would violate an existing cutoff date for immigrants entering India from Pakistan.
Centre’s Defense
- Parliament Has the Power to Regulate Citizenship:
- Article 11 of the Indian Constitution: The Centre referenced Article 11 of the Constitution, which empowers Parliament to regulate matters related to citizenship, as a basis for Section 6A.
- Entry 17 of the Union List, gives Parliament the power to make laws to address “Citizenship, naturalisation and aliens”.
- Potential Consequences of Striking Down Section 6A: Other respondents , including NGO ‘Citizens for Justice and Peace’ warned that striking down Section 6A could render many current residents “stateless”, and be considered foreigners after enjoying citizenship rights for over 50 years.
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National Register of Citizens (NRC)
- Definition: The NRC is a record of genuine Indian citizens, aimed at identifying and deporting illegal immigrants as mandated by the Citizenship Act of 1955, Foreigners Act of 1946, and the Passport (Entry into India) Act, 1920.
- The only nationwide NRC was created in 1951.
- Assam is the only state currently maintaining an NRC, mandated by the Supreme Court since 2014.
National Register of Citizens (NRC) in Assam
- Objective: To identify genuine citizens residing in Assam as of March 24, 1971, addressing immigration concerns.
- NRC Process Initiation: Started in 2013 under a Supreme Court order, with completion set for August 31, 2019.
- Eligibility: Included names of individuals or their descendants from the NRC of 1951, electoral rolls up to March 24, 1971, and other admissible documents proving presence before that date.
- Final Release: The updated NRC was released on August 31, 2019, excluding over 1.9 million applicants making them ‘Stateless’.
- Excluded individuals can appeal to Foreigners Tribunals within 120 days, using state-provided legal aid, and must prove their ancestors’ citizenship prior to March 24, 1971.
- No immediate detention occurs until tribunal decisions are made, complicating deportation due to the lack of a formal repatriation treaty with Bangladesh.
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Key Points from the Supreme Court Judgement
- Constitutional Validity of Section 6A: Section 6A does not violate Articles 6 and 7 of the Constitution, which establish a cut-off date for granting citizenship to migrants from East and West Pakistan as of January 26, 1950, the date of the Constitution’s commencement.
- Articles 6 and 7 are only meant to determine citizenship at the commencement of the Constitution on January 26, 1950. Section 6A, on the other hand, “deals with those who are not covered by the constitutional provisions”.
- Legislative objective of Section 6A: It was to balance the humanitarian needs of migrants of Indian origin and the impact of the migration on the economic and cultural needs of Indian States.
- Section 6A and Right to Equality: The influx of migrants to Assam had a unique impact on the state’s cultural and political rights, making it rational to treat Assam differently from other states.
Key Points from the Dissenting Judge on Section 6A
- Flawed Citizenship Process for Migrants (1966-71):
- Justice Pardiwala highlighted the lack of a mechanism allowing migrants from January 1, 1966, to March 25, 1971, to voluntarily apply for citizenship.
- Instead, they must wait to be identified by the government as “suspicious immigrants” to then prove their citizenship before a foreigners’ tribunal.
- Ineffectiveness Over Time:
- Section 6A, while constitutional at first, has become ineffective.
- Without a proper timeline for identifying foreigners, it no longer serves its original purpose of quick and effective identification of migrants from the 1966-71 period.
- Absence of Timeframe for Removal:
- Lack of a timeframe would “relieve” the government of its burden to identify immigrants belonging to the “1966-71 stream” and delete them from the electoral rolls.
- These immigrants would be incentivised to remain on the electoral rolls for an “indefinite period” until they are detected.
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- Section 6A does not violate the principle of equality by granting citizenship only to migrants in Assam, excluding other border states.
- 6A does not facilitate “external aggression”: The court ruled that Section 6A, which grants citizenship to certain migrants from East Pakistan (now Bangladesh), does not amount to “external aggression” through illegal immigration.
- Regulated Migration: 6A provides a way to manage and regulate who can become a citizen.
- No Violation of Article 355: Petitioners argued Section 6A violated Article 355 (meant to protect states from external threats). The court disagreed, saying letting people challenge laws using emergency powers would create chaos.
- Reasonable Cut-off Date: The cut-off date of March 25, 1971, is justified because it coincides with Operation Searchlight, which was launched on March 26, 1971, to suppress the Bangladeshi nationalist movement.
- Migrants before this operation are considered part of the Indian partition.
- Misinterpretation of Section 6A: The claim that Section 6A incentivizes migration to Assam is deemed erroneous, as undocumented migrants could previously register as citizens under Section 5(1)(a) of the Citizenship Act before its amendment in 2003.
- Compliance with Constitutional Principles: Section 6A remains within the constitutional framework, does not contravene the foundational principles of fraternity, nor does it infringe upon Articles 6, 7, 9, 14, 21, 29, 326, or 355 of the Constitution of India.
- Compatibility with Other Laws: The ruling confirmed that Section 6A does not conflict with the Immigrants (Expulsion from Assam) Act, 1950, or established principles of international law.
- Cultural heritage protection: The presence of diverse ethnic groups does not inherently infringe upon the rights to protect linguistic and cultural heritage under Article 29(1) of the Constitution.
- Acknowledgment of Illegal Immigration Concerns: The porous borders and inadequate fencing, contributes to a continuous influx of migrants.
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Significance of the Judgement
- Upholding of Cut-Off Date: With SC upholding the validity, the cut-off date will remain as the basis of granting citizenships to those coming from Bangladesh and other nations to Assam.
- Foundation of National Register of Citizens (NRC): It has upheld the basis on which the National Register of Citizens (NRC) in Assam was devised.
Way Forward To Tackle the Problem of Immigrants In Assam
- Enhance Enforcement Mechanisms: Develop robust mechanisms to ensure effective enforcement of Section 6A.
- This includes increasing resources and personnel dedicated to monitoring and identifying illegal immigrants in Assam.
- Training Programs: Implement training programs for authorities involved in immigration enforcement to better understand the legislative framework and the importance of adherence to due process.
- Integration of Legislative Provisions : Integration of the Immigrants (Expulsion from Assam) Act, 1950 into Section 6A to enhance the identification process of illegal immigrants.
- The Immigrants (Expulsion from Assam) Act, 1950 allows the government to expel immigrants from Assam who entered the state after March 25, 1971.
- Streamline Procedures: Establish clear and efficient procedures for the identification, documentation, and deportation of illegal immigrants, reducing bureaucratic delays.
- Judicial Oversight: Implement constant judicial monitoring as directed by the court to ensure compliance with immigration laws and safeguard the rights of residents.
- Regular Reporting: Require periodic reports from enforcement agencies on the status of illegal immigration and the effectiveness of measures taken under Section 6A.
- Strengthening Tribunals: By increasing the number of tribunals and personnel dedicated to immigration cases, ongoing training for tribunal members on immigration laws, etc.
October 18, 2024
