“Free immigration and a welfare state cannot coexist,” Vijay Hansaria on Day 2 of Section 6A hearings

On Day 2 of the hearings in a batch of petitions challenging the constitutional validity of Section 6A of the Citizenship Act, 1955, the petitioners argued that the provision violates Articles 14 and 29 of the Constitution.

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Read all about Day 1 of the hearings here.

Read all about Day 3 of the hearings here.

TODAY, a five-judge Constitution Bench continued hearing a bunch of petitions challenging the constitutional validity of Section 6A of the Citizenship Act, 1955.

In Re Section 6A of the Citizenship Act 1955, the petitioners argue that Section 6A caused illegal infiltration in Assam, destroying its cultural fabric.

Section 6A provides for special provisions as to the citizenship of persons covered by the Assam Accord. The Assam Accord of August 1985 is a tripartite agreement between the Assam government, the Union of India, and the All Assam Students Union.

The Accord followed the Bangladesh liberation war of 1971, which gave rise to apprehensions of the influx of Bangladeshis into Assam and the fear of adverse effects on the political, social, cultural and economic life of the state.

Section 6A of the Citizenship Act allows the grant of citizenship to those immigrants of Indian origin who had entered Assam before January 1, 1966 and allows citizenship to those who entered after January 1, 1966, but before March 25, 1971 based on certain conditions. 

Shyam Divan's arguments

Senior advocate Shyam Divan, appearing for the petitioners before a Bench comprising Chief Justice of India Dr D.Y. Chandrachud and Justices Surya Kant, M.M. Sundresh, J.B. Pardiwala And Manoj Misra, made submissions on the effect and impact of the provision.

Divan submitted that Section 6A of the Citizenship Act contravenes Article 14 of the Constitution.

In support of this submission, Divan pointed out that firstly, any political agitation that results in a political settlement, in this case the Assam Accord, is not a sufficient rationale for the present classification whereby a different cut-off date for citizenship is applicable solely to Assam. The law has to be constitutionally sound, he added.

Divan referred to the judgment by a seven-judge Constitution Bench in Nagpur Improvement Trust and Another versus Vithal Rao and Others (1972), where it was held that the State can make a reasonable classification under legislation provided it is based on "intelligible differentia having a rational relation with the object sought to be achieved by the legislation in question".

The object itself should be lawful, the judgment adds.

The second argument Divan made was that rewarding illegal migrations in Assam is itself a discriminatory object. Divan stated that if the object and effect of the law are discriminatory, the law falls foul of Article 14.

Divan averred that Assam and other states bordering Bangladesh form a homogenous class where "singling out Assam is impermissible".

According to Divan, allowing citizenship to a person who enters Assam and not other states amounts to "palpable arbitrariness".

The CJI remarked that the historical context in which the Union of India entered into the arrangement in a violence-striven Assam needs to be taken into consideration.

To this, Divan contended that there is no record of the historical documents, studies or any other material relied upon by the Union government in support of the exceptional deadlines allotted for Assam.

Divan argued that Section 6A violates Article 21 because firstly, it marginalises community rights, including land rights of the indigenous population of the state, which form an important facet of Article 21. Secondly, it severely compromises self-governance by citizens. Thirdly, it hampers the economic, social and political aspirations of the citizens in Assam as immigrants lay a claim over a share of them.

Divan submitted that Section 6A violates Article 29 of the Constitution as well, given that citizens' cultural rights, and the right to have a language and a script are affected.

Divan raised the contention that Section 6A(2) does not provide for any determination process in "deeming" all persons of Indian origin who came to India before January 1, 1966, as citizens of India.

By holding that a person should have been "ordinarily resident" in Assam since the date of their entry into Assam, the provision presents a blanket application, which is without any conditionality, Divan argued.

Divan claimed that the impact of this provision is that illegal immigrants will continue to remain in Assam, and it serves as a beacon or encouragement for immigration to Assam to claim Indian citizenship.

In view of Section 6A(3) of the Citizenship Act, Divan pointed out that the opinion of a tribunal is important for detecting a foreigner; the detection exercise of the foreigner needs to be completed before registering him as a foreigner; and no time period is prescribed for this exercise.

Under Section 6A(1)(b), "detected to be a foreigner" means detected to be a foreigner following the provisions of the Foreigners Act, 1946 (31 of 1946) and the Foreigners (Tribunals) Order, 1964 by a Tribunal constituted under the said Order.

Perusing Section 6A(4), Divan highlighted that post registration as a 'foreigner' and till ten years after the expiry of that date when he was detected to be a foreigner, an immigrant will have the same rights and obligations as a citizen of India.

Further, Divan presented the court with certain suggestions for directions, including declaring Section 6A unconstitutional; and restricting the movements of detected illegal immigrants in particular places or locations.

Divan scrutinised the actions that Union and state governments can take regarding illegal immigrants. As per him, the government could take appropriate actions for arrest or detention under Section 3(2)(g) of the Foreigners Act, 1946; remove or deport immigrants who have entered without a passport under the Passport (Entry into India) Act, 1920; or take criminal action under Rule 6 of the Passport (Entry into India) Rules, 1950.

K.N. Choudhury's arguments

Advocate K.N. Choudhury, appearing for a second batch of petitioners, submitted that the Assam Accord is a "political settlement" that lacks any legal backing.

Choudhury contended that there was an understanding or agreement between the then prime ministers of India and Bangladesh that those who entered Assam before March 25, 1971 would not be deported.

Choudhury stated that there should have been parliamentary legislation to give effect to such an understanding under Article 253 of the Constitution. Without such parliamentary legislation, the date of March 25, 1971 loses all significance, he added.

Choudhury termed the passing of Section 6A as "vote-bank politics" that is "not only perceived but also acknowledged [as such]".

He further pointed out that Article 13 of the International Covenant on Civil and Political Rights (ICCPR), provides that: "An alien lawfully in the territory of a State party to a present covenant may be expelled."

India, having ratified the ICCPR, is not under a duty under international law to admit the illegal migrants, Choudhari stated.

Vijay Hansaria's arguments

Senior advocate Vijay Hansaria, representing the third batch of petitioners, submitted that Section 6A of the Citizenship Act amends Article 6 of the Constitution, which could not have been done without undergoing the process laid down in Article 368.

According to Hansaria, Article 6 is a complete code on conferring citizenship to people from Pakistan who migrated on or before July 19, 1948.

Since India recognised Bangladesh on December 16, 1971 after the Indo–Pak war, Bangladesh was still considered East Pakistan in the context of the 1966 cut-off applicable for Assam.

To this, the Bench remarked that the Parliament meant to confer citizenship to migrants of Bangladesh and it cannot be interpreted as conferring citizenship to migrants from Pakistan.

The CJI observed that by enacting the provision of Section 6A in 1985, the Parliament considered that the migrant would have been "an ordinary resident" for at least fourteen years.

In respect of his main submissions, Hansaria contended that as is internationally recognised, a policy of "free immigration" and a "welfare state" cannot simultaneously coexist.

Hansaria submitted that the "admission of strangers" should not significantly affect the residents and that unrestricted immigration threatens the continuity of identity shared by the residents of a State.

Hansaria sought to explain that immigrants from Bangladesh swear allegiance to the Constitution that recognises Islam as the sole arbiter, which is contrary to the secular principles of the Indian Constitution.

Hansaria claimed that human rights cannot be extended to include within its ambit the right to citizenship, since citizenship is a political right and not a basic human right.

Refugees have certain basic rights such as education, food and health, but not the right to citizenship, Hansaria contended. 

The respondents are set to begin their arguments tomorrow.

Read all about Day 1 of the hearings here.

Read all about Day 3 of the hearings here.