“The provision has become an endless beacon attracting illegal migrants to Assam,” Shyam Divan on conclusion of Section 6A hearings

Hearings in a batch of petitions challenging the constitutional validity of Section 6A of the Citizenship Act, 1955 have been concluded and the matter reserved for judgment.

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A five-judge Constitution Bench has concluded hearings in a batch of petitions challenging the constitutional validity of Section 6A of the Citizenship Act, 1955.

Today, the Bench heard the respondents complete their arguments as well as the rejoinder statements of the petitioners.

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.

Affidavit by the Union government

Based on the directions passed by the Supreme Court at the previous hearing, on December 7, the Solicitor General of India Tushar Mehta read an affidavit on behalf of the Union government.

According to the affidavit, 17,861 people who came to Assam from Bangladesh between 1966–71 were granted citizenship. Further, it states that 32,381 persons were declared foreigners by the Foreigners Tribunal during the same period.

Reading from the affidavit, Mehta highlighted that 14,346 foreign nationals were deported from India between 2017–22.

The affidavit submitted that on account of the entry of illegal immigrants "in a clandestine and surreptitious manner", it was not possible to collect accurate data on illegal immigration into Assam.

The affidavit lists the steps taken by the Union to deal with illegal immigration. These include allocation of ₹122 crore for the functioning of Foreign Tribunals, monitoring of deportation and convening of periodic meetings to review enforcement of relevant legal provisions.

The affidavit states that of the 263 kilometres of border shared by Assam with Bangladesh, 210 kilometres have been covered by a fence and the remaining non-feasible length is monitored through "technological solutions".

Fluid citizenship for the eastern border

Senior advocate Sanjay Hegde, appearing for the respondents, stressed the existence of "fluidity in the identification of Indian citizenship".

According to Hegde, while the cut-off date for citizenship was clearly and visibly drawn on the western border of India, it was kept deliberately fluid on the eastern border.

Hegde pointed out that during a debate on citizenship in the Constituent Assembly, a permit system was introduced from July 19, 1948 for dealing with persons who left for Pakistan and subsequently returned from Pakistan to India.

Under the permit system, people from Pakistan were allowed to resettle permanently in India, Hegde added.

Hegde submitted that Article 5(b) of the Constitution deals with the citizenship of persons who after going to Pakistan returned to India. If a person has come based on a permit issued for resettling or permanently returning, they alone would be entitled to become a citizen on the date of commencement of the Indian Constitution, Hegde highlighted.

Hegde submitted that the Parliament was subsequently granted permission to make provisions for the grant of citizenship after the commencement of the Constitution.

Secondly, Hegde argued that Indian citizenship is not ethno-nationalist, that is, it is not based on language, culture or religion.

"There is no superior or inferior citizenship based on the ancestry of any type," Hegde contended.

No rights of petitioners violated

Senior advocate Chander Uday Singh, representing respondents argued that the petitioners are urging taking away the rights of people who have become citizens through naturalisation and birth.

Referring to a Constitution Bench judgment, Singh argued that since third-party rights have accrued, the petition under Article 32 of the Constitution cannot be entertained.

According to Singh, "Section 6A does not violate Article 14 of the Constitution but is a step forward to determine the legalisation of foreigners as per the Assam Accord."

Singh sought to emphasise that the grant of citizenship to a class of persons under Section 6A does not violate the right to equality of the petitioners.

In the context of continuous friendly relations with Bangladesh since its inception, the political statement (of Assam Accord) provided a form of naturalisation to recognise those displaced persons who have resided in India for a long period of time.

Singh submitted that between 2014 and 2021, a large number of measures have been taken to implement the other provisions of the Assam Accord, including border fencing, beefing up of security and installation of searchlights.

Further, Singh stated that the "alarmism" of the number of displaced persons or the infiltration from Bangladesh, as pointed out by the petitioners, is not rooted in reality.

In addition, Singh argued that even as early as the 19th century, there were Bengali settlements in Assam, where Bengali was made the official language of Assam by the then British Empire for a certain limited period.

Thus, Singh sought to highlight that the alarmism or friction of Bengalis settling in Assam needs to be seen in its proper historical background.

Section 6A was introduced to restore peace

The background and events which led to the agreement of the Assam Accord was argued on behalf of the All Assam Students Union.

The counsel shone light on the widespread political unrest in Assam during the six-year period of 1979–85, which led to the Assam Accord.

"Section 6A was introduced to restore peace and normalcy in Assam," she added.

The counsel sought to explain that in 1965, East Pakistan was gripped with violence and there were massacres, causing many to escape to India. This population was then included in the electoral rolls in 1967.

On the continued infiltration of immigrants to Assam, the counsel referred to the reference Order of Assam Sanmilita Mahasangha and Others versus Union of India.

In particular, the counsel referred to the paragraph where the division Bench, comprising Justices Ranjan Gogoi and Rohinton Fali Nariman, had passed directions on border fencing on the Indo-Bangla border, Foreign Tribunals and the mechanism of deportation of illegal immigrants.

It was submitted by the counsel that, "The constitutional validity of a statutory provision cannot be tested on the basis of faulty or inadequate implementation of the provision [Section 6A]."

Migration is a global issue

Senior advocate Salman Khurshid, appearing for the respondents Assam State Jamiat Ulama-i-Hind, emphasised the global phenomenon and prevalence of migration.

Khurshid submitted, "Migration issue is a global issue, which has continued in Assam for centuries."

According to Khurshid, concerning the eastern border, there was a constant movement of people from one part of Bengal to another. Assam was "collateral" to the issue since they did not want to impact the two parts of Bengal, he added.

Khurshid pointed out, "Bangladesh introduced its Constitution in 1972, and hence, in view of the cut-off date of March 25, 1971, under Section 6A of the Citizenship Act, there exists no gap."

Khurshid expressed concern that a large number of people would become stateless if Section 6A is not upheld.

Referring to the affidavit filed by the Union government, Khurshid submitted that the number of immigrants is misrepresented since the migration figures are much less as compared to the figures presented by the petitioners.

Khurshid requested the Bench to consider whether the monitoring Bench is appropriate to deal with any issues that are indicated, instead of passing directions on future steps.

Core vagueness in Section 6A

In his rejoinder submission, senior advocate Shyam Divan, appearing for the petitioners, submitted that Section 6A(2) enumerates four conditions for the grant of citizenship to persons who migrated from Bangladesh to Assam.

Divan highlighted that the legislation has failed to provide a mechanism to evaluate whether a person falls within the four criteria for the grant of citizenship.

According to Divan, the net effect of the provision has resulted in the grant of citizenship to those immigrants who are as old as 57 but cannot establish 'Indian' ancestry.

"The system of criteria-less citizenship" is a "fatal flaw", Diwan submitted.

Further, Divan contended that Section 6A(3) does not prescribe a time limit for availing the benefits under the Act and applying for citizenship.

Referring to Section 6A as an "endless beacon", Divan stated, "It [the provision] is a magnet to attract illegal migrants to Assam".

In addition, Divan submitted that Section 6A is "unconstitutionally vague", since it fails to define a 'person ordinarily resident in Assam', a phrase which cuts across the entire fulcrum of Section 6A. 

He relied on the Supreme Court judgments in Harakchand Ratanchand Banthia versus Union of India (1969), Shreya Singhal versus Union of India (2015), Shayara Bano versus Union of India and Others (2017) to submit that, "The two issues of the absence of machinery and core vagueness makes the provision [of Section 6A] constitutionally infirmed."

On the provision being discriminatory, Divan emphasised that the communique between India and Bangladesh does not set out any justification for singling out Assam and the Union government's affidavit recognises the impact on all other border states.

The CJI remarked that the Parliament showed leniency for the grant of citizenship until 1966 since people had already been residing in Assam for the previous 19 years.

To this, Divan replied that even after the legislation relating to Section 6A was passed in 1985, the Union and state governments failed to take any steps, including conducting a census.

On the contention that it is State's duty to proportionately respond to a situation under international law, Divan argued that the minimum standards for those escaping violence, as provided under international humanitarian law, are short of citizenship. 

Limited powers of the Parliament

Advocate K.N. Choudhury, appearing for a second batch of petitioners, referred to a report by the home ministry.

From the report, Choudhury highlighted that the northeastern states comprise an estimated 12 million foreigners, and are striven with economic, political and ethnic clashes.

Further, it was also emphasised by Choudhury that the report says 32 percent of the constituencies in Assam are dominated by illegal immigrants.

According to Choudhury, the plenary powers of Parliament are subject to limitation. He claimed that Section 6A poses a security threat to the country, making its object unlawful and hence, liable to be struck down.

Choudhury submitted that the government has failed to address the issue and ought to formulate more stringent legislation.

Finally, it was stressed by Choudhury that all individuals who entered Assam after 1971 should be identified by an exercise and relocated to other states all over the country.

Senior advocate Vijay Hansaria, representing a third batch of petitioners, submitted that Article 6 of the Constitution provides conditions for the grant of citizenship to those who migrated to India after July 19, 1948.

The "open-ended clause" of Section 6A, which shifts the date from 1948 to 1966, marks a fundamental difference with Article 6 of the Constitution.

Choudhury highlighted that the Parliament's powers under Article 11 of the Constitution do not apply to persons covered under Articles 6 and 7 of the Constitution.

The matter has been reserved for judgment.